As the Nebraska Unicameral takes up the controversial National Popular Vote Initiative, Creighton University School of Law Professor (and former Dean) Patrick Borchers takes a look at the proposal for Leavenworth St.
The National Popular Vote Initiative (“NPVI”) is back trying to enlist Nebraska (this year in L.B. 112) in a scheme to have the winner of the aggregate national popular vote always win the Presidency. For practical purposes this would do away with the Electoral College. It is a bad idea, it is unconstitutional and likely would lead to a mess that would make the Florida recount of 2000 look like a picnic.
Presidential elections are a two-stage affair. Early in November of each year divisible by four, each state selects its electors. Each state gets electors in the number of its Congressional delegation (Senators plus Representatives) so the minimum is three. By constitutional amendment, the District of Columbia also gets three. Now every state selects its electors by some sort of popular election (early in the history of the U.S., electors were often chosen by the state legislatures). All but Nebraska and Maine (which select based on the winner in each Congressional district) select on a winner-take-all basis.
The closing stage of a Presidential election occurs approximately a month after the first stage, in which the electors cast their votes and the President-Vice-President ticket must obtain 270 electoral votes to win. If no ticket gets to the 270-vote mark, the matter is thrown into the House, but with each state getting one vote, to be determined by its House caucus.
Enter now the NPVI, which is the result of unhappiness with the 2000 election in which Al Gore probably won the national popular vote, but George W. Bush won the Electoral College. (This happened at least once before with Benjamin Harrison beating Grover Cleveland despite losing the popular vote.) I say that Gore “probably” won the national popular vote, because there really isn’t any such thing as an official national popular vote total. States administer elections differently, including different rules on absentee and provisional ballots and the like.
The NPVI seeks to create a “compact” between states so that they would agree to throw their electors to the winner of the national popular vote total (again, not a number that actually exists). The compact would kick in only when states totaling 270 electoral votes (the number needed to win) have signed on.
The states to have joined the compact are Maryland, New Jersey, Illinois, Hawaii, Washington, the District of Columbia, Vermont, California, Rhode Island and New York. You’ll notice a couple of things immediately. They are all blue states and they are almost all states in which one or more major metropolitan areas dominate the population.
The backers of the NPVI are desperate to get a red state to sign on and Nebraska is in their crosshairs again this year.
There are several important constitutional and practical objections. Let me begin with the constitutional objections. It is an obvious end run of the process for amending the Constitution. Besides that, Article I, Section 10 of the Constitution says that Congress has to approve any compacts between states. While the Supreme Court has allowed relatively minor compacts – such as those that clarify state boundaries – to stand without Congressional approval, it has ruled that compacts that increase the collective power of the compacting states as against the federal government require approval. Although the backers of the NPVI argue that the popular vote compact would not need approval, the fact that it essentially eliminates a federal institution (the Electoral College) make this a dubious assertion.
The NPVI would also likely require uniform rules of voting in Presidential elections. In the Bush v. Gore case that ended the Florida cliffhanger in 2000, the Supreme Court ruled that differing standards as to the recount process (remember the “hanging” and “pregnant” chads?) make the recount invalid. Under the rationale of this case, states would have to have identical standards for early voting, poll hours and voter identification.
Now to the practical objections: The argument raised by the NPVI proponents (aside from the general appeal to the notion the popular vote should control) is that it will force candidates to run truly national campaigns. This, of course, is nonsense. Instead, it will change campaigns into turnout contests in the big metropolitan areas, some of which have storied histories of vote fraud (yeah, I’m looking at you Chicago and New York).
It would also likely lead to a splintering of parties, at least when it comes to Presidential elections. Let’s assume that the Democratic Party, at least for purposes of Presidential elections, splits into the Socialist and Liberal parties and the Republicans split into the Moderate and Conservative parties. So we would have four major Presidential candidates running.
Let’s then assume that the popular vote percentages are: Socialist 29%, Conservative 28%, Moderate 27% and Liberal 16%. Assuming that the compact holds, the Socialist candidate would win.
There is also no practical way to hold states into the compact. Suppose the compact kicks in with just barely enough states joining. What is to prevent a state from passing emergency legislation to pull out after the popular election but before the electors vote? The short answer is “nothing.” The federal courts would refuse to adjudicate the matter for dozens of reasons, most obviously the “political question” doctrine. As far as trying to get one state court to order another state to stay in the compact, good luck with that one.
The compact also would dramatically increase the chances of so-called “rogue” electors. Occasionally, an elector will cast a vote that is inconsistent with the state’s pledge. For example, an elector who was supposedly committed to Ford in 1976 voted for Reagan instead. Thus far, such votes have been nothing more than historical oddities, and there are no consequences to the elector.
But let’s imagine a Nebraska elector coming from his state where the Republican candidate won, but now supposedly is bound to cast a vote for the Democrat. With no consequences to the elector, it is easy to imagine electors defecting in droves.
Trying to monkey with the Constitution is generally a bad idea, and this is a particularly bad one. If the NPVI supporters believe so strongly in abolishing the Electoral College, they should propose an amendment to the Constitution. The Constitution has been amended 27 times. It is not as though it can’t be done.
In the meantime, let’s hope that the Nebraska Legislature has the sense to reject this bill. Or, if it does pass, that Governor Ricketts will veto it.
Patrick J. Borchers is a Professor of Law and former Dean of the Creighton Law School. He is a member of the Central Committees of the Nebraska State Republican Party and the Douglas Country Republican Party. He is the author of the blog “The Way I See It.”