Connecticut, where I live, is the most recent state to join the National Popular Vote Interstate Compact. The Nutmeg State was wrong to join this Compact, designed to ensure that the presidential candidate who wins the national popular vote also wins in the Electoral College.
Supporters of the Compact argue that the popular vote for President can in practice be implemented without amending the Constitution: If states casting a majority of the votes in the Electoral College agree to pledge their respective electors to support the presidential candidate winning the nationwide popular vote, the President will effectively be chosen by popular vote – even though the constitutional formality of the Electoral College will be technically observed.
With Connecticut adopting the Compact, the Compact has now been joined by states casting 172 of the 270 electoral votes constituting a majority of the Electoral College.
I oppose the Compact for a number of reasons: The arguments against the Electoral College and for today instituting popular election of the President are weak. I am particularly skeptical of a so-called national popular vote conducted, not using uniform national voting rules, but instead conducted under each state’s own electoral statutes.
Moreover, structural changes of the type embodied in the Compact often cause unintended and undesirable consequences. Consider, for example, the fact that the Compact would not require the states to adopt uniform rules for voting eligibility. Thus, the popular vote under the Compact would continue to depend upon the vagaries of different states’ various voting laws. Suppose, for example, that one state allows sixteen and seventeen year olds to vote to maximize its impact on the nationwide popular vote.
I am consequentially skeptical of the type of radical change embodied in the Compact. I would instead encourage state-by-state experimentation with the methods of selecting Electoral College electors.
We would not adopt the Electoral College today if we were starting from scratch. But we are not starting from scratch. The Electoral College has been built into our political system. Structural changes of the sort to be implemented by the Compact often surprise and disappoint their proponents with unintended consequences.
I instead favor state-by-state experimentation with the method of selecting each state’s Electoral College delegation. Today, forty-eight states (every state but Maine and Nebraska) allocate all of their electoral votes on a winner-take-all basis to the candidate who wins the statewide vote. Maine and Nebraska, allocate one of their electoral votes to the winner of each congressional district. Such district-by-district allocation of electoral votes was common during the early years of the Republic. It would be productive to see what would happen if a larger state returned to this system in 2020.
In 2004, Colorado’s voters rejected a state constitutional amendment which would have allocated that state’s electors on a proportional basis. Proportional representation would also be a worthwhile experiment for one or more states to undertake in 2020.
The Electoral College has evolved over two centuries. Further evolution and experimentation should proceed. But proponents of the National Popular Vote Interstate Compact should remember the old adage: Be careful what you wish for. You may get it.
Featured Image Credit: “Choice Select Decide Decision Vote Policy Board” by geralt. CC0 via Pixabay.
Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the 
Winner-take-all may be fine in sports but is stupid way to run a government.
Let me give the worst example…….the one that contributes heavily to our non functioning Congress.
In both Houses of Congress the political party with a one seat majority gets ALL of the Committee chairmanships and the consequential power to control ALL bills that come to a vote (and,thus kill any bill that it wants to), ALL decisions as to when to meet and when to adjourn and ALL agendas. No wonder there is retribution when there is a change from one party to the other.
I generally agree with your reasoning. I have been testifying against the Compact in CT since 2007 when it was first introduced. Proportional would be OK if every state did that, yet otherwise it favors the party that would not win the popular vote in the state. That is why Republicans have favored it for California. Here is my latest testimony:
https://tinyurl.com/NPVC2018
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National Popular Vote would also be a nightmare if there’s a recount or contested election. The problem with proportional elector allocation though is that any state adopting it dilutes their own influence. That could potentially be solved by a Proportional Allocation Compact, i.e., an agreement by multiple states that as soon as a certain threshold agree, then all of the agreeing states will move to a proportional allocation.