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A Conspiracy of States: Will the National Popular Vote Compact Undercut the Constitution?

Opposition to the Electoral College has been gathering a lot of steam, lately - and now more than a dozen states have joined together in an agreement that, if successful, would completely undermine the existing system for electing the president. But is this wise? And, just as importantly, is it legal? The short answer to both: no.

Perhaps no aspect of the American political system is as predictably misunderstood as the Electoral College. There are a number of reasons for this: for one, it plays no role in day-to-day life (except for one very particular day, every four years) and so (apart from renewed complaints about the system each time an election rolls around) is probably forgotten about more often than not; for another, as we will explore in greater depth, the reasons for its existence used to be more conspicuously reflected elsewhere in the political order; and, finally, the political expectations of the American public – along with virtually the whole western world – have been profoundly reshaped over the last century, in a way that makes the Electoral College seem unintuitive and even outrageous to the average person. None of this, however, means that the Electoral College is a bad or outdated institution. But, with the emergence of the National Popular Vote Interstate Compact, it does mean that the Electoral College is being threatened in a misguided attempt to fix what isn’t broken (or, perhaps more cynically, to score cheap political points or angle for partisan advantage).

States shown in green have approved the Compact, those in yellow are currently considering it

For any readers unaware, the National Popular Vote Interstate Compact (or “NPVIC”) is an agreement between a number of states – currently fifteen – and Washington, D.C. to award their electors to the winner of the nationwide popular vote rather than to the candidate who carried each respective state. Until the signatories of the compact represent a big enough slice of the electoral pie to guarantee victory to the candidate who takes their votes, however, the states will continue to slate their electors normally. In effect, this means that a few more states joining the compact would theoretically kill the Electoral College entirely. (At the moment, the signatories of the compact represent 195 electoral votes, while in the current format, 270 electors secure victory in a presidential race. However, there are bills on the floor in enough states to push the NPVIC over the top.) It is our opinion that this would be a terrible misstep, and one that appears all too likely to come to fruition.

Why does the Electoral College exist? One of the common refrains in the discussion of the Electoral College is something like, “There’s no reason to do it this way, why isn’t it just that the winner is the one with the most votes?” Sadly, the answer to this question ought to be very obvious, and the fact that, to many Americans, it isn’t demonstrates how little we care about the fundamental political principles of our society. Simply put, the President isn’t decided by the national popular vote because the United States is not a democracy, but a federal republic. Both of those terms – federal and republic – are vitally important, but we’ll deal with them in reverse order.

Republicanism, not democracy What is a republic? Etymologically speaking, a republic is a political order in which politics are a matter of public concern, rather than the domain of powerful private persons. (The word comes from the Latin phrase res publica, “public thing.”) Thus, instead of politics revolving around landowning nobility, in a republic the people are integrally involved. But the word “republic” carries additional meaning beyond this – namely, it entails that, although political power is derived from the people, it is exercised by their chosen representatives. In this regard, it is distinct from a democracy, in which the people also directly exercise political power. Thus, while there are some elements of a republic that may be described as “democratic,” it is not “a democracy,” which would require that all political decisions be decided by vote.

To this point, we have only been reviewing fairly elementary civics, and most of you reading will already know these things. Furthermore, very few critics of the Electoral College actually want a direct democracy – the drawbacks of deciding all political points via a national referendum are too obvious for any serious person to advocate for such a system. What they really want is for the system to be more democratic, or, in other words, to increase the influence of the democratic elements in the American political order. But to do so by dissolving or drastically undercutting the Electoral College would come at the cost of diminishing the federal character of the United States.

The unique demands of federalism So, what does it mean for a political system to be “federal”? A federal system is one in which a group of smaller political bodies (usually called “states”) unite under a common central authority while retaining a considerable degree of autonomy over their own internal affairs. Generally speaking, the central authority assumes responsibility for foreign relations and defense while most other things are left up to the states. If this sounds especially familiar, there’s good reason for that: the United States is an almost perfect textbook example of a federation. Indeed, it’s a concept that very much originated – in its mature, modern form – with the United States Constitution and one of our Founding Fathers’ most important contributions to posterity. And crucially, the federal principle is a core factor in the U.S. Constitution. The Constitution is, perhaps above all else, an effort to carefully balance the powers afforded to the federal government against those held by the states, and both against the rights of the American people, from whom all powers are fundamentally derived.

But, due in part to changes in the American education system (which has fallen increasingly under national, rather than state or local, control), awareness and appreciation of the federal principle are in the midst of a long decline in America. This is often misattributed to an increase of our technical capacity: whereas a journey from Pennsylvania to Massachusetts would have been long and arduous at the time of founding, today anyone could go from California to Maine in a matter of hours. Accordingly, some argue, the distinctness of the states has begun to fade a bit from common consciousness, and it makes less intuitive sense to many Americans that the states have a prominent part to play in law and politics.

However, this largely ignores the fact that there has been a real diminution in the power of the states: federal involvement in all manner of day to day life (usually permitted by some rather free interpretations of the Commerce Clause of the Constitution) has become the norm over the past century or so, and, even more significantly, the 17th Amendment directly reduced the role of the states by changing the manner in which Senators were elected. Many of you will likely not know this, but before 1913, Senators were chosen, not by a popular vote, but by the vote of the legislature of the state they represented. For those who were not aware, this is likely a shocking revelation, but the fact is that this system makes perfect sense under the logic of federalism: both the American people and the American states have an interest in the actions of the federal government, and accordingly both are entitled to representation. The House of Representatives was designated to represent the American people, and the Senate was designated to represent the states themselves. But the Progressive Era – the period of the late 19th and early 20th centuries marked by aggressive reformism in American politics – was no more a friend to the federal principle than those today who want to abolish or undercut the Electoral College. Accordingly, they opted to make both the House and the Senate organs of popular representation, substantially diminishing the role of the states.

Nowadays, one of the few ways in which the states themselves enjoy representation at the federal level is through the Electoral College: since electoral votes are proportional to total representation in Congress (that is, equal to the number of delegates in the House and the Senate), the fact that a state is a state grants it a bit more heft in a presidential election, given that each state has two Senators. While detractors insist that this is a flaw in the system, we submit that it is in fact a tremendous benefit: the states having their own standing and influence in politics makes it harder for unbalanced political programs to gain traction. A state whose economy depends in great part on agriculture will have different intrinsic priorities than one whose economy is mainly based on advanced services, finance, or tourism, and farmers do not deserve to be disadvantaged by the law simply because there are few of them (neither do gas station attendants, entrepreneurs, etc.). The natural diversity of the states, in conjunction with the Electoral College, is one of the ways the American system attempts to prevent the abuse of small interest groups by larger ones.

A map of the electoral votes apportioned to each state as of the 2020 election. Darker coloration indicates a greater number of votes.

Hostility to the electoral system As we have seen, critics of the Electoral College usually attack it on the basis that it is not “democratic.” However, this is an oversimplification, since the democratic principle is obviously a huge part of the electoral system – every state in the union has opted to use a model where popular votes in each state determine the way electors are committed, and more populous states are inherently weighted more highly. Rather, the problem, as they see it, is that the system is not purely democratic, with the ideal being expressed as “one person, one vote.” As proponents of a national popular vote often argue, there is something very intuitive about such a system, at least at first blush. This raises the question: why did the architects of the Constitution not employ this same reasoning? Cynics of various stripes will probably claim that they did so in order to protect the interests of wealthy men, or because they were inveterate elitists, or patriarchal chauvinists, or any number of other nasty things. If, however, we do them the service of taking them at their word, we must conclude that they thought there were clear dangers in a society in which the democratic principle was too strong.

Why the Founders settled on the electoral system They had good reason to think so. Prior to the United States, history could barely furnish a single example of a stable and effective republic that survived for any significant length of time. (Even the most famous example, the Roman Republic, which lasted for four hundred years, still ultimately collapsed into autocracy under the Caesars.) Democratic systems that are not extremely careful and thoughtful about establishing safeguards tend to dissolve into factionalism and collapse (again, the history of Rome is instructive, and that of Revolutionary France even more so). Moreover, the potential for abuses in unalloyed democracies are plain to see: as the witticism goes, democracy can (and very commonly does) degenerate into “two wolves and a lamb voting on what to have for dinner.”

A simple analogy suggests that “one person, one vote” has its limits. Imagine that two countries – say, Germany and Denmark – decide to join together in a federation of some kind (something not entirely unlike the European Union), and that they agree to choose their leader by a direct popular vote. One of the candidates campaigns on a pledge to have all property in the territory that was once the sovereign country of Denmark seized by the government and converted into golf courses, and to make it so that these golf courses can only be used by people who can pass a test administered in German. Presumably, all the Danish speakers will object to this – but Denmark has a population of a bit under six million. Germany has a population of more than eighty million. You can see where the Danes might want some kind of mechanism to dilute the “one person, one vote” principle just a bit.

Germany (center, red) has a population of just over 83 million as of 2020. Denmark (teal, just north of Germany) has an estimated population of 5.9 million as of 2022.

Of course, this is an absurd example, but it’s easy to see how the same sort of problem can happen very frequently, if the system does not include some recognition of the interests of minority groups. The basic problem remains the same in a less zany circumstance, and history is full of tragedies in which smaller groups within a country – whether ethnic, religious, or otherwise – have been tyrannized by the majority. The wolves, so to speak, very often have a taste for lamb.

Why has public sentiment turned against the electoral college? All of this was, in certain quarters at least, received wisdom for a very long time. So why did the tide of public opinion turn so thoroughly against the Electoral College? At its inception, it was fairly uncontroversial, and was, indeed, regarded as an elegant solution for balancing the claims of the whole American people against those of the individual states. It will not be possible to answer that comprehensively, but a clue may lie in the enormous increase in prestige that the word (and concept) “democracy” enjoyed in the 20th century. This is a crude method, but a glimpse at the frequency with which the words “democracy” and “democratic” appear in English-language print over time shows a startling trend. Both words are used increasingly after the mid-18th century, but both also absolutely explode in frequency in clusters around the World Wars.

The relative frequency of the word “democracy” over time in English-language print publications. Note the marked upward trend beginning in the 20th century and spiking during the World Wars. (The results for “democratic” - which you can see at the link above - are very similar.)

The reason is not terribly hard to divine – the easiest way to persuade young men to fight and die in horrific conditions far from their homes was to convince them they were fighting for a noble cause of some sort. World War I, however, had very complex causes that were hard to disentangle and were likely to be of limited appeal to the average eighteen year-old in England or America, who was probably not terribly interested in the internal politics of the Austro-Hungarian Empire. But, especially after Russia’s exit from the war, it was easy enough to cast it as a conflict between the (comparatively) “democratic” United Kingdom, France, and United States against the monarchist, authoritarian Germany and Austria. In actual fact, the western Allies were not democracies, and both the German and Austrian empires had at least limited popular representation - but propaganda rarely makes fine distinctions. (“Democracy” and “democratic” were used instead of “republic” and “republican” at least in part because the United Kingdom was literally and obviously not a republic, but a monarchy - albeit a constitutional one, with marked democratic elements. The term “republican” was also associated with separatists in Ireland, which did not gain its independence until after World War I.) The circumstances of World War II were even more conducive to this kind of rhetoric, for obvious reasons, and the heroic connotations of the word “democracy” have remained unquestioned and unquestionable in America ever since.

It would be excessively simplistic to argue that this alone accounts for hostility to the Electoral College, but it certainly goes some way to explain why it seems to have become more intuitive to oppose it than to support it. There are several other reasons, of course – not least that many believe a national popular vote would make it easier to promote their political agendas – but we do not have the space to exhaust them here.

The legality of the Compact All of the foregoing has served to establish why there are advocates for the NPVIC, and why they’re wrong, practically speaking. That aside, however, the question remains – is it even legal? To put it bluntly, no. Article I, Section 10 of the Constitution includes what is known as the “Compact Clause,” which reads in part, “No state shall, without the consent of Congress… enter into any agreement or compact with another state, or with a foreign power.” While some arguments have been advanced by people associated with or promoting the NPVIC that it does not qualify as a “compact” as comprehended by the Compact Clause, such a defense is tenuous at best.

In fact, “tenuous” is really quite generous. There can be no serious question that the NPVIC is an interstate compact (hence the name), and it is exactly the sort of compact the Constitution intends to guard against. The NPVIC would have the result of increasing the influence of certain states at the expense of others, and arguably sets up a rival political order to that envisioned by the Constitution. As we have noted, one of the few safeguards still afforded to states with interests that do not align with the majority of the country is the electoral college. The NPVIC all but destroys this, and makes it that much easier for populous and highly urban states to press their advantage on the political scene - all in the guise of advancing a more egalitarian system.

A republic, if you can keep it Though it is popular to make reference to the newness of American society in contrast with other countries, it is a striking and significant fact that the American state is one of the oldest continuous governments in the world, with few challengers outside a few microstates like Vatican City and a number of ambiguous cases where the vagaries of royal politics make it difficult to point to a true founding date. This is, in itself, an enormous achievement, and one that should not be taken for granted. As we noted above, republican and democratic political orders have been markedly unstable for most of history. France, whose history as a republic began after that of the United States (and was interrupted by several bouts of monarchy), is currently on its fifth republican system. Germany’s first attempt at a republican form of government ended disastrously, as the National Socialist Worker’s Party and its head – a fellow by the name of Hitler – exploited weaknesses in its constitution to subvert it and proclaim the Third Reich. Arguably, present-day Germany is the third iteration of a German republic, dating from the reunification of West and East Germany only about thirty years ago.

The United States Constitution has proved to be about as successful as any political document can be in preserving a political society, and this is made even more impressive considering the massive size of the U.S. in both territory and population, not to mention the diverse array of interests it includes. This ought to give us pause when we consider making sweeping alterations to its political systems. It is not easy to preserve a political machine, and the pages of history are littered with examples of failed schemes to replace a stodgy older system with a visionary new one. Often, such things end in blood. There is an old story about Benjamin Franklin – it’s not clear if it’s true or not, but it’s a good story nonetheless – that says a group of Pennsylvanians approached him as he left the Constitutional Convention. They asked him what sort of government the delegates had settled upon. As the story goes, he replied, “A republic, if you can keep it.”

Thus far, the American republic has been kept, though not without difficulty. One of the main reasons this is so, we submit, is that the system it is built upon does a magnificent job of honoring the legitimate claims of all the parties involved, including each individual state. The Electoral College is perhaps the most ingenious means by which the Constitution does so. The National Popular Vote Interstate Compact would run roughshod over the delicate balance the Constitution strikes between differing interests, not only those of the people and the states, but those of different segments of both. We urge you to do your part to keep the republic by making it clear to your elected representatives that you do not approve of their efforts to undercut the Constitution. For our part, we at the Lex Rex Institute stand ready and eager to answer the bell if and when it becomes necessary. If the NPVIC does come into effect - and, as we have noted, that is hardly a remote possibility, but looks all too likely - you can rest assured we will challenge it in court. When that day comes, we will need your help, and we humbly ask you to be ready for it.

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