As I write this, the National Popular Vote Interstate Compact (NPVIC) has been adopted by fourteen states and the District of Columbia, representing 189 electoral votes.
By way of background, the NPVIC is an attempt to do an end-run around the electoral college and effectively change our system to one in which the President is elected by popular vote. States agree to give award their electoral votes to whoever wins the national popular vote, and it takes effect once its approved by states representing 270 or more (i.e., the majority of) electoral votes. Some are insisting that the NPVIC violates the Constitution, but I don't see it. The Constitution grants the states broad latitude in determining how to award electors, and I don't see any realistic challenge to awarding them on the basis of the national popular vote.
There are reasonable arguments in favor of electing the President by popular vote. Ultimately, I prefer the electoral college system that we have. But I've addressed that before, and it's not the point of this post.
The point of this post is to address a procedural problem with the NPVIC that I have not seen addressed yet: uniformity. Right now, each has its own rules for the conduct of elections. Eligibilty rules, early voting rules and voting and validation procedures are different from state to state, with each state having the power to change its own rules without regard to what other states do. The NPVIC would do nothing to change that situation; short of a constitutional amendment, nothing will create uniformity.
One of the concerns is voting rules. Some states allow early voting, with varying windows to vote. Elections by mail are a thing in some states and not in others. And polling hours differ from state to state. All of these are concerns. But my bigger concern is about eligibility to vote and determination of who is on the ballot. And that's where the rest of this post focuses.
When I first heard of the NPVIC, I expressed concern that it would incentivize states to expand their voter roles in order to increase their influence. The minimum voting age is 18, but there's no reason that it can't be lowered to 16. Or 12. Or lower still. The laws regarding voting by convicted felons also vary from state to state; some states allow prisoners to vote, while in others anyone ever convicted of a felony is permanently disenfranchised.
Now, recently, Bernie Sanders is arguing that prisoners should be allowed to vote. And Nancy Pelosi is arguing to lower the voting age to 16. Some prominent Democrats have been arguing that noncitizens (and in some cases illegal immigrants) should be allowed to vote. Now, admittedly, they're not talking about doing it for their own states specifically, so these arguments aren't necessarilly about the NPVIC. But they are clearly about running up vote totals for Democrats by extending the franchise to people they believe would be natural Democratic party constituents.
On another front, legislators in some states have been pushing the idea of legally requiring candidates to release their tax returns in order to appear on the ballot. These pushes are couched in high-principled rhetoric about transparency, but the undeniable fact is that they're targeting Trump. I don't like the idea of such restrictions, but I don't have standing to object to how Washington or Connecticut conduct their elections -- as long as we're talking about their conduct of their own elections. But under a system where the vote within a state affects the other states' electoral votes, it's very different.
Related, there's the issue of California's peculiar Senatorial election procedures. In California (and, I think, Washington) there's one Senatorial primary with candidates from all parties. The top two finishers appear on the ballot in the general election. What that has meant in recent years is that their Senatorial elections have featured two democrats on the ballot. Of course, that's the Senate. But I don't believe there's anything to stop deeply partisan states from adopting a similar system for their presidential election. If that were to happen, it would severely impact the meaningfulness of the popular vote.
Finally, it's important to note that the Constitution doesn't even require that states let the people within vote in Presidential elections. Early on, some states' legislatures debated and determined who would get their electoral votes. A system that effectively determines the election by a national popular vote would create an external incentive for states to have their citizens vote. I suppose, for most people that's a feature. But I really don't like the idea of forcing states' hands like this.
Again, there are reasonable arguments in favor of a national popular vote, but doing it through means that don't create uniform election rules is not a good idea.
There is nothing incompatible between differences in state election laws and the concept of a national popular vote for President. That was certainly the mainstream view when the U.S. House of Representatives passed a constitutional amendment in 1969 for a national popular vote by a 338–70 margin. That amendment retained state control over elections.
ReplyDeleteThe 1969 amendment was endorsed by Richard Nixon, Gerald Ford, Jimmy Carter, and various members of Congress who later ran for Vice President and President such as then-Congressman George H.W. Bush, then-Senator Bob Dole, and then-Senator Walter Mondale.
The American Bar Association also endorsed the proposed 1969 amendment.
The proposed 1969 constitutional amendment provided that the popular-vote count from each state would be added up to obtain the nationwide total for each candidate. The National Popular Vote compact does the same.
Under the current system, the electoral votes from all 50 states are co-mingled and simply added together, irrespective of the fact that the electoral-vote outcome from each state was affected by differences in state policies, including voter registration, ex-felon voting, hours of voting, amount and nature of advance voting, and voter identification requirements.
Federal law requires that each state certify its popular vote count to the federal government (section 6 of Title 3 of the United States Code).
Under both the current system and the National Popular Vote compact, all of the people of the United States are impacted by the different election policies of the states. Everyone in the United States is affected by the division of electoral votes generated by each state. The procedures governing presidential elections in a closely divided battleground state (e.g., Florida and Ohio) can affect, and indeed have affected, the ultimate outcome of national elections.
For example, the 2000 Certificate of Ascertainment (required by federal law) from the state of Florida reported 2,912,790 popular votes for George W. Bush and 2,912,253 popular vote for Al Gore, and also reported 25 electoral votes for George W. Bush and 0 electoral votes for Al Gore. That 25–0 division of the electoral votes from Florida determined the outcome of the national election just as a particular division of the popular vote from a particular state might decisively affect the national outcome in some future election under the National Popular Vote compact.
The 1969 constitutional amendment, endorsed by Richard Nixon, Gerald Ford, Jimmy Carter, and members of Congress who later ran for Vice President and President such as then-Congressman George H.W. Bush, then-Senator Bob Dole, and then-Senator Walter Mondale, and The American Bar Association and, more importantly, the current system also accepts the differences among states.
I know there has been some recurrent interest in abolishing the Electoral College, though admittedly I was not aware of the proposed amendment of 1969 that you reference. The fact that it had bipartisan support does nothing to assuage my concerns about conducting a single nationwide election using voter eligibility standards that vary from state to state -- and potentially different rules regarding who can appear on a ballot. I don’t think (and I didn’t say) that differing state rules are incompatible, at least not in the sense that it can’t be done. But I do think that, if the premise is that you are having one election, then its legitimacy is undercut if there are different places have different rules for voter eligibility or even different lists of candidates on the ballot. I find it concerning – even if no one thought to raise it as a concern in 1969 (or now, with respect to the NPVIC, for that matter).
DeleteYes, it's true that, under the current system, there are differences between the states in terms of how they handle elections -- all the differences and potential differences that I cite as a concern in a single nationwide popular vote election are present in the current system. But they don't concern me as they relate to the current system because we don't have a single election. Each state has its allotment of electoral votes, and each state decides how it wants to cast its votes. Further, subject to a few basic rules (e.g., no racial discrimination), it’s up to each state to decide how it wants to determine how to cast its votes. For 48 states and DC that amounts to a statewide popular vote, with winner take all. To the best of my knowledge, within each state voter eligibility rules are the same statewide, the names on the ballot are the same statewide, and rules regarding early voting are the same statewide. I don’t doubt that there are some procedural differences within states (e.g., paper vs. electronic ballots, different types of machines), and these differences should be addressed and corrected. The idea is that, since each state is conducting its own vote, the rules of that vote should be as consistent as possible. But, since the elections within California, Texas And Florida are separate there’s no need for them to conform to the same rules.
But, once the NPVIC has been approved gained the approvals required for it to take effect (assuming it does, which I – pessimist that I am – believe it will), we will effectively have a single election. That’s when it is important that the eligibility rules, procedures, and ballots be uniform – or at least as uniform as possible. That would prevent states from gaming the system by expanding their eligibility rules beyond all reason, and it would prevent deep red or deep blue states from gaming the system by trying to keep certain candidates off their ballots.