One of the ways in which the left is trying to reconfigure the Constitution (Article 2, Section 1) without using the prescribed method outlined in Article 5, is the National Popular Vote Compact movement.
For reference: Constitutional Amendment Process
What is the National Popular Vote Compact? According to their website:
The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states and the District of Columbia.
It has been enacted into law in 13 jurisdictions with 181 electoral votes (CA, CO,CT, DC, HI, IL, MA, MD, NJ, NY, RI, VT, WA).
The bill will take effect when enacted by states with 89 more electoral votes. The bill is currently on the governor’s desk in Delaware and New Mexico.
It has passed one house in 8 additional states with 72 electoral votes (AR, AZ, ME, MI, NC, NV, OK, OR), including a 40–16 vote in the Republican-controlled Arizona House and a 28–18 in Republican-controlled Oklahoma Senate, and been approved unanimously by committee votes in two additional Republican-controlled states with 26 electoral votes (GA, MO).
It is my belief that this is simply a gutting of the intent of the Electoral College, although it retains the Electoral College and state control of elections as hollow shells. I also believe that it is legal. The Constitution leaves the method in which Electors of the various states vote up to the states. Unfortunately. A great deal is being made about how a democracy should use a popular vote to choose their chief executive, because it is more “fair” and each vote counts equally.
It is notable that neither the Declaration of Independence nor the U.S. Constitution mention the word “Democracy”. The United STATES of America is a Republic. The intent of such things as the Electoral College and the election of two senators for each state, regardless of population, was to equalize the power wielded by each state, regardless of its population.
There are other serious reasons to oppose this movement, not the least of which is that it would make voter fraud easier and more effective. If the National Popular Vote Compact had been in force in 2016, Hillary Clinton would be President of the United States of America, and we would be saying, “Madame President”.
A Facebook friend of mine who is more eloquent than I (he writes a weekly column for the Cape Cod Times), expressed his thoughts on it this morning:
One of the premises of the “Abolish the electoral college” crowd is that countries Americans most admire choose their presidents by national, popular vote. They don’t. Parliamentary systems vote for local representatives (roughly equivalent to our House of Representatives), then the party with the most members chooses a Prime Minister. Absent a majority, parties sometimes cobble together coalition governments. In neither case do rank-and-file voters elect a national candidate.
The European countries most adored by American lefties (Sweden, Norway, often the U.K.) are constitutional monarchies. The head of state is hereditary; only the head of government is elected. France is not a monarchy, but has a separate president and premier. In short, they all provide filters between the popular vote and the eventual result.
The American system empowers the American president with all three major positions: head of state, head of party, and head of government — all the more reason to have a filter between “the people” and “the power.”
Democracies have a lousy track record historically — a fact Americans need to be reminded of daily, perhaps hourly. Republics and parliamentary systems aren’t perfect, either, but at least they protect average citizens from the tyranny of a majority. The proverbial warning for that is “Two wolves and a lamb voting on what’s for dinner.”
For further reference, here is what the Constitution has to say about the election of the President and Vice President:
Article 2, Section 1, reads:
Clause 1: Executive Power
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
Clause 2: Method of choosing electors
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Clause 3: Electors
Note: The procedure outlined in Clause 3 was changed by the 12th Amendment in 1804, the text of which is as follows:
The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;
The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
Stella's Place 
As usual, the great minds on our side are doing nothing that we know of to keep non-leftist states viable in our national elections. The left is organized to destroy the Constitution, our Constitutional Republic and those who vote against leftist policies.
Frankly, I don’t have a clue how to counter this except for our side to begin on a daily basis to explain why electors are needed rather than the “popular” vote, and to explain plus make efforts to stop those states who wish to hollow out the regulations on how electors are allocated. Shame on the so-called red states which are joining in on this effort for the states to negate the intent of the Constitution and our founding fathers.
All we can hope for at this point is that not enough states will have signed away America by November 2020 thus enabling President Trump to be reelected. If they do have enough states which wish to force the left’s will on the people, then President Trump’s crazed opponent will be elected and we can kiss our Republic goodbye. There isn’t enough time to write up, have each state sign a Constitutional Amendment, and the people vote on it which puts federal election electors all in the category of being individually counted and the states having no say-so on how they are allocated.
There is no such thing any longer as the “loyal opposition.” The left will never be and has never been loyal to the United States and our Constitution.
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I don’t believe popular vote is legal, and under the opinion that what the Democrats are trying, isn’t only illegal, but unconstitutional.
Amendment 12 prescribes this:
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;-The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.
>>>>>(pay attention here)>>>>>> But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.<<<<<<<<<<<
And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President-The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
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Now with a refresher of the 12th….let's not forget our 10th….
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
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I know the text – it appears in the post. Now, tell me why you think the National Popular Vote Compact is unconstitutional. I would like to believe that it is, but I really don’t think it is.
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The section that you highlighted is only important IF no person has a majority of the Electors.
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The Framers were wary of giving the people the power to directly elect the President — some felt the citizenry too beholden to local interests, too easily duped by promises or shenanigans, or simply because a national election, in the time of oil lamps and quill pens, was just impractical.
Though the term is never used in the Constitution itself, the electors that choose the President at each election are traditionally called a College. In the context of the Constitution, the meaning of college is not that of a school, but of a group of people organized toward a common goal. In my opinion, any other method is unconstitutional as prescribed by the 12th.
The Electoral College insulates the election of the President from the people by having the people elect not the person of the President, but the person of an Elector who is pledged to vote for a specific person for President. Though the ballot may read “John McCain” or “Barack Obama,” you’re really voting for “John Smith” who is a McCain supporter or “Jack Jones” who is an Obama supporter.
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I know all of this. Now, tell me why the National Popular Vote Compact is unconstitutional.
I already know (and have said) that it is a bad idea, amounting to a gutting of the intent of the founding fathers.
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Can they do this without calling a Constitutional Convention?
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yes
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To be more specific, the Constitution does not tell the states how to choose their Electors or tell them how the electors must vote. If a state makes a law or passes a state constitutional amendment that pledges the Electors’ votes to the winner of the national popular vote, then that state has met its Constitutional obligation.
Tell me exactly how I am wrong about this.
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We the people, are not the Electors. We vote in the Electors…if they want to change that, that should be changed first, along with abolishing the 12th amendment and rid themselves of Senate and House…no sense in the people voting in representatives if they are not representing.
Put every piece of legislation up to the people to vote on. Do you have the time for that? I don’t. My elector does that for me…although I don’t always agree with their vote, they hit it right more often than not.
I’m not trying to prove you wrong. But I’m of the opinion if you change one aspect of the process, it’s going to need multiple changes and kills a process laid out in the constitution.
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I don’t think you are understanding me, or not reading, or something. I know what an Elector is, and I don’t understand why you aren’t comprehending.
I never suggested – anywhere – that “every piece of legislation” should be put “up to the people to vote on.”
Please explain to me – in plain English – why the National Popular Vote Compact is unconstitutional. That’s all I’m asking, and you aren’t answering.
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Stella, I’ve stated MY reasonings. If you don’t see them as legit reasons, then that is how you feel. If you feel it’s not unconstitutional, then feel that way.
I didn’t say you suggested anything about every piece of legislation…I did, as I feel that’s the logical direction it would take with a popular vote. Again, my opinion and one I’m not forcing you to buy into…I made the error in sharing my thoughts and opinion on your blog and lesson learned.
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I don’t see where you have given a reason why NPVC is legally unconstitutional. You said you think it is, and quoted the Constitution, but didn’t point out why, legally, you believe it is unconstitutional. Why, for example, the Supreme Court could find it to be unconstitutional.
I think I expressed why I believe it is not unconstitutional – the Constitution leaves it to the states to choose their Electors, and it doesn’t direct the states how the Electors should vote (meaning based on popular vote or otherwise.) We already know that Electors may choose NOT to vote in accordance with the popular vote in their state, and it is legal.
PS: You can’t force me to buy into anything, but I am trying, but failing, to understand your legal position. I’ll leave it there unless you think you can explain better.
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PS: I think you are confusing Electors with Representatives. They aren’t the same thing. At all.
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This is an interesting point.
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I think this will play out in the Supreme Court, you know that just as there are lawyers on the side of the ‘direct vote’ crowd there are those on the side of the ‘electors’. My my, where have I heard this recently, but it will be fought out around the ‘intent’ of the Founders.
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Shall we wager on what way Justice Robert’s Robe will blow?
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This is one of those issues that makes me wonder how any of them will vote…except RBG, I think she’ll vote ‘with cream and sugar, please’.
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And if you look at the map you’ll see the clearest example possible of ‘the tail wagging the dog’. California already dictates what buyers all over the country of many products have to put up with. California and New York influence civil and criminal law for much of the US and at some point will serve as the guiding light for how folks buried deep in the hearts of many red states must do about how they live and act.
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The states can pass laws requiring electors to vite for the winner of the popular vote with criminal and civil penalties if he does not. But he can still vote differently and his vote will count as he votes. The state can then punish him but the vote will still be valid as he voted, regardless of any state law which he may have violated.
A state law dies bot trump the language of the constitution which says the elector casts his own vote. If he violates state law it is between him and the state. Same with congress.
Only way to change it is to amend the constitution. Neither State legislatures or congress can change the constitution other than by amendment as proscribed in the constitution itself.
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