Ranting On...the National Popular Vote Compact

New York Gov. Andrew Cuomo, who just signed the National Popular
Vote Compact

I occasionally will keep a list of topics I would love to discuss on the blog, but they’re not quite topical enough to bring up, so I skip out on them.  One of those topics is the electoral college and the concept of the National Popular Vote Interstate Compact, and with New York joining the pledge, I figured now was as good of a time as any.

For those that are curious, the National Popular Vote Interstate Compact is a pledge where a series of states promise that, regardless of their own state’s actual vote outcomes, they will abide by whichever candidate wins the national popular vote. This has been enacted in ten states and the District of Columbia (for the record, this initiative is primarily pushed by Democrats and has only been enacted in states that have gone for Democrats in at least the past six national elections).

On the surface, this seems like a great idea.  As a Democrat who came of political awareness in 2000 (I was still a teenager, but old enough to have a clear preferred candidate in the presidential election), I’m more than aware that the person who wins the popular vote doesn’t necessarily win the Electoral College and the White House.  Almost all of the current movements regarding the Electoral College and reform of the body stem from the 2000 election and how the majority of the country saw their preferred choice for president get upended for a man who received fewer votes nationally.  Other people (correctly) criticize the fact that the Electoral College disproportionately favors smaller states and pushes states like California and Texas into having less impact (for example, a state like Wyoming gets an electoral vote for every 187,875 people in their state, whereas  California does for every 677,345, using the last census).

There’s also other non-fact based aspects of the law worth considering and that could argue in its favor (though one from a purely partisan standpoint).  In the current election system, states like Virginia, Ohio, and Florida, where the race is more likely to be close, receive an enormous amount of attention from presidential candidates.  Despite Rhode Island being a stronghold for Barack Obama or Idaho being a bedrock for Mitt Romney, neither candidate spent any significant time in those states in the last election.  In a national popular vote system, presidential candidates would not feel the need to focus on these specific states and would spend more time trying to simply get-out-the-vote nationally.  This system would also give a little bit more credit to third party candidates, who at least would have their votes counted in a national system (in the current system, even a significant third-party candidate like Ross Perot couldn’t muster a single vote in the Electoral College despite reaching 19% of the vote in 1992).  And the system would probably compel more people to vote.  A Democrat in Idaho or a Republican in Rhode Island currently has very little incentive other than civic pride to vote in a presidential election as they have almost no chance of impacting their state; a national popular vote means they would be contributing to their preferred candidate.

Another aspect of the law that is important to note is that it greatly favors Democrats for a variety of factors.  Democrats, for starters, have won five of the past six popular votes nationally (and John Kerry got closer to winning it than all but George W. Bush in 2000).  Less obviously, Democrats also have a more demographically compact voting base.  Someone like Hillary Clinton would be able to concentrate her GOTV efforts in major metropolitan areas like Atlanta, San Francisco, and Boston, whereas someone like Mitt Romney would have to expend significantly more resources in attempting to get out the vote in conservative rural strongholds.  It’s quite arguable, in fact, that John Kerry could have toppled George W. Bush’s margin in 2004 had he just had to drive up votes, and not votes in a specific state like Ohio or Florida.

Former Vice President Al Gore

All of this said, you'd assume that I would be a proponent for the law, but there you are wrong.  Because, while there are a lot of pragmatic reasons to be in favor of this law, there are some big caveats as well.  For starters, the law doesn't take into account if an election is particularly close.  Looking at a race like 2000, where Al Gore won the popular vote, but by a relatively slim margin of 540,000 votes (just 0.52% of the popular vote nationally), it's very easy to see that a recount could have changed the outcome of the election: there are roughly 175,000 precincts in this country, meaning that George W. Bush would have had to just pick up three votes per precinct in order to reverse Gore's lead, a pretty paltry and totally feasible number.  The National Popular Vote argues that close elections are less likely to happen under their model, but that doesn't seem to be based in fact and only in wishful thinking.

There are also no provisions currently on how to handle a recount nationally, since some states that aren't in the pact are not compelled to perform a recount.  A recount could well shift the balance in one way or another, but it's not fair if not all of the votes are being recounted, particularly since (though there are multiple schools of thought on this one) recounts a majority of the time seem to favor Democrats over Republicans.  If a state like Texas or Georgia, both solidly blue but with a lot of votes for both sides to pick up, doesn't perform a recount, it could leave pivotal votes on the table.  

We also don't have national laws requiring uniform election practices.  As we've seen in a number of states in recent years, a push for voter ID laws (from the Republicans) and more expanded voting hours (from the Democrats) have played a major role in elections.  This would only become more extreme when you have to contribute on a national playing field.  It actually would still leave remnants of the Electoral College intact-states would no longer send their own preferred electors, but they would be helping to decide who gets to vote.  This opens up the law to a world of electoral fraud and potential vote stifling.

And finally, there's the issue of third parties-what if a candidate doesn't reach the majority of voters?  Look at presidential elections in 1968 or 1992, where no national candidate could reach 45% of the vote, much less a majority.  Without some sort of IRV in place, there's the risk that a candidate could win the presidency with a majority of the country not having voted for that person (again, admittedly that's an issue with the current system and kind of the point of this process, but it points out that a national popular vote compact isn't going to necessarily solve such an issue).

So, then, what is the answer?  For starters, proponents of a national popular vote should not be pushing for this interstate compact, which has major, serious flaws in regard to handling recounts (and as voters in Florida, Minnesota, Washington, and Virginia have found out recently, recounts can take an eternity), but instead should push their current legislators to vote for a constitutional amendment (the national convention idea is also a possibility, but for many, many, many reasons that's not something I particularly support, though that's an argument for a different article).  A constitutional amendment, were it to pass the Congress, would guarantee that we handle elections much more fairly and uniformly, and the state legislatures would still have the power to ratify such a bill.

However, and I know I'm very much in the minority here, but if you want to preserve states' rights, telling them how to run their elections is probably an infringement on such a thing.  It may be worth looking into a compromise between electoral college proponents and popular vote advocates.  The only states that currently do "something different" are Maine and Nebraska, and in a way they're on the right track.  Both states will reward their electoral votes derived from their Senate seats to the majority of the people who won the state, and each congressional district's votes will go to the candidate who won that district.  This resulted in Barack Obama winning one of the Nebraska electors in the 2008 election.  Of course, this also makes gerrymandering even more crucial, and greatly disadvantages a state unless all states do it (this is an option that has been pushed hard by blue-state Republicans, in particular in Pennsylvania).  It means that in a state like Pennsylvania, despite the state going for the Democrats, the majority of the electors in the state would favor the Republicans, which doesn't seem fair.

My personal thought has always been to do a proportional representation of the state.  In this case, if a state has 10 votes, and Candidate A gets 60% of the vote and Candidate B gets 40% of the vote, one candidate would get 6 votes and the other would get 4.  There are quite a few problems with this proposal, principally that it doesn't work unless everyone does it (again, if California does it and Texas doesn't, it greatly favors the Republicans, and vice versa), but it keeps the calamity of a national recount at bay, retains some aspects of states' rights, and most importantly, it makes the votes of every voter matter in some regard (it would be extremely rare outside of Washington DC for one of the current major parties to miss out on at least one electoral college vote).  The only drawback I don't have a major solution for is that it doesn't favor small states-a state like California, where driving up your percentage of the popular vote by 2% would mean another electoral vote, would be more important than a state like  Wyoming where a Republican is almost guaranteed two votes and the Democrat only one.  However, this is a major problem of the national vote compact as well, but it doesn't come with the problems of a recount.  Plus, the Senate already gives an inherent advantage to smaller states, so they're already having at least one branch of government tipping in their direction.  As I said, though, this is also something that would need to be endorsed by all states before it could be considered fair-and-even.

As I've illustrated, there's no great way to have this style of election without some sorts of unfairness.  Every proposal to fix the Electoral College has major problems in its execution.  And I do respect the noble place this movement is coming from.  However, without ways to ensure that all votes in a national popular vote are being counted fairly, this is a piece of legislation that should not be passed on a state-by-state basis.  Either change the Constitution to ensure a fair and uniform process, or this just causes more problems than it fixed.