The National Popular Vote compact is a poor alternative to the Electoral College and is manifestly unconstitutional.
The main value of the Electoral College today is that it generates clear winners when the popular vote is unclear. One might fairly ask how the popular vote for president in 2016 was not clear – Hillary Clinton received over 500,000 more votes than Donald Trump in the most current count, after all. And that’s true enough. But majority rule is not about who gets the most votes, it’s about who receives a majority of the votes. And Hillary Clinton did not receive a majority of the popular vote.
In a majoritarian system, receiving 47.8 percent of the vote is not all that more-morally compelling than receiving 47.3 percent of the vote. A majority of voters cast their votes against Clinton. As they did Trump as well.
There is, however, a majority vote in the Electoral College, which makes Trump’s election constitutionally non-problematic. As a majority in the Electoral College made, say, Bill Clinton’s election as President constitutionally non-problematic. And as the College made Abraham Lincoln’s election constitutionally non-problematic as well. (Not that Trump is any Abraham Lincoln.)
To be sure, the number of Electoral College electors per state set by the Constitution does overweight the number of electors in less populous states. The weight of a resident of Wyoming in the Electoral College is over 3.5 times greater than the weight of a resident of California. But the one-person one-vote offense of the Electoral College results from adding Senate representation with House representation. Residents of Wyoming have over 60 times the per capita representation in the U.S. Senate than do residents of California. The Electoral College looks to be a model of equalitarianism by comparison.
To be sure, it is impossible to imagine that the Electoral College would be adopted today if Americans were handed a constitutional blank slate. (Although I shudder to think what might result if that were to happen.) But the difficulties of amending the Constitution even with a strong consensus are daunting. And despite strong elite opposition to the Electoral College, it hasn’t taken on much energy as an object of popular reform.
But the constitutionally-required allocation of votes across the states, with smaller states receiving a disproportionate share of votes in the Electoral College relative to population, is not the reason that Trump won the Electoral College. The reason for this is the non-constitutionally required policy implemented in almost all of the states of allocating their state’s electoral votes on a winner-take-all basis. So a candidate winning 50.1 percent of the vote in these states nonetheless receives 100 percent of the Electoral College electors from those states.
The manner of how states appoint their electors is delegated by the Constitution to the states. (Exactly what that means is a topic in its own right.) States could easily decide to appoint their electors on the basis of popular vote, with some selected rounding criteria. But doing so decreases the impact the respective state would have on the outcome of the Electoral College vote. Majority-party partisans in each state presumably want to maximize, not reduce, the contribution of their states’ electors to their party’s presidential nominee. Indeed, as more states adopt the reform of allowing their electoral votes to be split, the incentives for the remaining states to keep a winner-take-all system would only increase. So it’s highly unlikely many states will voluntarily change their system, the policies adopted in Maine and Nebraska notwithstanding. And the Constitution does not allow Congress to force states to change their systems.
But even if states were to adopt this reform on their own, while it would smooth over the one-person, one-vote problem, it would only amplify the majority-rule problem. Creating a system in which the Electoral College better mirrors the popular vote only increases the probability that no presidential candidate received a majority of Electoral College votes.
For example, in the most recent election, if electoral votes were proportionate to the popular vote (with rounding), Gary Johnson presumably would have received two electoral votes in California, and Judith Stein would have received one of California’s electoral votes. A few more states in which third-party candidates receive at least one electoral vote, and, voilà, there is no Electoral College majority for Clinton.
In that case the most recent election would have been thrown into the House of Representatives, and with Republicans predominating in 30 of the 50 state delegations, it is almost certain that Clinton still would not win the election.
To be sure, there are more wide-ranging reforms that could be had, but those require constitutional change, which is difficult in any circumstance. So what is there to do besides amble on with an Electoral College that we can’t seem to live with, and that we can’t seem to live without.