26 April 2024

The NPVIC is not the answer

The Electoral College is a chronic flaw in American democracy.  In 2000 and 2016 -- that is, two of the last six presidential elections -- it awarded the presidency to the candidate who lost the popular vote, thwarting the actual will of the voters.  It induces candidates to focus their campaigns on a few "swing states" which could go either way and thus will decide the election, whereas if elections went purely by the popular vote, every individual's vote would be worth exactly as much as every other, whether cast in Michigan, California, or Wyoming.  Fairly consistently, polling has shown that a majority of Americans want to get rid of the Electoral College.  However, since it is established by the Constitution, abolishing it would require a Constitutional amendment, which means the assent of two-thirds of the House, two-thirds of the Senate, and the legislatures of three-quarters of the states.  In today's political climate, that's effectively impossible.

A much-touted proposed solution to this problem is the National Popular Vote Interstate Compact (NPVIC).  This is a kind of treaty between states, under which each state which has agreed to it would award its electoral votes to the winner of the national popular vote, rather than to the winner of the popular vote within that state as is currently done.  The compact states that it takes effect once it has been adopted by states whose combined electoral votes are more than half of the total electoral votes available -- that is, enough states to decide a presidential election in the Electoral College.  If and when the NPVIC reaches that threshold, every future election's national popular-vote winner will be guaranteed the electoral votes of all the NPVIC states, so that he or she will win the Electoral College.  Problem solved.

It has a real chance of being enacted.  So far seventeen states and DC, with a total of 209 electoral votes, have adopted it; and a further eight states with 79 electoral votes now have it under some degree of active consideration in their legislatures.  If enough of those eight to account for 61 electoral votes adopt it, the NPVIC will take effect.

Unfortunately, while the NPVIC would solve one major problem with our political system, I think it would almost certainly unleash others which might prove even more dangerous and intractable.

First, it sets a precedent that a state's electoral votes can be awarded in a way that completely ignores the popular vote within that state.  The Constitution does not prohibit this; Article II, section 1, paragraph 2 allows each state legislature to decide how that state's electors shall be chosen, and a legislature which adopts the NPVIC is simply making that decision.  It is really only tradition, and attachment to democratic principles, which have always dictated that a state's electoral votes are awarded based on its popular vote.  Once a precedent of abandoning that practice is set, the doors are flung open to a wide range of nasty possibilities.  If a state legislature can ignore the state's popular vote because the national popular vote is more important, it can equally well do so by deciding something else is more important -- say, contriving some pretext whereby one candidate is unqualified or unworthy to be president ("No candidate under whose previous administration illegal border crossings exceeded three million shall be awarded the electoral votes of.....").  A legislature could even give itself the power to appoint electors and then do so as it saw fit, with some claim of democratic legitimacy since legislatures are elected by the people of the state, while in practice gerrymandering means that in some states the legislature is dominated by one party while the state popular vote would go to the other party's presidential candidate.

But the real problem is the risk of elections getting bogged down in legal quagmires.  Imagine that the NPVIC is enacted by enough states to take effect and in the following election it results in one or more states awarding their electoral votes to the candidate who did not win the popular vote in that state.  The party of the other candidate, and groups of his or her voters in that state or states, would immediately file lawsuits challenging the NPVIC on various grounds.  How these would be resolved, and how long it would take, is difficult to guess.  The legal wrangling would be even more intense if the NPVIC resulted in a different candidate actually winning the presidency than under the old system.  It would be even worse than the mess in Florida in 2000.  Whichever side ultimately prevailed, the new president's perceived legitimacy would be diminished and perhaps openly challenged by state governments run by the opposite party, especially if the losing candidate refused to recognize the outcome.  We don't want a political system in which the actual voting is the mere starting gun for endless rounds of squabbling in court which would end up determining the outcome.  Trump and Kari Lake have already tried to force that upon us by legal attacks on the elections they lost, but their claims were rejected in every court because they had no substance or supporting evidence.  Legal challenges to the NPVIC would carry a lot more weight and would be taken seriously.

Whether this kind of mess would be worse than the present system, under which the real winner can "lose" due to a weird eighteenth-century anachronism, is a matter of opinion.  I think it actually might be.  At the very least, we'd be steering the country into unknown waters and possibly an unprecedented crisis of governmental legitimacy, at a time of serious internal polarization and danger overseas.  This is just not a time when the rest of the democratic world can afford to have the US preoccupied with prolonged internal legal squabbling and emerge with a weakened president.

There's another option.  As I've discussed here extensively, each of the two big parties has embraced some policies and ideologies which are extremist, radical, or just flat-out crazy, and which seriously turn off mainstream voters.  Whichever party is the first to comprehensively and convincingly repudiate such stuff will start winning elections by landslides -- including the presidency -- regardless of the Electoral College.  (As it is, the Republicans look increasingly likely to lose in a landslide this year because of doubling down on one of their worst radicalisms, forced-birthism.)  Listen to the voters and go where they are, rather than lecturing them and trying to drag them to where you are, and you will prevail despite the flaws in the system.


Anonymous Reaganite Independent said...

This is superb and entirely educational, honestly I didn’t know a thing about it

Would have to agree with your conclusions. Lot of changes you see proposed these days are also disingenuous disruptions. Makes me more of a conservative institutional list regarding electoral or constitutional tinkering

Gerrymandering is causing problems here, that’s what brings about these extreme candidates that can’t be challenged in their district by sane people. And the parties follow that. At least on the GOP side. I think Biden has moderated his party, after the first year in office anyway

I’m keeping an open mind on ranked choice voting, though, that brings some moderating benefits perhaps

27 April, 2024 02:25  
Blogger Infidel753 said...

Thanks. I hoped it would help clarify the issue.

The Electoral College is a terrible problem. No other democracy in the world has anything like it. They all have institutional protections for the political minority, so the party in power can't just do anything it wants, but the winner of the election does actually win the election.

Gerrymandering promotes extremism because it creates "safe" districts in which one party's candidate is guaranteed to win, so the real contest is that party's primary -- and primaries are dominated by activists who are far more ideological than mainstream voters. Without the threat of a genuinely competitive general election, they have no incentive to choose a moderate, so they just go out to their preferred extreme. That's how you get people like MTG and Tlaib in the House. The Senate is generally less crazy because state borders are fixed and can't be gerrymandered.

28 April, 2024 00:27  
Anonymous Reaganite Independent said...

Agreed on all points, exactly

I think the electoral college came about as a compromise to produce the union in the first place, some states were independent minded. Perhaps new U.S. states and territories didn’t want to be dominated politically by the established East Coast elite either, that might be part of why was seen as beneficial In making the country work. It’s not something I’ve researched tho

As the US became more urbanized over the last century, the EC gives too much weight to sparsely populated areas of the country. You could make the argument that so does the Senate

28 April, 2024 00:41  
Blogger nick said...

It was crazy that Trump was elected by the Electoral College although Hillary Clinton clearly won the popular vote. But any alternative system might run into the problems you mention. Be careful what you wish for, as they say.

28 April, 2024 12:28  
Blogger Infidel753 said...

Reaganite: It made more sense when the US saw itself as a loose federation of semi-sovereign entities. (The very fact that we refer to the fifty sub-units of the country as "states", which in most contexts implies something independent, rather than as provinces or whatever, is also a holdover from this.) It makes no sense for a unified nation. And yes, urbanization has exacerbated the problem by increasing differences in population density between different areas.

The Senate does have the same problem, and the filibuster makes it worse, when 41 senators representing a relatively small fraction of the national population can prevent legislation from passing.

Nick: An alternative system -- just a straight popular vote as other countries have -- should work. The problem is that that would involve straightforwardly abolishing the Electoral College, and our system makes that practically impossible. The NPVIC is a scheme to create a weird jerry-rigged work-around to counteract the un-democratic effect of the Electoral College without actually abolishing it, and such schemes very often have unintended side effects.

30 April, 2024 00:08  
Blogger Craig said...

While I agree the compact has problems, it is still better than staying with the electoral college. Any chaos from unintended side effects will bring the inequities front and center, forcing a discussion that will ultimately result in more substantial reforms of the whole voting system.

03 May, 2024 07:09  
Blogger Infidel753 said...

While I agree the compact has problems, it is still better than staying with the electoral college

As I said in the post, it's a matter of opinion which is worse -- and unless it actually happens, we don't know how bad the disruption and increased polarization from the NPVIC would be. We would be taking a real risk of putting ourselves in an even worse position. I do think it's obvious that setting a precedent of dissociating the awarding of a state's electoral votes from what the voters of that state decide would be very dangerous. As for "bringing the iniquities front and center", most average voters would judge any negative effects of the NPVIC to be evidence of the "iniquities" of the NPVIC, not of the Electoral College.

I'm not sure what those "more substantial reforms of the whole voting system" would actually consist of, but actually abolishing the Electoral College would remain impossible due to the difficulty of amending the Constitution, just as it is now. If the fact that the Electoral College repeatedly results in candidates who lose the popular vote becoming president hasn't been enough to force reforms, I don't believe that seeing chaos from a failed attempt to circumvent the Electoral College would be enough to do so either.

04 May, 2024 03:10  

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