OP-ED | Procedural Problems Plague National Popular Vote Compact Bill
Last week, former Massachusetts Governor and 1988 Presidential nominee Michael Dukakis visited our Capitol. He was here primarily to promote the National Popular Vote Compact.
The compact is an interesting idea. The basic premise is that each state has an option of joining and when states equaling a majority of the electoral college vote join, those states will all cast their electoral vote for the winner of the National Popular Vote, regardless of the winner in their state.
Unfortunately, too much of the discussion and debate has revolved around the normative question: Would it be better to have a national popular vote or an Electoral College process? This is an interesting discussion and I am honestly quite torn on the question. From a normative perspective, I would probably pick the National Popular Vote.
Too many people are answering the normative question, however, and then ending the inquiry. When it comes to this bill that simply cannot be where the discussion stops. The practicalities and the details of running elections matter immensely. Shortcuts are problematic.
Under the current system, the Presidential election is decided based on the outcomes in 56 districts (50 states, plus D.C. and five congressional districts in two states that give a vote to the winner of their Congressional districts). These are all separate election contests, administered by 51 different state bodies (the 50 states, plus D.C.] Each of these 51 bodies has different rules, different guidelines, and different standards. This is fine because each body’s rules only affect the result in its own state or district. Federal laws cover the most egregious potential voting abuses; beyond that, states administer their own elections. That would change if we adopted a National Popular Vote Compact. Instead of giving them control of their own territory, these 51 different bodies would have a degree of control over the entire election system. This poses serious problems.
Here’s one example. A national recount could be a nightmare under any system. Consider that for the 2012 election, revised vote totals were still coming in all the way into February 2013, with new votes in the tens of thousands and the margin of victory changing by the thousands. The margins were large enough that each state was able to declare a winner in time for the electoral college. The late tallies didn’t matter to the outcome — this time. Under the National Popular Vote Compact, the problems would be even worse, and potentially unresolvable.
Currently, in case of a very close election in a state, there is a well-established procedure for conducting a recount according to that state’s rules. Under the compact, because there is no national system, there is no mechanism for conducting a nationwide recount. What is worse, there is no way to force states to participate in a national recount. Because the compact need only be among states with a total of more than 270 electoral votes and not all states, there will be some states that will quite rightfully take the position that they are still in the old system of 51 differing bodies. They will feel no obligation to even consider the impact of the new system. The compact-participating states won’t be able to do anything about it. States can’t force each other to do things. This would make it incredibly difficult to even have a nationwide recount.
If we are going to go from one system (sum of state outcomes) to another, (national popular vote), we need to have an understanding of how the procedural problems will be worked out. Otherwise, it is easy to conceive of a nearly endless number of problems, which would mean lots of trips to court. I would contend it is bad for elections to be decided in court. It might be possible to work out these problems under a compact system, but right now, I do not think they are even reasonably addressed. Until it is possible to answer basic questions — such as how to conduct a national recount — the idea is too flawed to implement. We should not chose the normative value over practical considerations, because it puts the credibility of our electoral system at risk. The proponents need to work out the bugs.
Jason Paul is a Connecticut Democratic political operative from West Hartford and a University of Connecticut Law School student.