Op-Ed: Campaign to nullify Electoral College staggers ahead, despite problems
For more than 230 years the American president has been elected by the states, and 2024 will be no different. In mid-December, 538 presidential electors will gather in their respective state capitols and vote according to the will of their state’s voters. But if something known as the National Popular Vote interstate compact (NPV) continues to advance in state legislatures, 2024 may be the last time presidential electors represent the people of their state.
Conceived shortly after the 2000 presidential election by three law professors, NPV is an attempt to circumvent the Constitution and nullify the Electoral College. States that join the compact pledge to ignore their own state’s voters and instead award presidential electors to the candidate deemed to have received the most votes nationwide. NPV would go into effect if states with 270 or more electoral votes between them join the compact. It passed its first state in 2007 and currently has 209 electoral votes.
Lobbyists for the compact say it could be in place by the 2028 election – but in reality, the compact effort faces serious headwinds. NPV only recently made it through the Maine House of Representatives because the chamber’s leadership called the vote when five compact opponents were absent, allowing it to eke out a one-vote win. In Minnesota, it had to be jammed into an omnibus bill because it couldn’t pass on its own. And in Nevada, it can’t make it through the regular legislative process, so lobbyists are instead trying to get a referendum on the 2026 ballot. And things get even harder in Michigan, where it looks like a strong bipartisan majority opposes the compact.
NPV is struggling for multiple reasons. It has almost no support among Republican state legislators, who instinctively understand the Electoral College as a check on raw majoritarian power. So do many Democrats, who also value how the Electoral College ensures the voices of smaller groups are heard alongside those of the biggest voting blocs. And legislators of both parties understand that an interstate compact of dubious constitutionality is not an appropriate way to change how the nation elects the president.
The compact’s many defects are also becoming more apparent. It is incompatible with ranked-choice voting, which two states will use in 2024 and more states may in the future. A national recount is impossible if the election is close, as four of the last 16 have been. And it can be easily confounded or manipulated because NPV requires member states to accept vote totals from other states even if they are inaccurate, incomplete, or inflated. For example, California had an unusual situation in 2016 that caused it to report every Trump voter as having cast two votes for him, which would have added an extra four and a half million votes to his national total and made him president if NPV had been in effect in that election.
State legislators also may be catching on to NPV’s lobbyists’ habit of deception and evasion. For example, in 2021 two of its lobbyists testified in North Dakota that estimated vote totals could be “assigned” for states that didn’t provide election results by the compact’s deadline. More recently though, when the issue is raised they simply pretend that testimony never happened and insist that estimated vote totals cannot be used.
In the words of Professor Vikram Amar of the UC-Davis School of Law, NPV’s defects could lead to “electoral crises” and a “historic debacle.” His brother, Professor Akhil Amar of Yale Law School, describes NPV as “a bit of a harebrained scheme” that has “some problems.” And professor Robert Bennet of the Northwestern University School of Law criticized the group that wrote and is pushing NPV for its “failure to take seriously” the compact’s “most glaring defect,” the inability to conduct a nationwide recount.
These are not three random law professors, or even opponents of NPV. These are the three law professors who initially developed the concept of using an interstate compact to nullify the Electoral College. They now describe NPV as having “dangerous gaps” and warn that its advocates “blithely” dismiss criticism and offer “bravado” rather than a “real solution” when the compact’s defects are brought up.
No wonder NPV is having to rely on hardball politics and deception for passage. Growing bipartisan opposition on top of increased scrutiny of the compact’s numerous defects make the road ahead a tough one for the campaign to nullify the Electoral College. Hopefully, that will be enough to keep it from getting any more states before 2028 or any time after.
