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GOP Meddling With the Electoral College, Part 18: The National Popular Vote?

[ 60 ] February 4, 2013 |

While I can’t speak specifically for my seven colleagues, I will anyway: I sense that the official LGM position on the Electoral College is “it sucks”. Yet we’re also a pragmatic enough bunch to recognize that the probability of the requisite constitutional amendment to eliminate the Electoral College passing both houses and receiving support of 75% of the states is vanishingly small. This results in any reform necessarily retaining the underlying logic of the EC. We’ve discussed the problems with the Congressional district system at some length here recently. While we haven’t really touched on a pure state-level PR distribution, we did show some data that suggests a decent (e.g. Perot, Wallace) or even modest (Nader), third party challenge can throw the election to the House, and nobody wants that. Well, nobody here wants that.

This leaves the National Popular Vote Interstate Compact. Here is the one example of “if you can’t win outright, change the rules” schemes I can get behind lacking a constitutional amendment. It is not without its problems; the comments to this post leads of with an engaging game theoretic discussion on how state legislatures might back out at the last minute and swing the election. Indeed, I’m not even sure I’m entirely sold on it. But RNC committee member Saul Anuzis is:

“I think there’s a growing consensus that the winner-take-all system we’re currently under is a problem, that it’s not representative, that only a small number of states benefit, and that it needs to be changed”

All well and good, but if I’m a Republican and I’m trying to find the most efficacious means to rig the rules in the favor of the GOP, this is not necessarily the route I’d suggest. The Democratic candidate has won the plurality of the vote in five of the past six elections, and unless the Republicans shift their (now stereotyped) pitch as the party of middle and upper middle class white males, they’re operating at a disadvantage in the next couple cycles (a disadvantage that is not necessarily insurmountable, but a disadvantage nonetheless). However, if the RNC was to follow the lead of Anuzis and get behind this proposal, it shouldn’t be too difficult to enact.

Currently, eight states (HI, WA, CA, IL, VT, MA, NJ, MD) plus DC have the Compact on their legislative books for 132 EC votes. Incidentally, those nine “states” have gone for the Democrat 100% of the time in the past six elections and 92% of the time back to and including 1988 (CA, IL, VT, NJ, and MD were not part of the ‘Dukakis Ten’). If the six Red / Blue states (PA, WI, VA, OH, MI, FL) can be convinced to get behind it, that brings the EV total to 238, leaving only 32 votes required to make it law in the states that have adopted it. That’s Texas, with change to spare. I don’t see Texas adopting a law that could be argued to disenfranchise its solid Republican support in years a Democrat has the temerity to win, so perhaps NC, IN, and WV would be more likely. WV has a recent history of voting for Democrats and Republicans (though the foreseeable future it seems to be solid red), NC is now a legitimate swing state, and IN did vote for Obama in 2008 somehow. Those three are not enough; an extra EC vote found between couch cushions or the Dakotas somewhere. But it’s doable, and public opinion appears to be on side:

That said, there is polling evidence that GOP voters are become more interested in a national popular vote as 2000 fades into the distance and Democrats expand their reach into more swing states. A Gallup poll this month found 63 percent of respondents supported replacing the Electoral College with a national vote. But the big news was that 61 percent of Republicans now favor the change, a huge shift in support since 2000, when only 41 percent said they were were pro-popular vote. Even in 2011, only a slight majority of GOPers wanted to ditch the current system.

Given our antipathy for the Electoral College, this might be the least bad proposal.

Comments (60)

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  1. ploeg says:

    The compact has the condition that it doesn’t take effect until states with a majority of EV sign on, so provided that all states hold to their end of the bargain, it would work. And I expect that, when it does take effect, there will be an immediate move to amend the Constitution to eliminate all possibility of shenanigans, which all parties should approve.

    As for shenanigans in the meantime, it’s certain that each state can award their EV in any way that the state lege sees fit, and it’s pretty solid from a practical (if not also legal) perspective that state ledges can’t mess with their rules after election day. Provided that we get the amendment going soon enough, it’s not worth worrying about.

    • Dilan Esper says:

      McPherson v Blacker and the first, unanimous Bush v. Gore case prohibit rule changes after election day by states. That is a non-issue. Biggest worry would be about something just before the election, but that would be a big gamble.

    • kohler says:

      The National Popular Vote bill says: “Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.”

      This six-month “blackout” period includes six important events relating to presidential elections, namely the
      ● national nominating conventions,
      ● fall general election campaign period,
      ● Election Day on the Tuesday after the first Monday in November,
      ● meeting of the Electoral College on the first Monday after the second Wednesday in December,
      ● counting of the electoral votes by Congress on January 6, and
      ● scheduled inauguration of the President and Vice President for the new term on January 20.

      Any attempt by a state to pull out of the compact in violation of its terms would violate the Impairments Clause of the U.S. Constitution and would be void. Such an attempt would also violate existing federal law. Compliance would be enforced by Federal court action

      The National Popular Vote compact is, first of all, a state law. It is a state law that would govern the manner of choosing presidential electors. A Secretary of State may not ignore or override the National Popular Vote law any more than he or she may ignore or override the winner-take-all method that is currently the law in 48 states.

      There has never been a court decision allowing a state to withdraw from an interstate compact without following the procedure for withdrawal specified by the compact. Indeed, courts have consistently rebuffed the occasional (sometimes creative) attempts by states to evade their obligations under interstate compacts.

      In 1976, the U.S. District Court for the District of Maryland stated in Hellmuth and Associates v. Washington Metropolitan Area Transit Authority:

      “When enacted, a compact constitutes not only law, but a contract which may not be amended, modified, or otherwise altered without the consent of all parties.”

      In 1999, the Commonwealth Court of Pennsylvania stated in Aveline v. Pennsylvania Board of Probation and Parole:
      “A compact takes precedence over the subsequent statutes of signatory states and, as such, a state may not unilaterally nullify, revoke, or amend one of its compacts if the compact does not so provide.”

      In 1952, the U.S. Supreme Court very succinctly addressed the issue in Petty v. Tennessee-Missouri Bridge Commission:
      “A compact is, after all, a contract.”

      The important point is that an interstate compact is not a mere “handshake” agreement. If a state wants to rely on the goodwill and graciousness of other states to follow certain policies, it can simply enact its own state law and hope that other states decide to act in an identical manner. If a state wants a legally binding and enforceable mechanism by which it agrees to undertake certain specified actions only if other states agree to take other specified actions, it enters into an interstate compact.

      Interstate compacts are supported by over two centuries of settled law guaranteeing enforceability. Interstate compacts exist because the states are sovereign. If there were no Compacts Clause in the U.S. Constitution, a state would have no way to enter into a legally binding contract with another state. The Compacts Clause, supported by the Impairments Clause, provides a way for a state to enter into a contract with other states and be assured of the enforceability of the obligations undertaken by its sister states. The enforceability of interstate compacts under the Impairments Clause is precisely the reason why sovereign states enter into interstate compacts. Without the Compacts Clause and the Impairments Clause

  2. Emily says:

    The National Popular Vote Interstate Compact seems like a good idea and the easiest way to insure that whoever gets the most votes ends up as president, but I fear that the Republicans would figure out some way to cheat. I don’t know how they’d cheat, but they’ve probably got guys working on it even as I type.

  3. Just Dropping By says:

    It seems odd not to include Colorado on the list of states that could possibly adopt the NPV. It could even be done via a voter-initiative state constitutional amendment so as to circumvent the legislature and to also avoid the possibility of the legislature backing out of it later.

  4. djw says:

    It seems noteworthy that in the three elections since the 2000 debacle, the EC appears to have produced a mild bias for the Democratic candidate: if you shift the popular vote to a tie through a uniform swing, Kerry wins w/284, Obama wins with 278 in 2008 and 285 in 2012 (winning VA by only .02%, but he doesn’t need it). (There are obviously problems with that kind of analysis; I’m open to better ways to think about looking for EC bias but none immediately suggest themselves.) Given that more purple states appear to be trending blue than trending red, this trend seems more likely to continue than not for the next few cycles. If legislators in red states, tired of seeing their state ignored in election years, are looking for reasons to consider supporting NPV, there are some good ones.

    • Jameson Quinn says:

      Exactly. From a game theory perspective it would make more sense for this to pass in blue and red states than blue and purple ones. Of course, game theory presumes actions compatible with rationality, which doesn’t hold in the case of the GOP.

      • Jameson Quinn says:

        Related: note that the EC benefits OH more than WY. Getting three times the votes is useless if the color of those votes is a foregone conclusion.

        • David Kaib says:

          What exactly is the benefit to OH? They got overwhelmed with ads, their concerns don’t necessarily influence the post-election agenda. Politicians, elites, and media outlets benefit greatly. With regular voters, I’m not so sure. Sure it’s better to get attention than to be ignored, but there are serious diminishing returns.

          • Jameson Quinn says:

            Counterfactuals are abave my pay grade, but the presumption that attention is worth something is reasonable. And if nothing else some of those ad dollars stay in-state.

            For that matter, how does WY benefit besides getting a slightly better chance of extra-crappy gowernment?

  5. David Kaib says:

    It’s worth emphasizing that the Constitution doesn’t specify how electors should be selected. It could be done winner-take-all, or proportionally or by congressional district. The choice could be placed in the hands of the governor, or a group of citizens chosen by lottery. The electors could be chosen by lottery, or alphabetically. Our present system isn’t the one the Framers envisioned, so any deviation can’t be criticized on the basis of violating frames intent (assuming you care about such things).

    The Republican scheme is bad not because it undermines the electoral college, but because it’s an attempt to rig the rules in their favor. NPV is good because it would make the system more democratic.

  6. KadeKo says:

    Yeah, I want someone to pin down those NPV folks: If it’s so goddamn bipartisan, why doesn’t the GOP bipartianify it first?

    When Texas goes NPV…

    When Georgia does, when the solid south or those over-EV-represented plains states get behind the NPV, call me.

    Until then it smells like another way for Democrats to be “the bigger man” about something that benefits Republicans.

    • Scott Lemieux says:

      NPV doesn’t go into effect until it represents a majority of the EC, so there’s no collective action problem.

      • Jon says:

        No, but this is a constituional crisis in the making because unless its ratified by Congress, I might just challenge it on that basis.

        • Craigo says:

          And what constitutional provision are you going to use for the basis of your claim?

          • Anon21 says:

            Article I, Section 10: “No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State.”

            • Mrs Tilton says:

              Not really an agreement or compact, though, is it? State 1 is not entering into an agreement with States 2, 3,… n to change the way they collectively allocate electors. It’s more a question of States 1, 2,… n each declaring unilaterally that it will so allocate electors, the change to take effect when the value of n ensures that a majority of all electors are allocated by this method.

              Since allocation of its electors is in the purview of each state, I’m not sure the feds get a say in the matter at all; not that this would stop the GOP from trying, if it thought doing so might gain it an advantage.

            • kohler says:

              Congressional consent is not required for the National Popular Vote compact under prevailing U.S. Supreme Court rulings. However, because there would undoubtedly be time-consuming litigation about this aspect of the compact, National Popular Vote is working to introduce a bill in Congress for congressional consent.

              The U.S. Constitution provides:

              “No state shall, without the consent of Congress,… enter into any agreement or compact with another state….”

              Although this language may seem straight forward, the U.S. Supreme Court has ruled, in 1893 and again in 1978, that the Compacts Clause can “not be read literally.” In deciding the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the Court wrote:

              “Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.

              “The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee. His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta.”

              Specifically, the Court’s 1893 ruling in Virginia v. Tennessee stated:

              “Looking at the clause in which the terms ‘compact’ or ‘agreement’ appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.”

              The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:

              “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”

              In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote:

              “The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States”

              The National Popular Vote compact would not “encroach upon or interfere with the just supremacy of the United States” because there is simply no federal power — much less federal supremacy — in the area of awarding of electoral votes in the first place.

              In the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the compact at issue specified that it would come into force when seven or more states enacted it. The compact was silent as to the role of Congress. The compact was submitted to Congress for its consent. After encountering fierce political opposition from various business interests concerned about the more stringent tax audits anticipated under the compact, the compacting states proceeded with the implementation of the compact without congressional consent. U.S. Steel challenged the states’ action. In upholding the constitutionality of the implementation of the compact by the states without congressional consent, the U.S. Supreme Court applied the interpretation of the Compacts Clause from its 1893 holding in Virginia v. Tennessee, writing that:

              “the test is whether the Compact enhances state power quaod [with regard to] the National Government.”

              The Court also noted that the compact did not

              “authorize the member states to exercise any powers they could not exercise in its absence.”

              • KadeKo says:

                Great! Convince the red-state leges to do this. Point to the “no way Obama” polls and the eventual 4-percent win he got in 2012. Then I’ll listen to you.

                Convince a red-stater to do this. That’s where your work is.

                • kohler says:

                  State polls are favorable: AK–70%, AR–80%, AZ–67%, CA–70%, CO–68%, CT–74%, DC–76%, DE–75%, FL–78%, ID–77%, IA–75%, KY–80%, ME–77%, MA–73%, MI–73%, MN–75%, MS–77%, MO–70%, MT–72%, NH–69%, NE–74%, NV–72%, NM–76%, NY–79%, NC–74%, OH–70%, OK–81%, OR–76%, PA–78%, RI–74%, SC–71%, SD–75%, TN–83%, UT–70%, VT–75%, VA–74%, WA–77%, WI–71%, WV–81%, and WY–69%.

                  19 states (including California with 55 electoral votes) with a total of 242 electoral votes, have voted Democratic, 1992-2012

                  When the bill is enacted by states with a majority of the electoral votes– enough electoral votes to elect a President (270 of 538), all the electoral votes from the enacting states would be awarded to the presidential candidate who receives the most popular votes in all 50 states and DC. The bill would thus guarantee the Presidency to the candidate who receives the most popular votes.

                  The bill has passed 31 state legislative chambers in 21 states with 243 electoral votes. The bill has been enacted by 9 jurisdictions with 132 electoral votes – 49% of the 270 necessary to go into effect.

                  NationalPopularVote

                • KadeKo says:

                  What part of “convince the Red State leges” to do this has anything with poll poularity?

      • KadeKo says:

        But I can see that majority of the Electoral College being from blue and purple states very, very easily.

        While Texas, Georgia, and those no-chance states remain untouched.

        If it were that 85% or 95% of the EVs had to come from states with NPV, then it’d be another matter.

        • Anon21 says:

          But I can see that majority of the Electoral College being from blue and purple states very, very easily.

          While Texas, Georgia, and those no-chance states remain untouched.

          Yes, but why does it matter? A winner is a winner, whether that winner receives electoral votes from Texas, Georgia, and other red states or not.

          • I guess the thinking is that Dems would win narrow EC victories while Pubs win landslides, but yeah, margins make no difference here. Once you hit 270 it’s all gravy.

          • KadeKo says:

            For one reason, I think it matters because the Texas lege would be much more interested in Keep Out The Vote efforts if they knew that every vote they cancelled (on behalf of a Republican candidate) got them closer to the 50% + 1 popular vote they’d need to claim, say, Pennsylvania’s EVs.

            It’s letting the GOP say “what’s mine is all mine, and what’s yours is half mine”.

            • Anon21 says:

              It’s letting the GOP say “what’s mine is all mine, and what’s yours is half mine”.

              What’s “theirs” (a minority of electoral votes) is worthless. If NPV is implemented, there’s no scenario in which it matters what the holdouts do or don’t do with their electoral votes.

              I take your point about a greater incentive for voter suppression, I just don’t think it’s likely to be all that significant in the real world. The Texas GOP already has all sorts of incentives to suppress the Democratic vote to keep Democrats out of Congress and the statehouse. Not to mention that Texas and Georgia have to get DOJ preclearance for changes in their election procedures. I just don’t think the small additional incentives for bad behavior on the part of red state legislatures outweigh the good that could be done by switching to a popular vote system.

            • But this is exactly backwards. If you’re worried about vote suppression you should definitely be MORE in favor of NPV, since the current setup makes the value of every vote the GOP cancels in Ohio or Florida that much larger. Tying EVs to the popular vote would lessen the impact.

    • kohler says:

      In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). Support for a national popular vote is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in virtually every state surveyed in recent polls in recent closely divided Battleground states: CO – 68%, FL – 78%, IA 75%, MI – 73%, MO – 70%, NH – 69%, NV – 72%, NM– 76%, NC – 74%, OH – 70%, PA – 78%, VA – 74%, and WI – 71%; in Small states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE – 75%, ID – 77%, ME – 77%, MT – 72%, NE 74%, NH – 69%, NV – 72%, NM – 76%, OK – 81%, RI – 74%, SD – 71%, UT – 70%, VT – 75%, WV – 81%, and WY – 69%; in Southern and Border states: AR – 80%, KY- 80%, MS – 77%, MO – 70%, NC – 74%, OK – 81%, SC – 71%, TN – 83%, VA – 74%, and WV – 81%; and in other states polled: AZ – 67%, CA – 70%, CT – 74%, MA – 73%, MN – 75%, NY – 79%, OR – 76%, and WA – 77%.

      Americans believe that the candidate who receives the most votes should win.

      By state (electoral college votes), by political affiliation, support for a national popular vote in recent polls has been:

      Alaska (3)- 78% among (Democrats), 66% among (Republicans), 70% among Nonpartisan voters, 82% among Alaska Independent Party voters, and 69% among others.
      Arkansas (6)- 88% (D), 71% (R), and 79% (Independents).
      Arizona – 60% (R), 79% (D), and 57% others
      California (55)– 76% (D), 61% (R), and 74% (I)
      Colorado (9)- 79% (D), 56% (R), and 70% (I).
      Connecticut (7)- 80% (D), 67% (R), and 71% others
      Delaware (3)- 79% (D), 69% (R), and 76% (I)
      District of Columbia (3)- 80% (D), 48% (R), and 74% of (I)
      Florida (29)- 88% (D), 68% (R), and 76% others
      Idaho(4) – 84% (D), 75% (R), and 75% others
      Iowa (6)- 82% (D), 63% (R), and 77% others
      Kentucky (8)- 88% (D), 71% (R), and 70% (I)
      Maine (4) – 85% (D), 70% (R), and 73% others
      Massachusetts (11)- 86% (D), 54% (R), and 68% others
      Michigan (16)- 78% (D), 68% (R), and 73% (I)
      Minnesota (10)- 84% (D), 69% (R), and 68% others
      Mississippi (6)- 79% (D), 75% (R), and 75% Others
      Montana – 67% (R), 80% (D), and 70% others
      Nebraska (5)- 79% (D), 70% (R), and 75% Others
      Nevada (5)- 80% (D), 66% (R), and 68% Others
      New Hampshire (4)- 80% (D), 57% (R), and 69% (I)
      New Mexico (5)- 84% (D), 64% (R), and 68% (I)
      New York (29) – 86% (D), 66% (R), 78% Independence Party members, 50% Conservative Party members, 100% Working Families Party members, and 70% Others
      North Carolina (15)- 75% liberal (D), 78% moderate (D), 76% conservative (D), 89% liberal (R), 62% moderate (R) , 70% conservative (R), and 80% (I)
      Ohio (18)- 81% (D), 65% (R), and 61% Others
      Oklahoma (7)- 84% (D), 75% (R), and 75% others
      Oregon (7)- 82% (D), 70% (R), and 72% (I)
      Pennsylvania (20)- 87% (D), 68% (R), and 76% (I)
      Rhode Island (4)- 86% liberal (D), 85% moderate (D), 60% conservative (D), 71% liberal (R), 63% moderate (R), 35% conservative (R), and 78% (I),
      South Carolina – 64% (R), 81% (D), and 68% others
      South Dakota (3)- 84% (D), 67% (R), and 75% others
      Tennessee 73% (R), 78% (D)
      Utah (6)- 82% (D), 66% (R), and 75% others
      Vermont (3)- 86% (D); 61% (R), and 74% Others
      Virginia (13)- 79% liberal (D), 86% moderate (D), 79% conservative (D), 76% liberal (R), 63% moderate (R), and 54% conservative (R), and 79% Others
      Washington (12)- 88% (D), 65% (R), and 73% others
      West Virginia (5)- 87% (D), 75% (R), and 73% others
      Wisconsin (10)- 81% (D), 63% (R), and 67% (I)
      Wyoming (3) – 77% (D), 66% (R), and 72% (I)
      http://nationalpopularvote.com/pages/polls.php

  7. Anon21 says:

    Backing out “at the last minute” should be mitigated, if not entirely cured, by a provision in the compact that it’s only binding so long as states totaling 270 EVs remain committed to it on election day.

    Backing out after the election would not be allowed by the federal courts.

    • The one problem that could arise from a last-minute back-out is that the campaigns might have completely misallocated their resources for a traditional EC election. If some state backs out and invalidates the compact on Halloween, you could see campaigns scrambling to pull whatever they could out of New York, LA, Chicago, Dallas, Atlanta, etc., and try to quickly set up shop in the parts of Ohio and Florida outside the big cities, which they’d have probably not given much attention up that point. Or, more nefariously, see one campaign scrambling while the other one looks oddly prepared for this shocking development.

      • Anon21 says:

        Well, that’s why I think it would be mitigated but not entirely cured. It’s possible, but not likely, that shenanigans like that could swing an election. Still worth giving it a try, in my opinion, because our current system is just ridiculous.

        • Cody says:

          Seems more likely someone will ask “Why is Zombie McCain campaigning in Ohio still!?”…

          Oh, the Republicans in Ohio just backed out of the NPV 10 days before the election! What a coincidence.

          • kohler says:

            Effective last minute withdrawals are not possible.

            The National Popular Vote bill says: “Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.”

            see below

    • kohler says:

      Effective last minute withdrawals are not possible.

      The National Popular Vote bill says: “Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.”

      This six-month “blackout” period includes six important events relating to presidential elections, namely the
      ● national nominating conventions,
      ● fall general election campaign period,
      ● Election Day on the Tuesday after the first Monday in November,
      ● meeting of the Electoral College on the first Monday after the second Wednesday in December,
      ● counting of the electoral votes by Congress on January 6, and
      ● scheduled inauguration of the President and Vice President for the new term on January 20.

      Any attempt by a state to pull out of the compact in violation of its terms would violate the Impairments Clause of the U.S. Constitution and would be void. Such an attempt would also violate existing federal law. Compliance would be enforced by Federal court action

      The National Popular Vote compact is, first of all, a state law. It is a state law that would govern the manner of choosing presidential electors. A Secretary of State may not ignore or override the National Popular Vote law any more than he or she may ignore or override the winner-take-all method that is currently the law in 48 states.

      There has never been a court decision allowing a state to withdraw from an interstate compact without following the procedure for withdrawal specified by the compact. Indeed, courts have consistently rebuffed the occasional (sometimes creative) attempts by states to evade their obligations under interstate compacts.

      In 1976, the U.S. District Court for the District of Maryland stated in Hellmuth and Associates v. Washington Metropolitan Area Transit Authority:

      “When enacted, a compact constitutes not only law, but a contract which may not be amended, modified, or otherwise altered without the consent of all parties.”

      In 1999, the Commonwealth Court of Pennsylvania stated in Aveline v. Pennsylvania Board of Probation and Parole:
      “A compact takes precedence over the subsequent statutes of signatory states and, as such, a state may not unilaterally nullify, revoke, or amend one of its compacts if the compact does not so provide.”

      In 1952, the U.S. Supreme Court very succinctly addressed the issue in Petty v. Tennessee-Missouri Bridge Commission:
      “A compact is, after all, a contract.”

      The important point is that an interstate compact is not a mere “handshake” agreement. If a state wants to rely on the goodwill and graciousness of other states to follow certain policies, it can simply enact its own state law and hope that other states decide to act in an identical manner. If a state wants a legally binding and enforceable mechanism by which it agrees to undertake certain specified actions only if other states agree to take other specified actions, it enters into an interstate compact.

      Interstate compacts are supported by over two centuries of settled law guaranteeing enforceability. Interstate compacts exist because the states are sovereign. If there were no Compacts Clause in the U.S. Constitution, a state would have no way to enter into a legally binding contract with another state. The Compacts Clause, supported by the Impairments Clause, provides a way for a state to enter into a contract with other states and be assured of the enforceability of the obligations undertaken by its sister states. The enforceability of interstate compacts under the Impairments Clause is precisely the reason why sovereign states enter into interstate compacts. Without the Compacts Clause and the Impairments Clause

  8. Chuchundra says:

    I don’t know. The idea of going to a NPV via this kludge of an agreement, without a Constitutional Amendment and federal law to lay out the rules, gives me a bad feeling in the pit of my stomach.

    First of all, there’s the very real possibility that some GOP governor/legislature might ratfuck the process, pulling out after the election but before the EC vote if that would throw the contest to the Republican.

    But beyond that, I don’t think it’s possible to have a fair NPV without some kind of standardization as to voting machines, registration, vote counting etc.

    Then you have to think about what happens when there’s a very close result. What are the recount procedures going to be like, especially in states what have not signed on to the compact? Are you ready for Florida 2000 writ large and the concomitant nonsense from the usual suspects?

    The idea of an NPV is appealing, but doing it in this roundabout way leaves the door wide open for all kinds of shenanigans.

    • Jameson Quinn says:

      If you think about how such ratfucking would actually work you see that it could only happen if the Ds got the popular vote but the Rs would have won under the current EC system. That’s a remote possibility with the parties as we know them, multiplied by a small possibility of the ratfucking going through, giving a neigible product. Furthermore, if your goal in this is pro-democracy and anti-Republicanism, it’s not even a downside, since it’s a case where nhe current system also fails.

    • kohler says:

      see above for more details, but The National Popular Vote bill says: “Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.”

      This six-month “blackout” period includes six important events relating to presidential elections, namely the
      ● national nominating conventions,
      ● fall general election campaign period,
      ● Election Day on the Tuesday after the first Monday in November,
      ● meeting of the Electoral College on the first Monday after the second Wednesday in December,
      ● counting of the electoral votes by Congress on January 6, and
      ● scheduled inauguration of the President and Vice President for the new term on January 20.

    • kohler says:

      The Founding Fathers in the Constitution did not require states to allow their citizens to vote for president, much less award all their electoral votes based upon the vote of their citizens.

      The presidential election system we have today is not in the Constitution, and enacting National Popular Vote would not need an amendment. State-by-state winner-take-all laws to award Electoral College votes, were eventually enacted by states, using their exclusive power to do so, AFTER the Founding Fathers wrote the Constitution. Now our current system can be changed by state laws again.

      Unable to agree on any particular method for selecting presidential electors, the Founding Fathers left the choice of method exclusively to the states in section 1 of Article II of the U.S. Constitution– “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .” The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

      The constitution does not prohibit any of the methods that were debated and rejected. Indeed, a majority of the states appointed their presidential electors using two of the rejected methods in the nation’s first presidential election in 1789 (i.e., appointment by the legislature and by the governor and his cabinet). Presidential electors were appointed by state legislatures for almost a century.

      Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all method) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation’s first presidential election.

      In 1789, in the nation’s first election, the people had no vote for President in most states, only men who owned a substantial amount of property could vote, and only three states used the state-by-state winner-take-all method to award electoral votes.

      The current 48 state-by-state winner-take-all method (i.e., awarding all of a state’s electoral votes to the candidate who receives the most popular votes in a particular state) is not entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. It is not mentioned in the U.S. Constitution, the debates of the Constitutional Convention, or the Federalist Papers. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all method.

      The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding the state’s electoral votes.

      As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all method is used by 48 of the 50 states. States can, and frequently have, changed their method of awarding electoral votes over the years.

    • kohler says:

      There is nothing incompatible between differences in state election laws and the concept of a national popular vote for President. That was certainly the mainstream view when the U.S. House of Representatives passed a constitutional amendment in 1969 for a national popular vote by a 338–70 margin. That amendment retained state control over elections.
      The 1969 amendment was endorsed by Richard Nixon, Gerald Ford, Jimmy Carter, and various members of Congress who later ran for Vice President and President such as then-Congressman George H.W. Bush, then-Senator Bob Dole, and then-Senator Walter Mondale.

      The American Bar Association also endorsed the proposed 1969 amendment.

      The proposed 1969 constitutional amendment provided that the popular-vote count from each state would be added up to obtain the nationwide total for each candidate. The National Popular Vote compact does the same.

      Under the current system, the electoral votes from all 50 states are comingled and simply added together, irrespective of the fact that the electoral-vote outcome from each state was affected by differences in state policies, including voter registration, ex-felon voting, hours of voting, amount and nature of advance voting, and voter identification requirements.

      Current federal law (Title 3, chapter 1, section 6 of the United States Code) requires the states to report the November popular vote numbers (the “canvas”) in what is called a “Certificate of Ascertainment.” They list the electors and the number of votes cast for each. The Congress meets in joint session to count the electoral votes reported in the Certificates of Ascertainment. You can see the Certificates of Ascertainment for all 50 states and the District of Columbia containing the official count of the popular vote at the NARA web site.

      Under both the current system and the National Popular Vote compact, all of the people of the United States are impacted by the different election policies of the states. Everyone in the United States is affected by the division of electoral votes generated by each state. The procedures governing presidential elections in a closely divided battleground state (e.g., Florida and Ohio) can affect, and indeed have affected, the ultimate outcome of national elections.

      For example, the 2000 Certificate of Ascertainment (required by federal law) from the state of Florida reported 2,912,790 popular votes for George W. Bush and 2,912,253 popular vote for Al Gore, and also reported 25 electoral votes for George W. Bush and 0 electoral votes for Al Gore. That 25–0 division of the electoral votes from Florida determined the outcome of the national election just as a particular division of the popular vote from a particular state might decisively affect the national outcome in some future election under the National Popular Vote compact.

      The 1969 constitutional amendment, endorsed by Richard Nixon, Gerald Ford, Jimmy Carter, and members of Congress who later ran for Vice President and President such as then-Congressman George H.W. Bush, then-Senator Bob Dole, and then-Senator Walter Mondale, and The American Bar Association and, more importantly, the current system also accepts the differences among states.

      The U.S. Constitution specifically permits diversity of election laws among the states because it explicitly gives the states control over the conduct of presidential elections (article II) as well as congressional elections (article I). The fact is that the Founding Fathers in the U.S. Constitution permit states to conduct elections in varied ways. The National Popular Vote compact is patterned directly after existing federal law and preserves state control of elections and requires each state to treat as “conclusive” each other state’s “final determination” of its vote for President.

    • kohler says:

      The current presidential election system makes a repeat of 2000 more likely, not less likely. All you need is a thin and contested margin in a single state with enough electoral votes to make a difference. It’s much less likely that the national vote will be close enough that voting irregularities in a single area will swing enough net votes to make a difference. If we’d had National Popular Vote in 2000, a recount in Florida would not have been an issue.

      The idea that recounts will be likely and messy with National Popular Vote is distracting.

      The 2000 presidential election was an artificial crisis created because of Bush’s lead of 537 popular votes in Florida. Gore’s nationwide lead was 537,179 popular votes (1,000 times larger). Given the miniscule number of votes that are changed by a typical statewide recount (averaging only 274 votes); no one would have requested a recount or disputed the results in 2000 if the national popular vote had controlled the outcome. Indeed, no one (except perhaps almanac writers and trivia buffs) would have cared that one of the candidates happened to have a 537-vote margin in Florida.

      Recounts are far more likely in the current system of state-by-state winner-take-all methods.

      The possibility of recounts should not even be a consideration in debating the merits of a national popular vote. No one has ever suggested that the possibility of a recount constitutes a valid reason why state governors or U.S. Senators, for example, should not be elected by a popular vote.

      The question of recounts comes to mind in connection with presidential elections only because the current system so frequently creates artificial crises and unnecessary disputes.

      We do and would vote state by state. Each state manages its own election and is prepared to conduct a recount.

      The state-by-state winner-take-all system is not a firewall, but instead causes unnecessary fires.
      “It’s an arsonist itching to burn down the whole neighborhood by torching a single house.” Hertzberg

      Given that there is a recount only once in about 160 statewide elections, and given there is a presidential election once every four years, one would expect a recount about once in 640 years with the National Popular Vote. The actual probability of a close national election would be even less than that because recounts are less likely with larger pools of votes.

      The average change in the margin of victory as a result of a statewide recount was a mere 296 votes in a 10-year study of 2,884 elections.

      No recount would have been warranted in any of the nation’s 57 previous presidential elections if the outcome had been based on the nationwide count.

      The common nationwide date for meeting of the Electoral College has been set by federal law as the first Monday after the second Wednesday in December. With both the current system and the National Popular Vote, all counting, recounting, and judicial proceedings must be conducted so as to reach a “final determination” prior to the meeting of the Electoral College. In particular, the U.S. Supreme Court has made it clear that the states are expected to make their “final determination” six days before the Electoral College meets.

    • kohler says:

      The U.S. Constitution says “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .” The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

      The normal way of changing the method of electing the President is not a federal constitutional amendment, but changes in state law. The U.S. Constitution gives “exclusive” and “plenary” control to the states over the appointment of presidential electors.

      Historically, virtually all of the previous major changes in the method of electing the President have come about by state legislative action. For example, the people had no vote for President in most states in the nation’s first election in 1789. However, now, as a result of changes in the state laws governing the appointment of presidential electors, the people have the right to vote for presidential electors in 100% of the states.

      The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes. The abnormal process is to go outside the Constitution, and amend it.

    • Hob says:

      “I don’t think it’s possible to have a fair NPV without some kind of standardization as to voting machines, registration, vote counting etc.”

      If by “fair” you mean “absolutely devoid of regional bias,” then you’re right. But that’s no reason to oppose the NPV compact, unless you think NPV would somehow make those things more of a problem.

      Right now, if someone fiddles with the voter rolls and/or the vote counts so as to throw 10,000 votes to the wrong guy, it can make a huge difference to the outcome if it’s in a state where the candidates are with 10,000 votes of each other, even if one of them has a much larger margin nationwide. It’s even worse in states where EVs are awarded by congressional district, since if most districts are safe then you only need to rig the count in a few small areas. With NPV, both of those tactics become relatively ineffective unless practiced on a much wider scale.

  9. Peter Hovde says:

    Another thought on Texas-if the state’s electoral vote were not a foregone conclusion, and there was actually some attention paid to it, this might encourage a higher level of political participation, something I am fairly confident the state’s current rulers are not too keen on.

    • Anon21 says:

      Yeah, it seems (from someone with little knowledge of Texas politics) that the last thing the state GOP would want would be Democratic presidential candidates making lots of visits to the big Texas cities and working to register and get out the large Hispanic vote. But of course, if NPV succeeds by picking up enough other states to get a majority, that’s exactly what will happen anyway.

      • Peter Hovde says:

        If not for the partisan interest in suppressing participation, you’d expect Texas elites to be enthusiastic about NPV, since the state is completely ignored under the current system. Conversely, you’d expect the battleground states to reject it (as they so far have) without some countervailing partisan incentive.

    • kohler says:

      In 2008, voter turnout in the then 15 battleground states averaged seven points higher than in the 35 non-battleground states.

      In 2012, voter turnout was 11% higher in the 9 battleground states than in the remainder of the country.

      If presidential campaigns now did not ignore more than 200,000,000 of 300,000,000 Americans, one would reasonably expect that voter turnout would rise in 80% of the country that is currently ignored by presidential campaigns.

  10. wengler says:

    NPV is just putting lipstick on a pig. Nothing short of a total overhaul of our elections system, including the end of the Electoral Count and the ratification of national standards for voting in federal elections is meaningful reform.

    • David Kaib says:

      I’m all for national standards (for universal suffrage without barriers), but I don’t see how that has anything to do with the EC.

    • kohler says:

      To abolish the Electoral College would need a constitutional amendment, and could be stopped by states with as little as 3% of the U.S. population.

      The U.S. Constitution specifically permits diversity of election laws among the states because it explicitly gives the states control over the conduct of presidential elections (article II) as well as congressional elections (article I). The fact is that the Founding Fathers in the U.S. Constitution permit states to conduct elections in varied ways. The National Popular Vote compact is patterned directly after existing federal law and preserves state control of elections.

      It ensures that every vote is equal, every voter will matter, in every state, in every presidential election, and the candidate with the most votes wins, as in virtually every other election in the country.

      The precariousness of the current state-by-state winner-take-all system of awarding electoral votes is highlighted by the fact that a shift of a few thousand voters in one or two states would have elected the second-place candidate in 4 of the 15 presidential elections since World War II. Near misses are now frequently common. There have been 7 consecutive non-landslide presidential elections (1988, 1992, 1996, 2000, 2004, 2008, and 2012). 537 popular votes won Florida and the White House for Bush in 2000 despite Gore’s lead of 537,179 (1,000 times more) popular votes nationwide. A shift of 60,000 voters in Ohio in 2004 would have defeated President Bush despite his nationwide lead of over 3 million votes.

      Under National Popular Vote, every vote, everywhere, would be politically relevant and equal in every presidential election. Every vote would be included in the state counts and national count. The candidate with the most popular votes in all 50 states and DC would get the needed 270+ electoral votes from the enacting states. The bill would thus guarantee the Presidency to the candidate who receives the most popular votes.

      National Popular Vote would give a voice to the minority party voters in each state. Now their votes are counted only for the candidate they did not vote for. Now they don’t matter to their candidate.

      And now votes, beyond the one needed to get the most votes in the state, for winning in a state are wasted and don’t matter to candidates. Utah (5 electoral votes) alone generated a margin of 385,000 “wasted” votes for Bush in 2004. 8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).

      With National Popular Vote, elections wouldn’t be about winning states. No more distorting and divisive red and blue state maps. Every vote, everywhere would be counted equally for, and directly assist, the candidate for whom it was cast.

      Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states. The political reality would be that when every vote is equal, the campaign must be run in every part of the country.

      When and where voters matter, then so do the issues they care about most.

      National Popular Vote is very meaningful reform.

      • wengler says:

        I actually don’t think small states would gang up against the end of the electoral college once the ball started rolling. As you’ve cited a real national popular vote is a popular concept in every state.

        But NPV is not the end of the electoral college. It is simply the allocation of EC votes by other means. And invalidating your own state election results isn’t the greatest or most reliable idea. NPV is some weird, compromise idea that will never work in practice and I don’t even see how it’s going to be easier to pass than a Constitutional amendment.

        • kohler says:

          There is no reason to hang on to the state-by-state winner-take-all system except fear of worst-case-scenarios that can be used to justify resisting any change.

          Under the current presidential election system, voters in 80% of the states are not politically relevant; every vote is not equal; states disregard the votes for the losers of their state, and do not value the votes for the winner beyond the one vote more than the leading opponent; the House of Representatives could be left to decide who will be President; and the clear will of the people may be ignored.

          National Popular Vote did not invent popular elections. Having election results determined by the candidate getting the most individual votes is not some scary, untested idea loaded with unintended consequences. It gives a voice to the minority party in those states where elections are seen as a foregone conclusion.

          The bill adds up votes of all voters and the candidate with the most popular votes wins, as in virtually every other election in the country.

          Ultimately, the choice is whether it is more important for the winner in a particular state to receive the state’s electoral votes or for the winner of the entire country to win the White House.

          In state polls of voters each with a second question that specifically emphasized that their state’s electoral votes would be awarded to the winner of the national popular vote in all 50 states, not necessarily their state’s winner, there was only a 4-8% decrease of support.

          Question 1: “How do you think we should elect the President: Should it be the candidate who gets the most votes in all 50 states, or the current Electoral College system?”

          Question 2: “Do you think it more important that a state’s electoral votes be cast for the presidential candidate who receives the most popular votes in that state, or is it more important to guarantee that the candidate who receives the most popular votes in all 50 states becomes president?”

          Support for a National Popular Vote
          South Dakota — 75% for Question 1, 67% for Question 2.
          see http://tinyurl.com/3jdkx7x

          Connecticut — 74% for Question 1, 68% for Question 2.
          see http://tinyurl.com/3nv8djt

          Utah — 70% for Question 1, 66% for Question 2.
          see http://tinyurl.com/3vrfxyh

  11. I’ve never seen analysis of what the NPV would mean for the role of money and media buys. Right now there’s an effective bottleneck for the amount of media available to buy in swing states (almost all of the commercial time that’s available for purchase by campaigns in major swing state markets is purchased). When this is no longer in effect, what happens?

    Do campaigns shift to a more national strategy and keep the amount of ad money relatively the same? Will there be a huge surge in donations to buy up all that new time or are campaigns already sucking up donations about as efficiently as they can? Will there be a relative shift in resources to grassroots efforts to connect with the larger pool of voters or to media buys to buy up the larger pool of time?

  12. kohler says:

    Presidential candidates currently do everything within their power to raise as much money as they possibly can from donors throughout the country. They then allocate their time and the money that they raise nationally to places where it will do the most good toward their goal of winning the election.

    Money doesn’t grow on trees. The fact that candidates would spend their money more broadly (that is, in all 50 states and DC) would not, in itself, loosen up the wallet of a single donor anywhere in the country. Candidates will continue to try to raise as much money as economic considerations permit. Economic considerations by donors determines how much money will be available, not the existence of an increases number of places where the money might be spent.

    Presidential candidates concentrate their attention on only a handful of closely divided “battleground” states and their voters. There is no incentive for them to bother to care about the majority of states where they are hopelessly behind or safely ahead to win. 10 of the original 13 states are ignored now. Four out of five Americans were ignored in the 2012 presidential election. After being nominated, Obama visited just eight closely divided battleground states, and Romney visited only 10. These 10 states accounted for 98% of the $940 million spent on campaign advertising. They decided the election. That’s precisely what they should do in order to get elected with the current system, because the voters of 80% of the states simply don’t matter. Candidates have no reason to poll, visit, advertise, organize, campaign, or care about the concerns of voters in states where they are safely ahead or hopelessly behind. Over 85 million voters, 200 million Americans, are ignored.

    If every vote mattered throughout the United States, as it would under a national popular vote, candidates would reallocate their time and the money they raise.

    The main media at the moment, namely TV, costs much more per impression in big cities than in smaller towns and rural area. So, if you just looked at TV, candidates get more bang for the buck in smaller towns and rural areas.

    About 90% of all campaign offices were concentrated in 12 states in 2012.

    92% of Romney’s campaign offices (262 of 284) were in the 12 states

    87% of Obama’s campaign offices (690 of 790) were in the 12 states

    Colorado – 13 (R), 62 (O)
    Florida – 48 (R), 104 (O)
    Iowa – 14 (R), 67(O)
    Michigan – 24 (R), 28 (O)
    Minnesota – 0 (R), 12 (O)
    Nevada – 12 (R), 26 (O)
    New Hampshire – 9 (R), 22 (O)
    North Carolina – (R), 54 (O)
    Ohio – 40 (R), 131 (O)
    Pennsylvania – 25 (R), 54 (O)
    Virginia – 29 (R), 61 (O)
    Wisconsin – 24 (R), 69 (O)
    Total 262 (R), 690 (O)

    In 38 Other States – 22 (R), 100 (O)

    With National Popular Vote, candidates would have to appeal to a broad range of demographics, and perhaps even more so, because the election wouldn’t be capable of coming down to just one demographic, such as voters in Ohio.

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