Deciding Presidential Elections Based on the Popular Vote Would Be a Disaster

Have you heard of the National Popular Vote Interstate Compact (NPVIC) before? It’s a really bad idea that has gotten enough traction that it could conceivably become the law down the road.

Here’s NPR giving a basic explanation of how this works:

The compact is basically a contract between states that goes into effect once enough states representing a majority of electors — 270 — sign onto it. The states in the compact agree that rather than giving their presidential electors to the candidate who wins the most votes in that state, they will award all of their electors to the candidate who wins the most popular votes in the country. While the Electoral College would not be eliminated, the result would be a president elected by a national popular vote.

It goes without saying that if this were to actually pass, the first thing that would happen is that it would be challenged in court and SCOTUS would have to give it the go-ahead. Would that happen? That is difficult to say with certainty. On the one hand, the Constitution does give states a great deal of latitude about how to handle their elections, but on the other hand, this is clearly an attempt to get around the Electoral College, which the Founding Fathers very deliberately included in the Constitution to help make sure that bigger states didn’t just dominate elections while leaving smaller states as nothing but an afterthought.

However, setting aside the dubious constitutionality of this idea, let’s talk about a few key problems with this whole concept and why it’s unquestionably a bad idea.

First of all, Democrats are enamored with this idea because they won the popular vote in 5 of the last 6 elections, but in two of those cases (Bush vs. Gore (2000), and Trump vs. Clinton (2016)), Republicans won the Electoral College and became president. Therefore, Democrats believe switching to a popular vote would naturally favor them in elections. However, this is actually an extremely questionable assumption because it completely ignores the reality of how both parties campaign under the current system.

Both parties quite naturally spend most of their presidential campaign resources in states where they have a chance to win. Neither party puts a lot of effort into places where they believe they have no chance. Democrats currently start every election with a number of large states essentially in the bank. California (54), New York (28), Illinois (19), New Jersey (14), Massachusetts (11), and Minnesota (10). Democrats pad their popular vote totals considerably because Republicans in many parts of those states have very little incentive to turn out to vote. What would happen in those states if the election were decided by the popular vote? The Republican party would spend a lot of resources in those states, those voters would be much more incentivized to turn out and the GOP popular vote count would go up. A LOT.

In other words, it’s a little like a football game where one team says, “Yeah, you beat us on the scoreboard, but we had a lot more total offense than you did.” That may be true, but it’s also true that the winning team would probably respond, “If the game were decided based on total offense, not the score, we would have played differently and beaten you that way, too.” Today, the popular vote makes no difference in which party wins the presidency and so being ahead in that count now, doesn’t mean Democrats would also be ahead if that statistic was the difference maker. In fact, you can be guaranteed that most of the difference today would be quickly and easily made up if the GOP’s goal was to win the popular vote, not the Electoral College.

Setting that aside, there are major problems with this approach that could very easily lead to chicanery or constitutional crises.

Just as an example, let’s say in a future election that the REPUBLICAN CANDIDATE looks to be comfortably ahead in the popular vote, but the Electoral College looks like it’s going to be close. At that point, there will be enormous pressure on Democrat-run states to PULL OUT of the National Popular Vote Interstate Compact to give their candidate a chance to win.

Do you think the 2020 election was controversial? Imagine a liberal state pulling that kind of legislative maneuver in the run-up to the election and the Democrat winning the election that way. The NPVIC does have a clause in it forbidding a state from pulling out of it after July 20 of an election year, but not only is that far too late in the game, it’s likely to be legally unenforceable because again, the Constitution gives states a lot of latitude in how they handle elections.

Of course, that’s not the only way to screw with the process. For example, this whole concept assumes that we will have a clear, unambiguous breakdown of the vote in each state. As Andy Craig at CATO notes, this may not be the case at all in future elections:

The Compact’s language simply assumes the existence of a traditional popular vote total in each state, but it provides no details on how that is to be ascertained. This hasn’t gone unnoticed by opponents. It opens the door for a state to throw a wrench in the works by adopting alternative methods for choosing their electors, methods which are not conducive to producing an unambiguous national popular vote total.

Republicans’ state legislators, who mostly oppose using the national popular vote, have already figured that out. In North Dakota, the Republican-controlled state senate passed a bill saying their state will withhold its popular vote totals for president until after the Electoral College has voted in December. Instead, the state would only publish the rough percentages. This is deliberately aimed at making it impossible to properly calculate the national popular vote total in time to award electors on that basis. Similar bills have been introduced in other states.

The North Dakota proposal is subject to fair criticism on transparency grounds. Refusing to release the precise vote totals seems unlikely to inspire confidence and trust. Indeed, the state House amended that proposal out of the bill, instead passing a statement urging Congress to oppose the NPVIC and studying other options for the state to block it. But that’s just one example of the ways in which non-participating states could make the operation of the NPVIC impossible, at least as it’s currently written.

Another unintentional example is Maine, where Democrats have successfully implemented ranked choice voting for federal elections, including for president. Under that system, each voter’s one vote can be reassigned to different candidates through multiple rounds of tabulation until one candidate has an absolute majority. The NPVIC does not specify if votes on the first round or the last round should be counted, and either one would defeat the purpose of ranked choice voting.

We also shouldn’t forget what a mess Bush vs. Gore was in Florida back in 2000. It was a close election and there was contentious debate about the ballots, what counties would be recounted, what ballots counted, etc., etc.

Imagine a similar scenario under a National Popular Vote Interstate Compact. One candidate is ahead of the other in the national popular vote by a tiny margin after election day. What would come next? Lawsuits and recounts in ALL 50 STATES that would inevitably lead to half the country being absolutely certain their side was robbed of the presidency in a rigged election.

The whole concept is clearly a really bad idea and ironically, if the Democrats do ever manage to achieve their long-term goal of flipping Texas, it will be Republicans pushing for a National Popular Vote Interstate Compact while the Democrats will all suddenly oppose it. Both parties (Democrats now and potentially Republicans in the future) should forswear this whole idea and just stick to the Electoral College that successfully got us this far instead of creating a potential disaster by trying to game the system.

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