July 31, 2022

A big part of the Progressive/Leftist push to “fundamentally transform” America is to shift us away from Constitutional governance and our traditional notions of Federalism towards a more national, top-down, bureaucratic, directly “democratic” model of governance. The National Popular Vote Interstate Compact (NPVIC) is one part of this effort. It is a shady plan and if it were ever enacted it would have our Founders rolling in their graves. As we will see in this article, it is certainly at odds with the intent of James Madison and his argument in Federalist #39 regarding the mixed federal/national character of our Republic.

The NPVIC is a proposed agreement among consenting states that, if enacted, would bypass the intent of the Founders and essentially achieve direct popular election of the President and Vice President. This would be done without a constitutional amendment; which ought to be required for such a change to our Constitution and federalist system. Proponents of the NPVIC suggest the Constitution’s grant of authority to the states
in Article II, Section 1 of the Constitution to appoint presidential electors “in such Manner as the Legislature thereof may direct…” is sufficient authority to initiate the compact. While states have authority to appoint their electors in a manner their legislatures direct, they logically and legally cannot do so in a manner that contradicts or alters other requirements and direction of the US Constitution and the verifiable intent of the Founders.

The “Compacts Clause” of Article I, Section 10 of the Constitution, which provides that “No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State” is one such possible impediment to the plan of NPVIC advocates. What types of compacts states may enter into without the consent of Congress has been the subject of much debate. Generally, they have been granted a lot of leeway, but the Supreme Court reiterated, in their US Steel Corporation v. Multistate Tax Commission (1978) decision, the test for the necessity of Congressional approval of interstate compacts found in Virginia v. Tennessee (1893), that while States may enter into interstate compacts, any such compact that “would enhance the political power of the member States in a way that encroaches upon the supremacy of the United States,” or compacts infringing upon ‘the political power or influence’ of particular states that “impairs the sovereign rights of non-member states” must gain consent of Congress to be valid. The Supreme Court also held in Texas v. New Mexico (2018) regarding interstate compacts that “Congress’ approval serves to ‘prevent any compact or agreement between two States, which might affect injuriously the interests of the others’” (quoting from the 1855 case Florida v. Georgia).

Such Supreme Court precedent indicates Congress is meant to approve compacts to protect both vertical (Federal-State) and horizontal (State-State) Federalism, especially when a case arises that has to do with compacts regarding “political consent,” (political subjects affecting federal interests or the interests of non-compacting sister states). This makes sense given the concerns of the Founders on the issue. No such case has come before the court to date but a challenge to the NPVIC would likely fall into this category. Of course, if a compact contradicts or erodes constitutional prescriptions in themselves, even Congressional approval would not justify the compact. A Constitutional amendment ratified via the constitutional process would be the only valid avenue. The NPVIC is therefore on shaky Constitutional grounds even if it becomes popular enough to gain necessary support.

So far, the NPVIC has been enacted into law by 15 states and DC, which combined have 195 electoral votes. The NPVIC is intended to go into effect if enough states join to secure a total of 270 electoral votes (a majority necessary to win in the Electoral College). If the compact ever goes into effect, a state that joined the NPVIC compact agrees that its legislature will award all the state’s electoral votes to the presidential candidate that wins
the most popular votes across the US, regardless of whether or not that candidate won the majority of votes in that particular state. In this way, proponents of the NPVIC intend to bypass one of the intended purposes of the Electoral College and the Founders’ selected process for choosing the President while not doing away with the Electoral College or amending the Constitution itself. Such an intent can only be described as a willful corruption to achieve a selfish end result at the expense of the integrity of the Constitution and the Rule of Law.

How the NPVIC Erodes Constitutional Checks and Balances and Contradicts the Intent of the Founders

NPVIC advocates preface their argument on the notion that a popular vote for the election of a President is more fair and superior to the current process. While they are entitled to their opinion on the subject, the merits of it are secondary to the argument of whether or not it is constitutionally, and therefore practically, possible for them to decide on their own. But their opinion being at odds with the intent of the Founders is definitely relevant, since the Founders set up the Electoral College the way it is for an important reason. The process for the selection of the President is a part of an elaborate system of checks and balances to create a country of both FEDERAL and NATIONAL character. This is the subject of Federalist Paper #39, written by Founding Father, and one of the chief authors of the Constitution, James Madison. Federalist #39 provides some substantive evidence necessary to prove that the way the Electoral College is set up is an important part of our federalist system. For some states to enter a compact with each other that alters it towards a more directly democratic system of their preference, contrary to the interests of (and without the consent of) other states, is a direct violation of the intent of the Founders, the Compact Clause, and the relevant Supreme Court precedents mentioned above.

In Federalist #39, when defining a Republic, Madison states that, “It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic.” This applies both to powerful minorities, and majority factions controlled by powerful interests that may conspire to suppress the rights, access, and representation of the minority; similar to his concerns about factions in Federalist #10. One of the concerns of the day when debating whether or not to approve the new Constitution was the matter of whether our new country would be a confederation of sovereign states with a FEDERAL character, or a consolidation of states under a NATIONAL form of government.

Among other ways, the election of Representatives, Senators, and the President are part of a system to be designed with both a NATIONAL and FEDERAL character. This was to share power between the people and the states, and give consideration to the interests of the many different groups across the nation; urban and rural, industrial and agricultural, rich and poor, heavily populated and scarcely populated, etc. The primary interest here is preserving the Union and sharing power to avoid some of the pitfalls evident with the previous Articles of Confederation, the observances of other “Republics” in existence at the time, as well as the lessons from the republics of history.

Specifically, regarding how the sources from which the ordinary powers of government are to be derived contribute to the mixture of a nation of both NATIONAL and FEDERAL character, Madison says,

“The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many FEDERAL as NATIONAL features.”

For a NPVIC-type system to take precedence in a presidential election, it would shift the balance clearly away from the intended FEDERAL/NATIONAL mix, more towards a NATIONAL consolidation contrary to the intention of the Founders. The compact would therefore be in violation of the Compact Clause because it would unilaterally shift the Federalist structure, it “impairs the sovereign rights of non-member states,” and threatens to “affect injuriously the interests of the others” (states) by diminishing their relative voting power in a Federal election.

The people that wish to “fundamentally transform” America usually fundamentally misunderstand it. As they continue to chip away at the Constitution and the principles of our Founding, they threaten that which has provided us with a vehicle to make real change towards a More Perfect Union. To argue that the Electoral College is unfair and ought to be amended is perfectly fine, but to try to weasel in a workaround through unconstitutional means is unacceptable. It threatens unity and stability. But what else can we expect from an ideological movement that often adopts “by any means necessary” as one of their slogans? Where there is Rule of Law and a system in place to facilitate change peacefully and virtuously, there is a means to change and achieve justice without resorting to dishonest tactics. We should reject them and uphold our cherished principles.