Breaking the Constitution – National Popular Vote Interstate Compact

Posted: May 03, 2014 12:01 AM

Just another group of New York lawyers:

“Let’s see if we can find a loophole in the Constitution of the United States and amend the Constitution without a Constitutional Amendment.”

“Let’s skip any vote required by Congress, let’s skip the required vote of the states and let’s skip a Constitutional Convention --- oh, and let’s not even ask the people of New York.”

Looking for a loophole. That is what we just love about lawyers, isn’t it?

Governor Cuomo has signed, on behalf of the people of New York, the National Popular Vote Interstate Compact. This Compact would result in the State of New York voting each of its electoral votes for the winner of the national popular vote regardless of the actual vote of the citizens of New York.

The Compact would become effective when and if states controlling 270 electoral votes, a number sufficient to elect the President, pass identical contractually binding legislation. State delegates in each of these states would thereafter be required to ignore their constituents and vote their state’s electoral votes for the winner of the national popular vote.

Without a vote of the people of New York, the New York legislature and the Governor agreed to essentially change the Constitution of the United States, risk the possibility that the State of New York will vote its electoral votes for a person other than the candidate selected by the people of New York and ultimately cause yet another presidential election to be decided by the Supreme Court of the United States.

There could be no greater irony than Governor Cuomo signing a bill to disenfranchise the roughly 13,000,000 million registered voters of New York. Ignoring all intellectual positions, the Governor must know that if in 2004, 59,300 Ohioans had voted for John Kerry instead of George W. Bush, Senator Kerry would have become President despite having lost the national popular vote by over 3 million votes. New York voted overwhelmingly (58%) for Mr. Kerry. If the National Popular Vote Compact had been in place, every New York electoral vote would have gone to President Bush and made him the President of the United States instead of Mr. Kerry.

This notion that a number of states controlling 270 electoral votes (theoretically possible with the approval of only 11 states) should be able, by a contract among themselves, affect a "poor man's constitutional amendment" to the Constitution of the United States is fascinating. This should be abhorrent to anyone with the slightest interest in the vitality and history of the Constitution. Such a plan would reduce the combined voting impact of the voters of Vermont, Wyoming, North Dakota and South Dakota in the presidential race to that of Brooklyn.

The Founders' conceptual framework for electing a President insured that urban voters of a few states could not totally control the selection of the President. Electing a President through a national popular vote would obliterate this concept.

Oh yes, the Compact is likely unconstitutional. Article 2 of the Constitution of the United States does allow each state legislature almost unlimited power to direct their electors in casting their electoral votes for President. However, two other articles of the Constitution individually and collectively trump Article 2.

First, Article 1 of the Constitution specifically prohibits agreements between States without the consent of Congress. While this clause has been judicially narrowed over time, it is unlikely that it has been narrowed sufficiently to allow the National Popular Vote compact without Congressional consent.

Second, this "poor man's constitutional amendment" is specifically designed to circumvent the Constitution. Without reservation, its sole purpose is to avoid the constitutionally necessary and likely unattainable requirement of ratification of this notion by three quarters of the states under Article 5. Would the Supreme Court allow such a result? I think not.

Under either Articles 1 & 5, separately and certainly collectively, the Supreme Court should hold the Compact unconstitutional. But here is the rub. First there would have to be an election, then there would have to be a lawsuit, then the Supreme Court would have to decide if the winner of a presidential election would be the winner according to the Constitution or via a loophole developed by approved by a bunch of New York lawyers. Then, instead of an election determined by the popular vote or the electoral system, the president would be determined by a majority of the then nine Supreme Court judges. Disaster!

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.

That any state legislature could be taking actions to approve a "poor man's constitutional amendment" rather than moving forward with a proper constitutional amendment as envisioned by the Founders is unacceptable. That any state legislature would consider ignoring their constituents' votes through their own affirmative action should be reserved for the fiction section of our local libraries.