Previous posts have looked at the National Popular Vote proposal.
Back in 2001, Yale law professor Akhil Reed Amar co-wrote an article about instituting a national popular vote that laid out much of the basic logic later adopted in the compact. Because of that, he told me, he considered the idea “my baby — maybe not mine uniquely, but my baby.”
Then he used some different analogies: “This is like Doctor Strangelove. I created this doomsday machine, like Edward Teller. Well done, Amar — you just destroyed the universe!”
Amar is a staunch critic of Trump and the MAGA GOP, and he continues to believe the Electoral College is a deeply flawed system — “80 percent of the arguments made for it today are stupid,” he told me. Even so, he’s developed some grave doubts about the compact.
Start with the reality that the compact, as written, does not provide for a national popular vote. Rather, elections will continue to be administered and certified separately in the 50 states and the District of Columbia. The “national popular vote” will just be the sum of the vote totals reported by the states.
That, Amar fears, could lead to a host of problems. No organization or body will exist to administer, oversee, or adjudicate the national popular vote, in the case of a close and disputed national vote count — there’s no national standard, for instance, on forcing a recount.
Furthermore, he worried, the promise of “one person, one vote” won’t be realized so long as states can set vastly different rules for how voting happens — or who gets to vote. States could play partisan games to inflate their vote totals and their impact on the national outcome.
Because the Constitution sets no minimum age for voting, blue states could lower their age limit to let 16- and 17-year-olds vote. Red states could respond by letting parents cast votes for their children — an idea that some on the right, including Vice President JD Vance, have mused about.
“The thing won’t really work without an overarching national federal framework,” Amar said. His 2001 article had suggested the national popular vote be administered by “a nongovernmental election commission — made up, say, of a panel of respected political scientists and journalists,” with disputes “decided by, say, [PBS journalist] Jim Lehrer.”
That seems far harder to imagine today. “How naive I was,” Amar told me. “I was imagining, 25 years ago, there might be institutions that had credibility and trust on both sides. It was a different world.”
Which gets to the other major problem — the support for the compact overwhelmingly comes from just the Democratic Party, with Republicans predisposed to view it suspiciously, or as an outright plot to prevent someone like Trump from winning again. “I wasn’t envisioning that it would only be one party supporting the reform,” Amar said.
“The Republicans who have supported it are often either paid lobbyists or some idiosyncratic Republicans who have their own reasons for opposing the Electoral College — I don’t want to dismiss those, if they’re sincere — but the support is overwhelmingly Democratic,” said Notre Dame law professor Derek Muller.
Imagine the national popular vote goes into effect for 2028 and Democrats win the White House — and the GOP wins the 2030 midterms in a red wave soon afterward. New GOP majorities in swing states could back out of the compact — but they could also come up with worse reprisals. From their perspective, Democrats will have set a new norm that the party controlling swing state governments can completely rewrite the presidential election rules before the election for partisan gain.
The norm that electors should go to the winner of each state was helpful to have in place when Trump tried to steal the 2020 election — Republicans in positions of power in swing states relied on it to certify Joe Biden’s win. We may miss that norm when it’s gone.