NPVI: a disaster-in-waiting

PatBorchers01As 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.”


  1. GOP Voter says:

    Any republican senator that votes for this should be stripped of their party membership. Who are the idiots that are supporting this?

  2. Senator Sin says:

    You can join me for drinks and a cigar at 5am if my bills pass. I hope no one asks if I have taken any trips hosted by NPV.

  3. Hold 'm says:

    Don’t forget the perfect match for drinks and cigars…

    I assume that Senator Sin will be introducing bills to legalize prostitution in the next session.

    At least some Senators are true to their core values….

  4. Great article, Patrick!

    Norman R Williams has an interesting BYU Law Review article that NPV also violates Article II. Googling “Why the National Popular Vote Compact Is Unconstitutional” should find it.

  5. Patrick J. Borchers says:

    Yes, Williams makes a good argument and I have read his article. The Compact Clause argument against it is also strong, though the Supreme Court precedents on the Compact Clause aren’t a model of clarity. The Court allowed the tobacco litigation settlement compact to stand without Congressional approval, though that was different because it didn’t involve taking governmental power away from any federal institution. If it does go into effect it could be a nightmare. Litigation will spring up in 1,000 places. The NPV people know they can’t get any of the purple states to sign on, so they’re trying to get some deep red states with the argument that “you won’t get ignored anymore.” It is the Trojan Horse.

  6. Ricky says:

    Blah blah blah nobody cares what Patrick Borchers says and nobody will be bothered to read all that above. We know what the righty’s think on this issue; stop wasting cyber space Mr Street Sweeper.

    ricky from omaha

  7. Brian T. Osborn says:

    That is exactly the kind of “arguments” that make us Democrats look like a bunch of fools. If you disagree with the man, tell him why. If you think his ideas are inferior to yours, present your ideas and, if they truly are so much better, you can enlighten them.

  8. anon says:

    The Electoral College is a protection from a minority of states from absolute control, the red-blue map is a representation of this. It keeps a couple of areas, such as coastal population areas from controlling the country. It is as important as the branches of government. Nebraskans should be wary of this scheme, as we would be in a very poor position in a number of circumstances,
    Gore/Bush situation should not be your guide to the understanding or enlightening of a process that hopefully was taught in grade school, that is to only be changed by constitutional amendment and not with a knee jerk vote or executive type action. If you want to be governed by bankrupt California and east coast consider moving there. For Nebraska state senators to propose this is selling out the state, it shows lack of respect for a politician to the Constitution, how about following the law if you to change the Constitution instead of going in the back door

  9. Patrick J. Borchers says:

    Ricky, for someone who professes not to care what I say you certainly give me an extraordinary amount of attention.

  10. Ricky says:

    I am a busy man and do not have time nor the inclination to read what the right wing Borchers has posted on L St. We all know what people like Borchers think; we don’t have to waste valuable web surfing time on this nonsense.
    People like Borchers and McPherson want to press there oppressive bigoted values on us Nebraskans. Best not to engage them; let Mr Street Sweeper write his own posts and not turn it over to partisan people like Borchers and McPherson and Birther Bryan Baumgarner.


  11. Brian T. Osborn says:

    This is the Street Sweeper’s blog. He can do with it as he pleases.
    I believe that if you CHOOSE to be ignorant, you have lost any chance to be taken seriously. And … “valuable web surfing time,” seriously?!
    My dream for Nebraska’s Democratic Party is that those of its members that actually have ideas, and the capacity to express them, would flood sites – like Leavenworth Street, Objective Conservative and, (yes Gerard) The Right Wing Professor – with effective debate. Unfortunately, as I have often stated here, the NDP is represented by too many dimwit turd tossers and cowards. I know there are some good people there, but they just plain don’t speak out.

  12. Poor Ricky says:

    Congratulations! You’ve now spent two responses yelping about something you haven’t claimed to have read.

    I also suspect some “liberal” lawyers would agree with the legal analysis. That is, Ricky (since you didn’t read it) the point of the post.

  13. Patrick J. Borchers says:

    Ricky, the definition of a bigot is someone who makes assumptions about another without examining their views or personality. Ironically (true irony), you are the bigoted one.

  14. Changing this subject; unusual, I know, but if I post this on a previous thread, no one will read it. .

    The LJS today editorialized for the second time to urge McPherson to resign.

    What’s ironic is they don’t seem to have checked their own comments session, where yesterday liberal bore William Boernke insisted that President Obama is of course a half-breed. He used the term several times.

    So the LJS is insisting that McPherson resign for posts containing a supposedly offensive term someone else made on his blog, while at the same time hosting comments that use exactly the same phrase on its own site.


  15. Anonymous says:

    Did Tyson Larson just file a bill for charter schools under the Trojan horse of the Independent Public Schools Act? Sure sounds like it. While everyone is worrying about a blog comment made by Pat, hey look over there.. Great idea charter schools. Let the corporations use their own funds not my tax dollars.

  16. You topia says:

    Brian and Ricky aren’t arguing politics. One uses reason versus one who is proud of being uninformed.

    If anything goes beyond policy differences, it is the destructive idiocy of voters who say they are too busy to read yet magically know what is right for everyone else. Anyone who like Ricky says “nobody cares” about what a Dean of Law says about a legal issue, is a dunce. And yet, this same hubris and ignorance is embraced by average voters who think they are somehow innately best fit to select their own government leaders.

    Voters are in most ways worst fit. The average voter has never managed anyone, never governed anything, and has limited education and experience. They dream that the act of voting makes then magically informed and wise.

    Ironically, Ricky is a very good example of why the NPVI is a very bad idea.

    This is a Representative Republic. Even so, the selection of those representatives in this Republic must be distanced from the most ignorant element of our government (voters) by restricting voters to choosing only the second most ignorant element of government (HOR). — To be sure, that bit of popular voting is needed. For as stupid and irrational as voters truly are, they have their own skins in the game, a self-interest that makes it wise that our founders had voters directly choose the lower House that holds the purse strings, itself a substantial power. Of course, this originally meant that only one half of the three branches, or 1/6th of our government, was under the influence of voter selection ignorance. — You have to limit the influence of dumb, as there’s only so much surgery the body politic can endure from voters like Ricky.

    One sixth of government being selected by Popular Vote seemed safe and it worked. In 1913, however, we applied the same Popular Vote selection-ignorance to the US Senate, and so now today 1/3rd of all federal government (and ALL federal lawmaking) is subject to voter selection-ignorance.

    The NPVI would increase voter selection-ignorance to apply to 2/3rds of all federal government.

    That sounds like a formula for a Dunce-o-topia. Voters are very busy, you know. They don’t have time to read stuff before they vote.

  17. kohler says:

    Unable to agree on any particular method, the Founding Fathers left the choice of method for selecting presidential electors exclusively to the states by adopting the language contained in section 1 of Article II of the U.S. Constitution–
    “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .”
    The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

    The Electoral College is the 538 dedicated party activists who meet briefly in mid-December to cast their totally predictable rubberstamped votes in accordance with their pre-announced pledges. The U.S. Supreme Court has upheld state laws guaranteeing faithful voting by presidential electors (because the states have plenary power over presidential electors).

    The Constitution does not encourage, discourage, require, or prohibit the use of any particular method for how to award a state’s electoral votes. Over the years, states have used their unqualified and absolute power to enact a variety of laws for how to award their electors in presidential elections.

    In 1789, only 3 states used the “winner-take-all” system based on the statewide popular vote. Similar laws in other states only became prevalent decades after the deaths of most of the Founding Fathers. 2 states do not use the system.

    The normal way of changing the method of electing the President is not a federal constitutional amendment, but changes in state law.

    Historically, major changes in the method of electing the President have come about by state legislative action. For example, the people had no vote for President in most states in the nation’s first election in 1789. However, now, as a result of changes in the state laws governing the appointment of presidential electors, the people have the right to vote for presidential electors in 100% of the states.

    In 1789, it was necessary to own a substantial amount of property in order to vote; however, as a result of changes in state laws, there are now no property requirements for voting in any state.

    In other words, neither of the two most important features of the current system of electing the President (namely, that the voters may vote and the winner-take-all method) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation’s first presidential election.

    The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes. The abnormal process is to go outside the Constitution, and amend it.

    Rather than “abolish,” “eliminate,” “do away with,” or “circumvent” the Electoral College, National Popular Vote allows individual states to use their unqualified and absolute right to have the Electoral College accomplish a goal that more than two-thirds of Americans, throughout the country, have consistently supported since polling on this began in 1944.

    States enacting National Popular Vote replace their state or district winner-take-all laws to guarantee every vote, everywhere, in every election matters to the candidates, is equal and counts, and the candidate with the most votes wins, as in virtually every other election in the country.

    The National Popular Vote bill preserves the Electoral College and state control of elections. It changes the way electoral votes are awarded in the Electoral College. The candidate with the most votes would win, as in virtually every other election in the country.

    Under National Popular Vote, every voter, everywhere, would be politically relevant and equal in every presidential election. Every vote would be included in the state counts and national count.

    Title 3, chapter 1, section 6 of the United States Code requires the states to report the November popular vote numbers in a “Certificate of Ascertainment.” You can see the Certificates of Ascertainment for all 50 states and the District of Columbia containing the official count of the popular vote at the NARA web site. The “safe harbor” provision in section 5 of title 3 of the United States Code specifies that a state’s “final determination” of its presidential election returns is “conclusive”(if done in a timely manner and in accordance with laws that existed prior to Election Day). The National Popular Vote compact is patterned directly after existing federal law and requires each state to treat as “conclusive” each other state’s “final determination” of its vote for President.

    When states with a combined total of at least 270 Electoral College votes enact the bill, the candidate with the most popular votes in all 50 states and DC would get the needed majority of 270+ Electoral College votes from the enacting states. The bill would thus guarantee the Presidency to the candidate who receives the most popular votes and the majority of Electoral College votes.

    With National Popular Vote, the United States would still be a republic, in which citizens continue to elect the President by a majority of Electoral College votes by states, to represent us and conduct the business of government.

    The National Popular Vote bill has passed 33 state legislative chambers in 22 rural, small, medium, large, Democratic, Republican and purple states with 250 electoral votes, including one house in Arkansas (6), Connecticut (7), Delaware (3), Maine (4), Michigan (16), Nevada (6), New Mexico (5), North Carolina (15), Oklahoma (7), and Oregon (7), and both houses in Colorado (9).
    The bill has been enacted by 11 jurisdictions with 165 electoral votes – 61% of the 270 necessary to go into effect.


  18. kohler says:

    A survey of Nebraska voters showed 67% overall support for a national popular vote for President.

    Support by political affiliation was 78% among Democrats, 62% among Republicans, and 63% among others.

    By congressional district, support for a national popular vote was 65% in the 1st congressional district, 66% in the 2nd district (which voted for Obama in 2008); and 72% in the 3rd District.

    By gender, support for a national popular vote was 76% among women and 59% among men.

    By age, support for a national popular vote, 73% among 18–29 year-olds, 67% among 30–45 year-olds, 65% among 46–65 year-olds, and 69% among those older than 65.

    In a 2nd question with a 3-way choice among methods of awarding electoral votes,

    * 16% favored the statewide winner-take-all system (i.e., awarding all five electoral votes to the candidate who receives the most votes statewide)
    * 27% favored the current system
    * 57% favored a national popular vote

    Support by political affiliation for a national popular vote was still 65% among Democrats, 53% among Republicans, and 51% among others.


  19. kohler says:

    With the Electoral College and federalism, the Founding Fathers meant to empower the states to pursue their own interests within the confines of the Constitution. National Popular Vote is an exercise of that power, not an attack upon it.

    The Electoral College is now the set of 538 dedicated party activists who vote as rubberstamps for their party’s presidential candidate. That is not what the Founders intended.

    The Founding Fathers in the Constitution did not require states to allow their citizens to vote for president, much less award all their electoral votes based upon the vote of their citizens.

    The presidential election system we have today is not in the Constitution. District winner and state-by-state winner-take-all laws to award Electoral College votes, were eventually enacted by states, using their exclusive power to do so, AFTER the Founding Fathers wrote the Constitution. Now our current system can be changed by state laws again.

    During the course of campaigns, candidates are educated and campaign about the local, regional, and state issues most important to the handful of battleground states they need to win. They take this knowledge and prioritization with them once they are elected. Candidates need to be educated and care about all of our states.

    The indefensible reality is that more than 99% of presidential campaign attention (ad spending and visits) was showered on voters in just ten states in 2012- and that in today’s political climate, the swing states have become increasingly fewer and fixed.

    Where you live determines how much, if at all, your vote matters.

    The current district winner or state-by-state winner-take-all methods of awarding electoral votes (not mentioned in the U.S. Constitution), ensured that the candidates, after the conventions, in 2012 did not reach out to about 80% of the states and their voters.
    10 of the original 13 states are ignored now.
    All together, 40 states’ voters, like Nebraska’s, were conceded by the minority parties in the states, taken for granted by the dominant party in the states, and ignored by all parties in presidential campaigns.
    Candidates had no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they were safely ahead or hopelessly behind.

    80% of the states, like Nebraska, and people were just spectators to the presidential election. That’s more than 85 million voters, more than 200 million Americans.

    Since World War II, a shift of a few thousand votes in one or two states would have elected the second-place candidate in 4 of the 15 presidential elections. Near misses are now frequently common. There have been 7 consecutive non-landslide presidential elections. 537 popular votes won Florida and the White House for Bush in 2000 despite Gore’s lead of 537,179 popular votes nationwide. A shift of 60,000 voters in Ohio in 2004 would have defeated President Bush despite his nationwide lead of over 3 Million votes.

    Policies important to the citizens of non-battleground states, like Nebraska, are not as highly prioritized as policies important to ‘battleground’ states when it comes to governing.

    Charlie Cook reported in 2004:
    “Senior Bush campaign strategist Matthew Dowd pointed out yesterday that the Bush campaign hadn’t taken a national poll in almost two years; instead, it has been polling [in the then] 18 battleground states.” [only 10 in 2012]

    Bush White House Press Secretary Ari Fleischer acknowledging the reality that [then] more than 2/3rds of Americans were ignored in the 2008 presidential campaign, said in the Washington Post on June 21, 2009:
    “If people don’t like it, they can move from a safe state to a swing state.”

    State-by-state winner-take-all laws adversely affect governance. Sitting Presidents (whether contemplating their own re-election or the election of their preferred successor) pay inordinate attention to the interests of “battleground” states.
    ** “Battleground” states receive over 7% more grants than other states.
    ** “Battleground” states receive 5% more grant dollars.
    ** A “battleground” state can expect to receive twice as many presidential disaster declarations as an uncompetitive state.
    ** The locations of Superfund enforcement actions also reflect a state’s battleground status.
    ** Federal exemptions from the No Child Left Behind law have been characterized as “‘no swing state left behind.”

    The effect of the current state-by-state winner-take-all system on governance is discussed at length in Presidential Pork by Dr. John Hudak of the Brookings Institution.

    Compare the response to hurricane Katrina (in Louisiana, a “safe” state) to the federal response to hurricanes in Florida (a “swing” state) under Presidents of both parties. President Obama took more interest in the BP oil spill, once it reached Florida’s shores, after it had first reached Louisiana. Some pandering policy examples include ethanol subsidies, Steel Tariffs, and Medicare Part D. Policies not given priority, include those most important to non-battleground states – like water issues in the west.

  20. kohler says:

    With National Popular Vote, every voter would be equal. Candidates would reallocate their time, the money they raise, and their ad buys to no longer ignore 80% of the states and voters.

    With National Popular Vote, big cities would not get all of candidates’ attention, much less control the outcome.

    16% of the U.S. population lives outside the nation’s Metropolitan Statistical Areas. Rural America voted 60% Republican. None of the 10 most rural states matter now.

    The population of the top five cities (New York, Los Angeles, Chicago, Houston and Philadelphia) is only 6% of the population of the United States and the population of the top 50 cities (going as far down as Arlington, TX) is only 15% of the population of the United States. 16% of the U.S. population lives in the top 100 cities. They voted 63% Democratic in 2004.

    Suburbs divide almost exactly equally between Republicans and Democrats.

    If big cities always controlled the outcome of elections, the governors and U.S. Senators would be Democratic in virtually every state with a significant city.

    A nationwide presidential campaign, with every voter equal, would be run the way presidential candidates campaign to win the electoral votes of closely divided battleground states, such as Ohio and Florida, under the state-by-state winner-take-all methods. The big cities in those battleground states do not receive all the attention, much less control the outcome. Cleveland and Miami do not receive all the attention or control the outcome in Ohio and Florida.

    In Iowa, Ohio, Florida, and Virginia (the four states that accounted for over two-thirds of all general-election activity in the 2012 presidential election) rural areas, suburbs, exurbs, and cities all received attention—roughly in proportion to their population.

    Iowa has four congressional districts (each, of course, with equal population). The presidential candidates campaigned approximately equally in each part of the state in the 2012 presidential election.

    The itineraries of presidential candidates in battleground states (and their allocation of other campaign resources in battleground states) reflect the political reality that every gubernatorial or senatorial candidate knows. When and where every voter is equal, a campaign of polling, visiting, advertising, and organizing must be run everywhere.

    With National Popular Vote, when every voter is equal, everywhere, it makes sense for presidential candidates to try and elevate their votes where they are and aren’t so well liked. But, under the state-by-state winner-take-all laws, it makes no sense for a Democrat to try and do that in Vermont or Wyoming, or for a Republican to try it in Wyoming or Vermont.

    Even in California state-wide elections, candidates for governor or U.S. Senate don’t poll, visit, advertise, and organize, just in Los Angeles and San Francisco, and those places don’t control the outcome (otherwise California wouldn’t have recently had Republican governors Reagan, Dukemejian, Wilson, and Schwarzenegger). A vote in rural Alpine county is just an important as a vote in Los Angeles. If Los Angeles cannot control statewide elections in California, it can hardly control a nationwide election.

    In fact, Los Angeles, San Francisco, San Jose, and Oakland together cannot control a statewide election in California.

    Similarly, Republicans dominate Texas politics without carrying big cities such as Dallas and Houston.

    There are numerous other examples of Republicans who won races for governor and U.S. Senator in other states that have big cities (e.g., New York, Illinois, Michigan, Pennsylvania, and Massachusetts) without ever carrying the big cities of their respective states.

    With a national popular vote, every voter everywhere will be equally important politically. There will be nothing special about a vote cast in a big city or big state. When every voter is equal, candidates of both parties will seek out voters in small, medium, and large towns throughout the states in order to win. A vote cast in a big city or state will be equal to a vote cast in a small state, town, or rural area.

    Candidates would have to appeal to a broad range of demographics, and perhaps even more so, because the election wouldn’t be capable of coming down to just one demographic, such as waitress mom voters in Ohio.

    With National Popular Vote, every voter, everywhere, would be politically relevant and equal in presidential elections. Wining states would not be the goal. Candidates would need to care about voters across the nation, not just undecided voters in the current handful of swing states.

    The main media at the moment, TV, costs much more per impression in big cities than in smaller towns and rural area. Candidates get more bang for the buck in smaller towns and rural areas.

    An actual elected and successful (Republican) politician explains “How will the National Popular Vote proposal affect a candidate’s decisions?”

    Ray Haynes served as the National Chairman of the American Legislative Exchange Council (ALEC) in 2000. He served in the California State Senate from 1994 to 2002 and was elected to the Assembly in 1992 and 2002

    “First, it will require the candidate to campaign in more places, and in more states. No longer will 10, 12, or 15 states determine the outcome of a presidential campaign. Candidates will allocate their resources to change the minds of voters in more places, because now the votes of each voter in each state could change the outcome in the national election. Today, presidential candidates spend millions to pick up a thousand votes in Florida, Pennsylvania, or Ohio. Under National Popular Vote, that money may get spent to change the minds of voters in Washington State, or Georgia, or Texas, or New York, because those votes will now affect the awarding of electoral votes. Since the states will now agree to award their electors to the candidate that receives the most votes in all 50 states, candidates will devote their resources to receiving the most votes nationwide, and not just the most votes in Missouri or Wisconsin.”

  21. kohler says:

    Anyone concerned about the relative power of big states and small states should realize that the current Electoral College system shifts power from voters in the small and medium-small states to voters in the current handful of big states.

    With National Popular Vote, when every popular vote counts and matters to the candidates equally, successful candidates will find a middle ground of policies appealing to the wide mainstream of America. Instead of playing mostly to local concerns in Ohio and Florida, candidates finally would have to form broader platforms for broad national support. Elections wouldn’t be about winning a handful of battleground states.

    Now political clout comes from being among the handful of battleground states. 80% of states and voters are ignored by presidential campaign polling, organizing, ad spending, and visits. Their states’ votes were conceded by the minority parties in the states, taken for granted by the dominant party in the states, and ignored by all parties in presidential campaigns.

    State winner-take-all laws negate any simplistic mathematical equations about the relative power of states based on their number of residents per electoral vote. Small state math means absolutely nothing to presidential campaign polling, organizing, ad spending, and visits, or to presidents once in office.

    In the 25 smallest states in 2008, the Democratic and Republican popular vote was almost tied (9.9 million versus 9.8 million), as was the electoral vote (57 versus 58).

    In 2012, 24 of the nation’s 27 smallest states received no attention at all from presidential campaigns after the conventions.- including not a single dollar in presidential campaign ad money after Mitt Romney became the presumptive Republican nominee on April 11. They were ignored despite their supposed numerical advantage in the Electoral College. In fact, the 8.6 million eligible voters in Ohio received more campaign ads and campaign visits from the major party campaigns than the 42 million eligible voters in those 27 smallest states combined.

    Now with state-by-state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), presidential elections ignore 12 of the 13 lowest population states (3-4 electoral votes), that are non-competitive in presidential elections. 6 regularly vote Republican (AK, ID, MT, WY, ND, and SD), and 6 regularly vote Democratic (RI, DE, HI, VT, ME, and DC) in presidential elections.

    Similarly, the 25 smallest states have been almost equally noncompetitive. They voted Republican or Democratic 12-13 in 2008 and 2012.

    Voters in states that are reliably red or blue don’t matter. Candidates ignore those states and the issues they care about most.

    Kerry won more electoral votes than Bush (21 versus 19) in the 12 least-populous non-battleground states, despite the fact that Bush won 650,421 popular votes compared to Kerry’s 444,115 votes. The reason is that the red states are redder than the blue states are blue. If the boundaries of the 13 least-populous states had been drawn recently, there would be accusations that they were a Democratic gerrymander.

    Support for a national popular vote is strong in every smallest state surveyed in recent polls among Republicans, Democrats, and Independent voters, as well as every demographic group. Support in smaller states (3 to 5 electoral votes): AK -70%, DC -76%, DE –75%, ID -77%, ME – 77%, MT- 72%, NE – 74%, NH–69%, NE – 72%, NM – 76%, RI – 74%, SD- 71%, UT- 70%, VT – 75%, WV- 81%, and WY- 69%.

    Among the 13 lowest population states, the National Popular Vote bill has passed in nine state legislative chambers, and been enacted by 4 jurisdictions.


  22. Oracle says:

    Kohler, thanks for presenting the complete picture instead of the biased, one-sided one presented by Borchers. He spends quite a bit of time coming up with very low probability scenarios if NPV were in force. However I can come up scenarios that happened 100% of the time, such as a person put in office that did not have a plurality of votes. Many hard-core right-wing Republicans tend to have a real problem with equal representation, which is why they hate NPV. But they love the fact that due to creative congressional district boundaries, more people voted for Dems in the House than Repubs, but we have a solid Republican house. Times changes, and most people think the person with the most votes should be president. The current process opens up too many avenues that can produce the opposite outcome.

  23. kohler says:

    With the current state-by-state winner-take-all system of awarding electoral votes (not mentioned in the U.S. Constitution, but later enacted by 48 states), it could only take winning a bare plurality of popular votes in only the 11 most populous states, containing 56% of the population of the United States, for a candidate to win the Presidency with a mere 23% of the nation’s votes!

    But the political reality is that the 11 largest states rarely agree on any political question. In terms of recent presidential elections, the 11 largest states have included five “red states (Texas, Florida, Ohio, North Carolina, and Georgia) and six “blue” states (California, New York, Illinois, Pennsylvania, Michigan, and New Jersey). The fact is that the big states are just about as closely divided as the rest of the country. For example, among the four largest states, the two largest Republican states (Texas and Florida) generated a total margin of 2.1 million votes for Bush, while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry.

    In 2004, among the 11 most populous states, in the seven non-battleground states, % of winning party, and margin of “wasted” popular votes, from among the total 122 Million votes cast nationally:
    * Texas (62% Republican), 1,691,267
    * New York (59% Democratic), 1,192,436
    * Georgia (58% Republican), 544,634
    * North Carolina (56% Republican), 426,778
    * California (55% Democratic), 1,023,560
    * Illinois (55% Democratic), 513,342
    * New Jersey (53% Democratic), 211,826

    To put these numbers in perspective, Oklahoma (7 electoral votes) alone generated a margin of 455,000 “wasted” votes for Bush in 2004 — larger than the margin generated by the 9th and 10th largest states, namely New Jersey and North Carolina (each with 15 electoral votes). Utah (5 electoral votes) alone generated a margin of 385,000 “wasted” votes for Bush in 2004. 8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).

  24. “kohler”,
    As noted in the “Comments” tab above:
    “Do not cut and paste articles.”
    I won’t delete what you’ve put up so far, but please cease from cutting and pasting stuff any further.

  25. Oracle:

    You have absolutely no understanding of why we elect Presidents the way we do. We are not a monolithic state, but a Federal republic. The President is elected by the states, not the people. You may not like this, but it’s the country you were born into, or were naturalized into. You have two options (1) emigrate (2) amend the Constitution. In case of option (1), France has a strong executive elected by uniform popular vote, and has probably a few remaining years before it adopts Sharia. The language is easy, and slacking is the national sport, so you may like it. Option (2) is get ⅔ of each house of Congress and ¾ of the states to agree with you. It’s been done more than 2 dozen times before.

    (In fact, France, as part of the EU, ultimately is ruled by a European Commission appointed by the governments of the component states, so I suppose it’s even less democratic than us)

    The Supreme Court is not going to allow a sneaky end-run around the Constitution, so fuhgeddabatit. As Professor Borchers ably states, the only result would be a Constitutional crisis which will end when the Supreme Court stops laughing and issues an injunction.

    By the way, to further ameliorate your ignorance, the major reason why we have a majority Republican house is not gerrymandering, but because Democrats tend to huddle into collectivist ghettos where they’re surrounded by people who agree with them. So Democrats are typically elected by huge margins, wasting many of their votes.

  26. Oracle says:

    GH, when Republicans are in control of designing political boundaries they are always calculated in their favor. Just look the new county board districts in Lincoln. Based on voter registration numbers one would expect two Democrats on the five person board. But DUI Smoyer gerrymandered the 2010 lines so that Dems were practically guaranteed one seat in the district that is heavily Dem. Then the other districts are drawn with slight to moderate Republican majorities. I expect you consider this creative and smart, but most of us consider it voter disenfranchisement.

    Democrats “huddle in collectivist ghettos” because they don’t find the need to isolate themselves on acreages. They mostly get along. And Austin TX is a good example of how Republicans have no problems breaking up a mostly Democratic city into separate congressional districts to dilute their influence even when living in a “collectivist ghetto”.

    We are not a monolithic state, but a Federal republic.
    Times change. We are no longer isolated by distance. Most people would say we lean more toward monolithic as a country, not as separate, very different divisions (except for the South).

  27. Both parties gerrymander. That is not the primary cause of the make-up of Congress. Although, frankly, the world would be a better place if no one in Austin voted.

    If there were fewer Democrats, living on an acreage wouldn’t be so attractive. And anyone who thinks Democrats ‘get along’ hasn’t lived in Boston, Chicago, or New York.

    Times change, but theankfully the Constitution changes far more slowly.

  28. Patrick J. Borchers says:

    NPV dies 6-1 in Committee. For the record, I think Tyson Larson who introduced it is a good guy, just wrong on this, but I’m sure we agree on a lot. He seemed pretty upset with me in his closing comments, but that’s the way it goes.

  29. TexasAnnie says:

    Hold up, y’all! The folks in Austin are distinctly different, and enjoy the highest property tax rates among Texans, but they are FUN.

    I think Kohler has presented a view worthy of consideration. The professor has argued that the National Popular Vote Initiative would do away with the Electoral College and, the rebuttal stipulates that the initiative merely changes the manner of awarding electoral votes.
    Can both positions be true, simultaneously?

    There’s a lot of voter apathy, and in the view of some posts above, voter stupidity. Does being anti- NPVI in some way equate to desiring voter suppression?

    As for me, I kinda like the idea of busting up the Republicans and Democrats. Or at the very least, let other political parties onto the playing field. With electioneering and funding practices such as they are, the small states ARE cut out of the decision-making. Do Nebraskans always want to be left out?

  30. You topia says:

    The best argument against democracy is a five-minute conversation with the average voter… or with a blogger who names himself after a toilet.

    I guess we hit a nerve with Kohler. Democrats really really don’t like hearing how stupid voters are. They, after all, named their party after the lynch mob of 51% that murders the 49% (democracy) and thus its no surprise they find distancing of this Republic from voters unnecessary, and thus also find little value in the checks and balances of our Constitution as it ties the hands of federal government to produce what Democrats call “grid lock” and what America’s founders called freedom.

    Granted, Republicans can be awfully foggy headed but at least they named their party after what we truly are, a Republic. These United States have never been a bloody awful democracy. But we are turning into one.

    Kohler says voters “would be equal”. 40% of voters cannot name the three branches of federal government. Half think the President can suspend the Constitution. Voters are equally suicidally stupid. Democrats sense this in their lucid moments and it terrifies them.

    “Democracies have ever been spectacles of turbulence and contention… as short in their lives as they have been violent in their deaths” James Madison said. But what would he know about it? It’s not like he wrote the US Constitution.

  31. Anonymous says:

    People born and educated in the USA are automatically assumed to understand a constitution that, from what they opine here, appear to have never read it.

  32. Brian T. Osborn says:

    Why would they read, or obey, the Constitution? I gather from the previous thread here on Leavenworth Street that most of the NEGOP administration is as unfamiliar with the NEGOP Constitution as the NDP administration is with theirs.

  33. Anonymous says:

    You topia, your argument makes no difference whether we have NPV or not. The people are still voting for the president, either more directly or in the convoluted manner that we have now.

  34. One other point that Professor Borchers didn’t make is that while the Constitution gives broad latitude to the states in how they choose their electors, it’s really pushing the envelope to say it allows states to give the choice of their electors to citizens outside the state.

  35. TexasAnnie says:

    I do not believe the NPVI gives the choice of electors to citizens outside the state, nor that NPVI is unconstitutional. But clearly reasonable inquiry has been substituted for an appeal to authority, in this case, Patrick J. Borchers. Y’all might benefit by re-reading what Borchers wrote above. His arguments do not verify his claim. They simply bolster his belief that the current Electoral College system should be retained.

  36. Interested Observer says:

    Now that it’s been several days since the whole McPherson thing blew up, what is the current consensus in here about Ricketts and Sasse calling for his resignation?

  37. Anonymous says:

    The NPVI argument has rightly turned to voter ignorance. With examples of Political Media leading in that regard.

    Washington AP: “Analysis: GOP demands bipartisanship from Obama. – “Working with the president was a nonstarter for Republicans six years ago… “

    Six years ago, Republicans controlled nothing. The White House was Democrat, the House was Democrat, and the U. S. Senate was Democrat. So how exactly were Republicans supposed to work with Obama six years ago? Were they expected to press Nancy Pelosi’s and Harry Reid’s lips to Obama’s ass?

  38. States that pass the NPVI pledge to award their electorial college positions to delegates who will vote for the winner of the National Popular Vote. That means they are chosen by the citizens of the US, not (in the present case) Nebraska. So our electors would be chosen 99.5% by people who are not Nebraskan.

    Professor Borchers forgives Senator Larson for pushing this insanity. I’m not inclined to be nearly so understanding.

  39. TexasAnnie says:

    By that rationale, Gerard, do you also believe the Republican and Democrat Parties (bankrolled by the few) choose the President (for the masses)? Is it okay with you that the people of Iowa and New Hampshire, et al, chose for Nebraska?

  40. Hamstersdonttastelikeham says:

    The NPVI apparently failed to clear unicameral committee by 6-1. That, within the most politically iconoclastic state and home of populism where huskers proudly embrace unbalanced government and imbalanced politicians.

    If NPV is going to work anywhere outside of deeply blue states, it would be here, right?

    When NE lawmakers find a thing to be bad government, it must really stink.

    What could conservatives possibly promote that would be as unpalatable as this nonsense? Perhaps a law to force men only to marry women who aren’t their sisters? Spoil sports.

  41. TexasAnnie says:

    Well Hamsters, I do understand WHY Republicans in red states believe the NPVI will un-do their power. But that’s not the same as saying it is unconstitutional. Nor would it guarantee a transfer of power to the Democrats.

    When ‘Independent’ and third party advocates began questioning the lock on politics that the Republicans and Democrats share, the R’s and D’s reinforced their strangleholds. Now it will take a somewhat radical (but peaceful) revolution to assure that all political viewpoints may be considered.

    If Tyson Larson truly believes in the NPVI, he can try to amend it onto another government bill, or he can try to pull it from committee, or he can let it ride until next year while campaigning for it in the interim. Not all Republicans in Nebraska (or Texas for that matter) worship at the alter of the elephant. Indeed I suspect most only vote Republican because it is the least of two evils…

  42. Iowa voters get the same per capita number of convention delegates as Nebraska voters. The fact they get to vote first has no significance except to LIVs who can’t get their mind around an election and need to think of it as a horserace. For example, I voted for Ron Paul in 2008, because he was the candidate I preferred. I ignored the conventional wisdom that McCain was the inevitable nominee.

    By TA’s logic, Hawaiians have no vote, because by the time their polls close, the Presidential election is usually already called. No. The fact you count one person’s vote before another doesn’t mean the second person’s vote is lesser.

  43. Interested Observer says:

    It would appear that Tyson Larson has nearly marginalized himself with his flurry of crackpot, fringe bills this session. A long time ago, New York City proposed closing the bars at 3 A.M. Will Rogers wrote “Anybody who can’t get drunk by 3 A.M. ain’t trying.”. I think the same conclusion applies today, also.

  44. Anonymous says:

    GH, you’re missing TA’s point. The states voting first in the primary tend to eliminate candidates. By the time Nebraska votes, my choice may have already been eliminated.

  45. TexasAnnie says:

    Gerard: I, too, vote my conscience. But good will is not enough when competing with the mighty Republican and Democrat parties. And since I first became dissatisfied with the Republicans (when Gingrich put out a contract on American) I have not registered with them, even though I have voted for some Republican candidates. Usually, however, I end up voting for the losers, Libertarians.

    Yet since my dissatisfaction many elections have transpired and in the last two presidential elections, Independent registrations have climbed. (I now register Independent.) Yet we have no practical means for electing an Independent candidate. A national popular vote could provide a vehicle. And with a vehicle, Independent candidates could get some campaign $$$’s and media attention. Don’t you want that outcome too?

  46. TexasAnnie says:

    Independent candidates emerge from the times and places they occur. And if they are rational, egalitarian, and liberty-loving in equal parts, I’m pretty sure the vast majority of voters (and electors) will recognize and seek that quality of leadership. But there’s no guarantee. What I do know is the system for selecting our President that we’ve got now, sucks.

  47. goodluckwiththat says:

    Congress invites Netanyahu of Israel to speak to Congress. Why? Nostalgia perhaps.

    Congressional Republicans and Congressional Democrats like Menendez and Reid and Pelosi, who all treat Obama like a mentally deficient little brother, nostalgically wish the USA had a President with balls and a brain, heroism, managerial and executive ability and a decent US education. Obama has none of that.

    Netanyahu was born in Israel but spent a half dozen years in US schools as a kid, graduating from High School in Philadelphia, after which he enlisted in the Israeli army as a commando, saw combat and was wounded. After that, he went to college at MIT in Massachusetts. He left MIT during the Yom Kipper war to lead commando raids at the Suez and deep into Syria. After the war, now even more heroic, he finished his MIT degree in Architecture, got a Master’s degree in Business at MIT, and studied Political Science at Harvard. As a top scholar in MIT’s vaunted Slone Business school, he worked for a while with the same Boston firm where Mitt Romney worked, and then went back to Israel to lead an anti-terrorism think tank, after which he was appointed Israel’s ambassador to the United Nations.

    Netanyahu dld all of the above before he asked Israeli voters to elect him to anything.

    Obama sealed Obama’s own school grades because they were bad and he never got a degree that required one class in math. A scholastic dunce, Obama’s only job was him being hired to work for his future wife doing fake charity work distributing mostly federal funds. So basically, a dimwit and a physical coward who never risked life, limb, or an ounce of sweat to help anyone in need and who never held any management job other than editing his school newspaper and being POTUS. A useless bag of hot air in the worst political sense.

    You can like or dislike Obama or Netanyahu but Congress wants you to remember what it was like years ago when the USA wasn’t led by such a feckless character as we have now.

    American voters are dangerously stupid and so egotistically unapproachable that Congress is perhaps trying to give them an oblique lesson. Good luck with that.

  48. TexasAnnie says:

    You’re fooling yourself, Gerard. The two-party system (or rather their donors) control every aspect of government & politics. Even the Supreme Court!

  49. Anonymous says:

    “American voters are dangerously stupid and so egotistically unapproachable that Congress…” is backwards.

    It is more accurate to say “Members of Congress are dangerously stupid and so egotistically unapproachable that perhaps American voters are trying to give them an oblique lesson. Good luck with that.”

  50. Macdaddy says:

    TA, I was talking to anyone who supports the NPVI. It was born directly out of sour grapes over Bush beating Gore and rests in the hope of the big blue states hiding massive voter fraud. Maybe they won’t hide it. I predict that if this ever passes, the next step will be for the blue states to allow any non-citizen residents to vote in their elections. Hasta la vista, America.

  51. Still waiting says:

    I assume the resolution from the Board of Education condemning Pat McPherson and asking him to resign also included the same language for Ernie Chambers right?

  52. TexasAnnie says:

    Macdaddy: I can’t give a quote right now (have to go into San Antonio today) but while I was reading up on the NPVI since this blog post appeared, I read somewhere that actually this idea has been tossed around since 1944… I don’t doubt that whenever a presidential election doesn’t flow, criticism of the electoral college arises, such as the Bush v. Gore election. But aside from this recent history, it is my understanding that such criticism has been longstanding.

    Are YOU happy with the current system of electing our Presidents?

  53. Anonymous2 says:

    MacDaddy is the typical extremist conservative. “No matter how bad the current state of affairs, I want NOTHING to change.” Because, of course, any change would always be worse.

  54. Tonic & Tonic says:

    To the above: Conservatives (like MacD and myself) are not opposed to change. What we are opposed to is growth of government. The trouble is that every time a liberal mentions a change, the change involves a growth in government, government spending, and taxes. You can’t help society by hurting the individual.

  55. DCRP Member says:

    We now have armed guards at out meetings to enforce the Scott Peterson regime. Jon Tucker did not have the votes for Chair so they violated the DCRP Constitution and packed the Central Committee.

  56. Macdaddy says:

    Annie, yes I am happy with our current method of electing Presidents and see zero real reason for it to change. The people who want it to change only want it because they think they will win more elections that way. Period. All the rationalizations are just the ramblings of a snake oil salesman.

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