By Howard Hills
- Would Puerto Rico join the “National Popular Vote Interstate Compact” to impose national popular vote on Electoral College?
- Should states agree to nullify popular votes in states if different from national popular vote results?
- To participate in election of national vote winner will states give up right to vote against national winning candidate?
- Will enough states join pact to control Electoral College results as step toward its abolition?
- Will states that don’t join pact gain or lose influence in the politics of presidential elections?
National popular vote beguiles Americans
For constitutional traditionalists who see the Electoral College as a core strength of the great perpetual motion machine constantly redistributing political power throughout the nation, the idea of abolishing it is a step toward deconstructing the American system of constitutuional federalism. After all, the purpose of the Electoral College is to prevent the national popular vote from creating a permanent distribution of political power through an alliance of states controlling the presidency.
The apportionment of political power in the form of representation in the Electoral College and Congress allocated to states enables small, medium and large states to constantly align and re-align, combine and re-combine on different issues of common and separate interest. That adaptability and resiliency is what prevents the nation’s political cohesion from disintegrating.
Yet, when asked if a candidate with the highest number of votes in a U.S. presidential elections should win, around 70% of Americans say yes. After all, simple majority vote – or the highest number of votes among more than two candidates – is the most common rule of democratic process in American political culture.
It just naturally strikes Americans as only right that whoever gets the most votes gets elected. Super majorities of 2/3’s are required in special cases like an override vote by Congress after a presidential veto, or to amend the U.S. Constitution in Congress or the states.
But typically votes to elect officials or make laws in duly-constituted city, county and state legislative bodies, as well as the U.S. Congress, are decided by majority or multiple choice plurality rule. A majority of U.S. Supreme Court Justices must join or concur with a ruling for it to become the law of the land.
The election of the President by the Electoral College is the exception that for most Americans does not prove the rule.
To the contrary, for most Americans it seems counter-intuitive and outright undemocratic that the winner of the national popular vote in presidential elections can be the loser in the seemingly arcane rituals of the Electoral College.
Has Trump’s refusal to be a conventional Republican or Democrat driven America crazy?
People who do not accept and will not tolerate having Donald Trump in the White House have decided the effort to neutralize the Electoral College and eventually abolish it is the best way to show determination “we won’t let this happen again!”
The idea of states agreeing to send delegations to the Electoral College pledging to honor the national popular vote as a way to make the widely misunderstood and venerable old institution irrelevant is not new.
After George W. Bush was elected without a national majority in 2000, the National Popular Vote Interstate Compact was proposed and several states joined. Trump has accelerated the pace of new joiners. But there are many questions:
- Since states can opt in and out of the pact, does that complicate rather than simplify the election process?
- Can states really bind themselves legally to a pact that is political in purpose and not incorporated in federal law, if one or more other states decide it does not serve state interests?
- Will federal courts, Congress or the Electoral College itself enforce the pact if member states refuse to comply?
- If state pact overrides and de facto abolishes the Electoral College, and if choosing jointly or separately to oppose that result, what counter-measures can Congress and/or the President take?
Who elects presidents, individual voters or states?
Under the U.S. Constitution citizens eligible to vote in a state cast ballots in favor of presidential candidates in state elections recognized under federal law. State laws provide delegations from each state to cast votes for presidential candidates in the Electoral College based on popular vote in each state.
48 states have adopted “winner-takes-all” laws that send delegations to the Electoral College pledged to vote for the candidate who won the popular vote in each state. Two states send delegations pledged to the candidate who is a winner in each of the state’s Congressional districts. Then “winner-takes-all” applies to all remaining members of a state’s Electoral College delegation, who are pledged to vote for the state-wide popular vote winner.
This is how the U.S. as a republic sustains rule of law established by consent of the governed, expressed through democratically elected representation in Congress and the Electoral College. The scheme of representation in Congress ensures each state is equally represented in the Senate, and the number of voting representatives in the House is apportioned to states based on population.
The Electoral College is based on the same model of representation as Congress. Each state delegation to the Electoral College includes one contingent comprising an equal number of Electors allocated to all states mirroring the two U.S. Senate members allocated for each state in the upper camber of Congress. In addition, each state delegation includes a contingent of additional number of Electors apportioned among states based on population of each state, mirroring the representation of Congressional districts in the lower chamber of Congress.
In that manner the two co-equal elected branches of the federal government are constituted based on democratic elections among citizens who are eligible to vote in each state. There are no nationwide elections, only state elections for democratic election of representation in the two political branches of the national government. The Congress and President elected in that manner then exercise nationwide powers, limited by the rights of the states and the individual citizens of the nation under the federal constitution.
Accordingly, the right to vote for representation in Congress and the Electoral College is a right of U.S. national citizenship that can be exercised only in combination with the legal status and rights of state citizenship. That specifically includes eligibility to vote in federal elections based on legal residence, citizenship and eligibility to vote in a state of the union.
That is also why the 14th Amendment’s constitutionally conferred U.S. nationality, acquired by birth and naturalization in a state, was established under the combined National and State Citizenship Clause in Section 1 of that amendment to our nation’s charter. Before the 14th Amendment the only source of U.S. birthright citizenship citizenship by statutory “naturalization” of a non-citizen under federal laws enacted by Congress was the Uniform Naturalization Clause in Article I, Section 8 of the U.S. Constitution.
Since the 14th Amendment was adopted Congress retains its power under uniform naturalization laws to confer statutory birthright and naturalized citizenship on persons who do not acquire it by operation of the 14th Amendment based on birth in a state. Accordingly, federal law provides for U.S. nationality and/or citizenship for children to U.S. citizens or nationals born outside the states of the union. and children born in U.S. territories including Puerto Rico.
Puerto Rico statehood and National Popular Vote Interstate Compact (NPIVC)
Since the first elections for Congress and President in 1788 there have been a total of five national four year general elections in which the candidate elected President by the Electoral College did not also win the national popular vote. That result obtained in the election of 1824 (Adams), 1876 (Hayes), 1888 (Harrison), 2000 (Bush), and 2016 (Trump). 19 Presidents won less than a 50% plus 1 majority of the popular vote, but still won the White House with a plurality by virtue of garnering the highest number of votes.
After the U.S. Supreme Court ruled in favor of George W. Bush in the election of 2000, legislation to ensure the Electoral College must elect the candidate receiving the highest number of votes was introduced in all 50 state legislatures. The mechanism that has proposed and adopted by several states since 2007 is the NPVIC.
Under the NPVIC subscribing states agree that regardless of the popular vote in each participating state the delegation Electors from NPVIC states will case their votes for the candidate who has been certified to have won the national popular vote. At the present time (March 2019) a total of 12 states have adopted the NPVIC. Washington D.C. also has joined the pact. If Congress returns all of D.C. except the federal mall campus to Maryland (just as half of the original D.C. was returned to Virginia so its residents were fully represented in both Congress and Electoral College), or in the unprecedented event D.C. became a state, the 23rd Amendment would be obsolete.
The NPVIC must be adopted under the laws of each participating jurisdiction, but the compact does not enter into force organically until enough states have joined the compact to acquire the legal capacity to institutionalize its political and governmental purpose. That condition of critical mass is reached only when the compact states control in combination enough Electoral College votes to chose as President the candidate who wins the popular vote nationwide.
Currently that critical mass number is 270, but the 12 states that have adopted the NPVIC are entitled to send delegations of Electors to the Electoral College totaling 181 votes. That is 33.6% of the Electoral College votes and 67.0% of 270 votes needed for the compact to enter into force. Only then will the member states become enabled and obligated to send delegations to the next Electoral College.
As under current law that will remain in effect unless or until the NPVIC becomes binding, the compact state delegations will be pledged to cast votes for the candidate who gets the most votes nationally. Based on additional large state participation, the NPVIC could reach critical mass with just the 11 most populous states, which is one reason why former Delaware Governor Pete DuPont has criticized the compact as an “urban power grab” by states with major densely populated metropolitan demographics.
The traditional and historical operation of the Electoral College based on state majority vote accumulation rather than national popular vote will continue unless and until the subscribing states represent at least 270 votes. So far, all 12 of the states that have joined are “blue” states. These include Maryland, New Jersey, Illinois, Hawaii, Washington, Massachusetts, D.C., Vermont, California, Rhode Island, New York, Connecticut, Colorado.
But even if all remaining blue states subscribed it wouldn’t be enough to reach an Electoral College majority and trigger the NPVIC mechanism. Major blue and red swing states, also known as “purple” states, have influence because of their importance to both parties. These states may be reluctant to give up that influence by joining NPVIC.
If so, the only way to reach the 270 vote benchmark is to attract red states that so far remain constitutionally traditional in terms of state law on participation in the Electoral College.
Puerto Rico perspective
Puerto Rico has more U.S. citizens voters than around 20 states. Both national parties are highly competitive with increasingly strong track records of equivalence winning elections for state and federal elected office over the last four decades.
As such, Puerto Rico could become a swing state and have more political influence in Washington by not joining the NPVIC, particularly while it remains in a state of latency. If it enters into force then it may follow that all states will join and competition by parties and candidates seeking a national majority will become the new normal in American politics.
The impact that would have on the legal and political nature of statehood is unclear, but all states would be on an equal footing and retain equal rights of state sovereignty and participation in the political process through which the governed give consent to national law. Even so it remains to be seen if enough states will actually be willing to convert to a mechanism in which supremacy of state popular vote is abandoned in favor of supremacy of national popular vote.
As the newest state Puerto Rico might want to enjoy the prerogative of state sovereignty and participation in the Electoral College based on supremacy of state popular vote into the future, or at least as long as it remains viable to do so. Of course, if a candidate from Puerto Rico would have won for President or Vice President under the current Electoral College process, but loses under the NPVIC, that will be a pronounced and profound historical irony.
Howard Hills is author of Citizens Without A State and former counsel for territorial affairs in the Executive Office of the President and National Security Council.