By Peter Burrows 2/18/21 elburropete@gmil.com
Next November, Texans will vote on whether the Texas Legislature should develop a plan for reestablishing Texas as an independent country, something I wrote about in "Is America starting to break apart?" (2/8/21.) Texas could be just the beginning if the National Popular Vote Interstate Compact, hereafter the NPVIC, ever becomes law. Wikipedia has a long, very thorough explanation of NPVIC from which the following two paragraphs have been lifted:
"The National Popular Vote Interstate Compact (NPVIC) is an agreement among a group of U.S. states and the District of Columbia to award all their electoral votes to whichever presidential candidate wins the overall popular vote in the 50 states and the District of Columbia. The compact is designed to ensure that the candidate who receives the most votes nationwide is elected president, and it would come into effect only when it would guarantee that outcome.[2][3] As of February 2021, it has been adopted by fifteen states and the District of Columbia. These states have 196 electoral votes, which is 36% of the Electoral College and 73% of the 270 votes needed to give the compact legal force.
"----The project has been supported by editorials in newspapers, including The New York Times,[11] the Chicago Sun-Times, the Los Angeles Times,[15] The Boston Globe,[16] and the Minneapolis Star Tribune,[17] arguing that the existing system discourages voter turnout and leaves emphasis on only a few states and a few issues, while a popular election would equalize voting power. Others have argued against it, including the Honolulu Star-Bulletin.[18] Pete du Pont, a former Governor of Delaware, in an opinion piece in The Wall Street Journal, called the project an "urban power grab" that would shift politics entirely to urban issues in high population states and allow lower caliber candidates to run.[19] A collection of readings pro and con has been assembled by the League of Women Voters.[20] "
Whether the last two words in the first paragraph, "legal force," are a fact or a fantasy is yet to be determined. As it is now, the NPVIC is a blatant attempt to bypass the Electoral College, which in two recent presidential elections has elected a president who didn't receive a majority of the popular vote: Bush in 2000 and Trump in 2016. It was the 2000 election that started the NPVIC movement, and in 2007 Maryland became the first state to join the NPVIC.
The 2000 election was the first time in 112 years that the electoral vote differed from the popular vote, which was followed only 16 years later by another such outcome, and then four years later when it nearly happened again in 2020. I don't think this is just a chance thing; it's indicative of the new reality of a hopelessly divided America. (I include the recent 2020 election because while Biden allegedly won by 7 million votes, he could have lost the Electoral College vote with less than a million-vote switch in swing states.)
The 15 states now in the NPVIC include 8 East Coast states (I included Vermont); 4 West Coast (includes Hawaii); and 3 interior (IL, CO, NM.) As you might expect, all are considered "Blue" states, I.e., regularly vote Democrat. A Constitutional amendment requires approval of 75 percent of the states, which would be 38 states today, a formidable task. By contrast, the NPVIC needs only 18 to 25 states to reach its goal of 270 Electoral College votes, and they're well over halfway there. (It's 18 if both TX and FL join; an unlikely scenario.)
If and when that happens, the Compact is triggered and the states are supposed to cast their votes to the candidate who won the majority of the national vote, regardless of how their state voted, if that candidate would otherwise lose the election in the Electoral College. When that happens, the legality of the Compact will end up before the Supreme Court, where it will almost certainly be found to be unconstitutional.
ALMOST certainly. The Constitution does not require Electors to vote according to the popular vote in their state. Enforcement has been left to the states, where it is very lax and electors, with surprising frequency, don't always vote as they are supposed to.
In the 2016 election, for example, three of Hillary Clinton's electors voted for Colin Powell and one for XL Pipeline protester, Faith Spotted Eagle. They were fined $1,000 each and last year the Supreme Court, in a 9-0 decision, upheld the fines. As Justice Kagan wrote in her opinion, supported by Justice Thomas, "The Constitution's text and the nation's history both support allowing a state to enforce an elector's pledge to support his party's nominee and the state voters' choice for President."
If the NVPIC ever gets in front of the Supreme Court, the question would then be if a state also has the authority to direct the electors to vote in OPPOSITION to the state's voters' choice for president. I expect such a Supreme Court challenge long before the NPVIC hits its 270 goal. Republicans in one or more of those states will want to determine if they should bother to vote at all.
Regardless, the Electoral College is probably doomed, one way or another. It's always been the most contentious part of the Constitution, gathering over 700 attempts to change it over the years, and it has never had public support. Interestingly, the latest Pew poll has 55 percent of the voters in favor of abolishing it, which is down from 71 percent in 1981. I would guess that some people are starting to worry about an "urban power grab."
The Texas referendum will be closely watched, but it could be that it's too late for Texas to secede. There are many new Texans from liberal states, and the Texans who live in urban areas may be just fine with an "urban power grab." That wouldn't be the case for The New Republic of North America. More about that hypothetical, but possible, new nation in the next article.