New Mexico Is the Latest State to Approve the National Popular Vote

Alex Madajian | April 16, 2019 | 11:06am EDT
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(Photo by Mario Tama/Getty Images)

( — New Mexico has now joined a growing number of states (14 plus D.C.) in passing legislation to give its five electoral votes to the presidential candidate who wins the national popular vote -– regardless of which candidate wins the popular vote in New Mexico.

Gov. Michelle Lujan Grisham, a Democrat, signed House Bill 55 on April 3rd.

National Popular Vote, the group that is pushing the interstate compact, says the compact would guarantee the presidency to the candidate who receives the largest number of votes (a plurality or more) in all 50 states and the District of Columbia.

The compact does not abolish the electoral system that is mandated in the U.S. Constitution, but it would undermine its intent.

New Mexico is the fifteenth jurisdiction to join the NPV compact, in addition to California, Colorado, Connecticut, District of Columbia, Delaware, Hawaii, Illinois, Massachusetts, Maryland, New Jersey, New York, Rhode Island, Vermont and Washington.

Those 14 Democrat-leaning states and D.C. represent a total of 189 electoral votes. The compact would take effect when (and if) states representing at least 270 electoral votes -– the number needed to elect a president -- have joined the compact.

Tara Ross, a retired lawyer and author of several books on the Electoral College, told, “States do have a great discretion to allocate their electors in a wide variety of ways."

Article 2, Section 1 of the U.S. Constitution says, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors,” who then vote for both the president and vice president.

But Ross also noted that "while states have great authority" to allocate electors, "they do not have the authority to violate another provision of the Constitution in the process."

“What people do not know is the legal chaos that will ensue if this actually goes into effect,” Ross pointed out. “The reason I say that is because National Popular Vote is pretending that they can conduct one national popular election, even though there are... 51 different sets of local laws in effect [including DC]. A simple interstate compact does not have the authority to tell Texas to change its election law. A Constitutional amendment would, but an interstate compact does not.”

According to the Congressional Research Service, the National Popular Vote initiative emerged following the presidential election of 2000, in which Republican George W. Bush won the electoral vote majority, thus winning the presidency, but received fewer popular votes than Democrat Al Gore. The movement gained new momentum after the 2016 election, when Hillary Clinton won the popular vote but lost the electoral vote majority to Donald Trump.

The nation’s Founders purposely avoided the direct election of the president and vice president. They wanted voters to express their will through a slate of electors in each state.

Alexander Hamilton discussed the electoral process in The Federalist Papers, Number 68, writing: "A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite” to elect the president.

As things stand now, the political parties in each state select electors (the number per state is based on the state's population) who are expected to vote for the presidential and vice presidential candidates to whom they are pledged. The current 538 electors are collectively known as the Electoral College.

In 48 states and the District of Columbia, the presidential/vice presidential ticket winning the most popular votes (a plurality or more) in that state is awarded all its electoral votes.

The Congressional Research Service, a nonpartisan branch within the Library of Congress which gives policy and legal analysis to members of Congress, explains the arguments both for and against the Electoral College.

The biggest criticism of the Electoral College, according to CRS, is the fact that it is “intrinsically undemocratic” because it provides for indirect election of the President and Vice President.”

NPV supporters say under the compact, the “people’s choice” would win in every election, and every vote would carry the same weight in the election, no matter where in the nation it was cast.

But those who oppose the national popular vote argue it is contrary to the Founders’ intentions. According to CRS, “the NPV compact is an interstate compact as defined in Article I, Section 10, clause 3 of the Constitution, and as such would be subject to congressional approval.”

Another criticism noted by CRS centers on the use of the compact “to effect a fundamental change in the presidential election process and a de facto amendment to the Constitution, but without following the procedures set out in Article V.”

Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, produced a report in 2011 saying it would be a “disaster” to replace the Electoral College with the National Popular Vote.

“[O]ne of the major purposes of the Bill of Rights is to protect us from majoritarian rule—otherwise, popular democracy could abolish freedom of religion, limit political speech, or restrict the ability to assemble and associate with unfavored minorities," von Spakovsky wrote. "The NPV movement seeks to create an unfair and unconstitutional system that diminishes the voting rights of citizens throughout the country and raises the prospect of increased voter fraud and post-election litigation contests over the outcome.”

According to von Spakovsky, the NPV would:

-- Diminish the influence of smaller states and rural areas of the country (because candidates would focus on high-population urban centers instead of seeking support from a larger part the American electorate);

-- Lead to more recounts and contentious conflicts about the results of presidential elections; and

-- Encourage voter fraud.

Some of the 2020 Democrat presidential candidates have either criticized, or called for abolishing, the Electoral College.

Those expressing openness to the "abolish" idea include Rep. Tulsi Gabbard (Hawaii), Sen. Bernie Sanders (Vt.), Robert "Beto" O’Rourke (Texas), Sen. Kamala Harris (Calif.), and Sen. Cory Booker (N.J.).

South Bend Mayor ‘Pete’ Buttigieg and Sen. Elizabeth Warren (Mass.) have called for abolishing the Electoral College. And Sen. Kirsten Gillibrand (N.Y.) is co-sponsoring a constitutional amendment, introduced this month, to abolish it.

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