National Popular Vote Interstate Compact: Convincing states to join

Politics & Elections
1

The National Popular Vote Interstate Compact is an attempted end run around the Electoral College. The basic idea is that states sign up, promising to give all of their votes to the winner of the popular vote if and only if there are 270 or more EVs signed up. Once that happens, states within the compact will decide the election, regardless of what happens with the remaining states.

So far, there are 165 EVs within the compact, so it has a little ways to go. As might be expected, the states currently within the compact all lean blue.

I guess what I’m curious about is what it would take to get more states to join. It’s a tricky bit of game theory, really. What’s the right argument?

One semi-naive view is to look at all the states that have a lower-than-average EV/capita ratio. There are 347 EVs in this range–more than enough. Texas gets almost as screwed as California here, and Florida isn’t far behind.

Perhaps a better way is to look at non-swing states. There’s even more EVs at play here; using Politico’s list of 11 battleground states, there are 392 non-swing EVs. Voters in non-swing states have essentially no influence on the election.

But perhaps what really matters to the states is whether the current setup favors their preferred party. And that, right now, means Republicans. Would Texas really sign up for this, even though their individual votes are worthless, given that the popular vote leans Democratic?

I dunno. The majority of individual Democrats and Republicans support a popular vote, but the legislators have to agree, and that’s certainly not guaranteed.

On an optimistic note, of the states where the NPVIC is law, most of them took several tries. There are several more states where the bill has passed one or both houses. It may then just be a matter of time before getting everyone onboard.

Of course, a Constitutional amendment would be ideal, and maybe that could happen if and when NPVIC happens.

2

Would the Electoral College be abolished, having no effectual function, or would it hang on as some weird honorary thing bypassed by time ?

3

It would not be abolished as part of the law, just be made irrelevant. I suppose it would be gotten rid of eventually–no reason not to do so once the compact took effect, but constitutional amendments are difficult to pass and so it might take a while. Perhaps it would be hung onto due to nostalgia.

4

It’s a terrible idea, especially since the states entering the agreement are predominantly blue.

Note that the Blues will have the worst of both worlds if they “get enough” — the Reds will win if they get the popular vote, and also (because they’re not in the alliance) may win with the electoral vote.
If Red state(s) do join, can they be trusted to vote Blue when their state (and a majority of ev’s) are Red? I do not think so — the agreement would not be legally binding.

Note that in a close election, recounts might be needed in all fifty states (not just the close states). Differential poll access would be a bigger problem than it is today.

… And it’s all to solve a non-problem. Although the elections of 2000 and 2016 were unfortunate, that’s all the ev/pop vote mismatches were: unlikely misfortune. Among 50 top reasons for political dysfunction in America, the electoral college wouldn’t make the list.

5

I’m no fan of the electoral college, but I don’t believe this scheme is legal unless Congress approves of it. Agreements among states are supposed to be subject to congressional approval. If that happens, seems to me that this is a decent workaround to a really, really stupid way of electing presidents.

6

The electoral college was instituted so that the low-population states got a proportionally larger voice and high-population states got a proportionally smaller voice.

You say a couple of high-population states are against this arrangement, eh? Shocking! Now good luck getting the small states to give up their voice. All you have to do is convince Wyoming, Montana and those red states that they didn’t really want a say in electing the president after all.

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I’m no lawyer type guy but that seems to be a debatable point. From a little reading I see not all interstate agreements require congressional approval and sometimes “implicit” approval is good enough, not requiring a vote but merely congress making note of the agreement without objection. Also, from wikipedia on the “compact clause”, referring to Virginia v Tennessee (1893):

So it may arguably require congressional approval but not obviously so.

8

Your point is taken, but the whole point of this idea is to alter one of the fundamental constitutional processes. I can’t imagine the universe in which this is believed to be outside of congressional interest because the whole point is to remove political power from small states in their exercise of electing a president.

9

But it’s doing so through each state’s constitutionally granted privilege of choosing their own electors. So if it got enacted in enough places and someone took them to court over it saying it violated the Compact Clause, they would be asking to disallow one method of selecting electors. So I can see your side of it but I think it would make for a spirited debate.

10

The current compact is probably unconstitutional and unenforceable unless Congress approves it. That is unlikely to happen.

So, if we ignore constitutionality, my game theory answer is to restructure the compact so that: (1) every state that joins the compact is bound by it immediately for all future elections, (2) the electoral votes are determined by the popular vote only among the states that are members, and (3) once the compact controls half the electoral college, states seeking to join will merely be added to a waiting list, and will become full voting members only if their electoral votes are necessary for the compact to continue to control over half the votes. The newest voting member of the compact can also be demoted to the top of the waiting list if its electoral votes are no longer necessary to control more than half the electoral college. This creates incentives to join the compact as quickly as possible lest you be early on the list to be cut.

This compact would concentrate electoral power in the voting member states. Once it controls 270 electoral votes, the compact would nearly double the combined electoral power of the voting compact members while effectively eliminating every other states’ ability to choose the president.

All but the smallest states would have more power in the compact than outside it. Nevada, for example, has 6/538 of the electoral vote, or about 1.11% of the electoral college. If Nevada (pop.: 2.7 million, 6 EV) and California (pop. 37.3 million, 55 EV) are the only members of the compact, Nevada’s population gives it 6.76% of the combined compact population and thus more theoretical power among the compact members.

If larger states joined the compact, Nevada’s relative power in the compact would be diminished but even in the worst case for Nevada, it is still theoretically more influential in a compact that controls half the electoral college than it is with today’s electoral college. If we assume Nevada and California are joined in the compact by only the largest ten remaining states (New Jersey, North Carolina, Georgia, Michigan, Ohio, Pennsylvania, Illinois, Florida, New York and Texas), they would together control 276 electoral votes. Nevada would still, in this example, control 1.52% of the popular vote of the compact, so it would still have more theoretical influence on the election than it has under today’s electoral college.

This version of the compact would almost certainly be unconstitutional. In Virgina v. Tennessee, the Supreme Court considered which compacts between states are unconstitutional because they violate the compact clause. The court said that: “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 voting compact I described would certainly tend to increase the political power of member states as compared to non-member states and to the nation as a whole. Once enough states joined, it would also render the residual authority of the House of Representatives to pick the winner when the electoral college can’t decide, which, in some sense, undermines federal power. I don’t see the Supreme Court upholding my compact without congressional approval (before or after), which won’t be forthcoming.

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Here’s the pdf article that wiki footnotes arguing the constitutionality of the compact:
Brody, Michael (February 17, 2013), Legislation and Policy Brief. Washington College of Law Journals & Law Reviews

12

What power? The whole point of the compact is to eliminate individual states’ power to influence the election at all and hand it off to whoever wins the popular vote, regardless of who the people in their state voted for.

13

Are you commenting on my proposed compact or the current Popular Vote Interstate Compact? They work very differently.

If you’re asking about my compact, are you just making a semantic argument that the states won’t have power but their popular voters will? If so, I don’t have much of a response. It’s metonymy. I’m referring to the power of the popular voters in a state by referring to the power of the state. It seems clear to me that under a popular vote compact (mine or otherwise), the states with the biggest population of voters will have the most power. If that’s still not clear, I’d be happy to try again.

14

No, it isn’t just a semantic argument. Under the compact, if every single California voter chooses the Democratic candidate, but the country as a whole leans Republican, California’s EC votes go to the Republican. That’s the exact opposite of power.

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On constitutionality, it’s likely true that to function as a “legally binding” interstate compact, it’ll require congressional approval. But that may “not really mean anything”, if the individual states choose to alter their local election laws and assign their electors based off of the electoral vote (I’m assuming they’d base it on the certified popular vote count of the fifty states and D.C. in aggregate) it’s not really a matter of interstate compact law, but individual state laws.

Now, without being legally binding, states could and probably would monkey with it in weird and unpredictable ways, but if they all behaved you could conceivably see 270 electoral votes automatically assigned to the Presidential candidate who wins the national popular vote.

The biggest problem you’re going to have is basically all the states left required to get you to 270 are either red or swing states, and almost all of them have deep red state legislatures. Since state legislatures are often elected by a smaller electorate than any other body (lots of off-cycle elections etc), that is much more conservative, state legislatures are very red. They usually are heavily influenced by conservative interest groups like ALEC and others, and the thought of enough of them passing this compact to go from 165–>270 is extremely dubious to me.

16

That’s an interesting article but I have a different take. Seems to me the more relevant case is Florida v Georgia, in which the court said that the degree to which a compact has impacts on other states may make the compact an issue for Congress. Since Virginia didn’t seem to touch on any issues that would trigger this concern, I would say my interpretation would be that both rulings should be read side by side.

And since it is clear that this agreement could impact the power of other states, I would say Congress is compelled to weigh in on whether it seems to allow a handful of states to thwart the manner that presidential elections have been run for a very long time.

17

It doesn’t need to be a legally approved compact though. Tomorrow California could pass a law saying “California will select the electors pledged for the candidate that has won the largest number of votes in the national vote count, as certified by the fifty states and the District of Columbia”, and if enough states did the same, you’d have 270 electoral votes apportioned this way.

The interstate compact doesn’t need to enter into any legal force for the individual constituent states to go this route.

18

There may be some argument you could press to the Supreme Court invalidating state laws that apportion electoral votes based on the national popular vote, but I’m not sure what constitutional grounds it would stand on.

I guess you could argue these state laws had the “effect” of depriving Connecticut or North Dakota of their constitutionally intended say in the electoral college, but without knowing the constitutional issues swirling around that I’m not sure if such an argument could prevail.

Another concern also might be, that if ~10-11 states banded together and did this, it’s not inconceivable at least 38 of the states on the cold side of the deal rapid-fire pass a constitutional amendment that just outright requires states to apportion electoral votes in a certain way (i.e. state popular vote, not national.)

19

Well, my thought is a bit of a tangent of Martin Hyde’s thoughts. The problem is simply calling it a compact. If the individual states pass the law that their electors are assigned according to national popular vote results there is no constitutional problem. Does the “trigger” mechanism (i.e. having a certain number of other states implementing similar legislation) in the law by itself constitute an interstate compact?

Frankly, as far as doing an end run around the electoral college, for some reason this method kind of bothers me. Istm, getting the states to agree to assign their electoral votes according to the state’s own popular vote seems a better compromise. It keeps the spirit of allowing small states to have a slightly larger voice but still makes it more likely that popular and electoral wins match up. But my Nostradamus like prediction is that neither will come to pass.

20

I agree that if a state simply wanted to apportion its votes on the national popular vote, they should be able to do so.

But the moment this becomes a wink-wink-nudge-nudge agreement among states - such as making such a system contingent upon other states doing the same even if they aren’t signing a common agreement to that effect - then I think it is on shaky legal ground. In my opinion.

So if people in California agreed to a law apportioning all electoral votes to the most popular candidate beginning in 2020, my response is, “Knock yourselves out!”

If they agreed to a law apportioning the votes to the most popular candidate for the first election in which various other states have agreed to the same system, I’d say, “Nuh-uh!”