Commentary

National Popular Vote is national divorce, initiated by California

Blue-state plot to select the president is California-based and rooted in sour grapes

When I say “Don’t California my Michigan,” as applied to the National Popular Vote Interstate Compact, I’m speaking literally and seriously. From its origins to its organization to its funding, National Popular Vote is the brainchild of Californians.

National Popular Vote, Inc. was created in California in 2006, per a 2019 report from the Congressional Research Service.

The National Popular Vote movement has its origins in the 2000 presidential Election, when George W. Bush beat Al Gore despite getting fewer votes. The movement started years later, and saw a revival after 2016, when Donald Trump won the presidency despite coming up short in the popular vote.

What had been an historical anomaly — the candidate with fewer popular votes winning the presidency due to winning the Electoral College — had now happened two times in five elections. Most people understood that the system is the system, and that changing it is a heavy lift. Electoral College reform never made headway.

But a group of Californians stomped on sour grapes and emerged with a workaround: National Popular Vote. This allows for direct election of the president and pursues it via an interstate compact rather than a constitutional amendment. It’s a bad idea but a clever maneuver.

When America moved to direct election of senators, that took a constitututional amendment. Both Congress and the U.S. Supreme Court will likely be called to weigh on the legality of the extraconstitutional scheme.

Before that happens, lawmakers in states like Michigan still have time to choose sanity. In the name of “one person, one vote,” in-state voters would be disenfranchised by National Popular Vote.

Rather than be the deciding factor in Michigan, the Michigan vote tally would be reduced to a tiebreaker, only invoked in the event of a nationwide tie. As a tie between 150 million voters is highly unlikely, the Michigan vote tally would be rendered meaningless. That’s not “one person, one vote,” that’s a two-seat Democratic majority deciding that the votes of Californians matter more than those of Michiganders.

As the 2019 report reads:

Member state legislatures would then appoint the slate of electors pledged to the nationwide popular vote winner. They would do this regardless of who won the popular vote in their state.

This carries danger, in two ways. When the voters of a state find their will overturned by Californians, they’ll lose faith in government. They’ll come to believe their votes don’t matter. America struggles with voter turnout as it is. National Popular Vote would send all the wrong signals.

And what about the states that aren’t in the compact? How likely is it they stand idly by and watch the blue states conspire to take the presidency for themselves?

How long can a nation act as two separate countries without actually separating? If National Popular Vote takes effect, we will find out. National Popular Vote is national divorce, initiated by California.

Take bad ideas seriously. One day they’re the talk of the faculty lounge, the next they’re published in a little-read journal. Two decades later they’re the law of the land.

National Popular Vote hopes to follow that trajectory. The best defense is telling people exactly what it does.

James David Dickson is managing editor of Michigan Capitol Confidential. Email him at dickson@mackinac.org.

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.

Washington Watch

U.S. House bill raises the bar for federal civil asset forfeiture

Walberg bill provides the legal counsel for suspects who cannot afford an attorney

A U.S. House bill aims to reform the federal civil asset forfeiture system by raising the bar for seizures and providing the right to counsel to owners of confiscated property.

Rep. Tim Walberg, R-Tipton, submitted House Resolution 1525, the Fifth Amendment Restoration Act of 2023, in March. Walberg calls it the FAIR Act. The bill would enhance the rights of property owners under the Fifth Amendment to the U.S. Constitution’s guarantee that no person shall “be deprived of life, liberty, or property, without due process of law.” The Fifth Amendment also provides that private property shall not “be taken for public use, without just compensation.”

Civil asset forfeiture differs from criminal asset seizure, in which an owner of property is convicted in criminal court and assets seized by police in the course of the investigation are forfeited to the government. Civil forfeiture is treated in civil or administrative courts, where property can be forfeited even though the owner has not been convicted of a crime.

The Walberg bill would create a standard of “clear and convincing evidence” for federal asset forfeitures. It creates the right to government-funded counsel for forfeiture targets who can’t afford lawyers. That right exists in criminal trials, but not currently in civil matters such as asset forfeiture.

“The FAIR Act eliminates administrative forfeiture,” the Institute for Justice notes, “ensuring that only federal courts, not administrative agencies, can order civil forfeitures to the federal government.”

Read it for yourself: House Resolution 1525 of 2023

Property owners currently have limited recourse in civil asset forfeiture cases. Law enforcement agencies can allege that a person’s assets were used in a criminal act or resulted from one, then seize that property under a probable cause standard. Prosecutors are held to a lower standard of evidence in civil court, while defendants must prove that their property was not involved in criminal activity. People often lose their property even after they have been cleared of criminal wrongdoing

As a Congressional Research Service report on civil asset forfeiture explains:

Although crime triggers all forfeitures, they are classified as civil forfeitures or criminal forfeitures according to the nature of the procedure which ends in confiscation. Civil forfeiture is an in rem proceeding. The property is the defendant in the case. Unless the statute provides otherwise, the innocence of the owner is irrelevant—it is enough that the property was involved in a violation to which forfeiture attaches.

“The innocence of the owner is irrelevant” is the dynamic the Walberg bill is meant to reform.

Walberg’s bill addresses asset forfeiture at the federal level. The Mackinac Center for Public Policy recommends ending civil asset forfeiture in Michigan.

The bill has a bipartisan cast of sponsors. Six of its nine co-sponsors are Democrats; only three are Republicans like Walberg. None of the co-sponsors hails from Michigan.

The Fifth Amendment to the United States Constitution reads in full:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

More on Michigan’s asset forfeiture standards.

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.