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I’m not sure there are any conservatives who support the National Popular Vote interstate compact, other than those on the campaign’s payroll. This is not to impugn their integrity, and it is not hyperbole. NPV founder and funder John Koza is notoriously charitable. Patrick Rosenstiel, the author of a parade of dubious claims in the Washington Examiner, has reportedly raked in more than a million dollars from NPV and related organizations.

Rosenstiel is better at insults than substance. Thus, he begins by attacking the character of every conservative opponent of NPV. He supports the compact, he says, not because of a million dollars of Koza cash, but because he thinks conservatives “can win presidential elections.” In other words, if you disagree with him, you just lack confidence in the credibility of your ideas. Rosenstiel simply can’t believe that anyone would stand up for the Constitution itself.

He goes on to offer a simplified reading of Article II, Section 1, of the Constitution, complete with accusations of “ignorance” and “low-information” for anyone who disagrees with his conclusion that “the power to award electors is plenary to the state.” He has missed something important here, but it’s important first to state the ramifications of Rosenstiel’s view. If he’s right, legislators could auction off presidential elector positions to Google or China, choose them in a whites-only election, or—yes—let voters in other states choose them.

Rosenstiel misses four important things. First, as he implies and the Constitution says quite clearly, presidential electors belong to the “state.” They do not belong to the state legislature, which only has a duty to determine how they are chosen. The original intent is clear. The Framers of the Constitution considered and rejected a national popular vote. They created the Electoral College as a state-based, state-by-state process. Legislatures may have tremendous latitude, but to give away their state’s presidential electors would be to use a constitutional power to destroy its constitutional purpose.

Second, there are other provisions in the Constitution. For example: “No State shall, without the Consent of Congress … enter into any Agreement or Compact with any other State.” That seems simple enough, but other NPV lobbyists waved it away with old case law. Still, on a topic of this importance, it the current Supreme Court may just enforce this protection.

Third is the Bush v. Gore case. Not so long ago, the Supreme Court ruled 7-2 that in an election, the state must not treat voters in “arbitrary and disparate” way (different recount rules were at issue, but this would apply to all kinds of election laws and practices that vary among the states). This violates the Equal Protection clause of the Fourteenth Amendment. Rosenstiel makes no claim to have read the Fourteenth Amendment, but other NPV flacks insist it doesn’t apply—that NPV is free to treat voters in “arbitrary and disparate” ways—because Equal Protection only applies within an individual state, not across state lines.

Look up “too clever by half” and you may find a picture of someone making this argument. NPV does not create a national election—it cannot. What NPV does is to add out-of-state voters into the election in NPV states. The question is, within an NPV state, are those voters being equally protected. The answer is no. As Rosenstiel would say, ignoring this issue is “ignorant at best.”

From the legal, he proceeds to the political. Rosenstiel asserts that Republicans may someday lose their advantage in the Electoral College. Here again, he assumes that his opponents’ motives. I suppose this is easier than responding to actual arguments. Next, he attacks at the American Founders, claiming that the idea that the Electoral College produces geographic balance is “beyond ludicrous.” Having written many times on this, I will simply say that Rosenstiel again stumbles over his own strawman.

He also claims that “the most important reason” to back NPV is a Pew poll showing that a direct election for president popular. I guess his mom never told him not to jump off a bridge even if everyone else does. But seriously, the Pew poll does not mention the NPV compact. It’s a poll of concepts, not policies, and says nothing at all about whether NPV is legal or prudent.

Rosenstiel ends his op-ed by cutting and pasting in several NPV slogans, mostly amounting to the idea that NPV is good because it’s more direct democracy and thus more legitimate.

NPV advocates should stop looking in the rearview mirror. They look at past elections, then argue that if we change the fundamental rules, everything will work basically the same in the future. This ignorance is dangerous. Different rules will produce different incentives which will produce different results—not just different winners but different campaigns and coalitions. 

Consider how these facts could change future political behavior.

• NPV would allow a candidate to win all a state’s electoral votes without appearing on the ballot in that state.
• Without a uniform recount rule, NPV would let states selectively recount ballots for partisan advantage.
• By allowing a regional plurality winner, NPV would encourage regional candidates—and simply more candidates—to run.
• With more candidates and no requirement of regional balance, it would be much easier to win the presidency with a small plurality.

That is, if a California billionaire like Tom Steyer ran, and a Texas billionaire like Elon Musk ran, and a New York billionaire like Michael Bloomberg ran, plus a Democrat and a Republican, the winner might have just a quarter of the popular vote. It might come mostly from the Northeast and a few major metropolitan areas. Or it might come mostly from the South and Midwest, plus some rural areas. But however this NPV win is achieved, it would mean very different—fragmented, splintered—American politics. Is NPV worried? No, because lobbyists like Rosenstiel seem never to have even thought about it.