Want to reform the Electoral College? First consider this scenario.

Calls to reform or replace the Electoral College are many and seem to grow louder every election cycle.  Americans have never truly embraced the Electoral College.  The system generates significant inequalities and the prospect of the popular vote winner losing the election strikes many as undemocratic.

A remedy advanced by reformers after the 2000 election called the National Popular Vote Interstate Compact (NPVIC) guarantees the candidate receiving the most popular votes nationwide will be elected president.  States in the compact agree to award their electoral college votes to whichever candidate wins the overall popular vote.    

At present, 15 states and the District of Columbia have signed the pact.  That represents 196 electoral college votes, 74 shy of the 270 needed.  Legislation is pending in 5 states and enactment of the compact passed in at least one chamber in 7 more.  Reformers are very close to making this work.  

An Electoral College Expert

To tell us more about the NPVIC, I turned to a good friend and noted authority on the Electoral College professor emeritus Paul Schumaker at University of Kansas.    

After the 2000 election, Paul led a team of 37 political scientists in evaluating the Electoral College and several reform proposals.  The efforts produced a book Choosing a President:  The Electoral College and Beyond and for Paul sparked an enduring interest in how we select presidents. 

This year, Paul published another book on the Electoral College, The Twenty-Eighth Amendment?  Beyond Abolishing the Electoral College.  He characterizes the book as a memoir on the evolution of his own thinking about presidential selection.  It is a lively book, entertaining, and Paul’s writing reflects a deep understanding of American politics. 

Paul is sympathetic to reformers but foresees significant drawbacks to NPVIC.        

Below is a scenario Paul developed to challenge reformers to consider what may in fact happen if the NPVIC takes effect.  Read the political situation outlined below – It made me reconsider my own preferences for presidential selection.      

After some post-election intrigue and ballot recounts, Paul begins the scenario with a Biden victory.

On Tuesday, November 10, Arizona declared Biden had prevailed there. That gave Biden a narrow 274-264 victory in the College and made him the president-elect.

But the Democrats were only moderately happy with this result. While relieved that the Trump presidency would end when Biden was sworn in on January 20, 2021, Democrats were chagrined that the result was so close. They were terrified by the prospect that the Electoral College could enable future Republican domination of the presidency. Democrats feared that in future elections, Republicans would have little trouble nominating a Trumpian without Trump’s character flaws. They worried that Republicans could soon recapture the presidency and return the country to the anti-environmental, anti-minority, and pro-capitalist agenda that Trump had championed. They were apprehensive that the Electoral College could soon return to the presidency a Republican who had fewer popular votes than the Democratic candidate.

Democrats understood that the 117th Congress to be convened in January 2021 would be unable to abolish the Electoral College. The Democrats picked up only five seats in the House and only two seats in the Senate; they were far away from the two-thirds supermajorities needed in both the House and the Senate to pass a constitutional amendment. The 2020 outcomes made clear to most Democrats that the time had come for more states to sign on to the National Popular Vote Interstate Compact. During 2021, six states—Virginia, Michigan, Minnesota, Pennsylvania, Arizona, and Maine—joined the 15 states who previously had signed on to the NPVIC. The 21 signatory states now controlled exactly 270 electoral votes; the minimum needed to implement the NPVIC.

Two factors were primarily responsible for implementing the NPVIP. First, there was sufficient national outrage that the College almost overturned the national popular vote again that citizen understanding of and support for the NPVIC increased significantly; commentators pronounced that the national mood demanded its adoption. Second, Virginia, Michigan, Minnesota, Pennsylvania, Arizona, and Maine all elected sufficient Democratic state legislators and governors to pass legislation to join the compact. But narrow victory for the NPVIC in some states and in the narrowness of signatory states in overall control of electoral votes made the whole arrangement unstable.

Several matters led to concerns that NPVIC would not be operational in 2024 and thus the election that year would not be determined by which candidate received the most national popular votes. First, the U.S. Census of the Population was due by December 31, 2020, and if it resulted in any loss of electors for the states who had signed onto the compact or appeared likely to join the compact in 2021, they might not command the necessary 270 electoral votes. Since the pandemic and political maneuverings by Trump administrators had curtailed the ability of the Census Bureau to hunt down and include some residents, the numbers reported at year’s end required some mathematical projections of population counts in the states. While these estimates showed that signers of NPVIC still controlled 270 electoral votes, Republicans and the states that had not signed the compact filed lawsuits challenging the census results. The media became obsessed with the question of whether a more accurate census would require a redistribution of representation in Congress and thus among the states in their allocation of electoral votes. If the courts demanded further counting of the population and such recounts reduced the number of electoral votes controlled by NPVIC states, the compact would become inoperable.

Second was the question of whether prior signatory states would vote to withdraw from the compact, nullifying its implementation. Colorado was the most likely candidate to do so, because it had barely supported the NPVIC in 2019 and had unexpectedly gone Republican in 2020.

Third, SCOTUS had yet to rule on the constitutionality of NPVIC. On July 6, 2020, the court ruled that electors were bound by state laws requiring them to vote as pledged according to popular voting outcomes in the states. However, whether the states could compel electors to be bound by the outcome of the national popular vote, as required by NPVIC, remained unresolved. Perhaps a case like those prompting the July 6 ruling would be brought to the Supreme Court in time for it to declare unconstitutional the NPVIC arrangement prior to the 2024 election.

But in this scenario, the NPVIC went into effect, and the 2024 election was conducted under its provisions. The results were far from inspiring. Under the NPVIC, a candidate needed only a slim plurality of votes to win the presidency and that encouraged a gaggle of third party, insurgent, and independent candidates to throw their hats into the ring. Biden, realizing he was getting old and was a mere transitional president, supported his VP, but Harris was regarded as too Black, too female, or too moderate for many voters who had supported the Democrats in 2020 only to ensure the removal of Trump. Now those supporting a Green New Deal rallied behind their own Green candidate. Now those who had supported the more socialist policies of Sanders supported an SDP candidate. Latinos believed that it was time for them to rally around their own candidate. Republicans also became divided into different factions that emphasized regaining American national greatness, pursuing evangelical concerns, and having a minimal (libertarian) state. Each of these factions ran independent campaigns. In the end, Justin Amash, the candidate of the Libertarian Party, received the most popular votes in a highly fragmented national election. His 28 percent edged Harris, and he thus gained all 270 votes from the electors from the states that had signed the compact.

Chaos ensued both in terms of electoral politics and governing the nation. Electors from states that had joined the NPVIC sued, claiming they could not be bound by the compact, and SCOTUS signaled it was receptive to their cases. But several states that had signed the compact withdrew, making it no longer applicable to future elections and making moot the cases before SCOTUS.

But worse, the country became less governable than it had been. As a libertarian, Amash was little inclined to support or sign federal legislation that would enable “big government” to address the many lingering issues stemming from the health, economic, and racial crises that erupted in 2020. Nor was Amash prepared to support green legislation that could curtail the effects of global warming. And even when Amash proposed innovative solutions to these problems, he lacked allies in Congress to pass them. By the end of Amash’s term, the country was further in ruins, and the 2028 election was again contested under Electoral College rules. Because the Democrats and Republicans no longer constituted a two-party duopoly, the College failed to produce a winner, and a House contingency election had to be held. Whoever prevailed in that process had so little legitimacy that the country lacked the leadership needed to stop our political hemorrhaging and national decline. Watching this scenario play out made me deeply depressed, and my family and friends increasingly saw me as a crotchety old geezer.

Many thanks to the “crotchety old geezer” for this informative portrait of what could happen under the popular reform NPVIC.  Paul does offer a fascinating and compelling solution – the 28^th Amendment.  Check out his book!