11. Myths about Federalism
11.1 MYTH: Federalism would be undermined by a national popular vote.
Federalism concerns the distribution of power between state governments and the national government.
John Samples has argued that a national popular vote would "weaken federalism."
"Anti-federalists feared the new Constitution would centralize power and threaten liberty.…
"The founders sought to fashion institutional compromises that responded to the concerns of the states and yet created a more workable government than had existed under the Articles of Confederation.…
"The national government would [be] part of a larger design of checks and balances that would temper and restrain political power."…
"The realization of the NPV plan would continue [the] trend toward nationalization and centralized power."74
Daniel H. Lowenstein has argued:
"Against all the pressures of nationalization, it is important to maintain the states as strong and vital elements of our system."75
However, the National Popular Vote bill is not concerned with how much power state governments possess relative to the federal government. The powers of state governments are neither increased nor decreased based on whether presidential electors are selected along the state boundary lines (as is currently the case in 48 states), along district boundary lines (as is currently the case in Nebraska and Maine), or national lines (as would be the case under the National Popular Vote bill).
When the Founding Fathers from Virginia, Massachusetts, and North Carolina returned from the Constitutional Convention and organized the first presidential election in their respective states in 1789, they certainly did not undermine federalism when they chose to elect their state's presidential electors by district (as opposed to a statewide basis). Similarly, the powers of the Virginia, Massachusetts, and North Carolina state governments were not strengthened relative to the federal government when these states subsequently decided to switch to the winner-take-all rule for awarding their electoral votes.
Surely no one would argue that Nebraska and Maine reduced the powers of the their state governments relative to the federal government when they decided (in 1992 and 1969, respectively) to award electoral votes by congressional district.
There is no connection between the issue of the way power is, or should be, distributed between the state and federal government and the boundary lines used to tally votes for presidential electors.
There may be some truth to the statement that presidential candidates were more attuned to the wishes of state legislators in the distant past when many state legislatures directly appointed presidential electors. However, the last time when presidential electors were chosen by a state legislature was 1876.76 Since then, the voters have chosen all presidential electors. Thus, whatever boost to federalism that may have occurred historically as a consequence of appointment of presidential electors by state legislatures disappeared after 1876. We know of no one who is today advocating that state legislatures should replace the people in voting for President.
74 Samples, John. A Critique of the National Popular Vote Plan for Electing the President. Cato Institute Policy Analysis No. 622. October 13, 2008.
75 Debate entitled "Should We Dispense with the Electoral College?" sponsored by PENNumbra (University of Pennsylvania Law Review) available at http://www.pennumbra.com/debates/pdfs/electoral_college.pdf.
76 Between 1836 and 1860, South Carolina was the only state whose legislature appointed the state's presidential electors. This practice ended in 1860. During Reconstruction, the Florida legislature appointed presidential electors in 1868. When Colorado was admitted to the Union in 1876, the state legislature appointed the state's presidential electors for the 1876 election. The 1876 Colorado Constitution contained a specific provision prohibiting the legislature from appointing electors in future elections.
