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With the current system of electing the President, none of the states requires that a presidential candidate receive anything more than the most popular votes in order to receive all of the state's or district’s electoral votes. Not a single legislative bill has been introduced in any state legislature in recent decades (among the more than 100,000 bills that are introduced in every two-year period by the nation's 7,300 state legislators) proposing to change the existing universal practice of the states to award electoral votes to the candidate who receives a plurality (as opposed to absolute majority) of the votes (statewide or district-wide). There is no evidence of any public sentiment in favor of imposing such a requirement. In elections in which the winner is the candidate receiving the most votes throughout the entire jurisdiction served by that office, historical evidence shows that 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. Since 1824 there have been 16 presidential elections in which a candidate was elected or reelected without gaining a majority of the popular vote.-- including Lincoln (1860), Wilson (1912 and 1916), Truman (1948), Kennedy (1960), Nixon (1968), and Clinton (1992 and 1996). And, FYI, with the current system of awarding electoral votes by state winner-take-all (not mentioned in the U.S. Constitution, but later enacted by 48 states), it could only take winning a plurality of the popular vote in 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
Under National Popular Vote, every voter, everywhere, would be politically relevant and equal in every presidential election. Every vote would be included in the state counts and national count. National Popular Vote would give a voice to the minority party voters in each state. Now their votes are counted only for the candidate they did not vote for. Now they don't matter to their candidate. In 2012, 56,256,178 (44%) of the 128,954,498 voters had their vote diverted by the winner-take-all rule to a candidate they opposed (namely, their state’s first-place candidate). And now votes, beyond the one needed to get the most votes in the state, for winning in a state are wasted and don't matter to candidates. 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). In 2008, voter turnout in the then 15 battleground states averaged seven points higher than in the 35 non-battleground states. In 2012, voter turnout was 11% higher in the 9 battleground states than in the remainder of the country. If presidential campaigns now did not ignore more than 200,000,000 of 300,000,000 Americans, one would reasonably expect that voter turnout would rise in 80% of the country that is currently ignored by presidential campaigns.
The common nationwide date for meeting of the Electoral College has been set by federal law as the first Monday after the second Wednesday in December. With both the current system and the National Popular Vote, all counting, recounting, and judicial proceedings must be conducted so as to reach a "final determination" prior to the meeting of the Electoral College. In particular, the U.S. Supreme Court has made it clear that the states are expected to make their "final determination" six days before the Electoral College meets.
Most Americans don't ultimately care whether their presidential candidate wins or loses in their state or district . . . they care whether he/she wins the White House. Voters want to know, that even if they were on the losing side, their vote actually was directly and equally counted and mattered to their candidate. Most Americans think it would be wrong for the candidate with the most popular votes to lose. We don't allow this in any other election in our representative republic. In state polls of voters each with a 2nd question that specifically emphasized that their state's electoral votes would be awarded to the winner of the national popular vote in all 50 states, not necessarily their state's winner, there was only a 4-8% decrease of support. Question 1: "How do you think we should elect the President: Should it be the candidate who gets the most votes in all 50 states, or the current Electoral College system?" Question 2: "Do you think it more important that a state's electoral votes be cast for the presidential candidate who receives the most popular votes in that state, or is it more important to guarantee that the candidate who receives the most popular votes in all 50 states becomes president?" Support for a National Popular Vote South Dakota -- 75% for Question 1, 67% for Question 2. Connecticut -- 74% for Question 1, 68% for Question 2 Utah -- 70% for Question 1, 66% for Question 2 “The bottom line is that the electors from those states who cast their ballot for the nationwide vote winner are completely accountable (to the extent that independent agents are ever accountable to anyone) to the people of those states. The NPV states aren’t delegating their Electoral College votes to voters outside the state; they have made a policy choice about the substantive intelligible criteria (i.e., national popularity) that they want to use to make their selection of electors. There is nothing in Article II (or elsewhere in the Constitution) that prevents them from making the decision that, in the Twenty-First Century, national voter popularity is a (or perhaps the) crucial factor in worthiness for the office of the President.” - Vikram David Amar - professor and the Associate Dean for Academic Affairs at the UC Davis School of Law. Before becoming a professor, he clerked for Judge William A. Norris of the United States Court of Appeals for the Ninth Circuit and for Justice Harry Blackmun at the Supreme Court of the United States.
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. 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). 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!
The combined voting impact of the voters of VT, WY, ND and SD is politically irrelevant in presidential elections. Now campaigns are driven mostly by local concerns in OH and FL. With National Popular Vote, candidates finally would have to form broader platforms for broader national support. Elections wouldn't be about winning a handful of battleground states. Now political clout comes from being among the handful of battleground states. 80% of states and voters are ignored by presidential campaigns. Small state math means absolutely nothing to presidential campaigns and to presidents once in office. In the 25 smallest states in 2008, the Dem and Rep popular vote was almost tied (9.9 million vs 9.8 million), as was the electoral vote (57 vs 58). In 2012, 24 of the nation's 27 smallest states received no attention at all from presidential campaigns after the conventions.- including not a single dollar in presidential campaign ad money after Romney became the presumptive Republican nominee on April 11. They were ignored despite their supposed numerical advantage in the Electoral College. In fact, the 8.6 million eligible voters in OH received more campaign ads and campaign visits from the major party campaigns than the 42 million eligible voters in those 27 smallest states combined. Now with state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), presidential elections ignore 12 of the 13 lowest population states (3-4 electoral votes), that are non-competitive in presidential elections. 6 regularly vote Republican (AK, ID, MT, WY, ND, and SD), and 6 regularly vote Democratic (RI, DE, HI, VT, ME, and DC) in presidential elections. Voters in states that are reliably red or blue don't matter. Candidates ignore those states and the issues they care about most. Support for a national popular vote is strong in every smallest state surveyed in recent polls among Rep, Dem, and Ind voters, as well as every demographic group. Support in smaller states: AK -70%, DC -76%, DE --75%, ID -77%, ME - 77%, MT- 72%, NE - 74%, NH--69%, NE - 72%, NM - 76%, RI - 74%, SD- 71%, UT- 70%, VT - 75%, WV- 81%, and WY- 69%. Among the 13 lowest population states, the National Popular Vote bill has passed in 9 state legislative chambers, and been enacted by 4 jurisdictions.
Given the historical fact that 95% of the U.S. population in 1790 lived in places of less than 2,500 people, it is unlikely that the Founding Fathers were concerned about urban voters of a few states totally controlling the selection of the President.
The Republic is not in any danger from National Popular Vote. National Popular Vote has nothing to do with pure democracy. Pure democracy is a form of government in which people vote on policy initiatives directly With National Popular Vote, the United States would still be a constitutional 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.
Any attempt to appoint presidential electors after the people vote in November would be unconstitutional on its face (and subject to summary judgment) because (1) the Constitution gives Congress the power to establish the day for appointing presidential electors, and (2) existing federal law requires that presidential electors be appointed on a single specific day in each four-year election cycle (namely, the Tuesday after the first Monday in November). Therefore, no state may appoint presidential electors after the results of an election become known (under either the current state-by-state winner-take-all system or the National Popular Vote compact).
The National Popular Vote bill says: "Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term." Any attempt by a state to pull out of the compact in violation of its terms would violate the Impairments Clause of the U.S. Constitution and would be void. Such an attempt would also violate existing federal law. Compliance would be enforced by Federal court action There has never been a court decision allowing a state to withdraw from an interstate compact without following the procedure for withdrawal specified by the compact. Indeed, courts have consistently rebuffed the occasional (sometimes creative) attempts by states to evade their obligations under interstate compacts. An interstate compact is not a mere “handshake” agreement. If a state wants to rely on the goodwill and graciousness of other states to follow certain policies, it can simply enact its own state law and hope that other states decide to act in an identical manner. If a state wants a legally binding and enforceable mechanism by which it agrees to undertake certain specified actions only if other states agree to take other specified actions, it enters into an interstate compact. Interstate compacts are supported by over two centuries of settled law guaranteeing enforceability. Interstate compacts exist because the states are sovereign. If there were no Compacts Clause in the U.S. Constitution, a state would have no way to enter into a legally binding contract with another state. The Compacts Clause, supported by the Impairments Clause, provides a way for a state to enter into a contract with other states and be assured of the enforceability of the obligations undertaken by its sister states. The enforceability of interstate compacts under the Impairments Clause is precisely the reason why sovereign states enter into interstate compacts. Without the Compacts Clause and the Impairments Clause, any contractual agreement among the states would be, in fact, no more than a handshake.
The Constitution did not require states to allow their citizens to vote for president, much less award all their electoral votes based upon the vote of their citizens. Congressional consent is not required for the 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. 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." 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 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. It does not force the U.S. to completely change its form of government. Under state laws, enacting states will add up votes of all voters in each state and the candidate with the most popular votes wins the electoral votes of the enacting states. The candidate with the most popular votes from the wins, as in virtually every other election in the country. Presidents will continue to be elected with a majority of Electoral College votes, by states, as the Constitution mandates.
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