Electoral College Dropout? Why California should think twice about the National Popular Vote compact

(Editor's Note: The Hawaii Legislature overrode a veto by Gov. Linda Lingle to pass National Popular Vote on May 1, 2008. The Legislature has the authority to reverse its decision.)

by John J. Pitney, Jr. 29 July 2011 City Journal

Earlier this month, California’s legislature passed Assembly Bill 459, which would adopt the National Popular Vote compact. Under this scheme, the state’s Electoral College slate would go to the presidential candidate with the most popular votes nationwide, whether or not that candidate won California. The compact would take effect only after it gained approval from states with a combined 270 electoral votes, the minimum necessary to elect a president. So far, seven states and the District of Columbia have joined the compact, for a total of 77 electoral votes. Governor Jerry Brown’s signature would add California’s 55.

It’s a terrible idea. Driving the compact is the memory of the 2000 presidential election, in which George W. Bush won the slimmest of electoral-vote majorities even though Al Gore gained a plurality of popular votes. But that election itself suggests a fatal flaw in the proposal. A legal battle over the Florida vote ended in a controversial Supreme Court decision. As messy as that fight was, it had the virtue of taking place only in one closely contested state. The compact would tear down that firewall and extend the madness nationwide. If the national popular vote decided the presidency, the losing side in a tight race would challenge election results everywhere it could, even in states where the margin was large. If you liked Florida 2000, you’ll love the National Popular Vote.

Absent a constitutional amendment abolishing the Electoral College, the idea of a “national popular vote” is fuzzy at best. In our federal system, each state has its own laws for counting votes. No official, definitive national tally takes place. Even when there isn’t a contested election, determining what counts as a vote for whom can be ambiguous. In 1960, Alabama voters cast ballots directly for electors, not presidential candidates. Of the 11 Democrat electors who won, five voted for John F. Kennedy, while six electors supported segregationist Senator Harry Byrd (D-Virginia). Even though JFK’s name wasn’t even on the state ballot, most reference books credit all of Alabama’s 324,050 Democratic popular votes to him, thus giving him a national margin of 113,000. But by following the Electoral College split, one could plausibly assign him 5/11 of the state popular vote. By this means of counting, Kennedy’s Alabama total was 144,355 —meaning he would have lost the national popular vote to Nixon by more than 50,000. So would Nixon have become president in 1960 if the National Popular Vote had been in place? Not so fast: the Kennedy forces, like any other losing side, would have mounted an all-out legal battle.

Look ahead to 2012. Suppose President Obama wins big in California while narrowly losing the national popular vote to, say, Rick Perry or Michele Bachmann. Suppose further that California would tip the election one way or the other. Would Democrats gladly let the state’s electoral votes, and the presidency, go to the hated GOP candidate? Of course not. In the legislature or in the courts, they would try to break the compact. The folks at the National Popular Vote organization insist that the compact is airtight. But if they doubt that California is full of lawyers who know how to get out of a contract, they aren’t following the Hollywood trade press. Contemplating a President Perry or Bachmann, Democratic attorneys would suddenly remember that the state constitution does not empower the legislature to let nonresidents decide state elections, and that the United States Constitution requires congressional approval of interstate compacts.

Even in the unlikely event that this scheme survived legal and political challenges, it would still be a mistake. Under the current system, candidates must build a coalition of states that gets them to 270 electoral votes. Accordingly, they campaign in places where their election is not a sure thing. Republicans go to Pennsylvania and Michigan, while Democrats stump in Virginia and Missouri. The proposed plan would change those strategies dramatically. Each side would focus on ramping up turnout in its base areas: Republicans in Texas, Democrats in New York, for instance. The likely result would be heightened partisan polarization.

Advocates of the plan argue that it’s necessary to preserve the legitimacy of presidential elections. But take another look at the 2000 election. Even with Gore’s popular plurality and the sloppy postgame in Florida, a CNN poll showed that an overwhelming majority of Americans accepted George W. Bush as a legitimate president.

The proposal’s California supporters point out that presidential candidates spend little time in the state during the general election. That’s true, but irrelevant. During fundraising season, candidates come here with outstretched hands and bended knees. Moreover, the state enjoys enormous clout on Capitol Hill. During the past decade, Californians have chaired key House committees including Appropriations, Rules, and Ways and Means. They’ve also served as Majority Whip and Speaker of the House. Both of our U.S. senators currently chair major committees. No one can seriously contend that California lacks political power in Washington.

So, on the one hand we have a system that produces results that Americans accept, and does not deny California a powerful seat at the political table. On the other, we have a risky scheme whose only sure result would be to make lots of money for lots of lawyers. It’s a sign of dysfunction that California’s state lawmakers chose the latter.

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John J. Pitney, Jr. is the Roy P. Crocker Professor of American Government at Claremont McKenna College. With Joseph M. Bessette, he is coauthor of American Government and Politics: Deliberation, Democracy and Citizenship.