Nancy Pelosi famously declared of Obamacare: “We have to pass the bill so that you can find out what is in it.” The same could be said of the National Popular Vote (NPV), a piece of anti–Electoral College legislation that has been stealthily working its way through state legislatures. Just last month, New York became the latest state to join the effort.
Most Americans are unaware that ten states, plus the District of Columbia, have approved this measure. Indeed, the proposal already has 61 percent of the support it needs to go into effect. The country’s presidential-election system is on track to be radically altered, yet most voters have no idea that change is afoot.
National Popular Vote is a California-based group that has been working since 2006 to change the way Americans elect their presidents. NPV supporters are aware of the many failed past efforts to enact a constitutional amendment eliminating the Electoral College. Such an amendment would require the support of two-thirds of each house of Congress and three-quarters (38) of the states. Their objective — eliminating the Electoral College — simply does not have enough support to achieve this goal.
But NPV supporters aren’t going to let a little thing like the Constitution get in the way of a good progressive idea. They have hatched a new scheme, which they say is merely making creative use of constitutional provisions. Creative, indeed! NPV’s idea is so creative that it claims the ability to implement the direct presidential election system that was specifically rejected by the delegates to the Constitutional Convention.
NPV’s plan is simple: It asks each state to change its laws regarding allocation of presidential electors. Today, most states give their electors to the presidential candidate who won their own state’s election. For instance, Barack Obama obtained 55 electors from California in 2012 because he won the popular vote in California. NPV instead asks states to commit themselves, in advance and (supposedly) irrevocably, to award their electors to the winner of the national popular vote.
Participating states sign an interstate compact committing them to this new system. It goes into effect when states totaling 270 electors — enough to win a presidential election — have signed on. In this way, participating states are guaranteed that the winner of the national popular vote will be chosen as president. The Electoral College would still technically exist, but it would merely ratify the national popular-vote winner.
With NPV in place, California still would have appointed 55 Democratic electors for Obama in 2012, because he won the popular vote nationwide. But in 2004 the pact would have required California to appoint 55 Republican electors for George W. Bush, even though John Kerry won 54 percent of the California vote, because Bush won the nationwide popular vote.
Does anyone really think that California would tamely submit and appoint 55 Republican electors in such a situation? Are we really to believe that it would give its electors to Sarah Palin or Ted Cruz? Doubtful. Litigation would surely follow to determine whether California’s legislature could appoint Democratic electors after all. (The Constitution says: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .”) The chaos that would follow is just one of the many unanticipated ramifications of NPV’s plan.
Other unintended consequences are certain to follow this attempt to circumvent the constitutional-amendment process.
First, consider that 51 local election codes exist in this country (one for each state, plus the District of Columbia). Today, these codes exist side by side; they do not interfere with each other, because each one governs a different election and a different pool of voters: California’s election code, for example, applies only to California voters. Each state holds its own election to choose its own electors, and there is no overlap between them. A vote cast in Texas has no influence over the selection of California’s electors.
But NPV disrupts this careful balance. It would not replace the current local election codes with a single federal one. The various state codes will still exist, but states that are participating in NPV will be expected to allocate their electors in partial dependence on other states’ laws. With NPV in place, a presidential vote cast in Texas will always affect the outcome in California. And so the existence of a different election code in Texas always has the potential to unfairly penalize a voter in California, and vice versa.
And state election codes can differ drastically. States have different rules about registration, early voting, and qualifying for the ballot. They have different policies regarding felon voting. They have different triggers for optional or automatic recounts, and different procedures for counting provisional ballots or investigating allegations of fraud. Their hours of voting vary quite a bit. Each and every one of these differences is an opportunity for someone, somewhere to file a lawsuit. Can’t you hear the complaints already?
“It’s not fair! More Texans voted in the national election, but they also had longer early-voting hours than we did!”
“It’s not fair! Why could those felons vote in the national election, but I couldn’t?”
One well-respected constitutional lawyer, Vikram David Amar, has acknowledged the dangers created by these clashing sets of state election codes. Amar’s opinion is important: NPV is based on an idea that he and two other professors proposed in 2001. He notes that a “problem I see in the current National Popular Vote bill is that it does not guarantee a true national election with uniform voter qualification, voter mechanics, and vote-counting standards. Absent such uniformity, some states might have incentives to obstruct or manipulate vote counts.”
You have to pass it to find out what is in it? Expect to find numerous logistical issues arising from the attempt to conduct one national election with 51 sets of rules. Alternatively, expect to find a big push to eliminate the state election codes and replace them with a one-size-fits-all federal election code.
That centralized process will almost certainly give Americans a federal election bureaucracy, the head of which may be appointed by an incumbent president running for reelection. Hand in hand with the IRS, this new election bureaucracy could do quite a lot of damage.
Unfortunately, these unintended consequences are just the tip of the iceberg. Any route to eliminating the Electoral College, even a formal constitutional amendment, would have devastating effects on our political system.
John F. Kennedy once referred to the checks and balances in the Constitution as a “solar system” of power. “It is not only the unit vote for the presidency we are talking about, but a whole solar system of governmental power,” he said. “If it is proposed to change the balance of power of one of the elements of the solar system, it is necessary to consider all the others.” The Electoral College cannot be pulled out of America’s political solar system in isolation. Instead, its absence will inevitably affect other aspects of the system.
Such a move could destroy the two-party system and encourage the rise of extremist third parties. It could turn American presidential elections into European-style multi-party affairs. It could also facilitate an increase in fraud. After all, without the Electoral College, any vote stolen in any precinct in the country could affect the national outcome — even if that vote was easily stolen in the bluest California precinct or the reddest Texas one.
You have to pass it to find out what is in it? Many Americans are sorry that they didn’t take time to learn more about Obamacare before it was passed. Let’s not make the same mistake twice.
— Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College.