I'm not sure that I agree with this sentiment. On its surface, the National Popular Vote Compact does seem to be constitutional, but only if Congress consents.
The Compact contemplates neither multiple or regional candidates. The proposal does not contemplate a popular third party candidate emerging in 2016 or thereafter. It is not inconceivable that a candidate could win but two or three states, but do well across the country and win the presidency.
I think I just thought of a new flaw in this argument that I had not considered before.
The idea of 3rd party candidates (like Ross Perot) for instance, gave us President Clinton who did not win a majority of the national popular vote (he won a plurality), but he still got the needed 270 electoral college votes.
But what happens if a candidate wins the national popular vote but fails to gain 270 electoral votes?
The National Popular Vote Compact violates the 12th amendment by usurping the power of the House of Representatives to choose the President in the event that a candidate fails to reach 270 votes.
Imagine a scenario where the compacting states award their 270 votes to the plurality winning candidate, but that candidate, without the NPV Compact, would not have attained both a majority national vote and the required 270 electoral college votes.
With the NPV Compact, the compacting state will still award 270 votes to the plurality winner, which bypasses the 12th amendment power of the House to decide.
Would the House of Representatives, as a part of consenting to the Compact, agree to give away this power?
-PJ
Article II Section. 1 (As amended by the 12th Amendment)
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:
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.
The Electors shall meet in their respective States, and vote by Ballot for two Persons President and Vice-President, of whom one at least shall not be an Inhabitant of the same State with themselves.
And they shall make a List of all the Persons voted for 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 shall be the President for President, shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then 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 immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President, the President.
But in chusing 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.
In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice 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.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
The National Popular Vote bill would guarantee the presidency to the candidate who receives the most popular votes in the country.
When states with a combined total of at least 270 Electoral College votes enact the bill, the candidate with the most popular votes in all 50 states and DC would get the needed majority of 270+ Electoral College votes from the enacting states. The bill would thus guarantee the Presidency to the candidate who receives the most popular votes and the majority of Electoral College votes.
The bill has passed 33 state legislative chambers in 22 rural, small, medium, large, Republican, Democratic, and purple states with 250 electoral votes. The bill has been enacted by 11 jurisdictions with 165 electoral votes – 61% of the 270 necessary to go into effect.
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In elections in which the winner is the candidate receiving the most votes throughout the entire jurisdiction served by that office, historical evidence shows candidates do not win with small percentages. For example, in 905 elections for governor in the last 60 years, the winning candidate received more than 50% of the vote in over 91% of the elections. The winning candidate received more than 45% of the vote in 98% of the elections. The winning candidate received more than 40% of the vote in 99% of the elections. No winning candidate received less than 35% of the popular vote.
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In terms of recent presidential elections, the 11 largest states have included five “red states (Texas, Florida, Ohio, North Carolina, and Georgia) and six “blue” states (California, New York, Illinois, Pennsylvania, Michigan, and New Jersey). The fact is that the big states are just about as closely divided as the rest of the country. For example, among the four largest states, the two largest Republican states (Texas and Florida) generated a total margin of 2.1 million votes for Bush, while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry.
Oklahoma (7 electoral votes) alone generated a margin of 455,000 “wasted” votes for Bush in 2004 — larger than the margin generated by the 9th and 10th largest states, namely New Jersey and North Carolina (each with 15 electoral votes). Utah (5 electoral votes) alone generated a margin of 385,000 “wasted” votes for Bush in 2004. 8 small western states, with less than a third of California’s population,
provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).
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With the current state-by-state winner-take-all system of awarding electoral votes (not mentioned in the U.S. Constitution, but later enacted by 48 states), it could only take winning a bare plurality of popular votes in only the 11 most populous states, containing 56% of the population of the United States, for a candidate to win the Presidency with a mere 23% of the nation’s votes!