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A stealth effort in state legislatures would essentially eliminate the Electoral College and undermine the carefully considered structure set up by the Framers to elect our president. And it would do so without amending the Constitution.
Many Americans may forget that when they vote in November, they are not voting directly for the candidates. Instead, under Article II, they are voting for electors who have pledged to vote for particular candidates. Each state has electors equal to the number of senators and representatives the state has in Congress. Thus, even the smallest states with the least population, places like Montana and Vermont, get at least three electors (as does the District of Columbia).
After the election, the electors in each state meet and cast their votes for president and vice president. With the exception of Maine and Nebraska, electors are elected on a “winner-take-all” basis. Maine and Nebraska split their votes according to congressional district. The candidates who receive 270 votes out of the 538 available are elected.
After the 2000 election, a frustrated Al Gore elector, multimillionaire John Koza, along with Tom Golisano (who contributed $1 million to the Democratic National Convention in 2008), started a campaign to implement the National Popular Vote (NPV) plan. Koza, his fellow liberal activists (such as Jonathan Soros, who also supports the NPV), and their well-paid lobbyists want to get rid of the Electoral College — without getting the consent of the majority of Americans or the approval of Congress.
The NPV is an interstate compact in which participating states agree to allocate their electoral votes to the winner of the national popular vote, regardless of the popular vote results in their states or whether the candidate even qualified to be on that state’s ballot. So in the 2012 election when the majority of voters chose Mitt Romney in places like Texas, Mississippi, Georgia and Alabama, those states would have ignored their voters and awarded their Electoral College votes to Barack Obama.
The NPV will go into effect as soon as states with a majority of the electoral votes needed to win an election (270) join the compact. Legislatures of 10 states (plus the District of Columbia) have already joined this dangerous cartel. Those states—Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, Vermont, California, Rhode Island, and New York—are all “blue” and, together with D.C., have with a total of 165 Electoral College votes.
So what’s wrong with the NPV plan? For one thing, it undermines federalism by undercutting the roles of the states in the presidential election process.
According to the U.S. Census, 80 percent of Americans live in urban areas. Forty percent live in the 10 largest media markets. The NPV would elevate the importance of big urban centers (and media markets) such as New York and Los Angeles, while diminishing the influence of smaller states and rural areas. That was a major reason for establishing the Electoral College in the first place: to prevent elections from becoming contests where presidential candidates would simply campaign in big cities and ignore what elites today disparagingly call “fly-over country.”
NPV advocates claim that it will prevent only battleground states from getting all of the attention of candidates. They ignore the fact that states that are today considered to be solidly “blue” or “red” weren’t so long ago. California was competitive for decades, and Florida was considered a red state until the mid-1990s. Virginia only recently became a swing state, illustrating that swing states change. But with only rare exceptions, urban areas will always have high populations. The NPV will only help those urban centers — not the rural areas and smaller states that are protected by the Electoral College.
Recounts under the NPV would be a nightmare. The Electoral College reduces the possibility of a recount since popular vote totals are often much closer than the margins produced by the Electoral College’s “winner-take-all” system in 48 states. Even presidents who win with relatively small margins in the national vote usually win an overwhelming mandate in the Electoral College, providing finality and a mandate to the winner.
Recount rules are different in every state. Yet if the NPV were to take effect, a recount in just one state could trigger a national recount since every additional vote found anywhere could make the difference to the losing candidate. Just take what happened in Florida in 2000 and imagine that happening in every county in every state in the country. And add in huge fights over provisional ballots in every jurisdiction and whether they should be counted.
The NPV would encourage voter fraud. After all, every bogus vote could make the difference in changing the outcome of a national race, not just the results in one state. This would be particularly dangerous in one-party towns where there is no opposition party to supply election officials or poll watchers. There is little incentive to engage in such partisan fraud where it is most possible now, since the dominant party is likely to win in that county or district anyway, but under the NPV scheme, there is an increased incentive to engage in fraud in places that are the most corrupt and one-sided since, after all, every fraudulent vote would offset a legitimate vote for the opposing candidate.
The NPV could also radicalize American politics, since the winner under the NPV is whichever candidate gets the most votes, even if it is only, say, 35 percent in a race with multiple candidates. This could lead to presidents being elected with very small pluralities, making it even harder to govern the nation.
Advocates for the NPV have not made the case that our system will somehow work better if the NPV is implemented. There is no reason to change the Framers’ views of federalism and a representative republic that balances popular sovereignty with structural protections for state governments and minority interests. The Electoral College has provided orderly elections for the world’s greatest democracy for over 200 years, and there is no reason to change it now.
Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation. Along with John Fund, he is the coauthor of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” (Encounter 2012) and “Obama’s Enforcer: Eric Holder’s Justice Department” (HarperCollins/Broadside 2014).