Earlier this month, Tim Walz told supporters in Seattle that he’s “a national popular vote guy.” In California, he reiterated the point: “the Electoral College needs to go. We need a national popular vote.” In fact, as Governor, Walz signed legislation adding Minnesota to the National Popular Vote interstate compact (NPV). This anti-Electoral College “end run” may seem like a simple way to give more power to the most populous states and biggest metropolitan areas, but other states could strike back in a dangerous tit-for-tat election policy war.
Electoral College opponents have struggled for decades with the reality that it is hard to amend the Constitution, requiring a campaign to build public support around a specific reform that must ultimately be ratified by three-quarters of the states.
But after the 2000 election, three law professors proposed what modern marketers might call “one neat trick” to get around the amendment process and implement direct election of the president. If states with 270 or more electoral votes between them – enough to elect the president – join an interstate compact pledging to give their electors to the candidate deemed to have won the most popular votes nationally, then the Electoral College would effectively be nullified. Instead of persuading at least 38 states to dump the Electoral College, it could be done with as few as twelve.
It's a clever idea, and a wealthy activist turned it into state legislation and a nationwide lobbying campaign. So far seventeen states plus Washington, DC, have signed on. Between them they have 209 electoral votes, and depending on which (if any) states join next, it could take just six or seven more to go into effect. If it did, a majority of states would see their power in presidential elections diminished.
Nevada, for example, would lose more than twenty percent of its current influence in presidential elections. This loss will have real consequences for Nevadans, taking away the power the state has been able to use in recent elections to keep a nuclear waste dump from opening in the state over the objections of most of its residents. For Nevadans and all the other states losing out as a result of the compact, this isn’t such a “neat trick.”
But states wouldn’t have to take this lying down. In fact, Nevada and other states would have their own “one neat trick” to fight back – several, in fact. The easiest might be something that has gotten attention even without NPV: “Demeny Voting,” which gives parents the right to cast additional ballots on behalf of their minor children. If Nevada decided to adopt Demeny voting and parents wound up casting an additional 400,000 votes (representing about sixty percent of the state’s minor children), the state’s power and influence that NPV tries to take away would be restored.
This would no doubt kick off an ever-wilder race to the bottom. Mid-sized and small states would try to regain what NPV strips from them, while the most populous states would try to protect their additional influence, all stretching to add to their vote totals.
Yale Law Professor Akhil Amar, one of the three professors who thought up the concept of NPV (but did not write the compact), foresaw this. He described a scenario where California tries to grab a bigger share of the national vote by lowering its voting age to 17, prompting Texas to lower its voting age to 16, to which Arkansas responds by explaining: “Well, actually, we’re going to let dogs vote.”
The trouble is that the NPV compact requires states to accept whatever other states say about their election results, even if they are inflated or manipulated. States within the compact must build a national total without any power to verity results and with no limits on how other states run their elections. While canine enfranchisement may be a silly example, NPV would no doubt set off a race to the bottom as states seek to maximize their political power. It’s hard to see how democracy would benefit from the games this compact would inspire.
Sean Parnell is a Senior Fellow with Save Our States.
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