The National Popular Vote Bill Proposal in California, and Ultimately (Perhaps) in Washington D.C.

Posted in: Election Law

Last week, the California legislature sent to Governor Jerry Brown a measure that would, if Brown signs it or otherwise lets it become law in the next few days, have California join the growing number of states that have signed onto the so-called “National Popular Vote bill” (“NPV bill”) for presidential elections.

Twice before, the California legislature has approved such legislation, but former Governor Arnold Schwarzenegger vetoed it.  This time, backers of the bill are hoping that Governor Brown will agree with them that, on balance, the idea is worth supporting.  If he does, it will be a major development in the movement towards a direct national popular election for the Presidency.

As some readers may know, I have written often about the National Popular Vote plan idea (including in this 2008 posting which, in turn, links to much other useful background.). Indeed, ten years ago, in a series of online columns, my brother Akhil Amar (a Professor at Yale Law School) and I floated the idea of a national popular vote plan that could be put into effect without the need for a constitutional amendment.  (Around the same time, another law professor, Robert Bennett of Northwestern, suggested a similar approach.)  Perhaps more importantly, Akhil and I discussed details of how such a plan might work, and how it might address some potential criticisms.  Those details and criticisms now loom large, and are becoming ever more important as the NPV bill gains momentum.

But before we get into the fine points, let’s cover some basics.  The essential idea is to get various states to sign onto an agreement that would require each signatory state to cast its electoral college votes not for the candidate who garnered a plurality of popular votes in that state, but rather for the candidate who won the most popular votes nationally.  This system, with enough signatories, would ensure that the winner of the Presidential contest would always be the person who had won the largest number of votes from individual voters nationwide.

In that way, the plan would ensure that every voter—regardless of the state in which she lives—would have her vote count equally to that of every other voter in the country.  Importantly, the agreement, by its own terms, would not go into effect until enough states to comprise a majority of the electoral college—that is, states whose electoral college allotments collectively total 270 or more—ratify it.

To date, seven states (Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington and Vermont) and the District of Columbia—comprising 77 electoral college votes altogether—have adopted the plan.  If California’s 55 electoral college votes were added to that tally, the resulting 132 votes would almost half of the 270 needed for the NPV bill to become effective.  And the bill is currently being considered in virtually if not actually every other state, either in its legislature or by the Governor.  So getting California—the country’s most populous state and often a national trendsetter (in good ways and bad)—would have tremendous practical and symbolic importance to the NPV movement.

The Most Common Criticisms of a National Popular Vote Plan Lack Merit

As I have explained many times before, I find the most frequent arguments against the National Popular Vote proposal — and the corresponding defenses of the current mode of electing Presidents in a way that fails to count every voter nationwide equally — unconvincing.   One defense of the status quo is that it reduces the incidence of Presidents who have only regional support, and promotes federalism better than would a national popular vote.  I am unmoved by this argument because even under the National Popular Vote bill, Presidents would have to win large numbers of votes, and be somewhat popular, in most parts of the country (which is all the current system guarantees, as any map displaying big blocks of Red and Blue states in recent Presidential elections will show.)

Another common defense of the current system is that movement towards direct national election would generate more plurality-winner Presidents and also more third-party activity.  Yet if this were so, we would see more third parties and plurality winners in gubernatorial races in places like California, Texas and New York, and we don’t.

One Underappreciated Problem with the Current National Popular Vote Bill — Partisan Perception

I do see two other problems with the current National Popular Vote bill as it is being considered throughout the country.  First, I find troubling the fact that the states that have adopted the NPV bill so far have all been Blue states—states that are generally assumed to lean towards the Democratic rather than the Republican candidate for President.

As I’ve spelled out in the past, there is nothing inherently partisan about the national popular vote movement—at least not at this point in U.S history.  It is true that in 2000 George Bush (R) became President even though Al Gore (D) won more votes nationwide, but things could just as easily have been the other way around (and indeed many analysts predicted before that election that they would be the other way around.)

In 2004, President Bush won reelection by beating Democrat John Kerry by about 3 million votes nationwide, and yet if Kerry had won 60,000 more votes in Ohio away from Bush, Kerry would have prevailed under the current electoral college system.

Given the competitiveness of the two parties nationwide, and given that if a national popular vote system were in place, both campaigns would build their strategies around it, there is no reason to expect that adoption of the NPV bill would benefit one party over the other.

Some Republicans seem to understand that.  Fred Thompson, a 2008 Republican Presidential candidate and former U.S. Senator, has endorsed the NPV bill and taken a lead role in the organization backing it.  Endorsement has also recently been provided by former Republican Governor Jim Edgar of Illinois.  And the Republican-controlled state Senate in New York recently adopted the bill by a 47-13 vote.  The New York Senate’s action reflects the fact that all states that are not swing states—that is, all states that tend to be solidly Blue or Red rather than more evenly balanced between Democrats and Republicans—are at present largely ignored by the candidates during the summer Presidential campaign, and that counting all votes nationwide equally would create more incentives for the two candidates to try to win over all voters in those non-swing states.  So Red states like Texas would seem to benefit from the bill too.

Notwithstanding that neither political party has a clear reason to fear national popular vote, it seems to me important that the National Popular Vote bill not be seen as one that only Blue states are inclined to join.  Unless a Red state joins soon, it will become increasingly hard to debunk the fear that Red state folks have that the National Popular Vote bill is a Democratic scheme rather than a democratic idea.  (I should add that even if there were reason to believe that a move towards a national popular vote would aid one political party right now, that still would allow for adoption of the plan with an effective date set far in the future—when demographics cannot easily be predicted—if national voter equality is, as I think it is, a compelling idea.)

A Second Problem with the Current Bill—A Lack of Uniformity in the Election

The other problem I see in the current National Popular Vote bill is that it does not guarantee a true national election with uniform voter qualification, voter mechanics, and vote-counting standards.  Absent such uniformity, some states might have incentives to obstruct or manipulate vote counts.  This is especially true because those states that have not adopted the National Popular Vote bill might, after the plan took effect, be disinclined to assist in a true, uniform national vote count or recount.  Imagine, for example, a national election that were close, and the specter of a partial national recount – conducted in some but not all the states.  This could generate a true democratic crisis, perhaps even bigger than the one that occurred in 2000.

This is a substantial problem.  In our detailed proposal put forth a decade ago, my brother and I argued that any NPV plan should include a mechanism by which all voters throughout the United States, regardless of the state in which they live, could register and participate in a uniformly administered nationwide vote for President, whose tally would be used by the plan.  The backers of the current NPV bill did not follow our advice here, and they instead are proposing a plan that guarantees no national uniformity in voter eligibility, voting procedures or vote-counting methods.

Happily, I think there is a solution to this problem—Congressional action.  As currently crafted, the National Popular Vote bill seems to invite, and might by its terms require, Congressional approval.  Whether or not approval would be necessary for all national popular vote plans, I think such approval would be essential to have for the current proposal, in order to provide the kind of nationally uniform voting and vote-counting standards necessary to make the plan workable and sellable.  In a forthcoming article in the Georgetown Law Journal, I discuss where and how Congress might derive the power to require such uniformity, and to task the states with implementing it.  In a later column, depending on what happens in California and other states concerning the National Popular Vote proposal, I will offer more details.

Posted in: Election Law