Tenth Amendment Center: Interstate Agreement Scheme to Elect President By Popular Vote Is Unconstitutional
There has been a strong push to do away with the Electoral College in recent years. One of the more interesting proposals is the “Agreement Among the States to Elect the President by National Popular Vote.” Not only does it attempt to circumvent the constitutional process of electing a president, it actually is effectively an attempt to amend how we amend the Constitution itself.
The advocates of this agreement claim that when a sufficient number of states sign on, the election of the president will be decided by the total number of votes, irrespective of the sates in which those votes were cast. The purpose of the agreement is to circumvent election of the president by the majority of the electoral delegates of all states in the Electoral College.
The number of electoral delegates is proportioned by the number of senators and House delegates in each state. The Constitution designed the presidential election process so that the majority of the electoral delegates can, in fact, on at least some occasions, seat a president who (intentionally) would not have a majority of the total votes. But under the Electoral College process, the nominee will always have a majority of states in proportion to their allowed number of congressional delegates. The electoral delegate method was selected by the framers of the Constitution in part so that a small number of states with larger populations could not elect a president who did not represent “the whole” of the country. The electoral delegates today still serve the exact purpose. The system of specifically selected electoral delegates remains an important part of what makes the U.S. constitutional system a representative government.
The advocates of the agreement note that there have been five elections in which the president was elected without a majority of the total votes cast. The advocates of the agreement, for whatever their own purposes, therefore want to eliminate this original part of the Constitution. But to properly amend the Constitution we must follow the Constitution’s Article V, which reads in part:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; …
There are therefore two processes to amend the Constitution. Either at least two-thirds of the states must propose a convention for amendments, or three-quarters of the states must agree to an amendment proposed by Congress.
The agreement advocates use neither of those constitutional amendment processes. Instead, it advocates that states should agree to a text called the “Agreement Among the States to Elect the President by National Popular Vote.” The Agreement Article 11-9 states:
This article shall govern the appointment of presidential electors in each member state in any year in which this agreement is, on July 20, in effect in states cumulatively possessing a majority of the electoral votes.
Their Article IV-1 states:
This agreement shall take effect when states cumulatively possessing a majority of the electoral votes have enacted this agreement in substantially the same form and the enactments by such states have taken effect in each state.
Agreement article 11-9 mandates a state accepting the agreement must appoint their electoral delegates in a manner that causes them to vote for whomever the majority of the popular vote selects. There is nothing in Article 11-9 that requires that states that together have “a majority of the electoral votes” be a collection of the states that equal either two-thirds or three-quarters of the states. In fact, nothing in Article 11-9 requires a state accepting the agreement to ratify any changes to the Constitution.
The agreement Article IV-1 has a similar impact: when a set of states whose votes are together at least a majority of the electoral seats, there is nothing in Article IV-1 that requires that this set of states having those votes be either two third of three quarters of the total states, and there is nothing in Article IV-1 that requires any of the states accepting the agreement to therefore ratify an amendment causing a change in how the Constitution’s Article V amendment process would be changed.
Thus, in simple form, the “agreement” is simply a way for a small set of states with large total population to circumvent the carefully conceived Electoral College process, and to claim that their large populations allows them to control the election of the president. It is exactly what the Electoral College was designed to prevent. Many previous attempts to revise the Constitution to allow election of the president by the most populous states have failed. This agreement is simply another such device.
The proponents of the agreement may believe they have a way to avoid the need for a constitutional amendment. The Constitution does allow for agreements among the states, subject to approval by Congress
In a delightfully long (over 1100 pages) document, the advocates of the agreement make many claims. Some might even be correct. For example while most U.S. states presently use some form of “winner take all” election to nominate the presidential electors of each state, based on the electoral results of that state — states can change those state-level processes. In fact, the agreement itself might initiate such change for those states that agree to it. The wondrous document also claims that if an interstate agreement does something, and another party is harmed, that harm alone would not give the “outsiders” the right to challenge the meaning of agreement. But that argument is false. Implementation of this agreement would directly violate constitutional provisions directing the how the president is elected.
The result of the proposed agreement under both its Article III-9 and IV-1 would be that states with a majority of the popular vote would have their will imposed. In effect, the states that are parties to the agreement would effectively elect the president. But Amendment 12 of the Constitution states that the votes of all states’ electors are counted, not just a select group of electors from select that signs an interstate agreement. If the result of following the agreement results in a different president then following the Constitution’s Amendment 12, then the electors of the states who did not accept the agreement will find their constitutional rights under the electoral college violated. All states are entitled to have Amendment 12 carried out, not the terms of an interstate compact.
In fact, the agreement would imply two different amendments to the Constitution. It implicitly amends the constitutional process for the selection of the president. But it also effectively amends how the constitution is itself amended. The agreement implies that any set of states can change the Constitution by simply forming a compact. The agreement itself does not say that, but if the proposed changes in election of the president were accepted, then theoretically any constitutional amendment could be done in this form.
And since any agreement among states also requires the approval of Congress, this also implies another change, or more likely uncertainly, on what percentage of congressional approval must be applied, if and when Congress seeks to approve this specific “Amendment” – is it a majority, or two-thirds, or three quarters? And, how is an amendment to change how to amend the constitution to be treated at all, if the document under which it is transmitted is not itself an instrument to amend the Constitution?
The potential excitement of the press on the subsequent Supreme Court action to uphold the text of the Constitution, under what seems to be a strongly originalist set of court members, might be exciting, but the outcome easily predictable. The agreement would fail, both for how to elect the president, as well as for changing how the Constitution itself is amended.
The advocates of the Agreement Among the States to Elect the President by National Popular Vote are engaged in a useless exercise.
Paul Ballonoff
July 25, 2018 at 12:12PM
