“THE FRAUD OF OMISSION”
by Sharon Rondeau
(Apr. 4, 2019) — In Parts 1 and 2 of our series on the Framers’ creation of the Electoral College to elect the President of the United States, Atty. Mario Apuzzo explained, from a constitutional standpoint, how the system was conceived and continues to serve as a compromise between rural states and those with large urban population centers.
Our interview last week was prompted by the growing number of states entering into an “interstate compact” endorsed by the National Popular Vote initiative, which advocates each state’s presidential electors casting their votes for the winner of the national popular vote for the presidency, regardless of which candidate actually earned the votes of each state’s voters.
Since we published Part 2 on Tuesday, New Mexico’s governor signed a “national popular vote” bill, becoming the 15th jurisdiction to join the interstate compact along with Delaware and Colorado, which signed on last month. New Mexico’s five electoral votes bring the total now represented by the compact’s members to 189. With a total of 538 electoral votes distributed to the states based on the number of each state’s congressional seats, a majority of 270 is required for a presidential candidate to declare victory.
By any standard, the NPV movement is highly-organized and well-publicized. The organization claims that its nationwide effort “would ensure that every vote, in every state, will matter in every presidential election.”
Efforts in the state of Connecticut, which has seven electoral votes, began in 2011 and culminated last year in the passage of an NPV bill signed by then-Gov. Dannel P. Malloy. Testimony in 2013 opposing the NPV initiative came from at least one private citizen, a former Connecticut legislator, and from Curtis Gans, Director of the Center for the Study of the American Electorate.
The interstate compact and proposed “popular” election of the president is supported in large part by labor unions, some in academia, “progressive” groups and foundations, the League of Women Voters, and California entrepreneur John Koza, NPV chairman, who has donated generously to congressional Democrats and 2016 presidential candidate Hillary Clinton.
The “national popular vote” effort has received parallel support from members of Congress and a number of Democrats who have declared themselves 2020 presidential candidates. In 2017, Rep. Steve Cohen, Democrat representing Memphis and Shelby County, introduced a bill to eliminate the Electoral College; on Tuesday, Sen. Brian Schatz (D-HI) introduced a constitutional amendment with the same purpose, co-sponsored by presidential candidate Kirsten Gillibrand (D-NY) and others.
According to the Library of Congress’s law library, “An interstate compact is an agreement between or among two or more states of the United States. To become effective, it must be approved by those states’ respective legislatures and, depending on the subject matter of the compact, consented to by Congress.” Further, it states, “The Constitution does not specify the timing or form of congressional consent to interstate compacts. [16] Although Congress typically consents to compacts before they are executed by the states party to them, Congress may also consent after the fact, when the subject of the agreement could not be fully considered until then.[17] In addition, while congressional consent is usually express, it may also be inferred based on the circumstances.[18] Congress may condition its consent subject to the compact containing suitable terms that do not violate limitations set forth in the Constitution.[19] Further, when Congress does consent to a compact, Congress does not thereby give up or reduce any of its constitutional powers.[20]“
Our last two installments featured Apuzzo’s analysis, in narrative format, of why he believes the Electoral College is necessary to maintain the republican form of government, including a voice in presidential elections, guaranteed to the states in the U.S. Constitution. In this segment, The Post & Email posed questions as to whether or not the compact, if officially activated, could be challenged, and whether or not its advocates, in Apuzzo’s view, stand on firm constitutional ground.
THE POST & EMAIL: Would a candidate be the only person who could be a plaintiff to challenge the invoking of the interstate compact? Could a private person file an objection?
ATTY. APUZZO: Candidates and political parties have standing. There are all kinds of issues when it comes to jurisdiction, and it makes a difference as to whether it’s a state court or federal court. In state court, it’s much easier to get standing.
You also have such things as “ripeness.” There has to be an actual controversy going on. On the federal level, they’re much more strict. It would probably be impossible to try to sue them from doing the compact. You also have to be careful with “mootness” because then the court says, “You should have acted sooner.”
However, mootness is not going to apply to a candidate, because he/she lost the election. He would say, in the example of California (which has 55 electoral votes), “Hey, I won those votes.”
For private parties, the rules of standing in each state would have to be examined.
An interesting aspect of this is that the interstate compact doesn’t actually do away with the Electoral College. Why do they still have the Electoral College in this thing? Because they know the constitutional requires it. If they want to have a popular vote, use it to change the Constitution.
THE POST & EMAIL: What would you say to state legislators who voted in favor of the national popular vote interstate compact?
ATTY. APUZZO: If you talk to someone on the street, most would say, “Of course the people should elect the president.” So to me, it’s a fraud, because you’re not explaining what the system is. [Editor’s Note: Supporting Atty. Apuzzo’s contention is a summary on the NPV’s website of the history of the New Mexico NPV bill, which states, “A survey of 800 New Mexico voters conducted on December 16-17, 2008 showed 76% overall support for a national popular vote for President. Support was 84% among Democrats, 64% among Republicans, and 68% among independents. By age, support was 73% among 18-29 year olds, 73% among 30-45 year olds, 78% among 46-65 year olds, and 76% for those older than 65. By gender, support was 84% among women and 66% among men. By race, support was 73% among whites (representing 55% of respondents), 83% among Hispanics (representing 38% of respondents), and 57% among Others (representing 7% of respondents). The survey had a margin of error of plus or minus 3 1/2%.” Similar outcomes are reported by the NPV initiative in the history of other states’ decision to join the compact.]
THE POST & EMAIL: Why is it that those in favor of the NPV believe they know better than the Founding Fathers?
ATTY. APUZZO: Here’s the big issue on this: who we are as a nation. You always have bigger issues involved, and this is just a symptom of the malady that is going on. We need an educated and intelligent populace. That’s the only way we’re going to survive as a strong and free nation. When people are not educated and don’t know the depth of things and they act on impulse, on images, one word — “collusion” or “obstruction,” for example — they have somebody pushing that on them, and they don’t have the time. I’m not blaming people, because they’re so busy working, and who can take the time to analyze all of these things? But we have to have a system where somehow we’re educating the public.
What’s going to happen is you’re going to get some elements of the nation that control the means of communication, like the media, and they’re going to bombard the public every single day with just a couple of words and images. The greatest fraud created in the history for humanity is the fraud of omission. When you don’t give somebody all the information, you manipulate them and set them up for the kill, so to speak — that’s omission.
It’s like putting food in a trap for a mouse. The only information you’ve given to that mouse, that he knows of, is the food. But he doesn’t have the intelligence to know that this thing is around that trap, and that when he goes in there, he’s done. That’s omission, because he doesn’t have the intelligence to know that.
That’s what happens also to people: they’re not given all the information; they take the bait, just like the mouse, and boom! the trap comes down. I think that’s the bigger issue in all this.
THE POST & EMAIL: Is there anything the people can do to better educate the American voting public on this issue?
ATTY. APUZZO: They can form committees, groups, social clubs, and that particular group will have this issue as their focus. Then they have to make themselves known; have meetings. Do it on the grassroots level by starting with their own town. Call it “Save the Electoral College” or whatever. Have meetings, call the press, write letters. Ask your local council to pass a resolution. Write up your basic argument and present it to the council and ask them to support it or not support it.
People have to equip themselves in groups and go to places where they can be seen and heard. Make some signs and go to the local supermarket parking lot with them so people can see them. You want to be heard.
First of all, they have to educate themselves. Once they are educated, they can express themselves and make sense and convince others. Then you have to keep going and push your agenda, so to speak, because if you believe your idea is better, don’t let the opposition trample over you. You have to be a fighter for your own rights. You can’t be intimidated into silence and hiding in a corner.
People have to be made aware; it has to be disseminated to the people, and then you have to organize. Without organization, nothing is going to happen. Take the pyramids of Egypt: they had to organize people in order to move those stones. There are countless things. Ants: they work all together, and they get the work done. The bees: they’re all organized in a hive. The people have to organize, and that’s how you move mountains.
THE POST & EMAIL: Is there anything else you’d like to say about the Electoral College?
ATTY. APUZZO: Again, the people have to educate themselves on what’s happening, and once they understand it, they have to make a decision, whether it’s good or bad. As long as it’s an informed decision, without any influence or intrigue or corruption or falsehood, if that’s the way they want their country to run, that’s the sovereign right of the people.
THE POST & EMAIL: It would seem that that way, every person would have a vote.
ATTY. APUZZO: Exactly.