The National Popular Vote is the Bad Idea We Need Right Now

For those of you who are not aware of it, the National Popular Vote Interstate Compact is a campaign that means to render the Electoral College impotent and irrelevant. The idea is that states agree to change their election laws with regards to how their electoral votes are awarded during a presidential election. Each state awards its electoral votes to the candidate that wins the national popular vote, regardless of the vote totals for that specific state. For example, if the Republican candidate were to have the most popular votes nationwide, then that candidate would receive California’s electoral votes, even if the Democrat won California. This system only goes into effect once there are enough states on board to give the popular vote winner 270 electoral votes and the election.

Don’t get me wrong, as I have said before, I think the Electoral College is the inflamed appendix of democracy, both useless and dangerous, so I absolutely sympathize with the NPV folks’ desire to short circuit it.

Unfortunately, I also think the National Popular Vote is a bad idea.

First, there is the philosophical point that this is a workaround, not a fix, like continually putting air in a leaky tire rather than replacing the tire. Second, assuming they do get enough states on board, which is far from certain, what happens when one of those states sees a different party take control of the statehouse and then repeal the NPV compact law, taking the total electoral votes in play back down below 270? We would effectively be right back where we started.

Third, what happens if we have an election where, under the old system, the popular vote loser would have won the electoral vote? That candidate will almost certainly challenge the constitutionality of the NPV laws in court, throwing the outcome of the election in doubt until the case can reach the Supreme Court, and they hand down a decision. It would be a chaotic time, with both candidates claiming to the legitimate President-elect. Not only would the losing candidate challenge the law, so would the losing state party in every state where the national popular vote winner lost that state, but received the electoral votes.

NPV advocates will point out that the Compact should survive a court challenge because the Constitution gives each state the authority to decide how to award their electoral votes. They’re right, it should, but that’s no guarantee it will. The plaintiffs will no doubt argue that the NPV effectively disenfranchises their voters in the affected states, and I’m not confident that the Court would reject such an argument.

And, regardless of the case is decided, we will have a president that half the electorate believes is illegitimate. If the Court upholds the NPV, the losing side will believe the winning side “gamed” the system, and voters who chose the other guy but had their electoral votes go to popular vote winner will have had their votes “stolen.” If the Court overturns the NPV, then the plurality of voters who voted for the original winner will believe that the new winner stole the election through the courts.

It pains me to say this, because the NPV Compact definitely checks the “better than nothing” box, and a permanent solution, a Constitutional amendment abolishing the Electoral college, is even more of a long shot. An amendment is, however, a solution, not a legislative kluge that’s vulnerable to shifting political sands and court challenges. At the end of the day, it’s the only true solution.

Now, after I’ve said how bad an idea I think the NPV is, I still think we should do it, because as I’ve also said, it’s better than doing nothing about the Electoral. However, even as we campaign to put the NPV Compact into effect, we should also work toward someday passing a Constitutional amendment to abolish the Electoral College. And, if the NPV is successful and they get enough states on board, we should keep working toward the permanent constitutional solution. Success for the NPV is no reason for complacency, but just a holding action while we work on a permanent constitutional remedy.

So, the National Popular Vote Compact is a bad idea, but it’s also a very, very necessary bad idea, because the Electoral College is an even worse idea.

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