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A short-sighted attack … part 3
Trent England • Apr 30, 2021

Previously I criticized arguments by columnist Scott Morefield that conservatives should, for purely political reasons, support the National Popular Vote interstate compact (NPV). He doubled down with another column, of which I rebutted the first half yesterday.

For the second half, Morefield brought in a ringer. He identifies Ray Haynes as a former chairman of ALEC but neglects to mention that ALEC has consistently opposed NPV. And Morefield says Haynes is a “supporter” of NPV but fails to note that he’s actually a paid spokesman for the group. So much for full disclosure.

Ray’s first claim is that barely any Americans actually live in cities, so we have no need to worry about big cities having too much power. His trick is to use city limits rather than metropolitan areas. Technically, the City of Los Angeles has 4 million residents, but when you include the clump of cities that makeup what most people think of as LA (technically this is called a Metropolitan Statistical Area or MSA), the population jumps to 13.2 million. New York City has 8.4 million, but there are 19.2 million people in its metro area.

Ray uses his method to calculate that “the 100 largest cities in this country have one-sixth of the total population.” But looking at metropolitan areas, the largest 39 MSAs contain fully half the population of the country. When you get to the largest 100, they contain more than two-thirds of the population.

Next, Ray dismisses the need for congressional consent of the NPV compact by misstating the Compact Clause as giving states “the power to form interstate compacts.” In fact, the Clause prohibits states from forming compacts (they would otherwise have that power, with no need of a grant in the Constitution, as sovereign states) unless they get consent from Congress.

He also argues that the NPV compact is obviously constitutional. This is always an interesting question: can a constitutional power (in this case, state legislative power to determine the manner of choosing presidential electors) be used to frustrate its constitutional purpose? And what are the outer bounds of exercising a constitutional power that has no explicit limits? If Ray is right and there are no limits at all, a state legislature could sell their electoral votes to the highest bidder, perhaps to China.

Ray also contends that a direct election, where stolen votes in Chicago could suddenly not just steal Illinois but the whole country, would have no effect on election fraud. He also maintains that there is zero risk of states allowing foreign citizens to vote in presidential elections. All this is possible but seems rather naïve.

Finally, Ray reimagines the American Founders as being vaguely supportive of a direct election of the president. It is true that a few of the Founders, a few times, spoke positively of the idea of a national direct election, but many more were opposed to the idea. Even as James Madison spoke positively of a popular election, he recognized the danger of large population centers (at the time it was big states, today it would be those big MSAs, which correspond to the major media markets) controlling the executive branch. And in fact, the default system considered at the Constitutional Convention was a parliamentary one—Congress would elect the president. A popular election was proposed as an alternative, but was even more unpopular than a parliamentary system, leading the Founders to create the Electoral College. (I tell this story in more detail in my book.)

The American Founders created our state-based selection process for president, which quickly evolved into the two-step election process we know today as the Electoral College. It is a fundamental part of our constitutional structure (no one has written better on this than the late Michael Uhlmann, who sparked my own interest in the Electoral College more than two decades ago). Conservatives, and all Americans, should support this system and look with skepticism at slap-dash reform proposals that are long on promises and short on details.