Candidate with most votes nationwide should become President ‌ ‌ ‌ View as web page - For easy sharing In this email, we address some questions about the constitutionality of the National Popular Vote law. video THE INTENT OF THE FOUNDERS The system of electing the President that we have today was definitely not the Constitutional Convention’s intent. The idea of electing presidential electors on a winner-take-all basis in a statewide popular election was not even debated by the Constitutional Convention or mentioned in the Federalist Papers—much less included in the Constitution. ISN'T A CONSTITUTIONAL AMENDMENT NEEDED? The National Popular Vote bill will guarantee the Presidency to the candidate who receives the most popular votes in all 50 states and the District of Columbia. Some defenders of the existing system have argued that the National Popular Vote compact is unconstitutional because it is being enacted as a state law by state legislatures—instead of as a federal constitutional amendment. However, this argument ignores Article II of the Constitution, which says, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” Existing winner-take-all laws were enacted by each state legislature using its power to choose the method of selecting the state’s presidential electors. These existing state laws are not part of the U.S. Constitution, and were never enacted as a federal constitutional amendment. Only three states used winner-take-all laws in our nation’s first presidential election in 1789. All three repealed their winner-take-all laws by 1800—thus making it clear that winner-take-all laws can be repealed in the same way that they were originally enacted—namely by action of the state legislature. Massachusetts has changed the way it allocates its electoral votes 11 times over the years, and North Carolina four times. REJECTION BY CONSTITUTIONAL CONVENTION The 1787 Constitutional Convention debated and rejected numerous methods for selecting the President, including using state legislatures, governors, Congress, presidential electors elected by districts, and, yes, a national popular vote for President. However, after debating and rejecting numerous alternatives, the Convention decided not to put any particular method in the Constitution, but, instead, gave each state legislature the exclusive and plenary power to choose the method of choosing its presidential electors. A majority of the presidential electors who chose our first seven Presidents were chosen by methods that were specifically rejected during the debates at the 1787 Constitutional Convention. IMPLIED LIMITATIONS ON STATES Some defenders of existing state winner-take-all laws see an implied restriction in Article II’s use of the word “state”—saying that the “state” would not be appointing the electors if nationwide vote totals were used. However, Nebraska and Maine currently elect presidential electors from areas other than the state—namely congressional districts. These areas are, of course, not even units of government—much less the state. Moreover, states elected presidential electors from districts as early as our nation’s first presidential election in 1789, and the Supreme Court specifically upheld such state laws in 1892 in McPherson v. Blacker, saying: “The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket [winner-take-all rule], nor that the majority of those who exercise the elective franchise can alone choose the electors.” And the Supreme Court said in July 2020: “Article II, section 1’s appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint.” (Chiafalo v. Washington) REPUBLIC versus DEMOCRACY The United States is a “republic”—not a “democracy.” Some have argued that a nationwide vote for President would violate the Constitution’s guarantee of a republican form of government. This claim ignores the definition of “democracy” and “republic” used by the Founders (and still used today), namely that “in a democracy, the people meet and exercise the government in person” (as in an New England town meeting), whereas in a republic “representatives and agents” administer the government (Federalist No. 14, Madison). Moreover, popular election of the chief executive doesn’t mean that a government is not a republic—as evidenced by the fact that five states elected their chief executives by popular vote at the time the Constitution was written. 10th AMENDMENT In their attempt to uncover previously undetected constitutional restrictions on the states, opponents overlook the 10th Amendment which reserves to the states and people all powers not prohibited to the states by the Constitution. In 2020, Supreme Court Justices Thomas and Gorsuch wrote: “When the Constitution is silent, authority resides with the States or the people. … Powers related to electors reside with States to the extent that the Constitution does not remove or restrict that power. Thus, to invalidate a state law, there must be something in the Federal Constitution that deprives the [States of] the power to enact such a measure.” (Chiafalo v. Washington) CONCLUSION The National Popular Vote compact is a constitutionally conservative, state-based approach that does not alter the Constitution or violate the Constitution. LEARN MORE video on constitutionality detailed discussion of constitutionality One-page description of National Popular Vote SUPPORT NATIONAL POPULAR VOTE With state legislators up for election on November 3 in almost every state, this is a great time to send them an email asking them to support the National Popular Vote bill. 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