Politics

Is The Electoral College Really On Its Last Legs?

Screen Capture/PBS NewsHour

A blue state plot to move U.S. elections away from the Electoral College and push the U.S. toward a national popular vote election system continues to pick up steam.

The National Popular Vote Interstate Compact (NPVIC) is now law in 18 states and Washington D.C. — all of which voted for Vice President Kamala Harris in the 2024 presidential election. The compact offers a way of going around the Constitution to elect presidents through a national popular vote while still using technically keeping the Electoral College, which would require an amendment to actually abolish.

However, if activated, the compact would completely upend how the Framers of the Constitution intended the institution to work.

The jurisdictions which have enacted the NPVIC have a combined total of 222 electoral votes. Virginia became the latest state to join after Democratic Gov. Abigail Spanberger signed a bill cementing its membership in April. Once the compact has 270 electoral votes — the requisite amount to elect a president — it will go into effect.

Once the compact is enacted, each state signing on to it would pledge its electors to the winner of the national popular vote instead of the candidate who carried that state, effectively ensuring the national popular vote winner would win the election.

The compact’s supporters are pushing to win the support of just a few more states that contain at least the required 58 electoral votes to put it over the top. Seven additional states, which combined total 74 electoral votes, have passed legislation for the NPVIC in at least one legislative chamber.

“It isn’t fantasy that this could actually get done. There is a path of states that you look at and say, ‘Oh, maybe those states do turn to a blue trifecta, and then there may be a path for them to get to 270,'” Chad Ennis, Vice President of the Honest Elections Project (HEP) said.

The Electoral College voting system – as it currently is – creates an incentive against regionalism, which is its “greatest benefit,” Trent England, the founder and director of Save Our States, said in the Hillsdale College Imprimis.

The current system, established by the Framers in 1787, encourages presidential candidates to gain support from many states rather than just focus their campaign on a few specific states.

“Under the electoral college right now, if a candidate is up 10 points in a state, he’s going to be incentivized to seek out another state to win. Bank that 10, and go somewhere else,” Ennis said. “But under the compact, he may be just as encouraged to take to make his 10-point win, a 15-point win in a certain state, and never go to that other state to campaign to try to win it, because winning a state doesn’t matter.”

The Electoral College ensures that a candidate does not win the election just because he or she wins one region of the country.

In 1888, President Grover Cleveland was not reelected even though he won the popular vote. He won the popular vote because he won large margins in the South, Imprimis notes. In fact, he won Texas by 146,461 votes while his national popular vote margin was only 94,530 votes.

In 1892, by appealing to and getting votes from northern states, he won the election. Although he won a smaller percentage of the popular vote, he had more electoral votes this time around.

Supporters of the NPVIC argue that a national popular vote would give rural states more of a say in elections than under the Electoral College system because “political clout under the current system comes from being a closely divided state, and rural states are usually one-party states in presidential elections,” according to the compact’s website.

However, the 2o16 election serves as an example of how the NPVIC itself could hurt rural states’ impact in elections. Democratic Presidential Candidate Hillary Clinton won the national popular vote by nearly 2.9 million votes in 2016, but she beat President Donald Trump by 4.3 million votes in California alone.

In a national popular vote election, Clinton would be encouraged “to focus on LA, San Francisco, Chicago, and New York to keep running up those totals,” but under the Electoral College, she had to go to other states and appeal to them to try to win their electoral college votes, according to Ennis.

Republican Wyoming House candidate Steve Friess echoed concerns that the NPVIC, if implemented, would disenfranchise smaller states like his one, telling the Daily Caller News Foundation in a June interview, “This is another thing that jeopardizes our liberty and particularly for people in Wyoming.”

The popular vote system could also lead to more voting fraud and disputes over winners. Under the current system, each state has legislation for recounting votes, but under a popular vote, close elections would require nationwide recounts, Ennis warned.

“What happens with a close election? Do we recount the entire country? What is a close election? That isn’t even laid out. Most states have recount laws on the books if their elections are close, but if it’s a national election, they don’t have statutes to deal with instigating a recount at all, and there’s simply just no rules laid out in the national popular vote context,” he said.

Because the system does not actually remove the Electoral College, but rather uses it to carry out the popular vote, elections would still be run individually in each state. This creates issues because vote eligibility differs by state, and states would be more encouraged to increase their number of voters, Ennis cautioned further. They would sign new people up to vote, even if that means making eligibility more lax.

“Some states allow felons to vote, for example. Other states do not. Some states allow non-citizens to vote in certain elections. Some don’t. Some vote entirely by mail, which puts a ballot in more hands. Some do not require voter ID. Disuniformity is something that will be a very big problem, as far as when you’re trying to actually implement this thing,” he said.

In Federalist Paper 68, James Maddison asserted that if the Electoral College system “be not perfect, it is at least excellent.” The framers of the Constitution greatly opposed the idea of a popular vote election.

The NPVIC leans on Article 2 of the U.S. Constitution – which states that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” – as a legal way of enacting the national vote. The NPVIC supporters believe this section  of the Constitution “gives the states exclusive control over the choice of method of awarding their electoral votes,” according to the compact’s website.

The power of the state to control the method of awarding Electoral College votes does not go as far as NPVIC supporters often suggest it does, “because manner doesn’t mean whatever you might choose, and in whatever way one might imagine, it certainly doesn’t involve dispensing with the process of appointment entirely,” Michael Williams, the West Virginia Solicitor General said.

The Chief Justice in a 1892 lawsuit, McPherson v. Blacker, “talked about how the power of appointing electors belongs exclusively to the states and emphasizes that from the very beginning that the legislative power was viewed as almost plenary in this context,” Williams noted.

Supporters of the NPVIC point to this case as evidence for the legality of the compact, but the powers explained in this case are still bound to other constitutional provisions.

“Maybe more fundamentally, it’s still bounded by the concept of appointment. It still contemplates that the individual state itself is going to appoint electors,” Williams added.

Interestingly, if all states that have signed on to the NPVIC gave their votes to the winner of national popular vote, Donald Trump, in 2024, Democratic nominee Kamala Harris would have only won five electoral votes – coming from New Hampshire and Nebraska’s Second Congressional District – compared to Trump’s 533.