Protecting Electoral College From Popular Vote

COMMENTARY Election Integrity

Protecting Electoral College From Popular Vote

Oct 26, 2011 2 min read
Hans A. von Spakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.

National Popular Vote Inc. is one of California’s lesser-known advocacy organizations. Its chairman, John Koza, is best known as the co-founder of Scientific Games Inc., the company that invented the instant lottery ticket.

Now Mr. Koza and his fellow liberal activists want to “scratch off” the Electoral College - without getting the consent of the majority of Americans or the approval of Congress. And they’re already halfway there.

Their stealth campaign - dubbed the “National Popular Vote” (NPV) plan - proposes an interstate compact in which participating states agree to allocate their electoral votes to the winner of the national popular vote, regardless of the popular vote results in their states or whether the candidate even qualified to be on that state’s ballot.

The NPV will go into effect as soon as “states cumulatively possessing a majority of the electoral votes” needed to win an election (270) join the compact. This would give the most populous states a controlling majority of the Electoral College, letting the voters of as few as 11 states control the outcome of presidential elections.

Unfortunately, eight state legislatures (Illinois, Washington, New Jersey, Hawaii, Maryland, Vermont, California and Massachusetts) as well as the District of Columbia have agreed to participate in this dangerous cartel. The NPV is already 49 percent of the way to its goal of 270 electoral votes, which would force even nonparticipating states into this drastic change in the Electoral College.

The NPV compact is unconstitutional and bad public policy. It would undermine the protections of the Electoral College, elevating the importance of big urban centers like New York and Los Angeles while diminishing the influence of smaller states and rural areas. That was a major reason for establishing the Electoral College in the first place: to prevent elections from becoming contests where presidential candidates would simply campaign in big cities for votes.

Contrary to the claims of opponents, recounts under the NPV would be both more prevalent and more problematic. The Electoral College reduces the possibility of a recount since popular vote totals are often much closer than the margins produced by the Electoral College’s “winner-take-all” system in 48 states. Even presidents who win with relatively small margins in the national vote usually win an overwhelming mandate in the Electoral College, providing finality and a mandate to the winner.

Recounts under the NPV would be a nightmare, since recount rules are different in every state. Suspicions necessitating a recount in just one jurisdiction would be an incentive for a national recount since every additional vote found anywhere in the country could make the difference to the losing candidate. There is little chance that the ballots would be recounted in a consistent manner across the nation or that there would be a national, as opposed to a piecemeal, recount.

Contentious fights over provisional ballots and litigation conflicts filed all over the country (not just in one state) would make Florida’s recount in 2000 pale by comparison. The NPV would also encourage voter fraud since every bogus vote could make the difference in changing the outcome of a national race, whereas in today’s system the effects of such fraud are limited to one state.

It could also radicalize American politics, since the winner under the NPV is whatever candidate gets the most votes, even if it is only 25 percent or 35 percent in a race with multiple candidates. This could lead to presidents elected with very small pluralities.

The NPV strikes directly at the Founders’ views of federalism and a representative republic that balances popular sovereignty with structural protections for state governments and minority interests. The Electoral College has provided orderly elections for more than 200 years, allowing a stable transfer of power of the leadership of the world’s greatest democracy. As former Federal Election Commission Chairman Bradley Smith says, “We tinker with our success at our peril.”

Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation.

First appeared in The Washington Times