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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.
Prior to arriving at the eventual wording of section 1 of Article II, the Constitutional Convention specifically voted against a number of different methods for selecting the President, including ? having state legislatures choose the President, ? having governors choose the President, and ? a national popular vote. After these (and other) methods were debated and rejected, the Constitutional Convention decided to leave the entire matter to the states. Article II, Section 1: “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." The Constitution does not prohibit any of the methods that were debated and rejected. Indeed, a majority of the states appointed their presidential electors using two of the rejected methods in the nation's first presidential election in 1789 (i.e., appointment by the legislature and by the governor and his cabinet). Presidential electors were appointed by state legislatures for almost a century. As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all method is used by 48 of the 50 states. States can, and have, changed their method of awarding electoral votes over the years. The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding the state's electoral votes.
Any state that enacts the proportional approach on its own would reduce its own influence. This was the most telling argument that caused Colorado voters to agree with Republican Governor Owens and to reject this proposal in November 2004 by a 2 to 1 margin. If the proportional approach were implemented by a state, on its own, it would have to allocate its electoral votes in whole numbers. If a current battleground state were to change its winner-take-all statute to a proportional method for awarding electoral votes, presidential candidates would pay less attention to that state because only one electoral vote would probably be at stake in the state. If states were to ever start adopting the whole-number proportional approach on a piecemeal basis, each additional state adopting the approach would increase the influence of the remaining states and thereby would decrease the incentive of the remaining states to adopt it. Thus, a state-by-state process of adopting the whole-number proportional approach would quickly bring itself to a halt, leaving the states that adopted it with only minimal influence in presidential elections. The proportional method also could result in no candidate winning the needed majority of electoral votes. That would throw the process into Congress to decide. If the whole-number proportional approach, the only proportional option available to an individual state on its own, had been in use throughout the country in the nation’s closest recent presidential election (2000), it would not have awarded the most electoral votes to the candidate receiving the most popular votes nationwide. Instead, the result would have been a tie of 269–269 in the electoral vote, even though Al Gore led by 537,179 popular votes across the nation. The presidential election would have been thrown into Congress to decide and resulted in the election of the second-place candidate in terms of the national popular vote. A system in which electoral votes are divided proportionally by state would not accurately reflect the nationwide popular vote and would not make every voter equal. It would penalize states, such as MT, that have only one U.S. Rep even though it has almost 3 times more pop. than other small states with 1 congressman. It would penalize fast-growing states that do not receive any increase in their number of electoral votes until after the next federal census. It would penalize states with high voter turnout.
Maine and Nebraska use the congressional district winner method. ME and NE voters support a national popular vote. Dividing more states’ electoral votes by district winners would magnify the worst features of the Electoral College system. If the district approach were used nationally, it would be less fair and less accurately reflect the will of the people than the current system. In 2004, Bush won 50.7% of the popular vote, but 59% of the districts. Although Bush lost the national popular vote in 2000, he won 55% of the country's congressional districts. The district approach would not provide incentive for presidential candidates to campaign in a particular state or focus the candidates' attention to issues of concern to the state. With the 48 state winner-take-all laws (whether applied to either districts or states), candidates have no reason to campaign in districts or states where they are comfortably ahead or hopelessly behind. Nationwide, there were only 35 "battleground" districts that were competitive in the 2012 presidential election. With the present deplorable 48 state-level winner-take-all system, 80% of the states (including CA and TX) are ignored in presidential elections; however, 92% of the nation's congressional districts would be ignored if a district-level winner system were used nationally. In ME, the closely divided 2nd district received campaign events in 2008 (whereas its 1st reliably Democratic district was ignored). In 2012, the whole state was ignored. 77% of Maine voters support a national popular vote for President In NE, the 2008 presidential campaigns did not pay any attention to the people of its reliably Republican 1st and 3rd districts because it was a foregone conclusion that McCain would win the most popular votes in both of those districts. The issues relevant to voters of the 2nd district (the Omaha area) mattered, while the (very different) issues relevant to the remaining (mostly rural) 2/3rds of the state were irrelevant. In 2012, the whole state was ignored. 74% of Nebraska voters support a national popular vote for President. Awarding electoral votes by district could result in no candidate winning a majority of electoral votes. That would throw the process into Congress to decide. There are generally more close votes on district levels than states as whole. District elections increase the opportunity for error. The larger the voting base, the less opportunity there is for an especially close race.
The National Popular Vote bill has passed 33 state legislative chambers in 22 rural, small, medium, large, Democratic, Republican and purple states with 250 electoral votes, including one house in Arkansas (6), Connecticut (7), Delaware (3), The District of Columbia, Maine (4), Michigan (16), Nevada (6), New Mexico (5), North Carolina (15), Oklahoma (7), and Oregon (7), and both houses in California, Colorado (9), Hawaii, Illinois, New Jersey, Maryland, Massachusetts, New York, Rhode Island, Vermont, and Washington. The bill has been enacted by the District of Columbia (3), Hawaii (4), Illinois (19), New Jersey (14), Maryland (11), California (55), Massachusetts (10), New York (29), Vermont (3), Rhode Island (4), and Washington (13). These 11 jurisdictions have 165 electoral votes – 61% of the 270 necessary to bring the law into effect.
National Popular Vote is a nonpartisan coalition of legislators, scholars, constitutionalists and grassroots volunteers committed to preserving the Electoral College, while guaranteeing the presidency to the candidate who earns the most votes in all fifty states. The National Advisory Board of National Popular Vote includes former Congressmen John Buchanan (R–Alabama), and Tom Downey (D–New York), and former Senators David Durenberger (R–Minnesota), and Jake Garn (R–Utah). Supporters include former Senator Fred Thompson (R–TN), Governor Jim Edgar (R–IL), Congressman Tom Tancredo (R-CO), and former U.S. House Speaker Newt Gingrich (R–GA) Saul Anuzis, former Chairman of the Michigan Republican Party for five years and a former candidate for chairman of the Republican National Committee The Nebraska GOP State Chairman, Mark Fahleson Michael Long, chairman of the Conservative Party of New York State 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." The National Popular Vote bill would guarantee the presidency to the candidate who receives the most popular votes in the country, and the majority of Electoral College votes by replacing state winner-take-all laws (enacted by states after the Constitution) for awarding electoral votes. The Electoral College will continue to be the set of 538 dedicated party activists, who vote as rubberstamps for presidential candidates. 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 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 Senate, Republicans supported the bill 27–2; Republicans endorsed by the Conservative Party by 26–2; Democrats supported the bill 30–2. In the Assembly, Republicans supported the bill 21–18; Republicans endorsed by the Conservative party supported the bill 18–16.
A survey of New York voters showed 79% overall support for a national popular vote for President. By gender, support was 89% among women and 69% among men. By age, support was 60% among 18-29 year olds, 74% among 30-45 year olds, 85% among 46-65 year olds, and 82% for those older than 65. Support was 86% among Democrats, 66% among Republicans, 78% among Independence Party members (representing 8% of respondents), 50% among Conservative Party members (representUnder 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. The National Popular Vote bill concerns how votes are tallied. 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). The bill preserves the constitutionally mandated Electoral College and state control of elections. It ensures that every voter is equal, every voter will matter, in every state, in every presidential election, and the candidate with the most votes wins, as in virtually every other election in the country. 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). With National Popular Vote, every popular vote, everywhere would be counted equally for, and directly assist, the candidate for whom it was cast. Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states. The political reality would be that when every voter is equal, the campaign must be run in every part of the country. When and where voters matter, then so do the issues they care about most.
A survey of New York voters showed 79% overall support for a national popular vote for President. By gender, support was 89% among women and 69% among men. By age, support was 60% among 18-29 year olds, 74% among 30-45 year olds, 85% among 46-65 year olds, and 82% for those older than 65. Support was 86% among Democrats, 66% among Republicans, 78% among Independence Party members (representing 8% of respondents), 50% among Conservative Party members (representing 3% of respondents), 100% among Working Families Party members (representing 2% of respondents), and 7% among Others (representing 7% of respondents). - NationalPopularVote
In 2010, the New York Senate passed the National Popular Vote bill, with over two-thirds of both political parties supporting the bill in a 52-7 roll call. The vote was 22-5 among Senate Republicans (with 3 not voting) In 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 and Democrats favoring it by 26–2. Republicans endorsed by the Conservative Party favored the bill 17–7 In 2013, the New York State Assembly approved the National Popular Vote bill by a 100–40 margin. A total of 78 Democrats and 22 Republicans voted in favor of the bill. On March 25, 2014, the New York Senate passed the bill by a 57–4 margin, and the Assembly passed the bill 100–32. The bill sponsored by Republican Sen. Griffo and Democratic Assemblyman Dinowitz. In the Senate, Republicans supported the bill 27–2; Republicans endorsed by the Conservative Party by 26–2; Democrats supported the bill 30–2. In the Assembly, Republicans supported the bill 21–18; Republicans endorsed by the Conservative party supported the bill 18–16.
National Popular Vote can be adopted at the discretion of the states without an amendment. 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." Maine and Nebraska voters support a national popular vote. A survey of Maine voters showed 77% overall support for a national popular vote for President. In a follow-up question presenting a three-way choice among various methods of awarding Maine’s electoral votes, * 71% favored a national popular vote; * 21% favored Maine’s current system of awarding its electoral votes by congressional district; and * 8% favored the statewide winner-take-all system (i.e., awarding all of Maine’s electoral votes to the candidate who receives the most votes statewide). *** A survey of Nebraska voters showed 74% overall support for a national popular vote for President. In a follow-up question presenting a three-way choice among various methods of awarding Nebraska’s electoral votes, * 60% favored a national popular vote; * 28% favored Nebraska’s current system of awarding its electoral votes by congressional district; and * 13% favored the statewide winner-take-all system (i.e., awarding all of Nebraska’s electoral votes to the candidate who receives the most votes statewide). -- NationalPopularVote Maine and Nebraska were ignored in the 2012 presidential election. "Awarding electoral votes by a proportional or congressional district method fails to promote majority rule, greater competitiveness or voter equality. Pursued at a state level, both reforms dramatically increase incentives for partisan machinations. If done nationally, the congressional district system has a sharp partisan tilt toward the Republican Party, while the whole number proportional system sharply increases the odds of no candidate getting the majority of electoral votes needed, leading to the selection of the president by the U.S. House of Representatives. For states seeking to exercise their responsibility under the U.S. Constitution to choose a method of allocating electoral votes that best serves their state’s interest and that of the national interest, both alternatives fall far short of the National Popular Vote plan . . ." - FairVote
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