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    Trashing the 12th Amendment with the National Popular Vote

    By Publius Huldah

    The compact for a National Popular Vote (NPV) is a destructive scheme. Yet it’s been approved by several States; and is pending in others.  Since the text of the compact no longer seems to be set forth on the NPV website, we’ll look at the NPV bill now pending in Tennessee.
    In a nutshell, the compact seeks to evade the 12th Amendment to our Constitution (where the States elect the President); and substitutes a national popular vote where inhabitants of major metropolitan areas elect the President.

    The Constitution our Framers gave us

    The federal government created by our Constitution is a Federation of Sovereign States united under a federal government for those limited purposes itemized in the Constitution; with all other powers reserved by the States or the People.
    So that The States – The Members of the Federation – could maintain their independence and sovereignty, our Framers wrote these provisions into our Constitution:
    •    State Legislatures were to choose the U.S. Senators for their State (Art. I, §3, cl. 1); and,
    •    The States, as separate political entities, were to elect the President (Art. II, §1, cls. 2 & 3).

    The People were to elect only their Representatives to the House (Art. I, § 2, cl.1).

    James Madison explains in Federalist No. 45 (7th para), why this ensured that The States would maintain control over the federal government:

    “The State governments may be regarded as constituent and essential parts of the federal government …Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. …Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments …” [boldface mine]

    The result of State Legislatures choosing the U.S. Senators and controlling the election of the President [via the selection of Electors], was that the States would be able to control the federal government.

    The 17th Amendment

    But we threw away one of these safeguards when we foolishly ratified the 17th Amendment with the popular election of U.S. Senators. This is how The States – The Members of the Federation – lost their representation in Congress and their control of the Senate.

    Art. II, §1, cl. 2 and the 12th Amendment

    We abandoned the other safeguard when we foolishly ignored the procedures in the 12th Amendment where small bodies of specially chosen wise and prudent men (Electors) made the selections of President and Vice President for their State. We allowed Electors to become rubber stamps for the popular vote in their State.

    Our Framers didn’t want popular election of the President because they recognized that People are easily manipulated by those who take advantage of their “hopes and fears”, to steer them towards candidates favored by powerful groups (Federalist No. 64 (3rd & 4th paras; Federalist No. 68, etc.)

    Furthermore, under the 12th Amendment, the electoral votes of each State are split according to how the Electors vote.  If Tennessee obeyed the 12th Amendment, it would work like this when selecting President: 5 Electors vote for Candidate X; 4 vote for Candidate Y; and 2 vote for Candidate Z.  Those would be the vote totals for President which would be sent to Congress. The same procedures are to be followed in a separate vote for Vice-President. 1 The “winner takes all” practice followed in most States is unconstitutional!

    How The National Popular Vote Scheme Will Work.

    Under the scheme incorporated in the NPV bill pending in Tennessee, all of Tennessee’s electoral votes would be awarded to the presidential candidate who receives the most popular votes in all 50 States and the District of Columbia.

    The wording of the compact is deliberately obscure.  In plain English, this is what it does:

    Art. II

    Each Member State will conduct a statewide popular election for President and Vice President.

    Art. III

    (a) & (b) The State Election official in each Member State will add up the votes cast in all the States and the D.C. to get the total number of votes cast nationally for each presidential ticket.  The State official will then designate the presidential ticket with the largest number of votes nationally as the “national popular vote winner”.

    (c) & (g) Electors will then be appointed in each Member State who are to cast all their votes for thenational popular vote winner.

    So!  If the popular vote in Tennessee is for James Madison, but the total national popular vote favors Adolf Hitler, then all of Tennessee’s 11 Electoral Votes are awarded to Adolf Hitler.

    Indeed, the winner of the national popular vote will end up with all the electoral votes for every State.  And do not think that the winner will fail to claim a “Mandate” for whatever he wants to do.

    The States Can’t Lawfully Enter Into A Compact Which Violates The U.S. Constitution!

    Every aspect of the NPV violates the 12th Amendment.  It sets up a method of electing the President and vice-President which is altogether repugnant to our Constitution.

    Furthermore, Art. I, §10, last clause, prohibits States from “enter[ing] into any Agreement or Compact with another State” “without the Consent of Congress”.  So, whether the NPV Compact also violates Art. I, §10, last clause, depends on whether Congress consents to it. But Congress may not lawfully consent to unconstitutional compacts of the States!

    Under The NPV Scheme, Votes From Major Metropolitan Areas Will Decide Presidential Elections.

    Most of the Population of these United States is located in a few major metropolitan areas. Under the NPV scheme, these areas would decide the elections for President!

    See this 3D map (scroll down) showing how the major metropolitan areas voted in a recent presidential election. (Not available yet, Editor)

    The NPV is not about “making every vote count”. The NPV is about guaranteeing that every future presidential election is decided by inhabitants of major metropolitan areas. And it further diminishes State sovereignty.

    What Should We Do?

    Repeal the 17th Amendment. We must henceforth elect to Congress only those who are committed to repealing the 17th Amendment. This is the only way The States can regain control of the Senate.

    Return to the 12th Amendment. We must dismantle the present unconstitutional and corrupt system and return to the method of electing the President and Vice President established in our Constitution. State Legislators could restore to their States right now the power to control the President! All States have to do is obey the 12th Amendment!  Also, specially chosen Electors are far more likely to choose good Presidents than the ignorant masses which fill our major cities.

    Even in its present perverted form, the “Electoral College” serves two important purposes: (1) It balances the influence of the heavily populated urban areas with the more sparsely populated rural areas; and (2) gives the smaller States a voice in the election of President.

    As a People, we need to STOP being so eager to amend a Constitution we have never read and don’t understand.

    1 For an illustration of how voting under the 12th Amendment is to be conducted, see THIS under the subheading, “The 12th Amendment Establishes Procedures For Voting By Electors.”

    • admin

      I originally posted “The Myth of 10” back in 2003 and if you have read it, you know why I re-posted it. Back in 2003 I received an excellent response that I am posting in this reply.

      From Suzanne
      Reflections on the Myth of 10

      I went to dinner with some friends the other night. In the course of conversation, one friend mentioned that he and his wife had just bought a home off a secluded street in South Escondido, CA. We’re all relatively new to this area, however, a long-time resident mentioned that adjacent to the new house is one of the Superfund clean up sites, that hasn’t yet been cleaned up.

      This sparked a debate as to what information should be made available to a new homebuyer but as I interjected, who decides what information is critical to all citizens? Is this really a toxic waste dump and will living in close proximity really mean anything in the long run?

      I couldn’t help myself. Having just read The Myth of 10-6 as a Definition of Acceptable Risk, by Kathryn A. Kelly, Dr. PHD. and Nanette C. Cardon, W,M.L.I.S. written back in September, 1994, I launched into a debate about Superfund and how the government bases toxic waste contamination on a loosely defined value of one-in-a-million chance of getting cancer in any said lifetime.

      The funny thing was, no one was really concerned about the toxic waste itself, but they were fascinated with the 10-6 meaning one-in-a-million (0.000001). Even our soon-to-be-college graduate needed some help in understanding what this really meant.

      According to Kelly & Cardon, there is no sound scientific, social, economic, or other basis for the selection of 10-6 as a cleanup goal for hazardous waste sites. Remarkably, the criterion, which has cost society billions of dollars, has never received widespread debate or even thorough regulatory or scientific review. It is an arbitrary level proposed 30 years ago for completely different regulations (animal drug residues), the circumstances of which do not apply to hazardous waste site regulation.

      Kelly and Cardon did extensive research into the origins of one-in-a-million being the criteria for no risk. What was concluded was that it’s kind of like entering a raffle where there is a one-in-a-million chance of winning; you know you won’t. It’s a paraphrase for “it aint’ ever gonna happen.” “Don’t hold your breath” and “….’til the cows come home.” People use it as a euphemism. Not a real thing. But why did the FDA select this measure to determine at what level risk is acceptable, and at what level it’s not. How much mercury can be found in fish to be safe to eat? How many toxins keep a site too hazardous to build on?

      Kelly and Caron offer an observation of where the actual 10-6 came from, but more important, what they realized is that at either 10-6, or 10-4 which is 100 times more strict, it doesn’t really matter. What matters is people’s “perception” of risk. So when it comes to toxic waste in a neighborhood one might say that one-in-a-million is just too high and the risk must be reduced to zero, even if that means spending a million dollars. That may be fine in an affluent community, where homes themselves are reaching that level, but what about in poorer communities that can’t afford the cleanup? The U.S. has hundreds of Superfund sites and at a million dollars a pop, it would cost upwards of a trillion dollars to clean them all up. It’s just not feasible.

      So the question remains. What is acceptable risk? Who decides? As Kelly & Cardon point out, back in 1977 the FDA instituted the arbitrary number of 10-6 as a screening level of “essentially zero.” This became the level below which, no further regulatory consideration would be given regarding the safety levels of carcinogens. However, their research also pointed out that this acceptability of a risk is really a judgment call made by those exposed to the hazard. It’s not a scientifically derived value or a value made by “experts” on the outside. So in the case of toxic waste sites, the hazard has never really been quantified. It varies with each site and as mentioned before, by the amount of affluence and influence of the community.

      The interesting thing is that the value given to hazardous waste is much greater than those given to emissions, pesticide residue and other hazards, even though these other hazards may pose greater risk. In fact, the Agency for Toxic Substances and Disease Registry has reported that only 11.5 percent of all Superfund sites pose an actual or current risk to human health or the environment. And the EPA Science Advisory Board ranks hazardous waste near the bottom of its list of actual risks, but near the top of the agencies priorities.

      It’s not what’s true; it’s what people perceive to be true. And our government officials are more concerned with keeping their constituents happy than educating the public and focusing on aspects of our world that are truly more important.

      So next time you hear about a toxic waste site, high mercury levels or any other perceived hazard, get the facts. Don’t rely on emotions of uneducated people. This is your money that is going to be wasted on unfounded scare tactics.