US Presidential elections: National Popular Vote

Today marked the launch of a plan to promote a citizen- and state-driven approach to changing the archaic and anti-democratic manner in which the United States currently elects its president: National Popular Vote. The idea was launched via C-Span this morning, and the program will be repeated. Check the C-Span schedule for times.

I will have much more to say about this in the near future. For now, I am just flagging the existence of the campaign, and a book released today (most of which I have already read eagerly, courtesy of an advance copy). The short version of the story is that the proposal is to avoid the (also archaic and anti-democratic, as well as cumbersome) process of amending the constitution, and have states enter into interstate compacts. Once a sufficiently high number of states has entered into such a compact, the states in question would change, under their Article II authority, the means by which they appoint electors such that the electors would go to the winner of the national popular vote (even if that ticket were not the winner of the popular vote within any given state). Voila, you have de facto direct vote (by plurality rule).

That last part–plurality rule–is an Achilles heal of the proposal, in the event of a three-way race. But there is no way I can see to mandate a runoff, whether in two rounds or “instant.” Congress would have to act to allow a second round of voting. (I do not believe doing so would require a constitutional amendment.) Most certainly, the instant runoff (alternative vote) favored by many American political reformers could not be adopted through the NPV plan. No allocation method, aside from the current state-by-state method, can be based on votes cast in any subset of the states. Thus I don’t see a way to implement this other than with plurality; we can determine the national popular-vote winner, just as we now do, and states in the compact–once they amount to states with 270 electoral votes–can each award all their electors to the candidate with the national-vote plurality. Efforts to use something other than plurality would have to await all states joining a compact that also covered the voting rules within the states, or else a constitutional amendment. One step at a time…

Anyway, more to come, for sure. This is an exciting, innovative proposal.

0 thoughts on “US Presidential elections: National Popular Vote

  1. I, too, believe the current system to be archaic. But I just don’t have enough confidence in FPTP systems to think they’d be much better. And simple nationwide FPTP doesn’t take into account smaller states, which is an important issue in a federal system. Not the the current system does either, since California, New York, Texas take the largest chunks of the electoral college.

    I always thought that if we were to change our system of electing the president, a more radical solution (like premier-presidentialism) would be more useful (even if more difficult to achieve). Seems odd to adopt the most presidential of the presidential systems (w/ all their flaws). I’m curious to know your thoughts on the matter.

    So far the US is the only long-lasting presidential system. If we’re going to change, why not move towards parliamentarism? I know there’s been a proposal like that for a while.

  2. Why are the states important in a national presidential election? This argument is often taken as a given in discussions of the electoral college, yet the founders themelves never made it, and no other federal system has anything like an electoral college. The one exception for a long time was Argentina, but in 1993 they abolished their electoral college. Nigeria and Indonesia (which are federal) have presidential electoral systems that take states into account, not by allocating electors to states, but by requiring minimal vote shares in a given number of states as well as a nationwide majority (with just a nationwide majority sufficing in a runoff in the Indonesian case). But these are both cases with vast ethnic and other differences among the states.

    Any electoral college or regional distributional requirement should ameliorate regional cleavages and encourage accommodation across them. However, the US electoral college exacerbates differences among the states. The variation in political cleavages across states is not that great here; even the Democrat-Republican cleavage (in which in almost all states, the second party is usually above 40% of the vote) mostly boils down to urban vs. suburban or rural. Well, most of us live in cities or suburbs, not rural areas, but some of us live in urban areas or suburbs that are a much smaller share of our state than is the case in other states. Thus distribution of voters within states exaggerates the seeming differences across states, and the electoral system magnifies this, rather that accommodates it.

    Federalism amply protects the states through the legislative branch, the judiciary, and separate sovereign state governments. The presidency belongs to all of us, and so the election process should reflect that. I do not take most of the claims in the literature about the ‘perils’ of presidentialism seriously, except for cases where the presidency is permitted unilateral powers, and hence is not checked adequately by institutions that reflect subnational interests more accurately.

    I’ll coninue this in a separate comment (perhaps somewhat more readable to break this up).

  3. Miguel asks, “If we’re going to change, why not move towards parliamentarism?” and he also asks my opinion of having either a premier- presidential or parliamentary system in the USA. I have addressed this question before at F&V. See the “Mission” statement linked beneath the blog’s banner (and in particular the section of that essay on a “re-engineering” agenda for the USA). I also suggested in December, rather in passing, converting the vice presidency into a “prime minister-like office“.

    But at the moment, there is no movement to pursue such fundamental reform in this country. There is, as of this week, an incipient movement to use state-level legislative and initiative processes to work towards a de-facto nationwide popular vote for president.

  4. I agree plurality election of the US president is a problem. But I prefer it to the status quo method, and if this National Popular Vote movement makes serious progress, it will open up a debate that might even get us to a nationwide runoff mechanism (of some sort) via constitutional amendment.

    We are not going to get any such amendment if we wait for the perfect solution to emerge somehow. Sometimes we have to work towards imperfect solutions, just to get the underlying problem (undemocratic and archaic constitutional procedures) even on the public agenda.

  5. There have been, according to one calculation, 700 bills entered in Congress to get rid of, or alter, the Electoral College.

    Two posts after this, you decry Cheney (the rat bastiche) for trying to subvert the Constitution, which clearly lays out the system for electing the President.

    I’m starting to wonder if I’m a Democrat anymore. I’m certainly against a National Popular Vote. The compact idea sounds unconstitutional on its face.

    However, on that idea, I don’t think you should simply give up thinking about it. I think you are moving in a good direction there.

    I’m fairly comfortable saying I’d prefer moving towards IRV (which you know I think is stupid, and which I believe a mathematical minded web-person has shown to be anti-third party (just at the moment when the third party might become second)) in each State than getting rid of the Electoral College.

    In practical terms, it favors over half of the States, and you’d need 3/4 to get the Constitutional amendment. Subverting the Constitution to get your way doesn’t strike me as a particular smaht strategy.

  6. I’m not a constitutional lawyer, but the NPV book addresses the constitutionality question. There is no doubt that states can determine how to allocate their own electors, and there is also no doubt that states can enter into interstate compacts. Whether there is some constitutional problem with deciding to change the method of allocating their electors in concert with other states is not for me to determine. But it seems to me that it is probably constitutionally permissible.

  7. IRV certainly is not favorable to ‘third’ parties, except those that might be in more or less permanent alliance with a big one (as in Australian house elections). But it is favorable to third-party voters, by allowing them to decide which of the top two will receive their votes after their preferred candidates are eliminated.

    IRV on a state-by-state basis would certainly be an improvement over what we have now, but not an improvement on the NPV alternative. With state-by-state IRV you still have distortions from both the unequal weighting of votes according to which state they were cast and you still throw away the votes of the minority in each state because of the two-stage nature of the electoral college.

  8. Nor am I a scholar of the US Constitution, but I thought that compacts between States, outside of the purview of the Federal, was verboten.

    As for your second comment, I am quite sure I’m for Schulze or Tideman, and against IRV (since, among other things, it is easier to explain to the voters, and infinitely more rational (rather than simple to derive)) and simply can’t imagine any likely reform of the Electoral College passing. 0 for 700 is the record, and it is against the _interest_ of more than half the States.

    To draw a parallel, New Hampshire Democrats and Republicans are going to be against ending New Hampshire’s role as first primary. One party or the other will fight less hard. Now, it seems, the Democrats are in favor of keeping the system more than the Republicans, who lose the State in 2004, and came close to losing it in 2000.

    One can’t imagine that _generally_ politicians will work against the interests of their own constituents. They might, for some reason or other, but that reason must exist. Otherwise, the expected will be actual.

    Schulze! yeah yeah! Tideman! yeah yeah!

    IRV is for ninnies! Boooooooo!

  9. I’m listening to the re-air of the press conference of this.

    They have no chance at all of passing this.

    What they say is that interstate compacts exist, and therefore they can do this.

    What the Constitution actually says is:

    “No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”

    So, the small states Representatives and Senators will never allow the compact.

    IRV is simply not mathematically reasonable, Professor Shugart. I’ll see about working up the results to show you. It’s harder to explain to voters than the methods I suggested, and it has unusual results which will be very hard to explain.

  10. Of course, the role of Congress in approving interstate compacts has already occurred to the promoters of the National Popular Vote concept. In fact, their book (which can be purchased or downloaded at their website) devotes an entire chapter to this matter.

    The short story is that many compacts are in force without congressional authorization, and the Supreme Court, repeatedly throughout US history, has allowed to stand compacts that do not infringe on federal-government powers under the Constitution and that seek to solve coordination problems among the states that are party to the compact. In fact, Congress has sometimes even refused to debate compacts that clearly did not infringe on federal-government powers (and Supreme Court precendent says that congressional silence on a compact is tacit consent).

    Article II explicitly allows states to determine how to allocate their electors. Moreover, it has been recognized since Thomas Jefferson pointed it out shortly after the founding that states face a coordination problem that makes it in their individual interests to do statewide winner-take-all allocation as long as others are doing so. There is a good chance that this is the sort of compact that could be enacted without congressional consent.

    However, it is also quite possible that, with a push from several states of varying size and from different sides of the “red-blue” divide, Congress could be pushed to act.

    Less than two weeks after the launch of the proposal is a tad early to be writing it off, I would think.

    More on these issues in a future planting.

    On IRV, it is not really relevant to this planting, but I mentioned it myself, so let me respond to JS’s comment that “IRV is simply not mathematically reasonable.”

    Yes, I know that some mathematicians object, and I am familiar with the literature (it’s my field, after all), so JS can save himself the trouble “about working up the results to show” me. I don’t find the mathematical objections compelling politically and it is the political consequences that matter.

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  13. Is there any way for the Member States to amend the compact? If so, what would be the procedure for doing that? Would it require the consent of all the Member States, or could it be less than unanimous?

    I think it is important, especially with multilateral agreements, to provide for amendment. At the international level, some treaties, such as the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, have been declared unamendable because they did not have an amendment clause. This makes it so that, if Parties wish to change a provision, there is no alternative but state-by-state denunciation and negotiation of a new treaty. As Professor Amar (who was among the first proponents of such a compact) pointed out, there have already been several amendments to the U.S. Constitution dealing with elections. Unforeseen circumstances (such as the electoral vote tie in 1800, resulting from party-line voting) made it necessary to change the system.

    Of course, these issues would become moot if, after the adoption of the compact, the Constitution were amended to abolish the Electoral College. Then the agreement would terminate, as provided in Article IV. Considering how hard it is to adopt constitutional amendments, I don’t think we should rely on that, though.

  14. In references to amendments to the compact, I see that page 232 of the NPV book says, “Proposed amendments to an interstate compact typically follow the same process employed in the enactment of the original compact by each party (e.g. approval of a bill by the legislature and Governor)”

  15. I would, however, like to quote from Zimmerman [PDF]:

    Ease of Amending Interstate Compacts

    The author(s) of the Preliminary Report are correct in writing Interstate Compacts are difficult to amend and “Compacts are an exception to the rule that one legislature may not bind its successors” [p. 7]. The purpose of an Interstate Regulatory Compact is to establish a relatively permanent scheme of regulation and hence compact amendments should be infrequent.

    I wonder if it might be advisable to add an amendment clause to the compact stating that, for instance, the compact can be amended with the consent of Member States comprising a majority or supermajority in terms of say, population or Electoral Votes. I guess it would be necessary to weigh the advantages of changing the compact vs. the problems that would pose now that it’s already being considered by various state legislatures.

  16. “Compacts are an exception to the rule that one legislature may not bind its successors.”

    Is that “rule” really operative? Most states, like the US federal constitution, have de facto supermajority requirements because of two chambers (with often quite different majorities) and executive veto. Thus it is not feasible for a future majority to undo an act of a previous two-house majority and executive decision. It takes agreement of all three actors.

    In other words, while there may be a legal principle against one legislature binding its successors, as a practical political-institutional matter, that rule is not really effective.

  17. As for the amending a National Popular Vote compact, I fail to see why it is important (even as I recognize the value generally of not making amendments practically impossible).

    A state can opt out (with advance notice). If a state or states with sufficient electoral votes to deprive the remaining compacting states of 270 electoral votes opt out, the entire compact is voided.

    Substantively, you either have 270 electoral votes allocated to the national plurality winner, or you leave it to all states individually to allocate their electoral votes without coordinating with other states. What alternative scenarios are there that might be the subject of an amendment?

  18. This compact could be in force for decades or centuries. There could be any number of scenarios that might require amendment. Implementation of alternative voting systems is one that immediately comes to mind, though. An amendment clause would probably make the process of changing the system much less messy.

    Looking at Article IV, it seems like the compact only gave one circumstance under which it would terminate: If the Electoral College were abolished. Although it only enters into force when the Member States collectively comprise a majority of the nation’s electoral votes, there doesn’t seem to be a provision for it to terminate if, after it comes into force, the remaining Member States fall below that threshold. So, would it not remain in force for as long as there are two Member States left?

    Page 346 of Every Vote Equal: A State-Based Plan For Electing The President By National Popular Vote says, “An interstate compact is, first of all, a contract. Consequently, the general principles of contract law apply to interstate commerce. Unless a contract provides otherwise, a contract may be amended or terminated only by unanimous consent of its signatories.”

  19. Nathan,

    The operation of the compact is conditional on having a majority of electors accounted for.

    Take a look at III-9 (p 249): “This article shall govern the appointment of presidential electors in each member state in any year in which this agreement is, on July 20, in effect in states cumulatively possessing a majority of the electoral votes.”

  20. Ouch, I guess I should have read that more closely before chiming in. I stand corrected.

    This raises some interesting possibilities. Since the compact will not longer govern the appointment of electors if the electoral votes cumulatively possessed by the remaining Member States fall below that threshold, the lack of an amendment clause may not be such a big deal. I know that in international relations, often it is easy to simply negotiate a new treaty rather than try to amend an old one (see, for example, the debate on how to establish a UN Parliamentary Assembly).

    Perhaps if it were desirable to implement IRV later on, states could pass laws creating a new interstate compact, and also providing that if enough Member States sign on to the new compact that they reach a certain threshold, the state will withdraw from the old compact and the governor will send a notification to that effect to the governors of all the other Member States, in accordance with paragraph two of Article IV. Then there could be a clean transition to IRV.

    Does anyone see any flaws in this idea?

  21. On the idea of implementing IRV for US president, I addressed that in the original planting. It could not be done properly without all 50 states undertaking to determine their voters’ secondary choices for president. While we know who won the plurality nationwide and hence any subset of compacting states with 270 EVs among them can decide to award their EVs to that candidate, there is no way to determine who would have won by IRV nationally, including states outside the compact.

    However, as I have said before, if this compact ever did take effect, I suspect it would not be long before there would be a constitutional amendment (whether for IRV, a second round, or an alternative form of electoral college), because the advantage certain state actors now believe they derive from the current status quo would have been mooted by the compact.

    On the notion that, because the compact is voided if states withdraw from the compact and the remaining states fall below 270 EVs, “…the lack of an amendment clause may not be such a big deal…,” someone said that at seed #17. 🙂

  22. Haha, very funny MSS. 🙂

    OK, let’s look at this scenario, and see if it represents a viable way to implement nationwide IRV without constitutional amendment, even if some states continue to use plurality.

    (Begin scenario)

    It’s 2014 and the NPV compact is in force. Most states are members, and collectively they comprise about 350 Electoral Votes.

    IRV has been gaining steam, as more and more localities implement it and voters who have used it express a preference for it. An IRV compact, and state statutes to implement it, are proposed. The new compact is very similar to the NPV compact, except that the voting method specified is nationwide IRV rather than nationwide plurality. It spells out how the national IRV winner is to determined (in a manner explained below). Similarly to the NPV compact, the IRV compact has a provision saying it will go into force when its Member States together possess a majority of the nation’s electoral votes. Each of the state statutes provides that as soon as there are enough Member States for the IRV agreement to go into effect, they will withdraw from the NPV compact.

    Over several years, Georgia, New Jersey, North Carolina, Michigan, Ohio, Illinois, Pennsylvania, Florida, New York, Texas, and California pass statutes adopting the IRV compact, so that the Member States collectively have 271 Electoral Votes. They withdraw from the NPV compact, and it becomes inactive. The Member States begin complying with the terms of the IRV compact, which requires that the vote for President be conducted by Instant Runoff Voting, with each voter being allowed to select their first choice, second choice, third choice, etc.

    Some states, however, remain outside the IRV compact, and continue holding presidential elections on a plurality basis, with voters selecting only one choice. Under the terms of the IRV compact, these votes are counted as if they were an IRV ballot with only a first choice selected. That is, if the voter’s choice is eliminated in the course of the instant runoff, that ballot is exhausted.

    (End of scenario; beginning of analysis)

    Is the voter in the plurality state any worse off under this system than they were when the whole country used nationwide plurality? If their candidate comes in last and gets eliminated in an early round of nationwide IRV, it means he would have lost anyway under plurality. His vote counts for the same fraction of the national vote as it did under plurality. From his perspective, the only difference is that some of the ballots of people around him are ultimately counting toward different candidates than they would have under plurality, due to the transferring of votes. Due to the potential for their ballot to be exhausted, these plurality state voters will have an incentive to continue making the same tactical choice that they do now – i.e. choosing one of the front-runners in order to avoid a “wasted vote.”

    Perhaps voters in plurality states will begin demanding IRV when they begin seeing how citizens of other states are benefiting from it. It could be a good jumping-off point to a constitutional amendment to eliminate the Electoral College completely in favor of nationwide IRV.

    OK, what’s the fly in the ointment that keeps this from working?

  23. Could it be that abolishing the Electoral College would eliminate some leverage that the large states have over the small states? Since interstate compacts could allow (for instance) the 11 largest states collectively comprising 271 electoral votes to control the outcome of the election, could they not theoretically make an agreement that only the votes cast in Member States would count toward the popular vote total that determines which ticket that whole block of 271 electoral votes would go to? And if the small states objected, they could say, “OK then, we’ll talk about changing this compact when you’re ready to talk about changing the apportionment in the US Senate.” Makes you wonder – should we give up that leverage so readily.

  24. The end result of such negotiations might be a constitutional amendment abolishing the Electoral College and implementing whatever concessions the small states were willing to give in exchange for that reform (e.g. reapportionment of the US Senate, mandatory Wyoming plan for the House of Representatives, etc.)

    It might not be necessary to actually implement the aforementioned interstate pact that makes only the ballots cast in Member States count. Raising the possibility of it and/or taking steps in that direction might be enough to induce the smaller states to accept a constitutional amendment like the one proposed in the previous paragraph.

    If the smaller states tried to act through the US Senate to interfere with the compact, then the larger states could presumably block their effort in the House of Representatives.

    OK how does this plan sound?

  25. The interstate compact used to induce the small states’ acquiescence would not necessarily need to take the form mentioned above. It could be designed to cause any kind of electoral outcome unpalatable to the small states, even if the results were mutually suicidal. The big states might say, “OK, well if you don’t accede to our demands, then we’re going to sign an interstate compact committing all our electoral votes to the David Duke/Lyndon LaRouche ticket.”

  26. “the voting method specified is nationwide IRV rather than nationwide plurality”


    At a glance, the “fly in the ointment” might be that there’s no central, national place to conduct an IRV count. Could each state allocate its electors to the IRV winner in that state? Sure. But who’d determine who the national IRV winner was?

    Perhaps all I’ve done is prhase Matthew’s concern differently.

  27. If I understand Matthew correctly, his concern was that states outside an IRV compact would continue to use the plurality method, and thus ballots from those states would only have a single choice listed, rather than first, second, third, etc. as on an IRV ballot. My proposed solution to that is to count ballots from the states that continue to use plurality as if they were IRV ballots with only a first choice selected.

    As for your question, “who’d determine who the national IRV winner was?” I believe that the chief election official of each state could do that, as under the NPV compact. The IRV compact could require each Member State to communicate the first, second, third, etc. choices listed on each ballot cast in that state to the chief election official of each of the other Member States. Then each Member State would perform its own IRV tabulation of all the ballots cast in the country and determine the national IRV winner.

    The NPV compact does not specify a central, national place to conduct a national popular vote count either.

  28. Under the hypothetical IRV compact, then, the official statement of statewide election results that each member state’s chief election official would communicate to all the other member states would need to include a rather lengthy appendix containing the first, second, and third choices for each ballot cast in that state. Rather than merely a set of vote totals that could fit on one page (as under plurality), it would basically be a spreadsheet millions of rows long (one row for each ballot). If it were a CSV file, it might look like this:

    Ballot Number,First Choice,Second Choice, Third Choice
    1,Mr. X,Ms. Y,Mr. Z
    2,Mr. Z
    3,Ms. Y, Mr. Z
    4,Ms. Y, Mr. X, Mr. Z

    The chief election officer for each state would receive spreadsheets from all the other states and merge them with the spreadsheet of the state’s own ballots. For states not participating in the compact, that still used plurality, their votes would be added to the spreadsheet as well. Suppose Mr. X won 1,000 votes and Ms. Y won 500 votes in Alabama, which still uses plurality. Their votes would be added like this:

    1,Mr. X
    2,Mr. X
    3,Mr. X

    998, Mr. X
    999, Mr. X
    1000,Mr. X
    1001,Ms. Y
    1002,Ms. Y
    1003, Ms. Y

    1498,Ms. Y
    1499,Ms. Y
    1500,Ms. Y

    The Chief Election Official of each member state, then, would merge all 51 spreadsheets (for 50 states plus DC) into one spreadsheet and conduct the IRV tabulation.

    That’s one way it could work. If you wanted to do it by hand, each member state would simply forward to all the other member states photocopies of all the ballots cast in that state, and in each member state, election officials would pile them up and conduct manual tabulation as usual, with the votes from the states using plurality also being added to the tallies (unless/until exhausted in the instant runoff process).

    OK I hope that makes it clearer.

  29. What a terrible idea!

    Virtually every argument advanced for this proposal assumes premises that are unstated and untrue. Others aren’t really arguments at all.

    Take, for example, Prof. Shugart’s parenthetical claims that the current system is “archaic and anti-democratic, as well as cumbersome.” Is it any of these?

    Is it “archaic”? What is “archaic”? Isn’t voting “archaic”? How about speechifying? What about government? Why, of all things in our system, would the electoral college be “archaic” when none of the other parts of the system, as old or older than the EC, are not? It’s not an argument, just a claim without evidence.

    Is it anti-democratic? Is the Senate “anti-democratic”? We are a Republic, not a democracy, for a reason. Democracy is hijackable – it leads to ochlocracy. The United States is a continental polity that would never have come into existence but for the “anti-democratic” provisions of its organic law intended to preclude the tyranny of the majority. The city-dwellers cannot screw the farmers just because there are more city dwellers. It wouldn’t have worked in 1789, and it won’t work now. “Anti-democratic?” Youbetcha. And thank God.

    Cumbersome? How? Just what inefficiencies does it impose? It’s telling, actually, that Prof. S. describes the system for amending the Constitution as archaic, ant-democratic, and cumbersome. It is designed to prevent demagogues from working their way with a het-up mob. It’s SUPPOSED to be anti-democratic and cumbersome. (Which, by the way, is why it is not in the least archaic.)

    What about the claim that under the current system, the “winner” of the popular vote can lose the election. First, we have never HELD a popular vote election, which means that no one has ever CAMPAIGNED for the popular vote, and so we have no idea how, for example, Bush and Gore would have done in one. We only know how the popular vote broke in a campaign in which it didn’t count. That’s like counting total runs scored in the World Series, even though in one lopsided game the losing manager decided not to waste any more relief pitchers and gave up ten probably preventable runs. Who actually got the votes in an EC system does not tell us who would have got them if they were in fact being competed for. So it is nonsense to say that the will of the people was in fact thwarted by the EC in any given case.

    If the EC routinely trumped large popular vote discrepancies, there would at least be a prima facie case for reform, but that has not happened. The guy with the most EC votes has also had the most popular votes in all but one and a half cases. It clearly happened in 1888. In 2000, though, the same ninnies who say that the current system doesn’t work also claim that Gore actually won Florida, so that, in their view, the guy with the most popular vote did get the most EC votes, too. One alleged anomaly in 200 years hardy cries out for revolution.

    It is not for nothing that the NPV legislation is being promoted by Democrat legislatures and vetoed by Republican governors. It’s just politics as usual – Dems think this change will help them; Republicans believe otherwise. Me, I think the system has produced Lincoln and FDR, Reagan and Clinton. It ain’t broke, and the NPV movement is not, in my view, an honest attempt to fix it.

    There are some constitutional quibbles about the compact, but I think they are beside the point because the idea itself is awful (although maybe that’s why it should be unconstitutional). The only Constitutional point I would make is that it strikes me as unconstitutional for a state to surrender by compact, whether or not approved by Congress, the power of its legislature to say how electors will be allocated. That does not, to my mind, bar the legislators in New Jersey from enacting legisation whereunder New Jersey’s electors will follow the NPV outcome so long as states representing a majority of electoral votes have reciprocal legislation on the books. But reciprocity is not a “compact”; it is not binding on the state. A new legislature can repeal a reciprocal law and bring the whole mess crashing down, even during an election campaing, if it were sufficiently perverse. Surrendering the right to withdaw from the deal seems to me unconstitutional, and, of course, it also seems to me a total abandonment of sovereignty. And did I mention stupid?

  30. This is fairly typical Republican critique of the NPV plan. The bottom line is that, in 1787, there was no agreement on how to elect a president. The convention therefore left it up to the states. Over the years, a two-party, winner-take-all system evolved. The conglomeration of historical accidents we call the Electoral College now produces two effects:

    1) It renders 2/3 of the country’s voters effectively irrelevant. (Hence this blog’s owner can vote Green in the general election without fearing Democratic reprisals.)

    2) Through malapportionment, it provides social conservatives with electoral affirmative action. The same would be true if electors were allocated proportionally statewide or by congressional district.

  31. If I may [butt in] offer a neutral critique from a different hemisphere…

    “It is designed to prevent demagogues from working their way with a het-up mob”

    Quaere whether stronger federalism (in the sense of, States [a] having more autonomy from – or, [b] failing that, being represented equally rather than per capita proportionately in the making of – nationwide decisions) does in fact hinder what critics call ochlocracy/ populism/ mob rule and what supporters call direct, popular majority rule or democratic responsiveness.

    Many of the pundits who support the Electoral College as a protection for “minorities” against raw majority will (read: rural States) are less concerned when States themselves subject other minorities – the usual list: African-Americans, illegal immigrants, gays, non-English speakers, suspected and convicted criminals – to unfavourable laws, especially via initiative and referendum. Even in normal legislative elections, the fact that non-citizens and convicted criminals can’t vote means the electoral majority has no incentive to give their interests any particular weight.

    A few conservatives – Christopher Rohrbacher, Jonah Goldberg – are principled enough to reject populist democracy within as well as across States, but most others don’t seem to realise that, to an outsider, they sound as if they are contradicting their own arguments.

    I am not saying that laws “unfavourable” to the “usual suspect” minorities are always and everywhere unjust. To take an obvious example, convicted criminals do forfeit some of their rights. How far they do so is a matter for political debate. But by the same token, not every law that disadvantages sparsely-populated rural States is necessarily unjust either. You have to build dams and dump nuclear waste somewhere.

    It is true that majoritarian tyranny (which I define as voters of the majority group saying “I realise this imposes a huge burden on the minority, and it’s only a small help to me, but I don’t care – I’m still voting for it because it helps me”) can be worse if it’s imposed across the whole nation, whereas if it’s imposed within one State, at least the victims can move elsewhere. But by the same token, it is much easier for a farmer to become an urban worker or businessperson than for African-Americans, illegal immigrants, gays, or non-English speakers to “remake themselves” to remove these disadvantaging traits.

  32. Re the mechanics of the NPV proposal… If, say, 30 States signed up to the compact-that-isn’t-a-compact, and they counted for (say) 300 Electoral College votes among them, wouldn’t the ballot in each of the 30 States in this particular Sonderbund then list the same GOP, Dem, etc ticket of 300 candidates for 300 seats?

    You might need to have regional sub-quotas – say, 20 candidates from this State that has 18 CongReps and 2 Senators, 15 from that State because it has 15 Electors, and so forth. Then you simply tot up the votes cast for each ticket across all the participating States, declare the plurality winner’s ticket elected, and declare the 20 candidates on that ticket who represent the first-mentioned State, to be chosen as the Electors for that State.

    I realise this would probably require a uniform ballot access law, at least for the office of Presidential Elector, in all the participating States, and that is a whole ‘nother thorny issue.

    But once there’s a critical mass, a block of States that throw all their combined EVs behind their joint favourite, there would be strong pressure on other States to get in or be marginalised – especially if the plurality winner within our new Sonderbund got 300 EVs out of 538. It’s an extension of the same logic as to why most States adopted – and, for 100-150 years, have retained – statewide winner-take-all in the first place.

    Also, such a “customs union” of States would be more likely to see a “50-50” dead heat than any one State within it. You enlarge the electorate, you increase the chances of a percentage tie (although the absolute number of votes between the winner and runner-up may welll increase). Regional variations – farmers vs urban workers, etc – get ironed out over a larger pool.

    CAVEAT: But what would happen (the Madisonian, beware-lest-power-corrupt side of me wonders) if the “lucky 30” States then refused to admit new members to their club treehouse, so that the other 20 States may as well not vote at all in Presidential elections?

  33. IOW, if your State joined the NPV Club, you would go from having N probability that your vote (or your group’s vote) will swing X Electoral vote to having a less-than-N probability that your vote (or your group’s vote) will swing more-than-X Electoral Votes. If the reduction in N is minimal, and the increase in X is huge, that may well be a very good bet.

    If you and all the other sound folks of East Dakota have only 6 EVs for your State, and if you’re usually ignored because you always vote by a solid margin (1.2 million to 500,000) for the Dempublican ticket, you’re probably much better off joining the NPV Sonderbund and increasing, by a margin of 700,000 votes, the chance that the Dempublicans will capture all 300 EVs in one hit.

    Which links to my comment above on the Democrats who aren’t democrats and the Republicans who aren’t republicans… Smaller units tend to be more majoritarian than larger ones, all else being equal, because the majority in a unit of smaller absolute size is statistically likely to be proportionately larger, so its members aren’t worried as much by the threat of one day themselves being in the minority and getting done over in return. Also, it’s easier in absolute terms to assemble a 50% 1 majority. Imagine doorknocking the whole CONUS with initiative petitions.

    In the US, this tendency is strengthened by particular, contingent institutional structures:

    (a) most States have initiative/ referendum and recall, the federal govt doesn’t;

    (b) State officials’ terms tend to be shorter than the feds’ (I don’t think any State Senators serve terms longer than 4 years, and many Governors serve only 2);

    (c) State judges are usually elective, some serve for limited terms, and many can be removed via recall or retention referendum;

    (d) State Constitutions, and Bills of Rights, can be amended by simple majority, via direct vote, rather than by super-majority of federal and State representatives.

    This need not apply in other federations. Eg, in Australia, the federal Constitution is probably, if anything, slightly more “populist” than the State set-ups. Eg, all federal const amendments (but only some at State level, affecting particular “entrenched” clauses) must go to referendum. Federal and State judges have similar appointment and tenure provisions. All federal MPs have always been directly elected (Senate casual vacancies aside), whereas NSW and Queensland had life-appointed Upper Houses in 1901, when the Fed Const was adopted, and these continued until 1978 (NSW Council directly elected) and 1934 (Qld Council abolished) respectively.

    Federal elections and referenda are, of course, less weighted towards per capita equality of citizens than their state equivalents are. But even then, with only six States, all fairly ethnically and politically homogenous by world standards, Statewide voting in Australia doesn’t skew the nationwide head count all *that* much. The Senate in party terms is rarely more than one or two seats off what nationwide PR (with a 7-8% threshold) would produce, and the “majority of States must vote in favour” hurdle has sunk only a few of the defeated Const amendment referenda – most fell short of a nationwide majority of popular votes anyway.

  34. Tom’s idea that states would be marginalized unless they join the compact — and even that compact states might have something to gain from excluding new members — seems wrong to me. The whole point of the compact is that all votes count the same regardless of whether they are cast in a compact state or non-compact state. How non-compact states cast their votes in the Electoral College would indeed be irrelevant, but how individual voters in those states cast their ballots would matter very much.

    Tom’s concern about listing 300 electors on each ballot isn’t really valid. While juridically each state’s election is to pick a slate of “electors”, in fact their names don’t appear on the ballot. Instead, the ballots says (depending on the state) something like “electors pledge to Sally Jones for President and Joe Smith for Vice President”. There’s nothing here that would make the compact difficult to administer.

    On the other hand, Tom’s comment on uniform ballot access laws does indeed highlight a problem with the proposal. It is silent on uniform ballot access. The rejoinder is, no doubt, that this problem is more conceptual than practical because the number of votes received by candidates who are not listed in every state is always too small to matter and, besides, the election is won by plurality not majority, so the exact denominator isn’t crucial. But this problem does make me uncomfortable, since ballot access is a very important issue for me anyway.

  35. Sorry, Bob, if I have misunderstood the proposal.

    (a) If the States Parties to the NPV Compact allocate all their own Electors (100, 200, 300, whatever, out of 538) based on the popular votes cast within *all 50 States plus DC*, then what incentive would there be for a State to join? If Texas stays out, then Texan voters get to sway the allocation of their own 30-40 Electors plus those of another 30-odd (or whatever) States. This seems both unfair and non-pragmatic.

    (b) On the other hand, if the States Parties to the NPV Compact allocate their Electors based on the popular votes cast *only withing the Compact States*, then yes, that offers a very big incentive to join, because the number of EVs jackpots as more and more States sign up. Once the States Parties have 270 or more EVs, any State outside the Compact is rendered irrelevant in a Presidential election. The Alliance will always defeat the Independents.

    I suppose one would then have to interpret the Compacts Clause to require that every State has a right to demand entry to the magic pyramid. A kind of Voting Rights Act claim for States. Based on Delaware’s non-success in the Sup Ct challenging NY’s use of winner-take-all, I doubt this would get far.

    Or have I missed something here?

  36. In response to #30:

    “This is fairly typical Republican critique of the NPV plan.”

    OK. And that makes it wrong because…? When did pointing out agreement among one’s critics become a form of a refutation?

    “The bottom line is that, in 1787, there was no agreement on how to elect a president. The convention therefore left it up to the states.”

    There was no agreement on how states should choose electors, but there was agreement that states’ interests should be protected to some degree by the “malapportionment” of electoral votes. The NPV proposal represents an attempt by populous states to undo that protection. That, in my view, is the bottom line.

    “The conglomeration of historical accidents we call the Electoral College now produces two effects:

    “1) It renders 2/3 of the country’s voters effectively irrelevant. (Hence this blog’s owner can vote Green in the general election without fearing Democratic reprisals.)”

    How does it render anyone’s vote irrelevant? The votes in “spectator states” are extremely relevant; they just aren’t fought over. Yes, a Democrat can Onanize a vote for Nader in a safe Blue state, but even that choice has an important de facto consequence. Landslides and mandates, the real stuff of Presidential power, are built on overwhelming majorities. So, in the real world, the turn-out in safe states matters, as does the margin of victory and the popular vote.

    My wife and I often disagree on whom to vote for. In years when we would each vote FOR a different candidate, we each vote; in years when we would each vote AGAINST a different candidate, we stay home. Same effect on the outcome, even if our state were contested, which it usually is not, but a different outcome in turn-out. Our voting or not helps to say something about the quality of the field. There’s way more to voting than who wins.

    “2) Through malapportionment, it provides social conservatives with electoral affirmative action.”

    You mean it protects the small states where the social conservatives live? This may be a consequence, but is favoring conservatives inherently bad as a matter of system design or just unsatisfactory to liberals as the way the cookie crumbled? Would it be a flaw if it happened to favor liberals?

  37. In response to #32:

    First, thank you for “quaere”! Haven’t seen it since law school so many years ago, and even then it was mostly rendered “Query” by my unlatined brothers at the bar to be.

    I think the founders shared your suspicions, but the Federal Government could only do what it could do to defeat the mob. It’s done quite a bit more since the Civil War, what with incorporation of the whole Bill of Rights into the 14th Amendment…

    So, yes, I think the bicameral national legislature and, to a lesser degree, the Electoral College, do hinder mob rule, even if they have not prevented it entirely or even sufficiently. When all is said and done, only decent people can make a decent place.

    Still, Lord Acton is owed respect. A system should limit power so as to limit its corrupting influence. If there can be no national mob, then there can be no demagogue to herd it. Our “cumbersome” Federal thing serves that purpose rather well.

  38. In response to #35: The NPV proposal is as described by Tom’s (a) rather than his (b). It’s true that, if the compact were to go into effect, the other states wouldn’t have a huge incentive to join it. But neither would they have any real incentive to stay out.

    Tom: If Texas stays out, then Texan voters get to sway the allocation of their own 30-40 Electors plus those of another 30-odd (or whatever) States. This seems both unfair and non-pragmatic.

    The 34 electors in Texas would no longer matter. But the ballots cast by voters in Texas would matter exactly as much as the ballots cast in every other state, compact and non-compact alike. To whom is this unfair (other than the electors in non-compact states, a group that by definition would number less than 270 souls)?

    Tom’s point seems to be that the electoral vote totals (all states) would not be meaningful. I suppose that’s true. But who would notice?

  39. If the compact goes into effect, it wouldn’t make any difference whether the other states joined or not, so the issue of whether they would is moot.

    I am surprised by Bob Richard’s claim that the compact would be unfair only to the electors in the non-compact states (an excellent pun, albeit probably unintentional). The compact would disadvantage not the electors but the electorATES in those states, electorates consisting of way more than 270 souls.

    Whether that reduction in the small states’ clout would be “unfair” is really the whole point of the debate. Those of us who think the system ain’t broke believe that it would be a mistake for our agrarian regions to have the votes there based on capitation. We have a bicameral legislature to protect regions as well as people. “Fairness” may demand that farming/ranching interests be protected disproportionately to the number of people engaged in those pursuits.

  40. “Fairness” may demand that farming/ranching interests be protected disproportionately to the number of people engaged in those pursuits.

    This is, indeed, where we disagree. But suppose that Lawrence Kramer’s view of fairness is more defensible than mine. It would apply to the Senate, but I don’t think it applies to the Presidency. At least not any more. The Electoral College ceased being “fair” to small states and rural citizens several elections ago. It is now “fair” only to voters in a few swing states — most of which are pretty urban.

  41. I don’t accept the logic that because the battle is fought in the swing states, the safe agrarian states do not benefit from the EC sytem. Why is Ohio a swing state? Because Montana and Wyoming have six electoral votes instead of what their population would dictate. Why does the Republicans’ “southern strategy” work? Because the (mostly rural) states down there have disproportionate power.

    If one assumes that the battleground states are split evenly in a given election, doesn’t the allocation of electoral votes among the non-swing states actually determine the election? Electoral votes are fungible – an overallotment of some of them is not made irrelevant by the intensity of competition for those that are underallotted.

    We can disagree about what’s fair – I put “fairness” in scare quotes because I don’t really believe “fairness” has any more to do with political power than “goodness” had to do with Mae West’s Diamond necklace – but I do believe it is simply a logical fallacy to claim that the EC system only gives power to the battleground states. It gives power to the small states that can be offset only by carrying battleground states – states that would not be fought over but for that power.

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