The National Popular Vote: A Threat to Electoral Stability

Last month, the New York Times joined the chorus for the National Popular Vote (NPV)—the idea that we should scrap the Electoral College and elect our presidents with a single nationwide popular vote. In a long article in the Review section of the Times’ Sunday edition, Jesse Wegman, a member of the Times’ editorial board, observed that the Electoral College system can result in a candidate winning the presidency with fewer popular votes than his or her opposition. This happened in 2000 and again in 2016, when the Republican candidates won a majority of the electoral votes but fewer popular votes than their Democratic opponents.

Since 2016, the NPV has gained adherents in states with Democratic governors and legislative majorities. It’s a relatively simple approach: a state passes a law that says all its electoral votes will go to the winner of the national popular vote, irrespective of who won the popular vote in the state itself. The system goes into effect when the total electoral votes of the participating states reaches 270 (the number needed to secure an Electoral College majority). States that have already authorized this system have 196 electoral votes, so the NPV will go into effect if states with only 74 more electoral votes elect Democratic governors and legislatures in the 2020 election.

While the highly unusual results in 2000 and 2016 explain why the Democratic Party is pushing this reform, the NPV reflects a somewhat shocking failure to understand the fairly obvious consequences that would ensue—catastrophic for both the Republican and Democratic parties—if this system should actually go into effect.

The first and most important error in the NPV idea is the assumption that when we discard the Electoral College system there will still only be two parties running candidates. We have a two-party system in the United State in large part because of the Electoral College, which requires a candidate for the presidency to win a majority of the electoral votes of the states. Third parties have grown up from time to time, but all ultimately disappeared because their candidates could not win an Electoral College majority. Thus the Electoral College forces our parties to become enormous coalitions of interests, varying slightly over time, capable of appealing to a broad swath of society.

But if a person or party could win the presidency with a simple plurality of the popular vote, we would see the creation of many special interest parties—pro-choice and pro-life, pro- and anti-gun, pro- and anti-immigration, and many more—all of which would be running candidates who would only need to cobble together a few more votes than the next one. Name the issue, and there will be advocates on both sides running for president.

If a person or party could win the presidency with a simple plurality of the popular vote, we would see the creation of many special interest parties.

In such a multi-candidate field, it would be possible to win the presidency with only a very small plurality, perhaps as little as 20 percent. Given the fact that he has established a significant financial base for his candidacy, there is little question that Senator Bernie Sanders or a socialist successor would be able to run for president—and very possibly win—in an election with a large number of candidates splitting the popular vote. The chance to win the presidency with only a sliver of the national vote would also encourage self-funded candidates like Michael Bloomberg to run for president, inevitably increasing the importance of large personal funds in our politics.

One of the arguments frequently marshalled by supporters of the NPV is that the Electoral College encourages campaigns to focus only on the states where the vote will be close. Other states, like California or Texas, are ignored because their electoral vote is a foregone conclusion. However, a different and more troubling problem would be likely without the Electoral College. In that case, candidates would focus entirely on the largest states and cities, where large numbers of votes could be harvested at limited cost. This would seriously degrade the way a presidential contest under the current electoral vote system encourages wide appeals to the diverse US population. 

Another key element of the Electoral College is the fact that the American people have accepted it as a valid way to elect a president. The importance of this acceptance should not be underestimated. In the election of 1992, for example, Bill Clinton received a majority of electoral votes and was always considered the duly elected president, despite the fact that he received only a plurality (43 percent) of the popular votes. A third-party candidate, Ross Perot, received almost 19 percent. Yet, there was never any doubt—because he won an Electoral College majority—that Clinton had the necessary legitimacy to speak for the American people.

It is highly unlikely that a president elected with only 20 percent of the popular vote, and no Electoral College majority, would have a mandate to enact the policies that a majority of the country supports or to represent the American people in the councils of the world.

A national popular vote would also substantially increase the incentives for electoral fraud. Under the Electoral College system, if fraud occurs in one or two states it is unlikely to overturn the election of a president who has otherwise won an unchallenged majority in the Electoral College. But in a close national popular vote election, where the victorious candidate has, say, 20 percent of the vote and the runner-up has 19 percent, there would be powerful incentives to litigate allegations of fraud in virtually every state, leaving the country without a duly elected president until that litigation is ultimately settled at the Supreme Court.

The Framers of our Constitution developed the Electoral College because of the difficulty of choosing a president at a time when communications moved at the speed of a horse. No one would say that the Framers anticipated the problems of electing a president in a country of almost 350 million people, but it’s a stroke of good fortune that a system developed for other reasons turns out to be one of the principal causes of the long-term stability of our presidential election system; we should not lightly exchange it for a system that, in the end, is virtually certain to produce electoral chaos. 

Reader Discussion

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on April 27, 2020 at 12:55:56 pm

I've felt for a long time now that our two party system encourages extremists on both sides to become dominant and pull or drag people with more moderate views with them. Most E.U. countries have many parties and their governments seem to function well. The problem with the U.S. is the fact that we ONLY have two parties and that most of us citizens basically have to hold our noses and vote for the lesser or better of two evils.

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Katherine Marek
on April 27, 2020 at 13:31:08 pm

We have had a two party system for almost two centuries. Yet, it has only been in the last 5 decades or so that we see "extremism" as a calculable force operating within the Parties.
Why is that do you suppose?
Media hysterics? The ongoing miseducation of the citizenry? etc etc etc?

"Most E.U. countries have many parties and their governments seem to function well."
really, the EU is a mess and EU countires and the EU itself are rather extreme in their professed disdain of the citizens and the desire of those citizens. Also, witness the EU countries resort to nationalistic practices during the ChiComm Flu crisis.
Extreme? - How about their extreme disdain and attempted isolation of Viktor Orban of Hungary for implementing the very same practices / policies that all of the other EU countries implemented. No that action by the EU, that disapprobation of Orban is the direct result of the extremism of the EU and its fallacy of " a common European home", defined as no more nation states.
Italy has averaged ONE new goverment PER YEAR over the last sixty years DUE to the presence of numerous parties.
Let's not go there!

And, Yes, we do oftentimes hold our noses
when voting.imagine, if a 20% vote getter such as Bernie were to win. I would suggest that we would be better off holding our noses.

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on April 27, 2020 at 13:50:29 pm

Per usual Mr. Wallison's public law analysis is persuasive. Yet, most of his objections to direct popular sovereignty in presidential elections are reasons why the Democrat Party supports popular sovereignty and why it opposes the Electoral College and the republicanism for which it stands.

The Democrats won that anti-republicanism debate in 1912-13 with the historically-ignorant, politically-meretricious rhetoric that drove the 17th Amendment. Since then, more often than not, our form of government is popularly misnamed not as a democratic republic which it was but, rather, as "our democracy." (One might now say, with a note of historical irony, "a democracy, if you can keep it.")

And "Cry, the Beloved" Democracy is what drives the frontal assault on the Electoral College.

Wallison has put his finger on what is chief among the politically-strategic reasons for the Democrat Party's long-standing, obdurate support of direct popular elections and why it wants to kill the Electoral College. Doing so, as he says, would produce "... a system that, in the end, is virtually certain to produce electoral chaos."

In electoral chaos lives crisis. For demagogues, social and economic crises are the mother of political opportunity. From the economic tumult of a government-induced collapse of the mortgage markets to government-abetted immigration chaos, from the chaos caused by a fake whistleblower to a media-fired virus panic, from the chaos of open borders to the lawless disorder of sanctuary cities, from fake news about fake crimes to the madness of unlawful criminal investigations and a baseless impeachment, from a clear election defeat to demagogic cries of a stolen election, per usual nowadays, the chaos that is bad for the country leads to the crisis that is good for the Democrats.

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on April 27, 2020 at 14:17:55 pm

I'm not convinced at all of the likelihood of splintering down to the twenty or thirty percent levels. The example of Bernie Sanders, socialist mayor or Burlington notwithstanding, we don't see greens, libertarians, socialists, pro-life or pro-weed candidates elected to congress or state legislatures running on their own party labels. They succeed by slugging it out in the party system, as strange as that can get. That's how you get socialist AOC in, by a surprise in the primary. That's not a significant danger of the NPV.
Lots of other things wrong with it -- it's obviously a cheap end-run around the need for constitutional amendment to move to direct vote, and without any serious thought process as to how to find give legitimacy to an outcome. In countries such as France with a strong executive elected directly, there is a run-off system. And there is uniformity to how the elections are conducted. It is not by mail in some states, early voting in some, etc. In 2016, If you add the total republican vote and total libertarian vote together, and compare them to the total democratic and green vote, in the end I think it was about a 10,000 vote margin nationwide for the Republican / Libertarian combination , so just being 'first past the post' doesn't by itself give much legitimacy. Ranked choice voting could be considered. But in any case, this is far too big an issue for an end run around the constitution.

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on April 27, 2020 at 17:42:22 pm

State Compact clause, anyone?
How many SCOTUS cases that defended, expounded upon or justified the decision based upon the structurally and textually supported Federalism of USA will have to be OVER TURNED; stare decisis, anyone?
Oh that's right stare decisis ONLY applies when the Left wants it to apply. How bloody forgetful or this old codger.

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on April 28, 2020 at 06:38:36 am

Surely that’s an argument for counting a NPV using the Alternative Vote, as Ireland elects its President? Would ensure that the successful candidate wins a majority of votes whilst allowing a much broader choice of candidates.

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Jason O’Mahony
on May 02, 2020 at 13:21:02 pm

I have to question whether the American public has accepted the legitimacy of the electoral college. It seems to me that it is gamed extensively. I'm sure many other people believe the same.

Some states such as California have an "all in" electoral. The state is dominantly Democratic, so they force all of the college votes to be for one candidate. By doing that they eliminate Republican votes. That needs reform.

The electoral college votes publicly. Everyone can find out how the collegiate voted. One of the foundations of democracy is the importance of the secret ballot. Without secrecy the voters can be threatened or bribed to vote one way or the other. That is faux democracy. We used to ridicule the voting practices of the Soviet Union, yet our practice of voting in the electoral college is no better.

Some voting schemes for popular voting could be reasonable alternatives to the one voter-one candidate approach. Different forms of ranked voting with a wider candidate field would work much better than what we have now. The electoral college simplified the calculations for voting. That approach would have been unworkable in the 1790's because of the large number of manual calculations needs. Today we can practice complicated voting tabulations because was have computers today. The one candidate-one vote practice is antiquated.

I would rather see the electoral college retained, but the ballots kept secret with no coercion allowed, and required by constitutional amendment. I would also rather see the college using a type of ranked voting on an open field of candidates instead of the single vote in an effectively bipartisan system. The opaque vote would elect presidents based more on qualifications, and less on partisan and political gamesmanship. The ranked voting would help eliminate candidates who are hated by a large number of people, thereby improving public support for the president.

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Scott Amorian
on May 03, 2020 at 17:16:29 pm

You didn't discuss any of the legal issues surrounding the NPV, which could easily cause it to be overturned by the Supreme Court even if enacted by sufficient states. A partial list:

1. The constitution is fairly clear that compacts between states must be authorized by Congress. Maybe there is some wiggle room here, maybe not.

2. While the Constitution does allow a state to assign its electoral votes using any method it chooses, I would anticipate legal challenges should any state decide to adopt a system relying on votes from outside that state. Surely that disenfranchises the citizens of the state in question.

3. How would recounts be handled??? How can the states in this "compact" compel states not in the "compact" to recount their votes when the results in the "non-compact" states are not in question? Who pays for it?

If all this is held to be legal, then I have an even better idea. What is to stop, say OH (where I live), a perennial tossup state now firmly in the hands of Republicans from deciding to assign all their electoral votes to the winner in WY? Ok, lets make it a bit fairer, and say the overall winner in AK, WY, UT, MT, ND, SD, NE, KS, IN, KY, and OH combined. Surely the Democrats would scream at this, and quite rightly so.

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on August 13, 2020 at 12:41:43 pm

You did not convince me. 2 parties are NOT enough in my opinion, and I welcome more liberty, including the freedom to actually have my vote count, and also freedom for more candidates to run. As far as real world implications, we already know that the Electoral College is detrimental. Had Al Gore become President, as the people had chosen, the planet would most certainly be better off than it is. In that case the true cost of the Electoral College might one day be revealed. In the case of the current President (I know there are some that still support him and I don't want to offend them) but WE DIDN'T VOTE HIM IN, and that's a fact. I don't blame Trump for everything that has been going wrong but I also don't see him doing anything to unite our people at a time when we need most to be united. Thank you, Electoral College.

I will tell you one more thing that needs to be abolished because it is closely related: Campaign contributions. I can’t legally give a gift to the judge that is presiding over my case, because that would be bribery. The judge has the power to make decisions that affect me. How is it that the wealthy are allowed to give huge gifts to politicians? Combine this with the Electoral College and it doesn’t take someone with a doctorate to see the problem. The Electoral College is part of this equation and allows wealthy people to control the US and sometimes even other countries.

"By their fruits ye shall know them" The best arguments against the Electoral College are common sense and recent history.

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Michael A. Gelman

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.