Oklahoma State Senator Rob Johnson: Legislative Fool

Between legislative sessions the Oklahoma House and Senate members can request studies be conducted on legislative issues. The House has a list and the Senate has a separate list. Reviewing these lists of studies can be very telling about the agendas of the legislators. They all seem to have their own issues they feel are important. Some are, some are ridiculous and some are dangerous.

Case in point. Senator Rob Johnson has requested an interim study with the subject, "Study the possibility of allocating Electoral Votes based on the National Popular vote." This won't be the first time that Sen. Johnson has attempted to change the way Oklahoma allocates electoral votes. Michael Bates has a post on Batesline titled "Legislative fools back national popular vote" in which he tells of Johnson and others in the legislature attempting to get a bill passed during the last session which would have subjected Oklahoma's electoral votes to the results of the national popular vote. Fortunately, it was never brought up for a floor vote.

Senator Johnson is not the only legislator in Oklahoma who has wanted to change our electoral vote allocation. He also introduced electoral vote legislation in 2011 and different legislators introduced it in the House in 2009 and 2007. These are continual attempts to get Oklahoma to join an interstate compact that would change the way electoral votes are awarded nationwide.

The electoral votes study, a study about taxing the use of 'e-cigarettes' and a study about smokers are the only studies requested by Sen. Johnson. Clearly, his pet issues are cigarettes and destroying the Electoral College. For someone with a law degree he apparently never learned about federalism, the intent of the Founding Fathers and the purpose of the Electoral College. Senator Johnson currently serves as Assistant Majority Floor Leader. He should be removed from any leadership position as long as he pursues this destructive course.

In addition to Oklahoma's electoral votes being affected by fraud in cities such as Chicago, New Orleans and Philadelphia as Bates points out in his post, awarding electoral votes to the winner of the national popular vote flies in the face of the federal system our Founders enacted and completely changes just who it is electing a President. With the national popular vote the people are essentially directly electing the President. Under the federal system in use for more than two centuries, the States elect the president. In Federalist Paper 39, James Madison wrote that "the immediate election of the President is to be made by the States in their political characters." Apparently, you can get a law degree without learning about this.

Johnson needs to read part of the Republican platform approved at the convention last summer. It reads, "We oppose the National Popular Vote Interstate Compact or any other scheme to abolish or distort the procedures of the Electoral College. We recognize that an unconstitutional effort to impose “national popular vote” would be a mortal threat to our federal system and a guarantee of corruption as every ballot box in every state would become a chance to steal the presidency.”

I have asked Dave Weston, Chairman of the Oklahoma Republican Party, if the party would support legislation that changes the allocation of electoral votes. He has not responded to my inquiry.

Article 1, Section 10 of the Constitution prohibits states from entering "into any Agreement or Compact with another State" without the consent of Congress. Should this popular vote interstate compact ever have enough states to be enacted I sincerely hope there will be a constitutional challenge to this foolishness. If not, then put some more nails in the federalism coffin.

In 1969, The U.S. House of Representatives voted for a national popular vote by a 338–70 margin. It was endorsed by Richard Nixon, Gerald Ford, and various members of Congress who later ran for Vice President and President such as then-Congressman George H.W. Bush, and then-Senator Bob Dole.

On June 7, 2011, the Republican-controlled New York Senate passed the National Popular Vote bill by a 47–13 margin, with Republicans favoring the bill by 21–11. Republicans endorsed by the Conservative Party favored the bill 17–7.

In May 2011, Jason Cabel Roe, a lifelong conservative activist and professional political consultant wrote in National Popular Vote is Good for Republicans: “I strongly support National Popular Vote. It is good for Republicans, it is good for conservatives . . . , and it is good for America. National Popular Vote is not a grand conspiracy hatched by the Left to manipulate the election outcome.
It is a bipartisan effort of Republicans, Democrats, and Independents to allow every state – and every voter – to have a say in the selection of our President, and not just the 15 Battle Ground States [that then existed in 2011].

National Popular Vote is not a change that can be easily explained, nor the ramifications thought through in sound bites. It takes a keen political mind to understand just how much it can help . . . Republicans. . . . Opponents either have a knee-jerk reaction to the idea or don’t fully understand it. . . . We believe that the more exposure and discussion the reform has the more support that will build for it.”

Former Tennessee U.S. Senator and 2008 presidential candidate Fred Thompson (R), former Illinois Governor Jim Edgar (R), and former U.S. Representative Tom Tancredo (R-CO) are co-champions of National Popular Vote.

National Popular Vote’s National Advisory Board includes former Senators Jake Garn (R–UT), and David Durenberger (R–MN) and former congressman John Buchanan (R–AL).

Saul Anuzis, former Chairman of the Michigan Republican Party for five years and a former candidate for chairman of the Republican National Committee, supports the National Popular Vote plan as the fairest way to make sure every vote matters, and also as a way to help Conservative Republican candidates. This is not a partisan issue and the NPV plan would not help either party over the other.

Rich Bolen, a Constitutional scholar, attorney at law, and Republican Party Chairman for Lexington County, South Carolina, wrote:”A Conservative Case for National Popular Vote: Why I support a state-based plan to reform the Electoral College.”

Some other supporters who wrote forewords to “Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote “ http://www.every-vote-equal.com/ include:

Laura Brod served in the Minnesota House of Representatives from 2003 to 2010 and was the ranking Republican member of the Tax Committee. She was the Minnesota Public Sector Chair for ALEC (American Legislative Exchange Council) and active in the Council of State Governments.

James Brulte served as Republican Leader of the California State Assembly from 1992 to 1996, California State Senator from 1996 to 2004, and Senate Republican leader from 2000 to 2004.

Ray Haynes served as the National Chairman of the American Legislative Exchange Council (ALEC) in 2000. He served in the California State Senate from 1994 to 2002 and was elected to the Assembly in 1992 and 2002

Dean Murray is a member of the New York State Assembly. He was a Tea Party organizer before being elected to the Assembly as a Republican, Conservative Party member in February 2010. He was described by Fox News as the first Tea Party candidate elected to office in the United States.

Thomas L. Pearce served as a Michigan State Representative from 2005–2010 and was appointed Dean of the Republican Caucus. He has led several faith-based initiatives in Lansing.

In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided).

In a recent Gallup poll, support for a national popular vote, by political affiliation, was:
53% among Republicans, 61% among Independents, and 71% among Democrats.
http://www.gallup.com/poll/150245/americans-swap-electoral-college-popular-vote.aspx

Support for a national popular vote is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in virtually every state surveyed in recent polls

Unable to agree on any particular method, the Founding Fathers left the choice of method for selecting presidential electors exclusively to the states by adopting the language contained in section 1 of Article II of the U.S. Constitution— “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .” The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

With the Electoral College and federalism, the Founding Fathers meant to empower the states to pursue their own interests within the confines of the Constitution. The National Popular Vote is an exercise of that power, not an attack upon it.

The Electoral College is now the set of 538 dedicated party activists who vote as rubberstamps for their party’s presidential candidate. That is not what the Founders intended.

The presidential election system that we have today was not designed, anticipated, or favored by the Founding Fathers but, instead, is the product of decades of evolutionary change precipitated by the emergence of political parties and enactment by 48 states of winner-take-all laws, not mentioned, much less endorsed, in the Constitution.

States have the responsibility and power to make their voters relevant in every presidential election. The bill uses the power given to each state by the Founding Fathers in the Constitution to change how they award their electoral votes for president. It does not abolish the Electoral College. Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have come about by state legislative action.

The National Popular Vote bill preserves the Electoral College and state control of elections. It changes the way electoral votes are awarded in the Electoral College.

Under National Popular Vote, every vote, everywhere, would be politically relevant and equal in every presidential election. Every vote would be included in the state counts and national count. The candidate with the most popular votes in all 50 states and DC would get the 270+ Electoral College votes from the enacting states. That majority of Electoral College votes guarantees the candidate with the most popular votes in all 50 states and DC wins the presidency.

Federalism concerns the allocation of power between state governments and the national government. The National Popular Vote bill concerns how votes are tallied, not how much power state governments possess relative to the national government. The powers of state governments are neither increased nor decreased based on whether presidential electors are selected along the state boundary lines, or national lines (as with the National Popular Vote).

With National Popular Vote, the United States would still be a republic, in which citizens continue to elect the President by a majority of Electoral College votes by states, to represent us and conduct the business of government in the periods between elections.

The current state-by-state winner-take-all system of awarding electoral votes maximizes the incentive and opportunity for fraud, coercion, intimidation, confusion, and voter suppression. A very few people can change the national outcome by adding, changing, or suppressing a small number of votes in one closely divided battleground state. With the current system all of a state’s electoral votes are awarded to the candidate who receives a bare plurality of the votes in each state. The sheer magnitude of the national popular vote number, compared to individual state vote totals, is much more robust against manipulation.

National Popular Vote would limit the benefits to be gained by fraud or voter suppression. One suppressed vote would be one less vote. One fraudulent vote would only win one vote in the return. In the current electoral system, one fraudulent vote could mean 55 electoral votes, or just enough electoral votes to win the presidency without having the most popular votes in the country.

The closest popular-vote election count over the last 130+ years of American history (in 1960), had a nationwide margin of more than 100,000 popular votes. The closest electoral-vote election in American history (in 2000) was determined by 537 votes, all in one state, when there was a lead of 537,179 (1,000 times more) popular votes nationwide.

For a national popular vote election to be as easy to switch as 2000, it would have to be two hundred times closer than the 1960 election—and, in popular-vote terms, forty times closer than 2000 itself.

Which system offers vote suppressors or fraudulent voters a better shot at success for a smaller effort?

Congressional consent is not required for the National Popular Vote compact under prevailing U.S. Supreme Court rulings. However, because there would undoubtedly be time-consuming litigation about this aspect of the compact, National Popular Vote is working to introduce a bill in Congress for congressional consent.

The U.S. Constitution provides:

“No state shall, without the consent of Congress,… enter into any agreement or compact with another state….”

Although this language may seem straight forward, the U.S. Supreme Court has ruled, in 1893 and again in 1978, that the Compacts Clause can “not be read literally.” In deciding the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the Court wrote:

“Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.

“The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee. His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta.”

Specifically, the Court’s 1893 ruling in Virginia v. Tennessee stated:

“Looking at the clause in which the terms ‘compact’ or ‘agreement’ appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.”

The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”

In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote:

“The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States”

The National Popular Vote compact would not “encroach upon or interfere with the just supremacy of the United States” because there is simply no federal power — much less federal supremacy — in the area of awarding of electoral votes in the first place.

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