Every Vote Equal is the title of a thick book which describes a state-based plan for electing the President of the United States by national popular vote—the National Popular Vote Interstate Compact (NPVIC). A casual look at this book—or the organization’s website—shows that the NPVIC is not a liberal partisan scheme. The Fourth Edition, published in 2013, has 15 forewords, all written by Congresspersons, and the majority by Republicans.
This book addresses 131 myths about the National Popular Vote Plan. I provide here a selected list of myths and responses about Constitutional concerns.
MYTH: A federal constitutional amendment is necessary for changing the current method of electing the President.
• The U.S. Constitution gives the states the “exclusive” and “plenary” power to choose the method of awarding their electoral votes.
• The shortcomings of the current system of electing the President stem from state winner-take-all statutes that award all of a state’s electoral votes to the candidate who receives the most popular votes within each separate state.
• The state-by-state winner-take-all method of awarding electoral votes is not in the U.S. Constitution. It was not debated at the Constitutional Convention. It was not discussed in the Federalist Papers.
• Only three states used the winner-take-all rule in the nation’s first presidential election in 1789 (all of which abandoned it by 1800). The Founders were dead for decades before the winner-take-all law became the predominant method of awarding electoral votes.
• Forty-eight of the 50 states use the winner-take-all rule today because it was enacted as a state statute in those states. The statute was enacted under the same provision of the U.S. Constitution being used to pass the National Popular Vote plan. It empowers states to choose their method of awarding their electoral votes.
• Winner-take-all statutes may be repealed in the same way they were enacted—namely, through each state’s process for adopting and repealing state laws. Therefore, a federal constitutional amendment is not necessary to change the state-by-state winner-take-all method of awarding electoral votes.
MYTH: The National Popular Vote compact would abolish the Electoral College.
• The National Popular Vote compact would preserve the Electoral College. It would not abolish it. It would not affect the structure of the Electoral College contained in the U.S. Constitution.
• The National Popular Vote plan is based on the power of the states to choose the method of awarding their electoral votes. The compact would replace existing state winner-take-all statutes with a different state statute, namely one that guarantees the Presidency to the candidate who receives the most popular votes in all 50 states and the District of Columbia.
MYTH: The National Popular Vote compact would encroach on federal sovereignty.
• The National Popular Vote compact would not infringe on federal sovereignty, because the power to choose the method of awarding a state’s electoral votes is exclusive state power.
MYTH: The National Popular Vote compact would encroach on state sovereignty.
• The National Popular Vote compact is an exercise by states of state sovereignty—not an encroachment.
• The U.S. Supreme Court has repeatedly ruled that the power to choose the method of awarding a state’s electoral votes is an “exclusive” and “plenary” state power.
• A state cannot encroach on state sovereignty when a state exercises one of its own “exclusive” and “plenary” powers.
MYTH: “Eleven colluding states” are trying to impose a national popular vote on the country.
• The theoretical possibility that the 11 biggest states (which possess a majority of the electoral votes) would get together to adopt the National Popular Vote compact is as unlikely as the possibility that these same 11 politically disparate states would get together and choose the President in a presidential election under the current system.
Current Situation: The National Popular Vote bill has been enacted into law in 16 jurisdictions possessing 196 electoral votes, including four small states (DE, HI, RI, VT), eight medium-sized states (CO, CT, MD, MA, NJ, NM, OR, WA), three big states (CA, IL, NY), and the District of Columbia. It will take effect when enacted into law by states possessing 270 electoral votes (a majority of the 538 electoral votes).
The bill will take effect when enacted by states possessing an additional 74 electoral votes.
