9.24 Myth That One State Could Derail the National Popular Vote Compact

All 50 states and the District of Columbia currently permit the people to vote for President.

Professor Norman R. Williams of Willamette University has suggested that a single state could obstruct the operation of the National Popular Vote compact by abolishing popular voting for President.

“The most dramatic way in which a non-signatory state could obstruct the determination of which candidate was the most popular across the nation is for the state to eliminate its statewide popular elections for President and have its legislature (or somebody other than the state’s voters) appoint its Presidential electors.”[528]

We certainly acknowledge that Williams’ proposal is “dramatic.”

We also acknowledge that his proposal would be constitutional. Indeed, in the nation’s first presidential election in 1789, presidential electors were chosen by the state legislature in many states. In New Jersey, presidential electors were chosen by the Governor and his Council.

A similarly “dramatic” proposal has been advanced by Professor Alexander S. Belenky, who has suggested that a single state could obstruct the operation of the National Popular Vote compact by abolishing the “short presidential ballot.”

All 50 states and the District of Columbia currently use the so-called “short presidential ballot”—that is, they permit their voters to vote for President with a convenient single vote. For example, the “short presidential ballot” permitted a California voter in 2008 to cast a convenient single vote for “McCain” and to have that single vote be deemed to be a vote for each of the 55 Republican candidates for the position of presidential elector in California. The short presidential ballot eliminates the burden of locating the 55 Republican candidates for presidential elector on the ballot (out of a total of 330 candidates for presidential elector in California in 2008) and then casting 55 separate votes for the Republican candidates.

In the absence of the short presidential ballot, a certain number of voters in California, would inevitably get tired or confused by the process of voting separately for 55 candidates from among 330 candidates for the position of presidential elector. Each of the 55 winning elector candidates would thus inevitably receive slightly different numbers of votes. Consequently, there would be no single number of popular votes associated with the candidacy of John McCain or Barack Obama in California.

Professor Belenky claimed in an op-ed:

“Opposing states can turn the plenary right of every state to choose a manner of appointing its electors … into the NPV’s Achilles’ heel.

“By allowing voters to favor individual electors of their choice from any slate of state electors…, the legislature of each opposing state can make it impossible to tally votes cast there as part of the national popular vote for president.”[529] [Emphasis added]

Belenky’s proposed ballot is, of course, constitutional. The short presidential ballot did not come into widespread use until the middle of the 20^th century.[530]

Ballots requiring that the voter cast a separate vote for each presidential elector were abolished for the obvious reason that they were inconvenient and confusing and, in a close election in a particular state, frequently resulted in a haphazard division of a state’s electoral vote among the political parties.

Figure 2.13 shows the presidential ballot in Alabama in 1960. It illustrates how the presidential ballot would look under Belenky’s proposal. In Alabama in 1960, voters cast 11 separate votes for presidential electors (out of a total of 50 candidates on the ballot). Note that the names of the actual candidates (John F. Kennedy and Richard Nixon) did not appear on the ballot when voters voted for individual presidential electors.

Neither Williams’ nor Belenky’s proposals represent an “Achilles’ heel” that would permit a single state to paralyze the operation of the National Popular Vote compact. In fact, the National Popular Vote compact was specifically drafted to prevent a discordant state from derailing the operation of the compact along the lines of Williams’ and Belenky’s proposals.

Article II of the National Popular Vote compact creates a legally binding obligation to conduct a popular election for President and Vice President in each member state.

“Each member state shall conduct a statewide popular election for President and Vice President of the United States.” [Emphasis added]

The term “statewide popular election” is specifically defined in Article V of the compact as:

“a general election at which votes are cast for presidential slates by individual voters and counted on a statewide basis.” [Emphasis added]

The term “presidential slate” is defined in Article V of the compact in the following way:

“‘Presidential slate’ shall mean a slate of two persons, the first of whom has been nominated as a candidate for President of the United States and the second of whom has been nominated as a candidate for Vice President of the United States, or any legal successors to such persons, regardless of whether both names appear on the ballot presented to the voter in a particular state.”

That is, the National Popular Vote compact commits each member state to continue to allow its people to vote for President (something the state is not required to do by the U.S. Constitution) and also to vote for “presidential slates” rather than individual candidates for presidential elector (something else that the state is not required to do). These two requirements guarantee that each member state will generate a single number representing the popular vote for each presidential-vice-presidential slate as part of a “statewide popular election.”

Of course, non-member states are not bound by the National Popular Vote compact. Although all 50 states and the District of Columbia currently (and wisely) permit their voters to vote for President and (wisely) give their voters the convenience of using the “short presidential ballot,” a non-member state would not be obligated to continue these policies.

Thus, a non-member state may effectively opt out of participation in the national popular vote either by repealing its current law establishing the “short presidential ballot” or by repealing its current law of permitting its own voters to vote for President.[531]

The National Popular Vote compact addresses both of these unlikely possibilities by specifying that the popular votes that are to be included in the “national popular vote total” are those that are

“… cast for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election.” [Emphasis added]

If a state continues to let its people vote for President and continues to employ the convenient “short presidential ballot,” it would be conducting a “statewide popular election” (as that term is specifically defined in the compact). That state would, therefore, be automatically included in the “national popular vote total” computed under the National Popular Vote compact.

In the unlikely event that a non-member state were to pass a law abolishing the “short presidential ballot” or abolishing popular voting for President, that state would be effectively choosing to opt out of the national popular vote count. If a state were to opt out of the national popular vote count in either of these two ways, it would, of course, be entitled to appoint its presidential electors in its chosen manner. Its presidential electors would cast their votes for President in the Electoral College, and those electoral votes would be counted. Meanwhile the National Popular Vote compact would operate as intended for the remaining 49 states and the District of Columbia.

In short, the National Popular Vote compact automatically includes all 50 states and the District of Columbia for the purpose of determining the national popular vote winner.

Of course, there is no legitimate public policy reason to adopt either Williams’ proposal for abolishing popular voting for President or Belenky’s proposal to deliberately inconvenience, confuse, and disenfranchise voters other than to attempt to obstruct the operation of the National Popular Vote compact.

Both Williams’ and Belenky’s proposals assume that there would be a Governor and state legislature that is fanatically opposed to a nationwide vote for President and that public opinion in their state would permit them to disenfranchise their own state’s voters in order to protest a national popular vote. However, the political reality is that public opinion surveys show high levels of public support for a national popular vote for President in every state for which state-level polls are available, including battleground states, small states, Southern states, border states, and other states:

• Alaska–70%,
• Arizona–67%,
• Arkansas–80%,
• California–70%,
• Colorado–68%,
• Connecticut–74%,
• Delaware–75%,
• District of Columbia–76%,
• Florida–78%,
• Kentucky–80%,
• Idaho–77%,
• Iowa–75%,
• Maine–77%,
• Massachusetts–73%,
• Michigan–73%,
• Minnesota 75%,
• Mississippi–77%,
• Missouri–70%,
• Montana–72%,
• Nebraska–67%,
• Nevada–72%,
• New Hampshire–69%,
• New Mexico–76%,
• New York–79%,
• North Carolina–74%,
• Ohio–70%,
• Oklahoma–81%,
• Oregon–76%,
• Pennsylvania–78%,
• Rhode Island–74%,
• South Carolina–71%,
• South Dakota–75%,
• Utah–70%,
• Vermont–75%,
• Virginia–74%,
• Washington–77%,
• West Virginia–81%,
• Wisconsin–71%, and
• Wyoming–69%.

In addition, more than 70% of the American people have favored a nationwide election for President since the Gallup poll started asking this question in 1944. The 2007 Washington Post, Kaiser Family Foundation, and Harvard University poll showed 72% support for direct nationwide election of the President. Numerous state-level polls confirm this high level of support.[532] Additional polling data are found in section 7.1.

In support of his proposal to abolish popular voting for President, Professor Williams says:

“Nonsignatory states that traditionally favor one party in the presidential election could eliminate their popular vote without much outcry. For example, if Utah’s Republican-dominated legislature were to return to legislative appointment of its electors in order to undermine the NPVC, the state’s large majority of Republicans would not likely complain. The end result—the award of the state’s electors to the Republican candidate—would be the same. Ditto for traditionally Democratic states, such as Vermont.[533] [Emphasis added]

Professor Williams is apparently unaware that 70% of Utah voters favor a national popular vote for President, including 66% of Utah Republicans. He also is apparently unaware that 75% of Vermont voters favor a national popular vote for President and that Vermont has already enacted the National Popular Vote compact.

Moreover, states such as Utah and Vermont “that traditionally favor one party in the presidential election” are the most disadvantaged under the current state-by-state winner-take-all rule. It has been decades since Utah or Vermont has received any attention from a presidential candidate in the general-election campaign. In fact, the year 2012 is the 100^th anniversary of the last time the popular-vote difference in Utah was less than 6% and the last time that Utah voters were even slightly relevant to the general-election campaign for President.

Before the results of the 2012 presidential election were known, it was generally recognized that Mitt Romney could not be elected President in November 2012 without winning the bulk of the closely divided battleground states that Barack Obama won in 2008. Six of these battleground states (Ohio, Pennsylvania, Virginia, Florida, Michigan, and Wisconsin) had Republican Governors and Republican legislatures in 2012. These six states possessed 95 electoral votes—the exact margin by which Obama won the Electoral College in 2008. State legislatures indisputably have the legal power, under the current system, of abolishing popular voting for President in their states and choosing all 95 of these presidential electors themselves. If abolishing the people’s vote for President were politically plausible in the 21^st century, as Professor Williams claims, the Republican Party could have saved itself the expense, effort, and risk of campaigning for President in these six states and simply appointed 95 Republican presidential electors to represent these states. Those 95 electoral votes would have effectively guaranteed the Presidency to Mitt Romney.

Professor Vikram David Amar commented on Professor Williams’ suggestion that popular voting for President could be abolished:

“Is it really politically plausible to think a state legislature could try, in the twenty-first century, to eliminate the statewide vote for presidential electors? And if it is, why are we not worried about the equally troubling possibilities for similar subversion under the current regime? …

“[is it really politically plausible to think] a state legislature could claim the ‘plenary’ power that Professor Williams discusses to override a state popular vote?

“The reason these things do not happen is not that the current system lacks loopholes, but rather that the legitimacy of majority rule is so entrenched that any politician who blatantly tried to subvert the vote would be pilloried. And given the national polling data in support of a move towards direct national election, it is almost certain that the nonlegal ‘democracy norm’ would prevent the most blatant of the shenanigans that Professor Williams fears.”[534] [Emphasis added]

Professor Williams is probably correct in assuming that only a one-party state (e.g., Utah or Vermont) might consider a proposal as extreme as abolishing popular voting for President.

Utah (one of the states suggested by Professor Williams) generated a margin in 2012 in favor of Governor Romney of 488,787 votes. If Utah were to opt out of the National Popular Vote compact by abolishing popular voting for President, it would cost the Republican nominee for President almost a half million votes—a number approximately equal to Nixon’s nationwide popular-vote margin in 1968.

Thus, if the Governor and legislature of a one-party state were to contemplate opting out of the National Popular Vote compact as proposed by Professors Williams, the national committee and prospective presidential candidates of the party that would ordinarily win that state’s popular vote would pressure the Governor and legislature not to opt out.

In short, Williams’ proposal for abolishing popular voting for President and Belenky’s proposal to deliberately inconvenience and confuse voters by abandoning the short presidential ballot are parlor games devoid of any connection to real-world politics.

Far from spotting the “Achilles’ heel” of the National Popular Vote compact; Professors Williams and Belenky have actually identified an “Achilles’ boot” that would kick out of office any Governor and legislature that attempted to disenfranchise their own voters in the manner proposed by these two opponents of the National Popular Vote plan.

Footnotes