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‘National Popular Vote’ Scheme Aims To Erase Electoral College’s Protections For States

Maine is the latest entrant in the leftist interstate Popular Vote compact, but is the NPV an exercise in futility?

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By doing nothing, Maine Gov. Janet Mills helped strengthen the tyranny of the majority. 

The two-term Democrat this week took the coward’s way out, letting a controversial bill that brings Maine into the National Popular Vote Interstate Compact become law by not signing it. The bill earlier this month passed the state House of Representatives by just one vote — 73 to 72 — and Mills, critics say, is hedging her bets. 

“…[R]ecognizing that there is merit to both sides of the argument, and recognizing that this measure has been the subject of public discussion several times before in Maine, I would like this important nationwide debate to continue and so I will allow this bill to become law without my signature,” the Democrat said in a statement

Electoral College haters rejoiced, insisting that Maine brings proponents of the national popularity contest “one step closer” to ending the Founder’s ingenious system of electing presidents. But the constitutionally suspect compact will need much more than Maine to turn a long-time leftist dream into a reality. 

Battle for Big Blue States

Mills’ political inertia made Maine the 17th state to join the National Popular Vote Interstate Compact (NPVIC). Washington, D.C. also is a member. Under the agreement, member states would give all of their electoral votes to the candidate who wins the most votes nationally — even if a compact state overwhelmingly voted for another candidate. 

The winner doesn’t have to win a majority of votes, he just has to win the most. And there’s no runoff provision. So big blue state California and its 22.1 million registered voters (26.67 million eligible) becomes a coveted prize and outsized force in electing a president under the National Popular Vote system. So also for red state Texas and its nearly 18 million registered voters. 

“The votes of large states with major cities like California and New York will now dominate our Presidential elections at the expense of smaller, rural states,” the Maine GOP said in a statement. “If Mainers vote for a different candidate than the candidate winning the national popular vote, state electors will be bound to vote for the popular vote winner.”

The agreement is supposed to take effect when the number of states in the compact reaches the electoral vote majority (270). With the addition of Maine, the number of electoral votes ostensibly committed to the NPVIC stands at 209. The Pine Tree State currently is among two states that splits its electoral votes. 

Not surprisingly, the member states lean left, some harder than others. California and its 54 electoral votes is one of the members of the compact, joining in 2011, according to the National Conference of State Legislatures. New York brought its 28 Electoral College votes to the party in 2014, while Illinois (19) was one of the first states to pass and sign legislation in 2008. 

Gamemaker  

The National Popular Vote compact movement grew out the left’s animus for George W. Bush, the ignorance of the electorate, and the fortune of a lottery industry mogul.

San Francisco-based lottery scratch-card inventor John Koza and election attorney Barry Fadem lobbied for a way to water down the Electoral College, which they claim is inherently unfair. The left was up in arms following the 2000 election in which Republican George W. Bush won a majority of Electoral College votes but lost the popular vote. The rage meter snapped when political outsider Donald Trump did the same in 2016, beating swamp creature Hillary Clinton. 

The National Popular Vote organization was born in 2006, with Maryland becoming the first state to join the compact in 2007. 

Koza, chairman of the NPV, has long had a fascination with the founding electoral math. He developed and published an Electoral College board game in 1966. As activist tracker InfluenceWatch notes, Koza was the “co-founder and CEO of Scientific Games Inc., where he co-invented the scratch-off lottery ticket. During the 1980s, he teamed with lawyer Barry Fadem, his now-associate at NPV, to promote lotteries in various states across the country through citizen initiatives and in state legislatures.” He’s got lots of experience with interstate compacts. 

Koza has also spent millions of dollars on numerous Democrat campaigns, with his political generosity extending to the “Democratic National Committee and liberal organizations such as MoveOn and the National Progress Fund,” according to InfluenceWatch.

The Soros family has donated to his cause, as has the Stephen M. Silberstein Foundation, a funding spring for “nearly every major progressive policy and advocacy group in the U.S.,” according to Inside Philanthropy. Koza has also written checks to Republicans, as he chases allies in his quest to undo the checks and balances of the centuries-old Electoral College system. 

Koza’s latest game, however, draws from and depends on the anger of the electorate and a general ignorance of the U.S. Constitution, critics of the NPV say.

Constitutional Questions

The movement to upend the Electoral College isn’t a 21st-century phenomenon. Battles over the way Americans elect their president have been going on since George Washington. Hundreds of proposals have been introduced in Congress “to reform or eliminate the Electoral College,” according to the National Archives. A Pew Research Center poll in September says 65 percent of respondents supported canning the Electoral College for a national popular vote. 

Its advocates like to say the compact doesn’t get rid of the Electoral College, it improves it. The National Popular Vote “cleverly takes advantage of the Constitution’s grant of authority to state legislatures to determine how to allocate their electoral votes,” writes Trent England, a distinguished fellow at the Oklahoma Council of Public Affairs, which has tracked the progress of the populist drive to dilute the Electoral College system.

“For over a century, Electoral College opponents focused on amending the Constitution. National Popular Vote is a clever strategy and, at least on its surface, elegantly simple. Yet the benefits of the current Electoral College system have nothing to do with surface appeal. In fact, the debate over National Popular Vote exposes just how little most Americans (and many law professors and even politicians) understand the incentives created by the Electoral College that moderate and strengthen our political system.”

While proponents of the National Popular Vote insist it doesn’t infringe on the Constitution, constitutional law experts beg to differ. It would seem to infringe on the Compact Clause that prohibits states, “without the Consent of Congress,” from entering into “any Agreement or Compact with another State.” 

The NPV runs into many more constitutional quandaries, not the least of which is the 14th Amendment. Nullifying the votes of large swaths of voters isn’t something the Constitution takes lightly. 

“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,” Peter J. Wallison, who served as White House counsel in the Reagan administration, wrote last year in National Review. The electoral problems would also be a nightmare, Wallison contends, with the temptation to cheat in heavily populated states all the more appealing. 

In the main, the compact robs smaller states of the protections so long afforded under the Electoral College, giving them a voice in national politics and a defense against the tyranny of the big. 

Democrats for the Electoral College

While leftists have rallied around the National Popular Vote, some Democrats are strongly opposed to the compact. 

“The reason it’s popular is because it sounds good. People aren’t aware of the details,” said Jasper Hendricks, of Democrats for the Electoral College. He said he “served proudly” as a presidential elector for Hillary Clinton in 2016 in Virginia.

In testifying against the Maine bill, Hendricks noted that the compact seeks to bypass the constitutional amendment process, threatening democracy “by fostering instability and eroding trust in our political system.” 

“In Maine, this would mean overlooking your statewide and congressional district results and causing the interests of Maine’s people to be ignored by presidential candidates,” he said. 

But the movement to transform the state-by-state Electoral College system into the consolidated power of just a few election officials marches on. Compact proponents have their eyes fixed on Michigan, a state with a Democrat “trifecta” in government.

Compact opponents warn that Michigan risks trading its present influence as a swing state for a middling position, at best, in the national popularity contest. Nevada lawmakers are trying to bring a ballot issue on the NPVIC to voters, and compact advocates are heavily courting Pennsylvania and other swing states. 

But don’t look for changes to the Electoral College system anytime soon — certainly not in this presidential election cycle. And the game maker’s dream ultimately may just be an exercise in futility. 

“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,” Wallison wrote. 


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