Virginia Should Reject the National Popular Vote Compact

by Emilio Jaksetic

On February 11, 2020, the Virginia House of Delegates passed House Bill 177. If enacted into law, the legislation would have made Virginia a participant in the National Popular Vote Compact (NPV Compact), and would assign Virginia’s Electoral College votes to the presidential candidate who receives a majority of the popular vote in the United States. On February 25, 2020, the Virginia Senate Privileges and Elections Committee voted to defer consideration of the bill to the 2021 legislative session. The General Assembly should not pass legislation to make Virginia participate in the NPV Compact.

Passage of legislation to make Virginia part of the NPV Compact would nullify the will of a majority of Virginia voters and replace it with the will of a majority of voters in 49 other States and the District of Columbia.

Under the Virginia Constitution, the people of Virginia are the sovereigns, not their elected representatives (Article I, Section 2). Important components of the people’s sovereignty are the right to vote, and the right to have a majority vote in an election respected and given lawful effect. Any legislation to make Virginia a participant in the NPV Compact would be an unconstitutional derogation of the sovereignty of the people of Virginia and diminish their voting rights in presidential elections.

The members of the General Assembly are bound to abide by and uphold the Virginia Constitution. Moreover, the authority of the General Assembly to make laws regulating elections must be “not inconsistent with this Constitution.” The General Assembly has no right or authority to enact any legislation that makes the sovereignty of the people of Virginia subject to, or conditional on, a majority of voters in the 49 other States and the District of Columbia.

Furthermore, the NPV Compact has no mechanism: (1) to protect Virginia from any breach of the Compact by any other participating State; or (2) to deal with a situation in which Virginia ignores the majority of Virginia voters to honor its commitment to cast its electoral votes in favor of the “national popular vote winner” and one or more other participating State(s) then ignore the Compact and cast their electoral votes to elect the other presidential candidate.

By passing House Bill 177, the Democrat majority in the House of Delegates: (1) acted in derogation of the Virginia Constitution; (2) demonstrated a lack of respect for the right of the people of Virginia to expect that majority votes in presidential elections will be honored and applied in the disposition of Virginia’s electoral votes; and (3) showed a lack of wisdom and prudence by passing legislation that fails to protect Virginia if any other participating State betrays its obligations under the NPV Compact.

When the General Assembly meets for the 2021 Session, the House of Delegates and the Senate should not pass another bill to make Virginia a participant in the NPV Compact. And, if the Democrat majority should not see the error of its passage of House Bill 177 in February 2020, then the Senate should demonstrate wisdom, prudence and respect for the Virginia Constitution and the people of Virginia, and refuse to pass such ill-conceived and ill-advised legislation.

Update: This column has been edited to correct an error in the original version mis-stated that the Compact has no mechanism to allow Virginia to withdraw.

Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.

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25 responses to “Virginia Should Reject the National Popular Vote Compact

  1. Our bought and paid for legislature nominates, elects and reelects our state supreme court. A newly elected state supreme court justice must consider his or her reelection prospects. Those prospects are not enhanced by quibbling with the General Assembly over minor details such as the state constitution. That’s how the constitutional requirement for “compact and contiguous” political districts became just a quaint thought rather than a requirement of our constitution.

    Constitutionality is barely a concept in Virginia.

  2. Interesting here that the author argues, correctly, that the majority opinion of Virginia voters could be abrogated by other states should we acquiesce to the majority of other states via the NPV Compact. Yet, the very nature of the electoral college does exactly that- it subordinates the will of the majority to the minority power of smaller states. The electoral college is a democratic aberration created back in the day when our founding fathers simply did not yet trust the voters – even before universal suffrage. I think it has outlived its usefulness, if it ever had any — other than to supposedly give voice to the “smaller” states.

    But with that said, the very nature of the electoral college is that states, not citizens, elect the president. In addition, the states determine, within constraints of the Constitution and federal code, how to conduct its elections. Thus, if OUR elected representatives, The General Assembly, elects to pour our votes down the drain, they have that authority. And we have the authority to oust them from office during the next go-around.

    • The danger is much greater than disenfranchised voters. In a close election, it’s not the vote count in just one or two states that would be in play. Every vote in every state would be up for grabs to sway the all important grand total nationwide.

      That’s a recipe for a long contentious battle, and the end to our tradition of a smooth transition of power. The left claims they want to avoid that, but all the while they’re doing everything in their power to bring it to pass.

      The Electoral College isn’t new or radical. It’s in the Constitution. If we nullify it as proposed, we may live to deeply regret that.

  3. James Wyatt Whitehead V

    I like the Electoral College. It spreads the vote across the map. Everybody has a chip in the game. Under NPV majority factions will simply crush the will of minority factions. Madison argued in Federalist 10:
    ” that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths.”

    A Republican form of government is clearly spelled out all over the Constitution. Lets keep it that way.

    https://founders.archives.gov/documents/Madison/01-10-02-0178

    • The minority is protected in Congress. Each state gets at least 1 Representative and 2 Senators, regardless of population. The Senate used to have another protection–the filibuster. The filibuster still exists for legislation, but not for life-time judicial appointments, which is backwards from what it should be.

  4. If Trump does win, it will likely be with an even larger deficit in the popular vote than in 2016. This will feed the fire around the Electoral College and the Virginia Senate may not be able to resist again. But if Trump loses both, Electoral College and popular vote, Democrats may cool down. After all, like most of the check and balance provisions in the Constitution, this one works both ways.

    Sorry, Mr. Hincker, but this is NOT a democracy and Heaven help us if it becomes one.

    • “Sorry, Mr. Hincker, but this is NOT a democracy and Heaven help us if it becomes one.”

      You mean it could be worse than Trump? So, pages upon pages of BR blogging on the doom and gloom of Critical This&That Theories (CXT), and your solution comes in the form of Trump/Pence, Gade, and Chase (is it?). Who you guys running for Congress out Waynesboro way? Good choice.

      All the free market capitalism w/wo slavery, segregation, etc., can overcome the douchebaggery of just those three selections alone, and every other State is picking equally stupid persons to defend against socialism and CXT.

      • Even stranger than the UVA student’s rant….People who hate Trump should be doubly protective of the various checks and balances in our government.

        • Except for the one that put him there… and god forbid, it’s the same one that might keep him there. Damn, why don’t we go back to letting the Governors and State Houses picking Senators? Could Texas do worse than Cruz, ofrSC worse than Graham?

          Hell, please name on Red Senator, still living, with anything like a moral compass.

          Pelosi this, and Pelosi that. Diddling Denny Hastert? “Here’s your check” John Boehner?

          • I am 100% in favor of repealing the 17th amendment, but I am not in favor of eliminating or circumventing the electoral college. It’s part of what makes us a republic.

  5. As a Virginia voter, I feel that my “sovereignty” is violated by having the vote of a resident of the state of Wyoming count more toward the election of the President than mine does. Wyoming’s population is 0.18% of the total national population, yet it is entitled to 0.5% of the total electoral votes, an increase by an factor of more than 2.5. Virginia’s population is 2.6% of the national population, yet its 13 electoral votes constitute only 2.4% of the total number of electoral votes.

    The argument that joining the compact would violate the state consitution’s declaration that the people are sovereign is silly. The other objections relating to getting out of the compact are without merit, as well. The language of the compact plainly enables any member to leave.

    • Not exactly a new thing. I’ll look around and see if my email for Jimmy Madison is good, and you can complain to him….

      The “compact” approach is indeed lawful, on its face. But it is a work-around on the real solution, which would be a constitutional amendment. The smaller states would prevent that from passing, probably, for the reasons you just outlined. If ever the wisdom of the Founders’ fears about the passions of the mob were proven correct, it would be these days in which we live now.

      • Mr. Haner,

        That’s exactly what it is, merely because they cannot summon the support for an Amendment they want to do an end around on it. Nothing like being foisted into Mob Rule.

    • What is it now? One Wyoming = four Virginia, or six California votes?

    • Mr. Hall-Sizemore,

      Your vote doesn’t count the population centers choose who is elected in a state election. So unless you live in the Tidewater or NOVA, you cote mathematically doesn’t count.

    • This is intentional lawlessness and contempt for the American system of government and Constitution by the Virginia Democrats. The Nation was founded based on a compact between the former colonies. They entered the Union and surrendered much of their sovereignty based on the provisions in the Constitution. Moreover, every territory that entered the Union subsequently entered under the same terms.

      There is a way to change the Constitution, but only through amendment. The Virginia Democrats in the House could respect the law by pushing for such an amendment. They, like every progressive, are results oriented. We want this result; ergo, ignore the rules of the game. No wonder they nominated a religious bigot for vice president.

  6. That is generally the Democrat playbook. Complain about Republicans, and failing to beat them within the system, take your ball, go home, then change the rules. It’s why they want to admit DC and Puerto Rico to try to stack the Senate.

  7. The National Review has an interesting article on D.C. statehood (opposed, not surprisingly). One of the points it notes is that the 23rd Amendment is still on the books such that, after spinning the populated part of D.C. into a state, the remaining federal area and whatever people live there have 3 electoral votes.

    Does this mean the Democrats first need to strip voting rights from D.C. residents by repealing the 23rd Amendment in order to make the populated section a state? If not, does the president and his/her family control the 3 D.C. electoral votes?

  8. The editors have already corrected one erroneous statement in this article (namely that the compact doesn’t allow Virginia to change its mind and withdraw). The second erroneous statement needing correction is that there is “no mechanism to protect Virginia from any breach of the Compact by any other participating State.” The Impairment Clause of the U.S. Constitution (Article I, section 10, clause 1) IS the mechanism. It prevents any state from impairing the obligations undertaken in ANY interstate compact (or contract). By the way, the Virginia Bill of Rights contains a similar prohibition on impairing the obligation of contracts.

    • I do not believe a correction of my article is needed.

      Your quotation of a passage from my article is incomplete. The relevant language I used was “Furthermore, the NPV Compact has no mechanism: (1) to protect Virginia from any breach of the Compact by any other participating State. . . .” House Bill 177, passed by the Virginia House of Delegates in February 2020, does not contain any language addressing what mechanisms or procedures would be used if a participating State breaches the Compact.

      The “impairment of contracts clause” is a prohibition, not a mechanism. Like other prohibitions (e.g., First Amendment prohibition of laws respecting establishment of religion, etc.) such a prohibition is not self-executing and does not specify an enforcement mechanism or remedy. Some examples of procedures and mechanisms dealing with enforcement and remedies contained in a contract itself are liquidated damages clauses, arbitration or mediation clauses, and choice of laws clauses. House Bill 177 did not contain any analogous provisions that address how to deal with any breaches of the Compact by another participating State.

      Even if the General Assembly adds any such language to a new bill during the 2021 Session, it would have no legal effect unless all the existing participants to the NPV Compact and any future participants expressly agree to, and ratify, such an addition or modification of the Compact.

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