The National Popular Vote Idea Is Unconstitutional and Should Be Abandoned

By Peter J. Wallison

Tuesday, June 27, 2023

 

Conservatives have expressed legitimate concern about the National Popular Vote (NPV) project, an effort led largely by the Left to bypass the Electoral College and elect the president through a national popular vote.

 

This is not an effort to amend the Constitution, which would be enormously difficult. Instead, what the NPV seeks is an agreement or “compact” among the states, in which all the electoral votes of the participating states would be cast for the winner of the national popular vote, irrespective of who actually wins the electoral votes in each of the states that have joined the compact. For example, if California were in the compact (it is) and John Doe won the most popular votes in the national election, all of California’s electoral votes would be cast for Doe, even if Marilyn Moe had actually won the popular vote in California.

 

At the moment, legislatures in 16 states and the District of Columbia, with 205 electoral votes, have authorized their states to join the compact, so the approvals of states with an aggregate of only 65 more electoral votes are necessary for the compact to go into effect.

 

The latest target of the NPV movement is Michigan, which has Democratic majorities in its legislature. Michigan has 15 electoral votes, so if it joins the compact, states with only an additional 50 electoral votes are necessary for the compact to be activated at the next election.

 

Beyond the states that have authorized joining the compact (which can be reversed if the political balance in a state changes), there has been widespread editorial approval from the New York Times, the Los Angeles Times, the Chicago Sun-Times, the Miami Herald, and the Boston Globe, among others.

 

This all sounds rather troubling, and many conservative groups, particularly Hillsdale College in Michigan, have been warning about its dangerous implications. However, the fundamental idea behind the NPV is so flawed that it’s hard to believe it will ever actually be put it into effect once it is understood by the voting public. Moreover, even if it were adopted by enough states, it’s even more difficult to believe it would pass constitutional muster, as discussed below.

 

Accordingly — aside from the confusion the concept will initially produce — the Left is wasting its time and money pushing the NPV idea. Maybe that’s the only good thing about it.

 

Electoral Issues

 

Before getting to the constitutional issues, it’s useful to make clear the dangers to our democracy that are inherent in the NPV idea. If states with a sufficient number of electoral votes should join the compact, here are a few of the problems that would arise.

 

First, the arguments over who actually won a future election would never end. In the 1960 election, for example, John Kennedy won 49.72 percent of the popular vote, while Richard Nixon won 49.55 percent. But for the fact that the electoral vote was 303 to 219, we’d still be hearing that Nixon actually won. Then in 1968, the margin was 0.7 percentage points, Nixon getting 43.4 percent to Humphrey’s 42.7, but because the electoral vote was 301 to 191, there was no fight. The point here is that the relative certainty provided by the Electoral College over the years has preserved us from divisive disputes about who actually won a particular election.

 

Second, as these close elections imply, the benefits of cheating on votes will rise as the popular-election numbers get closer. In 1960, for example, Kennedy beat Nixon by 0.17 percentage points in the popular vote. If Nixon’s campaign could have found enough votes that had not been properly counted — sometimes in only one state — it could have changed the popular-vote outcome of the election. So, if popular votes are to be the barometer, it is likely that the most prolific cheaters will be rewarded. One might imagine what the world would be like if, say, in 2024 the GOP candidate were defeated nationally because of a historic outpouring of voters in New York City, Chicago, or San Francisco.

 

Thus, if the NPV were to go into effect, it would magnify the difficulty of electing a president without continuing controversy. This could be a serious problem for more than simply the United States. The duly elected president of the U.S. is an acknowledged world leader, and a continuing dispute about the president’s legitimacy would seriously disrupt world order.

 

Constitutional Issues

 

As bad as things would be in an election based on the NPV, the constitutional case against the NPV is even stronger than the electoral case. A good deal of the discussion around the NPV is devoted to whether the states can constitutionally create a compact on this subject without the approval of Congress. This is an interesting issue from a constitutional perspective, but it is irrelevant if the Constitution itself would bar the process that the NPV contemplates.

 

That is exactly what would happen when, under the NPV process, any citizen’s vote for an elector pledged (in turn) to vote for that voter’s preferred presidential candidate, would be nullified if all the state’s electoral votes are transferred to the winner of the national popular vote. If the NPV goes into effect, what will happen in this case is exactly what the language of the 14th Amendment forbids:

 

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . nor deny to any person within its jurisdiction the equal protection of the laws.

 

It can hardly be imagined that taking away a voter’s right to have a vote counted for the person he or she prefers for president is not abridging that person’s privileges and immunities under the 14th Amendment and the U.S. Constitution.

 

The Constitution, of course, contemplates that those who vote for a candidate who does not gain a majority of the popular vote in a particular state will not have had a role in directly electing the president, but that is how the Electoral College works, the benefits of which are described above. That voter, however, has an equal opportunity to elect a president with every other voter in the same state. The NPV nullifies the vote of every voter in a state that does not vote for the winner of the national popular vote.

 

Moreover, the same thing is true for voters in states that have not joined the NPV. These voters have voted for electors whose votes will not count toward the election of a president because other states have agreed to have their electoral votes committed to a candidate who won the popular vote. This could be especially egregious if that candidate did not actually win the popular vote in the states where a majority of the electoral votes, as provided in the pre-NPV Constitution, actually occurred.

 

If this is not clear enough, imagine a state that adopts a law — apart from the NPV — that says, “Irrespective of how the vote for president goes, this state’s electoral votes — by the direction of the state legislature — will be cast for the winner of the national popular vote.” That, of course, would be widely denounced, but it is not any different in concept from the NPV, except that it is not done as part of a multi-state compact.

 

Under the Constitution without the NPV in effect, each voter has an opportunity to vote for an elector who in turn would be pledged to vote for the presidential candidate favored by that voter. This right was certainly one of the privileges of citizens of the United States and without question is a right protected by the 14th Amendment. However, if that voter’s state has joined the NPV, that voter will have lost that right. No matter what candidate the voter prefers, the electors in that voter’s state will be required by the state’s law to vote for the candidate who has the most popular votes nationally.

 

The NPV, in effect, is a state law that takes from every voter in a state that joins the NPV compact — and in effect every other state that does not join the compact — the right to have his or her vote counted in that state toward the election of the president of the United States. Instead, under the NPV, the voters in any state that joins the NPV will, without any decision by the voter, be cast for electors who will vote for the presidential candidate who receives the most popular votes in the United States as a whole, and not even perhaps in the voter’s own state. This is as clear an example of a violation of the 14th Amendment as one is ever likely to see.

 

Under these circumstances, the National Popular Vote idea should be abandoned, at least until the 14th Amendment is repealed or the Constitution is amended to permit the election of the president through a national referendum.