by Jan Ting
During the 2000 presidential election, Al Gore won the popular vote but George W. Bush won the presidency by winning the majority of votes in the Electoral College. Since then, a predictable but misguided effort has been underway to try to make the popular vote determinative of presidential elections, instead of relying on the Electoral College as provided in the Constitution and as traditionally counted.
Recognizing that such a proposal could never command the support of three-quarters of the states required for a constitutional amendment, proponents have instead proposed an interstate compact by which states commanding a majority of votes in the Electoral College agree to cast all their votes for the winner of the national popular vote in a presidential election. States would legally bind themselves to cast their electoral votes for the national popular vote winner regardless of the actual vote in that state. And by mutual agreement, the legislation in each state would become effective as soon as states commanding a majority of the electoral votes enact the same legislation.
The flaw in the proposal is the possibility of a close result in the national popular vote. Under the current system, a close vote in the Electoral College could trigger a recount and protracted litigation in a single state, as we experienced in Florida in 2000, or at worst in a couple of states where the close popular vote could affect the electoral votes.
But under the national popular vote proposal, a close national vote could result in recounts and protracted litigation in all 50 states and in the District of Columbia, because every single contested vote would count towards deciding the national popular vote winner, regardless of how lop-sided the outcome was in that particular state. Thus, the threat of total legal gridlock would be much greater under a national popular vote scheme than under the current Electoral College practice.
The response of the popular vote proponents to this flaw is essentially to deny the likelihood of a close national popular vote in a presidential election, even after the example of 2000 when there was both a close national popular vote and a close vote in the Electoral College. You think that won’t ever happen again in our politically divided nation?
Eight states (California, Hawaii, Illinois, Massachusetts, Maryland, New Jersey, Vermont, and Washington) and the District of Columbia, together commanding 132 electoral votes of the 270 required for a majority, have already enacted the requisite legislation. All of those would be considered “safe” or “leaning” Democratic.
How will Democrats in those states and D.C. feel if they deliver a majority for their nominee but the electoral votes go to the Republican instead, resulting in the election of a Republican president in place of the Democrat?
Regardless of politics, the fatal flaw in the national popular vote proposal is the possibility of another close national popular vote like we experienced in 2000, which would result in recounts and high-stakes partisan litigation not just in one or two closely contested states, but in every single state and the District of Columbia, if any votes at all can be contested affecting the plurality of the national popular vote.
The proponents of the national popular vote initiative are willing to bet the republic that we won’t experience another close national popular vote in a presidential election. Are you? We know the republic can survive gridlock in the Electoral College, and recounts and litigation in a single state, as we did in 2000. But enactment of the national popular vote initiative would be subjecting our system of self-government to the threat of electoral litigation Armageddon.
Let’s try to keep the republic functional for a few more generations. Defend the Electoral College. Tell your state legislators to oppose the national popular vote initiative!
Jan Ting is a Professor of Law at Temple University’s Beasley School of Law and a former Assistant Commissioner for Refugees, Asylum and Parole, Immigration and Naturalization Service, U.S. Department of Justice. Jan can be reached at email@example.com.
Photo Credit: Donkey Hotey Creative Commons