Electoral College

A Very Interesting New Electoral College Work-Around

Those of you who dislike the Electoral College should find this idea of interest

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[Updated 9-18-2020 at the end of the article]

UC Berkeley professor Michael Eisen has been involved in a number of initially-crazy-sounding projects over the years, an alarming number of which (open access to scientific publication (PLOS), home genetic sequencing (23andme), plant-based "meat" (Impossible Foods) have actually borne much fruit.  Here is his latest—he himself calls it "disturbing and terrifying."
Eisen's idea is a variation on the "National Popular Vote" (NPV) scheme.  For those of you unfamiliar with how NPV works, the basic idea is as follows (and many more details are available at the NPV website here):

A State—let's call it New York—enacts a statute with two basic provisions:

  1.  The Governor shall appoint, as presidential electors, the slate of electors submitted by the presidential candidate who receives the largest number of votes cast nationwide in the presidential election. [Currently, of course, it is the candidate winning a plurality of votes cast in NY who gets all of NY's electors.]
  2. Paragraph (1) shall only come into effect if and when a sufficient number of other States enact laws with the identical Paragraph (1) provision to cumulatively account for 270 (or more) electoral votes.

You have to admit, whatever your position might be on whether the Electoral College is or is not a useful institution, that it's a devilishly clever scheme. Without the need for a constitutional amendment, but relying instead on the power granted to the States in Article II to "appoint [electors] in such Manner as the Legislature thereof may direct," it would guarantee that the Electoral College would elect the winner of the nationwide popular vote, once the 270-electoral-vote threshold were met.

The NPV statute has been enacted into law in 16 jurisdictions, accounting cumulatively for 196 electoral votes (CA, CO, CT, DC, DE, HI, IL, MA, MD, NJ, NM, NY, OR, RI, VT, WA), leaving it 74 electoral votes short of the trigger. In nine additional states with 88 additional electoral votes (AR, AZ, ME, MI, MN, NC, NV, OK, VA) the NPV statute has passed in one house (but not the other) of the state legislature.

One obstacle which makes it difficult for the NPV to achieve the required level of support is the diminishing incentive for the "swing states"—the states that, in the current scheme, hold virtually all of the power in the presidential election (OH, PA, WI, FL, MI, VA, NC)—to join in the NPV scheme. The swing states are "swing" precisely because, unlike CA and AL and NY and KS and …, their electorates are pretty evenly divided between the two parties; because the NPV initiative is widely—though perhaps wrongly—seen as favoring the "blue" team at the expense of the "reds," the political battle over the NPV, and the political opposition to joining with the NPV States, are likely to be particularly intense in these swing states.

Moreover, precisely because these are the States that effectively hold all the power in the current scheme, they might well be unwilling to give up that power by joining the NPV coalition. Votes, and voters, in the swing states matter a lot more, in the current presidential election environment, than the votes and voters in NY or AL or CA or KS.  The presidential candidates—both of them—will be paying an enormous amount of attention to the voters in swing states. The issues about which swing state voters are concerned will be front and center in the campaign—and the hundreds of millons, if not billions, of dollars that the candidates will be pouring into their states during the campaign, ain't bad, either.

And if you think about it, as the NPV gets closer and closer to the 270 trigger, the "swing states" who don't join in get even more power (and a bigger slice of those advertising dollars) than they have now.  Imagine if, say, PA (20 electoral votes), MI (16), and VA (13) had enacted the NPV statute.  The total would now stand at 196+49=245—a mere 25 votes short.  The voters in these states (PA, MI and VA) would now be just like voters in NY and AL; their votes would count (for purposes of the national popular vote), but they would no longer get any special additional weight from having come from a "swing state." On the other hand, the non-joining swing states—FL, OH, WI, NC—become even swing-ier than before, with even more attention being paid to corralling their contested electoral votes than before.

If you are a supporter of the NPV, this is not a great position to be in; as the network of joining states gets larger, those states that have not yet joined are under more of a disincentive to join. It's a kind of negative feedback, and negative feedback's not the best way to grow a network.

Enter Mike Eisen.  Here's what he's proposing as a substitute for the current NPV statute:

  1.  The Governor shall appoint, as presidential electors, the slate of electors submitted by the presidential candidate who receives the largest number of votes cast, in the aggregate pool of voters in those states (the "Joining States") that have enacted a paragraph identical to this one.
  2.  Paragraph (1) shall only come into effect when the cumulative electoral votes in the Joining States equals or exceeds 270.

Notice how this works.  The States enacting this revised NPV law would be agreeing (once the 270 trigger is achieved) to pool their votes with all the other States that have signed onto this scheme, and to give all of their electoral votes to the candidate who receives a plurality of the pooled votes from those Joining States.

And notice that if this statute ever were to come into effect because the 270-vote threshold was met, it would render the votes in the non-joining states completely worthless; votes from non-joining States would play no part whatsoever in determining whom the Electoral College would select as the next president.

That is, if we were to reach the 270-Electoral-vote trigger point, the Joining States would pool their votes together in a pile, determine the candidate who received the most votes in the entire pool, and then they would all designate their Electors to vote for that candidate.  And, under the premise that we had reached the 270-vote trigger, that would be sufficient to elect that candidate president no matter what happened in the other non-Joining States.

I think you can see why Prof. Eisen called this "disturbing."  Votes in non-Joining states no longer count at all in determining who gets to be president. Under this scheme, if Ohio does not Join and agree to pool its vote with other Joiners, it runs the risk that enough other States will Join to make Ohio voters completely irrelevant in the presidential election.  

And that risk—the risk that the voters in your State will be rendered a total irrelevance the moment the 270 threshold is met—intensifies as the Joiners get closer and closer to 270.

Voila! Positive feedback; the more States that Join, the greater the incentive for non-Joiners to Join, which adds more States to the pool, which increases further the incentive for non-Joiners to Join, and so on.

Could this actually work?  Is it really constitutional?

I think the answer to both questions, surprisingly, is "yes."  Neither is simple, so I'll save my more detailed thoughts for subsequent postings, and just make these observations:

Whether it would work depends a bit on what it means to "work."  If your goal is to create a system under which the winner of the popular vote gets to be president, I think this will do it for you.  Notice that under this scheme any non-Joining State can, at any time, enter the ranks of the Joined States. So suppose that Ohio refuses to Join.  If the statutory trigger is activated, it faces a simple choice: Watch the next presidential election from the sidelines, with your voters playing no role in determining the outcome, or Join so that Ohioans' votes count for something. And the same choice would be facing Nebraska, and Alaska, and any other non-Joiners.  Indeed, I think this little statute has an almost unstoppable dynamic behind it, and that it would—possibly quite quickly—become law in all states; what State would not want its voters to have any say at all in who becomes the next president?

And there you'd have it; the "pool" would then consist of the entire country, each State's electors would be pledged to the candidate winning the nationwide pooled popular vote, and that candidate would be elected—unanimously—by the Electoral College. So if that's your goal, this will, I think, get you there.

As for the constitutional question(s), the Supreme Court just this past term (in the "faithless elector" cases, Chiafalo v. Washington and Colorado v. Baca) strongly, and unanimously, re-affirmed the broad, plenary authority given to the States in Article 2 to appoint electors in any manner they see fit. As I read these and other precedents on this matter, NY is perfectly free to declare, in its election law, that it will appoint electors in accordance with the popular vote count in New Jersey; it would be odd if it did so, but it would not be unconstitutional.  And if NY can do that, why can't it say that it will appoint electors in accordance with the popular vote count in NY+NJ+any other State that wants to be in the common pool.

State power in this regard is, presumably, subject to the other binding provisions of the federal constitution; NY cannot declare that it will only appoint white males as electors, for example.  But I'm having trouble seeing how Eisen's proposal runs afoul of any superseding constitutional provision.  I suppose that an Ohioan could assert that the scheme violates the principle of "one person/one vote" under the Equal Protection Clause, by causing his/her vote to count for nothing in NY's determination of who to appoint as an elector while a New Jerseyan gets a say in the matter. But does an Ohioan have standing to challenge NY election law? And in any event, it's hard to see how an Ohioan somehow has a constitutional right to have his/her votes counted by NY; it's not as though under the current, and presumably constitutional, scheme NY takes Ohioans' preferences into account when choosing its electors—so how can an Ohioan contend that this "right" was violated by the NPV scheme?

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[UPDATE 9-19-2020]

As some of the comments pointed out, this scheme gives more of an incentive to the swing states to join in the pact than does the current NPV proposal, but it still isn't clear that PA or OH or FL would have enough of an incentive to get on board, given their current preferred position of electoral power.

So here's a modification.   The new NPV statute would read as follows:

  1.  The Governor shall appoint, as presidential electors, the slate of electors submitted by the presidential candidate who receives the largest number of votes cast, in the aggregate pool of voters in those states (the "Joining States") that have enacted a paragraph identical to this one.
  2.  Paragraph (1) shall only come into effect when the cumulative electoral votes in the Joining States equals or exceeds 270.
  3. No States will be included in the Joining States once the 270 electoral vote threshold has been reached.  

[Or, perhaps, something to the effect that the votes from any States joining after the 270 threshold has been reached will be weighted by 3/5 in tabulating the popular votes in the Joining States]

I could be wrong, but I think this would do the trick.  The pressure now ratchets up significantly for the swing states—if they don't join, now, they run the risk that they will be shut out of having any voice in presidential elections forever.

 

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  1. As soon as a Republican wins the popular, CA and NY will rush to undo what they’ve done.

    1. In the current political climate, it’s virtually impossible that a Republican would win the popular vote but lose the electoral vote. So I think CA and NY will take that risk.

      1. And, to be more clear, that’s Float’s pure speculation. I disagree. I think that states will view this long-term, and the anti-democracy aspect of the electoral college will outweigh any short-term (or even long-term) losses by Democrats. Of course, this is–by definition–pure speculation by me. 🙂

        1. Easy to repeal it when it goes the “wrong” way and then pass it again for the next election.

        2. “I think that states will view this long-term, and the anti-democracy aspect of the electoral college will outweigh any short-term (or even long-term) losses by Democrats.”

          In the current climate? Seeing is believing.

        3. the anti-democracy aspect of the electoral college

          Seems right, since no democracy as ever succeeded.
          The EC is not democratic, because the federal govt is chartered to protect against the tyranny of the mob.
          The simple fact remains the President does not wield enough power to damage the Nation. New election in 4 years, problem solved, assuming the common man sees a problem.
          The Popular National Vote, is a fever dream of the self identified “smart” people, not trusting the common man

          1. What a jumbled mess of words. You don’t trust the mob (which is made up of common people) but the NPV is elitist against “the common man”? Ok.

    2. The elephant in the room everyone is ignoring under all these proposals is if any single state has to go through a recount, it will mean that every compact state will not be able to certify their votes until the recount is finished. Even under the oh-so-clever variation described here, a recount by any compact state means no certification of the votes by any compact state. And since the compact states have the controlling interest of electoral college votes, not having those results certified means NO candidate wins.

      In both scenarios, we have no certification and the election is decided in the House.

      If that’s what’s intended, I wish they’d just say so. Bye-bye popular vote OR electoral college vote.

      And even if we were to completely dispense with the electoral college altogether and have a national popular vote, recounting is going to be a nightmare of impracticality.

      Federalism is your friend. It encapsulates problems keeping them from effecting the rest of the country.

      1. Actually. The opposite. Since it is unlikely that a recount of any single state would change the outcome of the aggregate compact states, you either recount all the compact states or none of them.

  2. Let’s call this the “suicide” option because politically you can use it exactly once. As soon as a state assigns all its electors to a candidate who /lost/ the popular election in that state, the voters will run the current leadership out on a rail and bring back the popular vote.

    “Wait just a minute. You mean we voted for Perry Mason but you gave all our votes to John Henry?! Hang ’em high!”

    This is a really dumb idea. Too clever by half and anti-democratic.

    1. That doesn’t make any sense. If that state leaves, it would just get replaced (quickly) by another state that wants to exercise power by being part of the 270 pool. The whole point is to make it so the pooled states have total control over the President. If the voters of your hypothetical state want their votes to count in presidential elections, they can’t solve their problem by leaving the pool.

      1. Also, Dave is ignoring the truth that, if this passes and becomes law, it will quickly become normal and expected. So, I think it’s very likely that the response to Dave’s hypothetical outraged voter is:

        “Calm down Pete. Yes, our state voted for PM but our votes are going to JH. Remember that this also happened last election, when AB “won” our state, but our votes went to CD. And you love CD and we happy that she became president and did not complain about how she won. And, in the prior election, remember that State X and State Y threw their votes to your favorite politician, even though she lost the voting in those states. So, again, calm down Pete. This is a normal and expected part of our elections…that’s why all candidates now campaign all across America, hunting for each individual vote. Pete, if you’re still outraged; remember that America would occasionally give the presidency to men and women who could not get more nationwide votes than their opponents. Now, *that* was an outrage!” 😉

    2. DaveM, it’s refreshing to get an objection from someone concerned that the new proposal is anti-democratic. Everyone else objecting is at pains to call anti-democratic a virtue, just as they do with the EC.

      Alas, you are mistaken. The proposed system would be more democratic than the EC, by quite a bit. It would probably force universal participation among the states, and thus make presidential elections nearly perfectly democratic—which opponents of democracy would abominate, probably including you.

  3. This idea has been around a long time. Professor Bob Bennett credits Professor Dan Farber with this thought in a 2001 issue of the Green Bag, the very piece in which Bennett helps create the idea of the National Popular Vote: http://www.greenbag.org/v4n3/v4n3_articles_bennett.pdf

    Jay Wilson teased out this idea in the Election Law Journal in 2006: https://www.liebertpub.com/doi/10.1089/elj.2006.5.384

  4. This is equivalent to political parties in a legislature. They take an internal vote, and the entire party votes according to the results. But it also has the same flaw. Why would a conservative MP join the liberal party? She will get outvoted every single time in internal party votes.

    Why would a Blue state join a compact of Red states with this provision? It would immediately mean that the Blue votes would be overruled.

    I think this could only happen if the proportion of votes within the compact remains balanced as you approach the 270 threshold. If it’s not balanced, I expect the minority states to pull out of the compact.

    1. I think your reasoning is sound.

      Currently, only deep “blue” states have joined the NPV compact.

      So long as all the members of the compact are strongly aligned with one party, either that party’s candidate is the winner of the popular vote, in which case the compact accomplishes nothing, or the opposing party’s candidate won the popular vote, in which case almost all the compact members have to select EC members opposed to their own voters. It’s either irrelevant, or a political nightmare.

      The proposal to have the compact all vote in unison for the winner of the popular vote *within* the compact effectively eliminates the downside of the compact, but as long as they’re all strongly aligned with a particular party, it eliminates the upside, too; They’re all states that were going to vote that way anyway!

      Only if the membership of the compact were balanced would it be consequential without automatically thwarting the will of most of the voters in the compact. But, the only reason the “blue” states were interested in the compact, was because the EC usually works against them. As you get into states that that’s not true of, they have no real motive to join, except some abstract interest in enforcing the popular vote. But, the proposal here removes even that abstract interest, by replacing the popular vote with a popular vote only within the compact.

      I don’t see why any state at the margin ever joins such a compact.

      1. David Post also looks at this from the perspective of States trying to maximise their pull, and the political hacks within them. But actual voters in actual States include a remarkable number of reasonable, ordinary people.

        You may get a number of centrist and mild GOP voters to buy “electing the President on the national popular vote is fair”

        But what reasonable centrist and mild GOP voter is going to buy “electing the President on the popular vote in the States that are in the deal is fair” ? It kinds loses its ring when it stops being the national popular vote.

        This is a nerd hack proposal that assumes everyone is a nerd hack. The whole point of the NPV though is to appeal to ordinary middle of the road folk, who are not nerd hacks, and hope that the ‘justice” of the cause drags them from their own narrow political interests into the land of the “it’s only fair that.”

    2. I guess it depends on whether states consider themselves to be “states” rather than “Democratic states” or “Republican states”

  5. Don’t know if you noticed this but most of the states that have already joined are deep blue, with the rest blue purple. That’s bad enough, but the new scheme would give extra power to one party states like CA, that not only effectively encourages illegal aliens registering to vote, but also allows for ballot harvesting. If the Dem margin in just that one state were high enough, through a combination of what much of the country considers ballot fraud (illegal alien voting and ballot harvesting), it wouldn’t matter what the rest of the country did. It wouldn’t matter whether the Dem candidate won a majority nationally, or would have lost under the current system. As long as they ran up their vote totals high enough in one state, they would likely win.

    So, yes, I can see how this scheme would appeal to academics.

    1. The rest of the country can always run up totals that overwhelm whatever California does.

    2. As long as all the illegal voting keeps happening in your imagination, we can’t fix the real problems we have out here in the real world.

      1. Look at the 1948 Texas primary race for US Senator. If you have a one party rule state, they will have an easy time running up the vote totals for their preferred candidate and run down the vote totals for the other candidate. Even worse, what if you have a number of votes cast that exceeds the number of registered voters?

  6. Your logic is quite flawed. It only becomes imperative to join the compact when there are 270 votes in compact. If there becomes 270 votes in the compact, there would be plenty of time to enact legislation to join the compact and have that states votes count.

    As for your assertion that the compact perfectly legal, you left out one proviso, Congress would have to approve, and the president would have to sign a bill approving the interstate electoral college compact:

    “No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State…”

    Such legislation would be challenged in federal court and likely thrown out, leaving the current selection method for electors in force. And there would almost certainly be a stay enforced if the conditions of the compact were met and it would go into force shortly before the election.

    1. Your first point was what I was about to say.

    2. I think this scheme likely runs afoul of the Compact Clause per COM. OF VA. v. STATE OF TENN. because it “increase[s] and build[s] up the political influence of the contracting states.”

      1. Perhaps it would be wise for the Compacters not to wait until they have 270 before running this by the Supreme Court.

        So maybe California and Hawaii could implement their own little Pact / Non Pact first, and have that tested in the courts.

        Then we’d all know whether the real thing is going to fly or not.

    3. The states are passing legislation in their own states, based on action in other states. That’s not an agreement, it’s just parallel action. Oregon could pass a law tomorrow that says “our electors will do whatever California does” without having an agreement with California.

      1. If a state says I will do “X” if and only if enough other states do likewise, that strikes me at first blush a tacit agreement.

        1. Do you have a case saying that? And is a “tacit agreement” a “compact”?

          Where does this go? Anytime a voter thinks there’s a wink wink nudge nudge “tacit agreement” between states they make a constitutional case out of it? All the red states that didn’t take the Medicare (or whatever) money from Obamacare, tacit agreement?

          1. There is no case law I know of.

            I don’t think your Medicaid expansion analogy works because what each state got in Medicare funding depended only on its own decision on expanding Medicare.

            1. Besides Congress approved it.

          2. “And is a “tacit agreement” a “compact”?”

            How formal does a “compact” have to be?

            Conduct of the parties can constitute acceptance in an ordinary contract. A ‘compact” is just anpther word for “agreement”.

            1. The obvious difference between a compact and a mere informal agreement is that one is enforceable in court and the other is not.

              This has disadvantages to the NPV movement, e.g., since it’s not actually a compact if OH passes an NPV law but it gets rejected by their court system the day before appointing their electors the other states are stuck with whatever their law says to do (e.g. if their law only refers to the law OH has passes they are stuck) and can’t sue in any court to enforce a compact against OH.

    4. What if the compact, having 270 electoral votes, declines to accept other states into the compact. The compact states count only the popular vote in the compact states, then vote the president. Nothing in the scheme proposed by Mike Eisen would prevent the 270 club from even counting popular vote outside its block. This could still result in an election where the nationwide popular vote differs from the compact popular vote.
      Mr. Eisen is just proposing an alternate means of electing a president without a nationawide majority of voters.

    5. As for your assertion that the compact perfectly legal, you left out one proviso, Congress would have to approve, and the president would have to sign a bill approving the interstate electoral college compact.
      I disagree. I don’t think this qualifies as an interstate compact. There’s no contract the states are party to – they are each acting on their own, so I don’t think Congress has any role to play at all,

      1. It’s absurd to say it’s not an entering into an agreement. Eisen’s proposed statute uses the term “joining states”, what are they joining except an “Agreement or Compact with another State”?

        I can’t think of a more open and shut case than a group of states saying if you all select your electors based on the popular vote we will too, if you don’t then we won’t either.

        The way around it of course would be for a state to pass legislation that says regardless of what the other states do they will cast their electoral votes for the winner of the national popular vote. ‘I’m going to dive in, all of you should dive in too’ works; ‘I’ll dive in if all of you do too’, does not, absent Congress’ assent.

        1. It’s simply a poor choice of words. Just refer to “States which have enacted the Model Legislation.”

          Nobody’s joining anything.

          1. How would this work as an anti-trust defense ?

      2. Let me also add from Holmes v. Jennison (1840)

        we give to the word ‘agreement’ its most extended signification; and so apply it as to prohibit every agreement, written or verbal, formal or informal, positive or implied, by the mutual understanding of the parties.

      3. The Congressional Research Service has an analysis which concludes (while acknowledging the question is not settled law):

        it appears that the initiative
        can be described as an interstate compact.

    6. There doesn’t have to be any compact. Each state legislature coild, without entering into any agreement with any other state, pass a law providing that its electors will be appointed based on the majority popular vote in states passing similar legislation if such states control 270 more electoral votes.

      Just legislation by each individual state’s legislature about how that state’s electors will be appointed. No compact, no agreement with any other state.

      No need for Congress to approve.

      1. When each state separately says they will do “X” if and only if other states also do “X” that strikes me as a de facto agreement/compact.

      2. Under your reasoning the compact clause is meaningless because any states that wanted to make a compact could simply declare that they are only passing legislation in their own states, without explicitly having an agreement. Therefore, no states would ever have to make a compact, yet could get the same effects as a compact, without having to get the required congressional approval.

        Even if I am wrong about that, an indisputable flaw in your logic is that the legislation explicitly references other states, and only applies if those states also have the same law. There is a word for that: agreement.

    7. How do you read a requirement for the President to sign on? It doesn’t seem to be in the original text.

      1. I think congressional approval of a state compact is through ordinary legislation, and thus can be vetoed by the president.

  7. I suppose that an Ohioan could assert that the scheme violates the principle of “one person/one vote” under the Equal Protection Clause,

    A defense of the EC on the “principle of “one person/one vote” under the Equal Protection Clause,” should be laughed out of court.

    1. “should” is bearing quite a heavy load there.

      The EPC is a prohibition on prohibts “any state… deny[ing] to any person within its jurisdiction the equal protection of the laws.” Even assuming for the sake of argument that this applies to voting, it’s clear that for each State, the constitutional injunction is restricted to the State’s treatment of the people of that State.

      And this obvious point is made more obvious yet by the fact that States restrict voting in their elections to the people in their State. Out of Staters do not get equal treatment.

  8. I would take the position that any bill containing a “trigger” provision determined by the actions of other states, such as both of these, is an interstate compact and so requires the permission of Congress.

  9. The voters in these states (PA, MI and VA) would now be just like voters in NY and AL; their votes would count (for purposes of the national popular vote), but they would no longer get any special additional weight from having come from a “swing state.” On the other hand, the non-joining swing states—FL, OH, WI, NC—become even swing-ier than before, with even more attention being paid to corralling their contested electoral votes than before.

    I don’t follow. Surely state emails exactly as “swing-y” until the 270 threshold has passed, regardless of whether it joins or not, and then continues to be equally swing-y thereafter (ie not at all)?

    1. I think I agree with this comment, although I’m not sure what “state emails” means in the last sentence. Did you mean “swing states remain”?

      1. Sure did.

  10. That’s a horrible system.

    Let’s say you have your 270 EC states. All deep blue. And in a given election, there’s a modest overall majority for the Democratic candidate. Say 55/45. Within those deep blue states, roughly 2/3rd actually have a majority for the Democratic Candidate, and 1/3rd has a majority for the Republican.

    Meanwhile, you take the states that have not joined the compact. They’re all “red” and all have voted for the Republican candidate, by 60/40 ratio.

    In such a situation, you would have the “winning” candidate (due to this compact), lose both the popular nationwide vote AND the electoral college vote (before the compact nonsense changed the vote).

    Such a candidate would be viewed as illegitimate. Losing the popular vote, heavily, losing the electoral vote (before the “law” changed the vote in several states). You would undermine any moral authority there was for the NPV to start…

    1. Contrary to the characterization in this post, I don’t think Prof. Eisen is actually advocating this system, so much as showing how it illustrates how these sorts of compacts could lead to pernicious results. (As he notes, the inevitable next step would be for red states to form their own pool, and offer to count the votes of the swing states twice as much to get them to join…)

      1. Indeed. See the MAGA compact below for what would occur.

    2. To me, the most noticeable effect of NPV is that in a three- or more-way race, where no candidate has a majority of the popular vote, NPV would make the plurality candidate the winner — even if normal counting of the electoral votes would send the election to the House of Representatives. I’m not at all convinced that is an improvement.

      1. Sending the race to the HoR is not really an improvement, since the makeup of the HoR at election time is dependent on the previous election’s outcome. Or are you going to delay the election into January?

        1. It happens in January anyway.

          When the Presidential Election goes to the HoR, it’s to count the votes in joint session with the Senate on 6 January. If they can’t get to 270, then the HoR votes by State delegation for President.

          Hence it’s the newly elected House that votes, not the old one.

    3. The popular vote has never been a thing, and the should the compact trigger, there is no reason why the previous EC would be somehow more valid than the post-compact EC.

      Now, I like the EC as is, because I like states as entities to themselves getting a bit of due in the system. Sucks for my side for now; probably won’t forever.
      But if there is critical mass to do away with the current system, that’s part of living in a republic.

      1. “Now, I like the EC as is, because I like states as entities to themselves getting a bit of due in the system”

        Stopped clocks occur, I think we agree on something.

      2. We agree = Now, I like the EC as is, because I like states as entities to themselves getting a bit of due in the system.

        Becoming more libertarian as you age, Sarcastr0? 🙂

        1. Nah, just privileged enough to treat electoral outcomes as academic 😛

          Been so for a while.
          A decade ago now, I was one of the few in my notably liberal law school that defended the institution.

      3. I like states as entities to themselves getting a bit of due in the system.

        Do you honestly believe states don’t get enough due as separate entities without the EC?

        The EC is nonsense.

      4. “Now, I like the EC as is, because I like states as entities to themselves getting a bit of due in the system.”

        Then leave the Senate as 2 members per state. the R’s might prefer California as 3 separate states, because they’d hope to capture the Senators from Northernmost California and have a shot at one of the two from Southernmost California.

      5. What is the “popular vote?” Who gets to count the votes? When there are multiple vote counts, who chooses which count is the applicable one for purposes of the NPV?

        1. What is the “popular vote?”

          The sum of the popular votes in the states – the counts we now use to decide who gets a state’s EV’s.

    4. “Such a candidate would be viewed as illegitimate.”

      Why would they be viewed anymore illegitimately than someone who loses the national vote today but wins the electoral college vote today? Your hypothetical president won the electoral college?

      1. Why would they be viewed any more illegitimately…

        Let’s hypothesize the following compact. The “MAGA” compact. The MAGA compact consists of the 50 states except for California, Washington, Oregon, Hawaii, New York, Massachusetts, DC, Maryland, New Jersey, Illinois, Vermont, Connecticut, Rhode Island, Delaware, and Minnesota.

        The MAGA compact says that whoever wins the majority of the vote within the MAGA compact will win all the electoral votes in the MAGA compact.

        As a result of the MAGA compact, John McCain won in 2008. Mitt Romney won in 2012. And George W. Bush likely won in 1992. The MAGA compact told voters in roughly 1/3 the country, “It doesn’t matter who you vote for President, Republican or Democrat, not at all”.

        What do you think of it?

        1. That they won the EC? You’re just reforming the proposal to support red states. Why do you think that creates an objection to the proposal?

          1. Sometimes recontextualizing something from the opposite viewpoint helps people understand.

            The issue with the proposal is that it actually disenfranchises tens of millions of million of their vote for president. It literally doesn’t matter who they vote for, their vote won’t matter. Only the “MAGA” compact members votes matter.

            That’s significantly different from the current system. Californians “say” their vote doesn’t matter, but it does. It does to the tune of 55 electoral votes. If they vote Democrat or Republican, they have a major sway in who becomes president. Under the MAGA system, it wouldn’t matter how they voted.

            1. But if I’m a California Republican, or an Alabama Democrat, under the current system my vote doesn’t matter. And one of my primary objections to having an electoral college at all is all the millions of people who as a practical matter are disenfranchised. The only people who can count on their votes mattering are suburban housewives in Ohio, Pennsylvania and Florida.

              1. If your a California Republican or Alabama Democrat, your vote absolutely matters. (In fact, you have Congressmen who are republicans from California, or Democrats from Alabama). The issue you have is that you have a large number of people who vote the opposite way in the state.

                But that’s how democracy works. Simply because you have other people voting for the opposite party doesn’t mean your vote doesn’t count. It doesn’t mean that you’re disenfranchised. It means you’re part of a democracy. And if other people change how they want to vote, then suddenly your vote can “matter”.

                1. When it comes to electing a president, a voter in California has much less say than a voter in Pennsylvania.

                  1. That’s actually not true.

                    A voter in California has just as much a say as a voter in Pennsylvania.

                    The real issue in your mind is that most California voters have already made up their mind in a certain direction, while voters in Pennsylvania are closer split. But that doesn’t mean California voters don’t have a say. If they didn’t have a say, you could just remove their 55 electoral college votes.

                    Then they wouldn’t have a say. See the difference there?

                    1. Consider two states each with 20 electoral votes and 6 million voters.

                      If the state’s popular vote is split 3 million+1 to 3 million, then the 3 million+1 who voted for the winning candidate contributed equally to the 10 electoral votes. That’s 10/3 or about 3.3 EC votes per million voters.

                      If the state’s popular vote is split 4 million to 2 million, then the 4 million who voted for the winning candidate contributed equally to the 10 electoral votes. That’s 10/4 or about 2.5 EC votes per million voters.

                      The voters in the latter state have less of a say in the outcome than the voters in the former state.

                    2. The get out their an convince your neighbors. Elbow grease.

                    3. Josh,

                      You’re actually talking about “wasted votes” which is a term that political strategists use to calculate where best to gain advantage. It’s important to understand though, votes aren’t actually worth significantly less…it’s a method of resource allocation. But, using your math, let’s use your examples with CA and PA.

                      In 2016, Hillary had 8.75 million voted in CA, and won 55 EVs = 0.16 million per EV
                      In 2016, Trump had 2.97 million in PA votedand won 20 EVs = 0.15 million per EV.
                      So, maybe a slight dilution. But go back to 2012.

                      In 2012, Obama had 7.85 Million votes in CA and won 55 EVs = 0.14 million per EV
                      In 2012 Obama had 2.99 Million votes in PA and won 20 EVs = 0.15 million per EV.

                      So, the opposite of what you would expect. Think about it.

                    4. If you divide the total number of votes by the number EVs, you get 0.24 per million for CA and 0.30 for PA. California voters get a baseline greater influence likely because of the greater percentage of resident non-citizens. But, that advantage is done away with, per your calculations, because CA is a blue state and PA is a purple state.

                      Assuming no resident non-citizen effect, purple state voters get greater influence than red or blue state voters.

                    5. “assuming no resident non-citizen effect”

                      That’s a completely different bias that makes some voters “more important” than other states.

                      Are you saying this bias is OK?

                2. “But that’s how democracy works. Simply because you have other people voting for the opposite party doesn’t mean your vote doesn’t count.“

                  This is true under the proposal as well. No one is being disenfranchised.

                  1. That’s not true.

                    Under the proposal, people’s votes in the non-compact state literally do not matter. It doesn’t matter which way the non-compact states votes (Republican or Democrat) or if they switch sides. It doesn’t matter. Because you need a majority in the compact states to win, and JUST the compact states to win.

                    Whereas currently, you need a majority in ALL states to win.

                    1. In the current system you just need a majority in states with 270 electoral votes. Do you think the people in those states that are on the wrong side of 270 (currently) don’t matter?

                    2. But it can be any collection of the states. One year it can be Alabama. The next Arizona.

                      Under your compact, if Alabama wasn’t in it, it would literally never matter what Alabama voted.

                    3. @Armchair,

                      “Under your compact, if Alabama wasn’t in it, it would literally never matter what Alabama voted.”

                      Why does this matter? It’s also possible under the current system that Alabama never matters. And the compact isn’t written in blood, it can be changed.

                      If the objection is that we have states whose electoral votes don’t matter, that’s true under the current system too. That’s how all elections work. Somebody has to lose. It’s true that any hypothetical state might lose the power to change the election, but the EC doesn’t promise that to begin with. Every election (currently) involves some group of states accumulating sufficient ECs to win versus some group of states who didn’t.

                    4. You’re misunderstanding what “doesn’t matter” entails.

                      Alabama’s EVs ALWAYS matter under the current election rules. Which way Alabama swings (especially in conjuction with other states) can win or lose an election. If Alabama swings the other way in 2000, Gore wins.

                      Let’s take the “Big 3” example of CA + NY + Illinois. That’s 107 EVs. That’s enough to swing any election in the last 30 years. If those 3 swing Republican, Democrats basically can’t win. And they form the core constituency for any Democratic victory. Those EVs are critical for Democrats.

                      Your proposal would potentially just remove them. Not count them at all.

                    5. @Armchair,

                      Under the current system, CA + NY + Illinois can, conceivably, never decide because they’re always on the losing end. That’s true of every state. They “ALWAYS matter” only when they do in fact matter. That’s no different under the proposal; the non-Joining States don’t “matter” in exactly the same way that a losing state doesn’t “matter”. That’s inherent in any voting system in which you only need X votes.

                      However, even under your view of things, Alabama’s vote will “ALWAYS matter”… so long as it is a Joining State.

                3. It doesn’t matter because it doesn’t count toward the ultimate outcome. It’s not just that I voted for a losing candidate insofar as my state’s electors are concerned; it’s that my vote was irrelevant in the election that actually mattered (the electoral college).

                  Plus, it would not surprise me if it impacts on state and local races as well. If I’m a California Republican or an Alabama Democrat, I know that my vote has no impact on the presidential race, which means I may simply stay home on election day, costing state and local candidates of my party my vote as well. That, in fact, is how the GOP picked up the Senate in 1980; Reagan had already won the election several hours before the polls closed in the West and Mountain States, so a lot of Democrats there just didn’t bother to vote.

                  1. “I know that my vote has no impact on the presidential race, which means I may simply stay home on election day, costing state and local candidates of my party my vote as well. That, in fact, is how the GOP picked up the Senate in 1980”

                    You’re arguing simultaenously that your vote doesn’t matter and it matters tremendously. See the problem there?

                    1. No, because those are talking about two different things. My vote has no impact on the presidential race, which is a separate issue from whether it has an impact on congressional and gubernatorial races. And it’s not even an apples to apples comparison since congressional and gubernatorial elections are decided by the popular vote.

                      You’re basically offering lower office races as a consolation prize for my vote having no impact on the presidential election. I can’t believe anyone, including you, actually thinks that’s a fair trade.

                    2. No, I’m showing your vote does matter.

                      And you vote does matter in the California election for President, just as in the Pennsylvania election for President.

                      The issue you have is there are a large number of people who are voting in one direction in California, whereas the vote is more evenly split in Pennsylvania. But that’s how the people decided to vote. If they decided to vote a different way, their vote would also matter (but it would become more apparent to you). If a million or two voters in California decided to switch to voting GOP instead of Democrat, then California would be a “Swing” state and suddenly matter.

                      It’s all about how people vote. And how they vote matters.

                    3. The underlying issue that I have is that I don’t think the procedural rules should favor one party over another. And be honest, that’s really what this is about. If the EC didn’t provide an unfair advantage to Republicans, the right wouldn’t be defending it nearly so vigorously and the left wouldn’t hate it quite so much as we do. It’s the functional equivalent of having a superbowl in which one team starts out with a free touchdown. If the other team is really good that game, they may be able to overcome it and win anyway — Obama did twice — but no honest person is going to say that that’s a fair rule. The people whose team gets the free touchdown are going to love the rule, and the people whose team doesn’t are going to hate it, but there is only one objectively true answer to the question of whether it’s a fair rule.

                      But that said, let me change the example to show why my vote really doesn’t count. The EC is somewhat analogous to affirmative action in that it claims the areas of the country that can’t compete on a truly level playing field need some extra help to make up for their disadvantage. So let’s move this illustration from the voting booth to the human resources office. I’m a white candidate for a job, competing against a black candidate who is almost as qualified, but slightly less so, than I am. He gets the job because of affirmative action. Now, did my job application “count”? In one sense yes, but in the most important sense, no. Think that through for a few minutes and then explain to me again how my vote counts in a presidential election.

                    4. “You’re arguing simultaenously that your vote doesn’t matter and it matters tremendously. See the problem there?”

                      My vote matters to me a great deal, it may or may not have any bearing in selecting any winners.

                    5. Krychek,

                      You understand that the “procedural rules” in regards to electoral college advantages don’t always favor one party, right? You realize, as recently as 2014, Democrats said they had an advantage in the electoral college. (And they did in 2008 and 2012, since you’re complaining about EC advantages…Obama had it in 2008 and 2012).

                    6. Armchair Lawyer, you do realize that the four times in US history the electoral college elected someone who did not win the popular vote, all four times the Democrat won the popular vote and the Republican won the White House? Get back to me when the EC actually elects a popular vote losing Democrat.

                      And whatever EC advantage Obama may have had, he also won the popular vote.

                    7. Only two of those four (2000, 2016) involved the modern parties. There is nothing cast in stone that large states such as California and New York will continue to be deep blue, which is what it takes for Republicans to have the EC advantage. That being said, 2020 looks like a repeat of 2016 in that Biden could win by up to 3%-points and lose the election.

                    8. Josh, I’m not going to try to predict this far out what will happen in November; in September 2016 everyone was convinced that Hillary Clinton would win. Of course, no one saw the Comey letter coming, which is probably what killed her.

                      But as an interesting aside, it is mathematically possible, in a two person race, to lose the popular vote 61-39 and still win the electoral college. At which point you have a president that 3/5 of the country voted against. I simply see no justification in depriving the majority of the right to self governance.

                  2. It does matter because it does count towards the outcome. You may assume that Democrats are going to win but if enough people don’t actually vote for them, then they won’t.
                    In truth, your position is quite silly. There is no law requires that California has to give its electors to Democrats, and, in fact, it has failed to do so in the past. Just because things seem certain right now does not mean they will always be that way.

        2. I don’t think it would be good policy, but it would be perfectly constitutional.

          After all, legislatures can simply pick the electors themselves rather than bothering with popular votes to do the job.

          And I suspect a compact like this would lead to results similar to one by a Republican- controlled legislature, also perfectly constitutional, providing that the state Republican party gets to select the electors and its nominees for elector will always get appointed.

          If any such scheme tweaks or rigs things so as to overly favor one party, the minute the other party controls the legislature the legislation will be repealed.

        3. “What do you think of it?”

          It would be a lot like now, since so many of the states cast all their electors for one candidate, instead of proportionally. Donnie the T will get some votes in California, but no electors. Republicans in Cali are wasting their time voting for the D-bag. Ditto for Democrats in South Carolina.

      2. All 45 presidents won in a manner exactly as prescribed in the constitution as it was written at the time of their election. Nothing illegitimate about that.
        It does get fuzzier when states begin shenanigans to effectively disenfranchise voters in other states impact on the outcome as prescribed in the constitution.

        1. Voters are already getting disenfranchised. Constitutionally. Unless you have a constitutional objection to the proposal, what’s the problem? Nobody is suggesting changing the manner (electoral college) of electing the President.

          1. “Voters are already getting disenfranchised”

            How?

            1. Californians’ votes are massively diluted compared to, say Wyoming.

              1. That’s not disenfranchised.

                  1. The dictionary. Words have meaning. Disenfranchised would mean that they couldn’t vote, or their votes weren’t counted.

                    Californians still have votes, their votes are still counted, and they still have a very significant effect. 55 electoral votes worth of effect in fact. The single largest prize in the electoral college.

                    If California’s votes were disenfranchised, their votes literally wouldn’t be counted at all.

                    1. You’re letting form swallow function. Giving every Vermontian 1,000,000 times the voting power of everyone else, but letting everyone else vote is not a scheme free of disenfranchisement.

                    2. You’re using examples that have no basis in reality.

                    3. I’m using examples that show your logic is full of holes.

                    4. If you can’t use examples based in reality for your objections, then your objections are worthless.

                    5. That is not how logic works.

                      Now there’s no consistency in your position. You seem to admit there is a line wherein vote dilution becomes disenfranchisement, just not one currently in existence.
                      So then where is the line? If equal voting power is not required, then what is required?

                      This is why hypotheticals are useful.

                    6. Hypotheticals are only useful if they’re based in reality. If it’s something that could actually realistically happen.

                      Your “Hypothetical” clearly wasn’t. The fact you needed to resort to it means your objections are worthless.

                    7. You’re not listening.

                      Indeed, throughout this thread you don’t seem to be engaging with what other people are telling you about your shoddy logic.

                    8. The many states that disenfranchise felons are engaging in disenfranchisement. ditto the ones that disenfranchise A) prisoners, B) people who don’t have government-issued ID, or C) people who don’t fill out registration forms in advance of election day.
                      Plus there’s the fun games like putting polling places in places where you need a car to get there, or putting only a handful of polling places in places that are crowded with voters who like candidates who aren’t from your party, so that those voters have to wait longer for the chance to vote (and maybe some of them give up and leave without voting.)
                      Finally in states that allow voters to vote by mail, fucking up the postal system causes disenfranchisement.

              2. Wyoming is .17% of the population and has 0.55% of the electoral votes, their massive dilution of the electoral vote is a whopping 0.38% of the presidential vote.

                California is disadvantaged by 1.74% (11.96 v 10.22%). But of course that disadvantage is parcelled out among all the small states with reliably blue states such as Delaware, Rhode Island Hawaii, Vermont, as well asred states like ND, SD and Montana enjoying the extra influence at the expense of California, Texas, and Florida.

                1. Thank you for this excellent math.

                  My personal favorite example is comparing California’s 40th district with Montana’s at large district. Both get a single representative in Congress. But elections for Montana’s at large district have more than three times as many voters. That would imply that a voter in California’s 40th district has more than 3 times as much voting power as a voter in Montana’s at large district.

                  1. In 2008 a lot democrat voters convinced themselves they were the permanent majority. Funny to see how that has played out

                2. The extra influence of small-state voters is a second-order effect. The first-order effect is the extra influence of purple-state voters.

    5. True, but this assumes that the compact is closed once it gets to 270 EV’s.

      Eisen’s proposal doesn’t say that. Part of the point is that the structure gives states an incentive to join.

  11. Creating workarounds to the Constitution is what honest, good, righteous people with integrity do.

    1. THE CONSTITUTION IS NOT A MORAL DOCUMENT.

      And this is not a workaround to the Constitution, unless it is unconstitutional.

  12. I see several problems with the original NPV and the suggested modification that haven’t been fully addressed. One is the compact clause issue suggested above by Kazinski, although proponents might be able to avoid the requirement of congressional approval by structuring the laws as decisions of individual states rather than as an agreement with other states.

    A second problem arises with Professor Eisen’s variation. In addition to the problematic impact on swing states, his idea risks negating the whole point of the exercise. The only reason for this discussion is a widespread belief (reinforced, no doubt, by the fact that the two recent beneficiaries of the Electoral College system were Republicans) that the popular vote should decide the presidency. The original NPV proposal might foster that objective, but Professor Eisen’s might not. Suppose (a) Candidate A wins a majority in the “joining states,” (b) Candidate B wins a nationwide majority, and (c) awarding all of the joining states’ electoral votes to Candidate A would give A 270 votes. The result would be election of the candidate who lost the nationwide popular vote. That hardly seems an improvement over the existing electoral college system.

    A third problem is intensely practical. Suppose the NPV proposal reaches the required 270 votes, Biden wins overwhelmingly in NY, and Trump manages to eke out a tiny majority nationwide. Realistically, what are the chances that Governor Cuomo will really appoint the slate of electors submitted to him by Trump? Law or no law, he would not do so. He’d be tarred, feathered, and ridden out of the state on a rail if he did so. Now repeat the exercise for the other Democratic governors of states (and the mayor of Washington) that adopted the NPV proposal (Newsom in California, Bowser in DC, Inslee in Washington, and all the rest). Does anyone really believe that all those officials will really cast their states’ electoral votes for Trump against the wishes of their states’ voters? Sure, it might be possible at the end of the day to get courts to force them to comply with their laws, but with the presidency at stake every NPV state would fight such suits to the Supreme Court. How long would that take, and what disruption would there be before the end? The litigation would make Bush v. Gore look like a traffic court dispute. And what if several Democratic governors simply refused to comply with the court orders and went to jail rather than put Trump into office?

    1. If we don’t think governors nationwide will appoint electors according to state law, you’re right, we probably shouldn’t talk about compacts at all.

      1. Absolutely right. We should never enter a compact when we know that, when the crunch comes, the other participants won’t comply. No one should ever sign a contract knowing that the other party can’t be trusted to keep the bargain.

    2. As to your point number two, I think the theory is that once the 270 threshold is reached, all the previous non-joining jurisdictions would join to ensure that their citizens’ votes counted.

      1. That’s an interesting theory but it’s not one the proponents have made. In fact, if the joining states controlled the elections and actually voted for the popular winner, then lots of votes wouldn’t “count”, namely all of those who voted for the national vote loser — even in states where they were in the majority. A simpler definition of “counting,” however, is that their votes were tallied; that’s the sense in which all of our votes “count.” “Counting” doesn’t mean (and can’t universally mean) “winning.” Moreover, if the joining states constituting 270 electoral votes controlled the election, it wouldn’t matter whether or not the non-joining states chose to join: the result would be exactly the same either way.

        1. That’s an interesting theory but it’s not one the proponents have made.

          The only proponent is Prof. Post (Prof. Eisen, who originated the idea, clearly doesn’t support it), and he made exactly that argument:

          Whether it would work depends a bit on what it means to “work.” If your goal is to create a system under which the winner of the popular vote gets to be president, I think this will do it for you. Notice that under this scheme any non-Joining State can, at any time, enter the ranks of the Joined States. So suppose that Ohio refuses to Join. If the statutory trigger is activated, it faces a simple choice: Watch the next presidential election from the sidelines, with your voters playing no role in determining the outcome, or Join so that Ohioans’ votes count for something. And the same choice would be facing Nebraska, and Alaska, and any other non-Joiners. Indeed, I think this little statute has an almost unstoppable dynamic behind it, and that it would—possibly quite quickly—become law in all states; what State would not want its voters to have any say at all in who becomes the next president?

  13. If you wanted to reach the 270 electoral vote threshold more quickly, you could add this condition:

    3. The state that joins the Joining States increasing the total number of electoral votes to at least 270 electoral votes will be the last Joining State. No others will be permitted after that.

    Thus you’d put the non-joining states to a real decision. Do they want to be the last man in or the last man out? If North Carolina finds out that Virginia’s last legislative house was voting on joinder, and they’d be the last one, wouldn’t Virginia rush to get in first? It seems like if you’re trying to push the system to your win condition, it’s best to provide both positive and negative incentives.

    1. How could you not permit other states from joining? It’s a unilateral action.

      1. You would make your law (the state making the law) count only the popular vote in the states that joined up to the last one that broke the 270 threshold. If states that joined after had similar laws, it wouldn’t matter. They can allocate their votes however they see fit. But the Joining States are only counting the first Joining States that accumulated 270.

        1. So practically, here’s how I’d amend it:

          3. The Joining States will not include any states that enacted similar legislation after the last state that brought the total number of electoral votes of the Joining States to 270.

          1. That seems like an excellent way to make it clear that this is an interstate compact in the sense that requires federal approval.

            1. If it weren’t already clear, that is.

    2. That’s a horrible, antidemocratic position, which would effectively disenfranchise half the country.

      1. Under your definition of disenfranchise, everyone who votes for the loser is disenfranchised.

        1. If the electors are chosen based on the winner of the national popular vote, no disenfranchisement. I wonder what effect this would have on the overall vote. The US has an amazingly small percentage of actual voters from within the pool of registered voters. If the national popular vote mattered, I think this might actually motivate people to vote. For instance, if you are a Republican in California and your vote for the President doesn’t matter because Cali’s electoral votes are going blue. But, if the national popular vote decides Cali’s electors, then every contrary vote counts (both ways).

          However, if the electors are chosen by the winner of the popular vote only within the participating states, then every citizen of a non-participating state has had their vote completely ignored, and that is definitively disenfranchisement.

          1. “For instance, if you are a Republican in California and your vote for the President doesn’t matter because Cali’s electoral votes are going blue.”

            This is only because you are being outvoted in the state. It doesn’t mean your vote doesn’t matter, it means there are more votes on the opposite side. That’s very different.

            1. That Republican voters in California are disenfranchised, is not what I said, or even implied. In the current system of winner-take-all, Republican votes for President in deep blue California basically don’t count (regarding California’s electoral votes), so there’s no motivation for a Republican to vote for President in California. If California’s electors were chosen based on the national popular vote, there would be value and motivation for Republican voters, even in California.

              “If the national popular vote mattered, I think this might actually motivate people to vote. For instance, if you are a Republican in California and your vote for the President doesn’t matter because Cali’s electoral votes are going blue. But, if the national popular vote decides Cali’s electors, then every contrary vote counts (both ways).”

          2. “If the electors are chosen based on the winner of the national popular vote, no disenfranchisement.”

            Right, which is not how they’re chosen now. So disenfranchisement?

            “However, if the electors are chosen by the winner of the popular vote only within the participating states, then every citizen of a non-participating state has had their vote completely ignored, and that is definitively disenfranchisement.”

            It is already the case that every citizen of a state that isn’t on the winning side of at least 270 electoral votes is completely ignored. Disenfranchisement?

            1. Context. We’re talking about an article in which there are two choices presented. In the original (A), there is a compact that grants EC votes based on the NPV, in the other proposal (B), the EC votes are granted based on the winner of only the states in the compact.

              “A” does not present disenfranchisement, because every state’s voters count (the voters in any state could swing one way or the other, the loser’s votes still had some impact). “B” is disenfranchising every state that isn’t in the compact, literally (literally literally) ignoring their votes entirely (as in, no matter what the others states votes are, even if they are 100% opposite to the compact states, they would be entirely irrelevant.)

              If you really can’t see the difference…

            2. “It is already the case that every citizen of a state that isn’t on the winning side of at least 270 electoral votes is completely ignored. Disenfranchisement?”

              Are you really this dense? New church of Artie congregant?

        2. Nah, you have a misunderstanding. Let me show you how. Let’s take a simple example with 5 states, A, B, C, D, and E. They’re voting for 2 candidates, Blue and Red.
          Normal conditions
          Election 1: A – Blue, B – Blue, C – Blue, D – Red, E – Blue: Blue wins.
          Election 2: A – Blue, B – Red, C – Red, D – Blue, E- Red: Red wins
          Election 3: A – Blue, B – Blue, C – Red, D – Blue, E – Red: Blue wins.

          In this system, everyone’s vote matters. If a State changes its vote, it has an effect on who wins nation wide. Let’s chance this with the CDE compact. Whoever wins between CDE will get all of CDE’s votes (and automatically win)

          ABC-Compact
          Election 1: A – Blue, B – Blue, C – Blue, D – Red, E – Blue: Blue CDE, Blue wins.
          Election 2: A – Blue, B – Red, C – Red, D – Blue, E- Red: Red CDE, Red wins
          Election 3: A – Blue, B – Blue, C – Red, D – Blue, E – Red: Red CDE, Red wins. (Overturns normal Blue victory)

          Note, the CDE compact changed election 3’s winner.

          Let’s run some variations on the election

          CDE Compact
          Election 4: A – Blue, B – Blue, C – Red, D – Red, E- Blue: Red wins CDE, Red wins.
          Election 5: A – Red, B – Red, C – Red, D – Blue, E- Blue: Blue Wins CDE, Blue wins
          Election 6: A – Blue, B – Blue, C, Red, D – Blue, E- Blue: Blue wins CDE, Blue wins.

          What you see here, is it literally doesn’t matter, ever, who A and B vote for. Only CDE. This is why it disenfranchises A and B.

          1. “What you see here, is it literally doesn’t matter, ever, who A and B vote for. Only CDE.”

            It’s true in any election that whomever the states who are on the wrong side of 270 vote for, don’t win. Your only contribution is that “it literally doesn’t matter, ever, who A and B vote for.” But that’s only true so long as the compact remains in place, which need not be the case. And the non-participants can join the compact, if they want, by jumping in on the action.

            1. Except for your proposal which would perminantly ban them from entering any such compact.

              1. First, I don’t think it’s a compact. Second, it doesn’t prevent any state from counting its electoral votes however it wants.

    3. This was my thought as well. I agree with the other comments that the incentive on proposal is substantial at the same as the NPV. With the lockout provision, there would be substantial incentive to join when you got close to the end.

      I’m not in favor of this, but I agree it would be the most effective incentive.

  14. And this post shows the EXACT reason that the compact clause prohibits this kind of agreement.

    1. No State shall, without the Consent of Congress,… enter into any Agreement or Compact with another State, or with a foreign Power

      Where’s the agreement? These look like independent actions by a bunch of state legislators. IOW there is no consideration here – it’s more like a uniform act.

      Also, pretty sure this is not the exact reason interstate compacts require Congressional consent. It was more about borders, IIRC.

      1. If you’re right that it’s not a compact, then it was perhaps it was unwise of the authors to put the word “Compact” into the title of the document.

        1. Well, damn, you know what I meant.

        2. Do you think the title is dispositive? If so, allow me to cure the constitutional due…

          1. Also, the text of the document refers numerous times to “this agreement”,. Even further, it says “this agreement shall terminate…” under certain conditions. If, as sarcastr0 says, there is no agreement, then what is it that terminates?

            But sure, constitutional text has been interpreted to mean way more that what it literally says, or way less, depending on the interpreter’s political needs. If the SC likes the NPVC they can find some rationalization for why it isn’t covered by the compact clause.

            I think a tougher case would be if Congress specifically indicated disapproval. Or if one state reneged after the deadline and another state sued: how will a court enforce an agreement when the plaintiff is simultaneously denying that it’s an agreement?

            1. Conditional acts are not agreements.

              There’s a lot of law on this issue.

              1. You should really read your law a lot closer. I’d start with Virginia v. Tennessee, 148 U.S. 503 (1893), does it “cover all stipulations affecting the conduct or claims of the parties”? ” If, then, the terms ‘compact’ or ‘agreement’ in the Constitution do not apply to every possible compact or agreement between one state and another, for the validity of which the consent of Congress must be obtained, to what compacts or agreements does the Constitution apply?” ”

                Then I’d move on to Northeast Bancorp, Inc. v. Governors, FRS, 472 U.S. 159 (1985), is it “conditioned on action by the other State”? Does it require “reciprocation”? Is it “directed to the formation of any combination tending to the increase of political power in the States” (ie excluding all the other non-participating states?). Does it “enhance the political power of the [agreeing] States at the expense of other States”?

                It would not be hard for a court to find this to be a compact.

              2. After all, if this is allowed, why does it have to allow any states beyond a bare majority to join the agreement? It could just name the specific states whose votes would be considered and exclude all others, thereby enhancing the power of the states selected at the expense of the other states.

                1. This is an important point. I don’t see any reason why the Enabling Legislation could not say something like “Under no circumstances shall California [or Texas, for that matter] be considered a Joining State.”

              3. Sarcastr0, let me ask the question a different way. I understand that the word “agreement” has a specific meaning in law that is maybe different from ordinary meaning. Fair enough.

                So my question: Why did the law professors who wrote the document choose to title it a “compact” and then refer repeatedly in the text to “this agreement”?

                What were they hoping to gain by using that terminology? I assume they put some time into the writing. Is it open trolling? Incompetence?

                1. ducksalad, there are no magic words in contract law.

                  Devin Watkins, it does not require reciprocation.

                  1. The majority of the statutory law of commercial contract disagrees with this asssessment. Leave some of the terms out of the contract and UCC will provide them for you. To avoid having this happen, you’d better provide the exact terms you intend to agree to, or you can expressly adopt the implied terms the UCC would apply.

  15. Maybe we could have each state allocate their electoral votes in proportion to the statewide popular vote with a minimum of perhaps 20% to get any electoral votes.

    This proposal allays the complaints of the smaller states that their interests justify more electoral votes per capita (Wyoming retains their 3 votes in my proposal). On the other hand, it diminishes the power of the purple states relative to the status quo. But, today’s purple state can be tomorrow’s deep red or blue state, and vice versa. And the current advantage Republicans enjoy is likely not to last given it hasn’t been the case until very recently (Obama could have lost the popular vote by up to 1.5%-points and won in 2012).

    1. “Maybe we could have each state allocate their electoral votes in proportion to the statewide popular vote”

      That is the obvious common sense reform, and would fix most of what’s wrong with the current system.

      The main problem with the current system is “winner takes all”: the top candidate in each state takes 100% of it’s electoral votes, while the rest of the voters are effectively disenfranchised.

      This leads to (a) outcomes that are totally out of whack with the national popular vote, and (b) outsized influence for a handful of purple swing states.

      The over-representation of a few small states (because of the 3 elector minimum) would remain under the proposed proportional system. But it is not that big of a deal, and could be mitigated by increasing the overall size of the House of Representatives, which is currently quite small by international standards.

      1. However, I see no reason for an arbitrary 20% threshold. All votes should be counted.

        This sort of threshold rule does not eliminate the third party spoiler effect, just disguises/obfuscates it.

        1. If you don’t have a threshold then many elections will end up in the House, including 2016.

          1. “If you don’t have a threshold then many elections will end up in the House”.

            Not necessarily. And, in any case, I think the proposed medicine (ignoring large numbers of votes) is worse than the disease.

            If the electoral college were elected proportionally, and no candidate won a majority (50%+) of electors, then you could have a ‘brokered’ convention. Electors from different parties could come together to negotiate a majority coalition in favor of a single candidate. That is how governments are often formed under a parliamentary system, and it works pretty well.

            The ideal voting system for president would a national ranked choice ballot, or some sort of run-off system. But we are unlikely to see that any time soon.

            And I don’t think that creating an artificial electoral college majority by arbitrarily ignoring large numbers of votes is the solution. It just disguises the fact that the no candidate has true majority support in the country at large, rather than actually addressing the issue. Letting the house decide is also not a good idea, because the one-vote-per-state rule means the outcome will not reflect the popular vote.

  16. If I had magical powers, it would be great fun to throw the results of this election so that Biden lost the popular vote but won the electoral college, just to watch the spectacle of people now defending the electoral college suddenly decide it’s maybe not such a great institution.

    It is somewhat amusing to see people who never have a kind word for collectivism in any other context think that my vote for president should only count as part of the collective known as the State of Florida rather than as my individual vote,

    1. That works both ways. Those attacking the EC today will love it when it produces a result they like. It’s not unusual to see politicians change their colors when a different ox is getting gored.

  17. Predictions the first time the NPVC kicks in:

    1. Saturation-level accusations on social media as well as MSM that certain states are inflating their vote totals through intentionally lax standards, less restrictive qualifications, or outright lying.

    2. SA few Chief Election Officers (CEOs) will say another state’s elections are so badly run that they don’t meet the NPVC definition of an election, and therefore that state’s popular votes won’t be counted in determining the national total. (The NPVC has each state calculate the total itself.)

    3. Virtually all CEOs will swear that if some other state rejects their votes, they will respond in kind, regardless of the compact.

    4. As others have pointed out, CEOs who enforce the NPVC against the will of their own states’ voters will be in trouble. If on top of that, the CEO appears to have partisan leanings toward the national winner, no one will believe the decision was honest, and lynchings are real possibility.

      1. As the election approaches, drama will approach infinity…

        1. How’s that different from every other presidential election in the history of the US?

          1. Maybe Clinton v. Dole.

            But mostly you’re right.

            1. Reagan v. Sacrificial Lamb (1984)

              Approximately nobody thought Reagan was going to lose, and (surprise!) he didn’t. Drama factor: 0.

      2. OK, maybe traditional lynchings are a stretch. Although if the “betrayal” was the deciding factor for the entire election I could see emotions running high.

        1. I’d say guillotinings are actually more likely, considering what the Antifa/BLM gang have been up to lately.

          1. getting shot by police?

          2. Don’t forget that Soros-funded caravan of MS-13 members and ISIS terrorists threatening the border, Brett.

  18. Um, perhaps Democrats can just appeal to a more geographiclly broad public and win the EC without resorting to clever ideas.

    I know no one is alive where this happened.

    1. The Democrats are appealing to a sufficiently diverse geography. The problem for the Democrats in 2016 and again in 2020 is their appeal keeps falling just short of 50%+1 in purple states.

    2. Failing to get majority of the votes in a particular state doesn’t mean you have no appeal in that state.

      Yet another reason the EC is insane.

      Look up Trump’s vote in CA.

  19. “Under this scheme, if Ohio does not Join and agree to pool its vote with other Joiners, it runs the risk that enough other States will Join to make Ohio voters completely irrelevant in the presidential election….”

    Yeah…remember that little disagreement we got into a couple hundred years ago over the no-no of “taxation without representation?” This would be a new version of it. Didn’t end well for the taxers.

    1. Presidents don’t enact taxes? But even if they did, if state’s electoral votes don’t go to the winner, that isn’t the same as “without representation”.

  20. This propesal assumdes the Demorcrat hegomony on large states which renders voting for the disfavored candidate useless. However if the national poular vote is the standard then the previouslyy unconsidered voters for the disfavored candidate may be more willing to turn out. Suppose that California and New York conservatives felt they could affect the election by reducing the popular vote for a Democrat, while they currentlly can’t affect the Electoral College all or nothing calculus.

    1. That’s actually an interesting point: Under the current NPV compact terms, both Democrats in ‘red’ states and Republicans in ‘blue’ states are given an incentive to bother showing up. How it would net out is anybody’s guess.

      But under the proposal suggested above, only political minorities in the compact member states would be given an incentive to show up, while political minorities in non-member states would have no reason to bother.

      So the Democrats, were they to adopt THIS version of the compact, (Because it IS entirely a Democratic party scheme.) would be enhancing Republican turnout in their own states. While NOT enhancing Democratic turnout in Republican states.

      Seems somewhat self-destructive in that regard.

      1. “So the Democrats, were they to adopt THIS version of the compact, (Because it IS entirely a Democratic party scheme.) would be enhancing Republican turnout in their own states. While NOT enhancing Democratic turnout in Republican states.

        Seems somewhat self-destructive in that regard.”

        I don’t think this bears out. If all of the states in the “totally not a compact” compact are deep blue, and there aren’t enough red voters to surpass even 60% blue voter turnout (for sake of argument, I have no idea what the actual numbers are in CA or NY), then there would be even less incentive for red turnout.

        The Eisen proposal is disgusting. And would result in guaranteed election of a President that is ideologically aligned with the compact states, completely without regard for non-participating states. Worst case, even if non-participating states had 100% voter turnout which was also 100% red (and made the NPV a solid majority red), the compact states only need 50%+1 blue votes and a significantly lopsided minority of the NPV. If that wasn’t grounds for a Constitutional challenge, and invalidation of the EC results, I think that would definitely be the catalyst of civil war 2.0.

        1. Of course, it has to be remembered that there aren’t 270 electoral votes worth of deep “blue” states. If there were, we wouldn’t even be having this discussion!

          In either version, the compact is only meaningful if it changes the EC votes of at least some states. This is the precise problem with all versions of the compact: It requires states to assign their EC votes to somebody other than the winner of that state. And why would the voters of that state find this a good idea?

          In the current version of the NPV compact, you at least have the argument that doing so advances democratic legitimacy. In the version proposed above, you don’t even have that argument! It’s ALL loss for the states forced to change their votes.

          Basically, the motivating force behind NPV compacts is a complaint that inherently only resonates in less than 270 EC votes worth of states. It’s always going to fall short of reaching that number because it’s a losing deal for at least some of the states involved, and predictably so.

          1. There is another twist which could wreck this. Suppose a very popular Republican comes along (think Reagan or Eisenhower) and wins the popular vote obligating the compact states to vote for that candidate. George W. Bush even won the popular vote in 2004.

            The popular vote is on the “the first Tuesday in November” but the Electoral College votes on “the first Monday after the second Wednesday in December” six weeks later. There seems nothing preventing a state from changing it’s method of selection of Electors after the vote or if I understand the recent faithless elector case preventing a Governor from selecting a slate of faithless electors.

            Does anyone really think a Deep Blue state couldn’t try to avoid voting for a Republican?

            1. Yes, of course, if any state changes its commitment to the compact, the whole thing falls apart. That’s true even of the original NPV proposal, and the state of affairs today. If, as an example, some red state goes blue in the election, what would stop the state’s Republican legislature from deciding that the EV should be based not on who wins the state, but on who the state legislatures would pick?

          2. “Basically, the motivating force behind NPV compacts is a complaint that inherently only resonates in less than 270 EC votes worth of states.”

            That’s the point of the modified compact. It creates an inducement to get to 270 (potential to affect change) that doesn’t (currently) exist with the pure NPV. It creates a prisoner’s dilemma that incentivizes “states to assign their EC votes to somebody other than the winner of the state.” Why? Because they don’t want to be left out in the cold.

            1. But the “inducement” doesn’t work.

              The compact isn’t a random collection of states. It’s only “blue” states that have any interest in such schemes, because the EC currently advantages the “red” states.

              So, your compact is approaching the magic 270. It’s a collection of “blue” states guaranteed to go Democratic in any but a Mondale scale blowout. The last state that brings it over 270 goes from being a swing state, to having no influence AT ALL in how the compact votes, because the states that have already joined are enough to dictate the compact’s winner.

              Why does Florida, say, join the compact, and go from being a swing state to being yoked to California? There’s nothing in it for them; If they join? Zero influence. If some other state joins in their stead? Zero influence.

              Only by defeating the compact do they retain influence.

              Indeed, the most effective move for swing states as the blue compact approaches 270, is to join together into their own “swing” compact. Even three or four such states would guarantee that no remaining state would have any interest in joining the “blue” compact, and that small “swing” compact would be enormously influential.

              1. If you assume that only deep blue states want to be in the compact, sure. The idea of having it shut down at 270 is you are going to draw a wider range of participants. You could get to 270 with a lot of purple states.

                And you’re ignoring that on any given election cycle, states that oscillate between blue or red will be… blue or red. And so maybe you have a red compact that’s itching up to 270 and a blue compact that’s itching up to 270, and a Michigan decides (based on whichever way its current political winds blow) to take up with blue or red. They’d certainly be incentivized to do this based on changing political winds.

        2. “If all of the states in the “totally not a compact” compact are deep blue…”

          Then there would be no need for the compact. They would already have 270 electoral votes.

          “Worst case, even if non-participating states had 100% voter turnout which was also 100% red (and made the NPV a solid majority red), the compact states only need 50%+1 blue votes and a significantly lopsided minority of the NPV.”

          That this result is already possible under the current electoral system is the only reason it would work under the proposed compact.

      2. “Under the current NPV compact terms, both Democrats in ‘red’ states and Republicans in ‘blue’ states are given an incentive to bother showing up. How it would net out is anybody’s guess.”

        The R voters show up reliably. The D voters don’t reliably show…there’s a larger pool of potential voters who lean towards the D side than R no-shows in most election cycles.

        Obama got them to show up for him and he won. Hill didn’t get them to show up for her and she lost.

    2. “This propesal assumdes the Demorcrat hegomony on large states which renders voting for the disfavored candidate useless.”

      Did you stay up past bedtime and lose the ability to spell? Anyway, the electoral map isn’t really state vs. state… it’s urban areas vs. rural areas. In Oregon, Republican routinely win in 31 of the 36 counties. 3 of the 36 go routinely Democratic and by coincidence they happen to have the three biggest cities: Portland in Multnomah County, Eugene in Lane county, and Salem in Marion County. Washington County is more closely split and doesn’t reliably go to either party. Nor does Benton County. Oregon has some counties with 10,000 square miles of land and thousands of voters, it takes a lot of those counties to add up to the population of Multnomah county.
      As a result of this inequity (plus some gerrymandering), the R’s get one Rep from Oregon and the D’s get the other 4.

      1. I wrote in on a tablet.

  21. “This propesal assumdes the Demorcrat hegomony on large states which renders voting for the disfavored candidate useless. However if the national poular vote is the standard then the previouslyy unconsidered voters for the disfavored candidate may be more willing to turn out. Suppose that California and New York conservatives felt they could affect the election by reducing the popular vote for a Democrat, while they currentlly can’t affect the Electoral College all or nothing calculus.”

    The more I think about it, the more that I find myself (conditionally) in support of the “compact” if and only if the consideration is EC by NPV. Eisen’s proposal is, as he put it, “disturbing and terrifying”. With the NPV condition, even voters in states that are not in the compact can still have an effect on the outcome.

    Would it have resulted in Hillary getting elected instead of Trump? Maybe. But, the increased incentive for those voters in a state, who are normally “disenfranchised” within their states EC votes, to cast a vote to have influence in the NPV could have countered that.

    As a voter in a swing state (MI), I held my nose and voted for Gary (had I not voted LP, I would have been more inclined to vote red than blue). Clinton and Trump were both disgusting options. Under this compact, voters like myself might be incentivized to instead swallow the pill and forget about protest votes.

    An unfortunate consequence might be that this would cement the 2 party rule. Any independent party would be siphoning votes from “not my side”.

  22. The reality is that no system is perfect. The problem with the EC is that it seems to no longer be democratic because EC seems to overrules the popular will of the people. The problem here is that the country’s population is no longer balanced. It was always true that we had big and small states, but now we have states with huge populations when compared to the smallest states. Those small states get two electoral votes as a gimme. As an alternative to the NVP consider some reconfiguring of states. First bring in the DC and Puerto Rico as states. This is a significant population of US citizen that have no vote in Congress or for the Presidency. Second set a national population minimum for states. States falling below that threshold must merge with an adjoining state. Yes this would mean initial victories for Democrats, but it would also force Republicans to join the 21th century and to broaden their appeal. The old Republican values could win if they dropped these antiimmigrant and racist philosophies.

    1. “Second set a national population minimum for states. States falling below that threshold must merge with an adjoining state.”

      I think the states that existed before the US might just take exception to facing something like that. Like it or not, the states aren’t just administrative districts of the US. They’re actually separate sovereigns.

      1. You are no doubt correct that any existing state will be opposed to merging but it seems undemocratic to give over so much power to a small group. As for being separate sovereigns, that is questionable. There are states in the west that we brought in simple to give one political party more power. Ask yourself the logic of a North and South Dakota? The fact is that even within states you see divisions. The MI-UP population has more in common than people in Upper Wisconsin, just as WI- NW often seems more in line with Minnesota. I am sure this pattern is repeated in a number of states. No state in the US really has the length of history to really claim a sovereign status.

        1. I’m sure there are at least 13 of them that would dispute that, and a couple more that were sovereign countries in their own right prior to admission as states.

          1. I only know of one state that had a history as a separate sovereign before becoming one of the United States. the original 13 were colonies and so was Louisiana. Oklahoma maybe has a case, since it was formally Indian Country before statehood. So you’ve got the Republic of Texas, and its independent history isn’t much.

            1. Hawaii was a kingdom from 1795 to 1893

              1. Yes, Texas and Hawaii were both sovereign nations before being admitted as states.

                And while the original 13 colonies were “colonies”, they certainly were not lacking for “length of history” at the point when they got together to form a federation.

      2. The Wyoming Rule fixes that.

  23. One big problem: how do you determine what the national vote is? You will possibly have several different versions. There will be litigation going on in contested states. You will have counts where certain disallowed or disqualified votes are counted. You could end up with a governor from one political party choosing a vote count that favors the candidate from their party even though there are other vote counts that are better supported by evidence that favor another candidate.

    1. True. NPV compact proponents don’t seem to have considered an election like 1880 (Garfield beat Hancock by 9,000 national popular votes),

  24. Some people are saying that this wouldn’t work because swing states don’t have an incentive to join. That’s true that today’s swing states wouldn’t immediately have an incentive to join, but it’s not necessarily true in the long run because
    the list of swing states is not static.

    Model this out. My model is that a state joins the compact whenever it’s solid Republican (lege trifecta and the Republican presidential candidate did better in the state in the last election than he did nationally). A state leaves when the Democrats gain a legislative trifecta.

    Let’s start in early 1992 with AZ, NH, and UT. Over the rest of the 90s, Republicans add states like AK, CO, FL, ID, KS, MT, NE, ND, OH, PA, SD, TX, VA and WY. Maybe Republicans add some more states (e.g., AL, MS, OK, and WV) in the 2000s and 2010s, but it doesn’t matter. Once FL, OH, PA, and VA become swing states (or even Democratic leaners) and other states (AR, LA, TN) become Republican presidential strongholds, Republicans have a heavy advantage in the electoral college because they effectively win all the Republican states plus the swing states that are in the compact—and since Democrats have never taken complete control of FL, OH or PA state government since the 90s, that heavy Republican advantage is nearly permanent.

    Bush would have skated to victory in 2000, no recount needed. Same for Bush in 2004 and for Trump in 2016. Obama might have barely won in 2008, but only because his margin was so lopsided that he carried non-compact red-leaning states like IN and NC. And the result might not have been the same if McCain had been able to concentrate campaign efforts in those places. In 2012, Romney would have beaten Obama despite Obama winning on basically every reasonable metric. Even during his one-term presidency he is forced to choose policies that aim to appeal to Indiana conservatives instead of Colorado moderates.

    So how do the Democrats react? If they’re coordinated enough, they add their states to the compact to balance things out (CA, NY, DC, MA, etc.). Once the compact bloc becomes practically unbeatable (which probably only requires CA and NY to be added), even the swing states must join or else become meaningless.

    End result: a national vote compact, but with one unfortunate wrinkle. If one party somehow has control of state government in a state that votes strongly for the other party in presidential elections (think of AL and MS in the not too distant past), then the legislature has the option to take that state out of the compact in order to deprive the opposing party of popular votes within the compact.

  25. The NPV could have seriously anti-democratic results. Suppose the following election results:

    100 million votes are cast in all 50 states; 65 million votes are cast in states participating in the NPV (including NY, CA, and IL which combined have 40 million votes).
    Counting the votes in all 50 states: 51 million votes for candidate R and 49 million votes for candidate D.
    Looking at the Electoral College without the NPV, R wins all states except CA, NY, and IL.
    Looking only at states participating in the NPV, candidate R has slight victories in all states except NY, CA and IL (R gets 13 million; D gets 12 million) and candidate D has overwhelming victories in those 3 states (D gets 25 million and R gets 15 million).
    You would end up with a situation where a candidate who loses the national vote and the Electoral College vote (if cast under the current rules) becomes president. There would be a lot of very unhappy voters nationwide.

    1. Of course that’s all possible under the current system, too. If an election broke just right, you could get to 282 EVs with only states comprising less than half the population of the country. Assume bear majorities in those states, and overwhelming majority the other way in the remaining states, and there “would be a lot of very unhappy voters nationwide”.

      1. True. The advantage of the current system is that since the nationwide vote total is irrelevant, we avoid the spectacle of a nationwide (or NPV participant-wide) recount. In the current system, if a few states have very close races, we only need to have recounts in those states. Florida in 2000 was essentially a tie. We looked at Florida law to see how to handle the outcome in case of a tie. Gore got into trouble when he tried to game the system by asking for recounts only in Dem majority counties (in hopes of finding enough undercounted Dem votes to put him over the top).

        1. “The advantage of the current system is that since the nationwide vote total is irrelevant, we avoid the spectacle of a nationwide (or NPV participant-wide) recount.”

          There would not be an NPV recount procedure. State A has no power to force State B to recount its votes. Recount rules are governed by state law, not federal law. The Florida recount would have happened regardless of whether we had NPV, or not. And an NPV does not mandate a nationwide recount in any event.

          1. There would have been no need for the Florida recount because the Florida electoral votes would not be dependent upon whether Gore won or lost by 500 votes.

            1. Except the Florida recount procedures have nothing to do with whether Florida’s electoral college votes decide the election. They’re a function of state law, based exclusively on the margin of victory between the two candidates in that state. State law requires the recount regardless of whether it matters at the EC.

      2. Since American voters effectively have to choose between the R nominee and the D nominee, there should be a lot of unhappy voters in this country.

        1. Very true

  26. So what happens when a state like California – having joined – also passes a law that for official purposes only those votes received by the candidate receiving the most votes will be officially counted/reported ie 100% of the popular vote is officially for the winning candidate. Don’t get hung up on how I am wording this – the point is that this would effectively nullify any spread in the popular vote in all the other states. Or say a red state Joins the compact and does this…..it’s a pretty partisan world we live in

    1. I don’t think the other states have to honor the cheating you are suggesting.

    2. “It is enough that the people know there was an election. The people who cast the votes decide nothing. The people who count the votes decide everything.” [attributed to Joseph Stalin but who knows for real]

    3. You know what else would interfere with the compact? If one of the states decided to allocate their votes by coin flip. Or if one of the states decided not to hold an election at all. Or if aliens decide to blow up the earth.

      Just food for thought.

  27. Would such a scheme amount to a compact among the joining states? Ancient Alien Theorists say no!

  28. The obvious technical flaw in these popular vote schemes, whether counting votes across the nation, or across joining states, is that any State member of the scheme can screw it all up, by giving its voters, say, a thousand votes each in the election. They need not allocate all their votes the same way – a voter could give 855 votes to Joe, 132 to Genghis, 1 to The Donald, and abstain with the remaining 12.

    There are precedents round the world for voters having more than one vote in the same election – typically where a district elects more than one winner.

    This flaw is easy enough for the Compact, sorry Non-Compact, to fix. But easily fixable, and actually having been fixed are not quite the same thing.

    You don’t want to triumphantly get to 270 in the Compact and then have Wyoming come in with 1,000 votes per redneck.

  29. And another thing. What – if anything – prevents say California extending its franchise (in Presidential elections) to 14 year olds. And to the “undocumented” ? And indeed to the entire population of South America ?

    1. All they need to do is “allocate” the person receiving the most popular votes the votes of all registered voters (living and dead)

    2. The same thing that stops them from doing it today…?

  30. We have seen that states can change the rules for replacing Senate vacancies very quickly. This is no different.

    Texas joins the compact. They vote for Trump but Biden wins the popular vote. However if Texas pulls out of the compact in late November, they can swing the election to Trump.

    Result. Special legislative session in November. Texas pulls out of compact and awards electors to Trump.

  31. I just created a new Reason account in order to comment here…

    As unintuitive as this may sound, Post’s New NPV Compact is functionally equivalent to the Current NPV Compact. It offers identical incentives for states to join or not join (before 270 is reached).

    Both compacts say:
    “1) Nothing happens until the joined states reach 270 Electoral College votes; and
    2) As soon as we reach 270, each joined state will vote for the candidate that wins the total popular vote among .”

    In the Current Compact, is “all the states.” In the New Compact, is “all the joined states.” But as Post points out, reaching 270 will necessarily trigger an avalanche of all the non-joined states being forced to join in order for their votes to count. So, in the New Compact, “all the joined states” is actually equivalent to “all the states” as soon as 270 is reached.

    In other words, both versions offer the exact same deal to states considering joining (before 270). The incentives are unchanged – i.e. there is no new positive or negative feedback as Post claims. In fact, the decision to join (either compact) is a simple binary one: if your state is in favor of NPV, you should join immediately. And if your state is in favor of the Electoral College, you should never join (until compelled to join when 270 is reached in the New Compact).

    The only minor difference between the 2 versions is what happens after 270 is reached. In the Current Compact, there will still be many non-joined states (but not enough to override the NPV), while in the New Compact every state will join and the EC vote will be unanimous. It might seem like the New Compact makes it harder for any state to leave once they all join, but that could be worked-around with a new ‘Leave-The-Compact Compact’ using a similar structure to the NPV Compact itself.

    So the New NPV Compact doesn’t really offer anything new over the Current NPV Compact.

    1. Shoot. Formatting got messed up. Should read: “2) …the candidate that wins the total popular vote among X.” In the Current Compact, X is… In the New Compact, X is…

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