Former Candidate: National Popular Vote Compact is Unconstiutional

By Dan Laschober

Before the ink had dried on the Electoral College votes which elected Donald Trump as our 45th president, the chattering class was aflutter over the idea of enacting the National Popular Vote Interstate Compact (NPV). In Groundhog Day (the movie) fashion, legislators across the country have drafted bills to enlist their states in the NPV folly. While I applaud those who want to educate the public, and I’m happy to debate its merits, I consider the NPV approach a bad idea in search of a problem. More importantly, this interstate compact is unconstitutional.

The NPV compact is an agreement to award all of the states’ electoral votes to the person who receives the most popular votes nationally in the presidential election. Ten states and the District of Columbia have adopted the compact, and once enough states join the accord and control the majority of Electoral College votes, or 270, the compact would be enacted. NPV bills have been introduced in the Oregon legislature in every odd year since 2007, and like clockwork, HB 2731 was recently introduced in the 2017 session.

This election cycle the hue and cry over the Electoral College is due to the fact Hillary Clinton received more popular votes than did Donald Trump without winning the presidency. Although it was a Democratic U.S. senator who recently introduced legislation to eliminate the Electoral College, according to the latest Gallup poll roughly half of Americans want to modify the U.S. Constitution in favor of the popular vote, including 19% of Republicans.

My view is arguments put forward by those who prefer the popular vote are unconvincing, and the real genius of the Founding Fathers shines through in an election such as we’ve just witnessed. The original intent of the Electoral College process is often debated, but our forefathers knew tyranny comes in many forms, including, and perhaps especially, the tyranny of the majority. In a nutshell, the Electoral College forces candidates to take positions that are less geographically and ideologically narrow than would be the case under the popular vote scenario.

Article II, Section 1 of the U.S. Constitution grants plenary power to state legislatures to determine how to award electoral votes, which is to say states may generally do as they please when awarding their electoral votes. The NPV agreement, however, is met head on by Article I, Section 10 (“The Compact Clause”) which requires Congressional approval of interstate compacts. Many NPV supporters argue it isn’t necessary to receive approval, but should Oregon eventually sign on to the agreement and see it implemented, the will of the people in Oregon—already expressed in a popular vote at the state level—would potentially be suppressed by voters in other states.

More simply, the NPV compact is unconstitutional on its face because its sole purpose is to avoid the need for a constitutional amendment to change the Electoral College process. So, despite the resistance to President Trump and despite demands for “electoral justice,” the Electoral College will live on absent an amendment. Ben Franklin, at the conclusion of the 1787 Constitutional Convention, responded to a question about what type of government we have, saying it’s “a republic, if you can keep it.” Fortunately, this newly introduced NPV bill will go where bills go to die, or Senator Courtney’s Rules Committee and the republic will endure.

Dan Laschober is a businessman and former candidate for U.S. Senate from Oregon.