The Danger of National Popular Vote Compact

Norman Williams is the Associate Dean for Academic Affairs and the Ken & Claudia Peterson Professor of Law at Willamette University.

He discussed some problems with the National Popular Vote Compact (NPVC).

In his view, it is Unconstitutional for States to Appoint Electors against the Wishes of their Own State Electorate but in accordance with the Will of Voters Outside the State. But what does he do with those States were the Voters selected NPVC as a Ballot Initiative?

He also think that the Practical Problems with the NPVC will invite Litigation on a far greater scale, and with far greater Consequences for the Legitimacy of our Presidential Elections, than what the Nation Witnessed in Bush v. Gore.

To raise just a few Practical Questions, how would a Nationwide Recount be Ordered or Conducted if the National Popular Vote is close?
If a Nationwide Recount were Not Conducted, if Only some States conducted a Recount in that Situation, would Not that Violate the Equal Protection Clause for the same reason that the Lack of Uniformity in Florida’s County-by-County Recount in Bush v. Gore did?

Equally importantly, would Not the Absence of a Uniform, Nationwide Recount call into question the Legitimacy of the President so Elected? Supporters of the NPVC do Not have convincing Responses to these Problems. Even they acknowledge the need for a Nationwide Recount and that No Individual State can Order other States to Undertake a Recount. They merely respond that Congress theoretically could Enact a Statute ordering a Nationwide Recount even though the NPVC, as an Interstate Compact, does Not and Cannot require Congress to Enact such a Statute.

Here are Two Flaws that have become more apparent in the years since the NPVC was First proposed in the wake of the 2000 Presidential election.

Both Flaws are rooted in the fact that Support and Opposition to the NPVC has fallen along Partisan Fault Lines: Democratic-leaning States tend to Favor the NPVC, and Republican-leaning States Oppose it.

First, the Partisan Divide regarding the NPVC, the fact that Supporters of the NPVC have so closely tied the NPVC to the fate of Democratic Presidential Candidates, ironically makes it more Difficult for the NPVC to come into effect.

It seems incredibly Unlikely that the NPVC will Garner the necessary 270 Electoral Vote Majority, let alone do so in time for the 2020 Presidential Election, while it is Portrayed so Transparently as an effort to Stop Republican Candidates from Winning the White House. But the NPVC feels the Earliest the NPVC can go into Effect is 2024.

Second, even if the NPVC somehow comes into Effect at some point well down the road, the Partisan Divide makes it far more likely for the NPVC to Unravel in a Future Presidential Election. Suppose that a few of those Democratic-leaning, at least in Presidential Elections, States such as Pennsylvania, Michigan, and Wisconsin join the NPVC, and it comes into Effect.

Now suppose that in some Future Presidential Election, it looks like the Republican Presidential Candidate may Win the Popular Vote. In that Scenario, there will be Overwhelming Political Pressure in Signatory States, which include Heavily Democratic States such as California and New York, to withdraw from the NPVC. To be sure, the NPVC anticipates this Problem, nominally Forbidding States to Withdraw from the Compact after July 20th in a Presidential Election year. But that Limitation is Unenforceable both as a Legal and Practical Matter.

Article II of the Constitution Empowers the State Legislatures to decide how the Presidential Electors from their State are Selected. That Power Exists regardless of when it is Used; State Legislatures Retain the Power to Change the Presidential Election Process in their State at any time before the Electors Vote.

Indeed, under Article II, a State Legislature can Chose to Appoint the Electors itself even after the Popular Election in November.

Does anyone believe that California or New York will Refrain from Withdrawing from the NPVC if the Republican Candidate Narrowly Wins the National Popular Vote but the Democratic Candidate Overwhelmingly Wins the State Popular Vote in those States?

To Adhere to the NPVC in that Scenario would be Political Suicide for Democratic Legislators in those States, who would surely get “primaried” in the Next Election.

Sure, a Pre- or Post-Election Withdrawal from the NPVC would Violate the Terms of the NPVC, but the Constitution trumps Interstate Compacts and does so whether Congress Ratifies the NPVC or not. And, sure, Other States will Undoubtedly Sue to Compel the Withdrawing State to Comply with the NPVC, but that Lawsuit will likely Fail for the Reason just Discussed. Even more importantly, the very fact that the Presidential Election would again be Decided by the U.S. Supreme Court would again Throw the Nation into Turmoil. It is Bush v. Gore all over again, though with even more Partisan Fuel added to the Fire.

Williams did not Oppose a Presidential Election System based on the National Popular Vote. He has no doubt that, if we were to Rewrite the Constitution Today, we would Not adopt the Electoral College System that we have. Our Presidential Election system is the Byproduct of Historical Forces and Political Compromises made in 1787 that No Longer have Contemporary Relevance or Political Resonance, gratefully, the Nation No Longer needs to Balance the Political Strength of Pro-Slavery and Anti-Slavery States.

But the Relevant Question before us today is Not whether the Electoral College is the Best Way to Elect the President, it is not, but whether the NPVC is the Right Way to go about Reforming our Presidential Election System, it is not either.

The Right way to go about Jettisoning the Electoral College is to Adopt an amendment to the Constitution Abolishing the College and providing for the Direct Election of the President based on the National Popular Vote.

Yes, that may be Politically Difficult, but it would be far Preferable for Supporters of the NPVC to put their Political Muscle into that effort than the Adoption of the NPVC, which would usher in a far more Politically Fraught and Litigious Era of Presidential Elections.

What are your thoughts on the NPVC?










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