Without change, a plan for a national popular vote could undermine the presidency

The movement to elect the president by national popular vote has now focused on the National Popular Vote Interstate Compact. States totaling at least 270 electoral votes would agree to cast their electoral votes for the winner of the popular vote nationally, regardless of who won in their own states. 196 Electoral College votes have already been committed and state legislation is pending to well exceed the 270 votes required to elect a president (and render the compact effective). 

Although national popular vote is a good idea, NPVIC would be harmful unless amended.

Electing the president by popular vote would, in theory, move us toward a more perfect union. A simple count of all votes would tend to check and balance the emphasis on power of (small) states in the Senate and of more localized areas in the House of Representatives. And the broad coalitions required to win a majority of popular vote (reaching well into those registered Independent) would be a helpful tonic for our current divisive focus on red and blue which is so disruptive of unity and community. 

But NPVIC has a serious flaw that would likely undermine not only coalitions but the very legitimacy of the presidency. Under NPVIC, states vote for the “winner” even if that candidate received much less than a majority of national votes. Winning with only 30 percent of the popular vote would undermine the legitimacy of a president. NPVIC encourages wealthy, populist or more extreme candidates to run, hoping moderate candidates split the rest of the vote. 

Opponents and supporters of a national popular vote for president agree the constitutional focus only on a majority of electoral votes has ensured a relatively stable two-party system. Few independent candidates could reach a majority and none has ever come close. Only two presidents in our history have won with less than 40 percent of the popular vote: John Quincy Adams in 1824, the only election decided by Congress, and Abraham Lincoln in 1860, months before the start of the Civil War. Only three others have even won with less than 45 percent. This reflects the limited realistic chances for an independent candidate under the current system with strong national parties. But strong independent candidates have not happened more frequently precisely because candidates must move toward the political center to reach the required majority. 

Independent candidacies — and resultant plurality-only elections — are a more serious risk with NPVIC. At least eight states without majority requirements have elected at least one governor with less than 40 percent of the popular vote since 1986 alone. And the incentive for taking a shot is even greater nationally, where the reward is the immense power of the presidency. 

We should be especially concerned about multi-candidate, low plurality elections now. Both great wealth and free mass communications enable independent candidacies like never before. Although the states that have passed NPVIC so far have been reliably Democratic states, NPVIC was supported by many early “Tea Party” supporters and the organization sponsoring NPVIC touts Donald Trump’s support. And exiting the compact may prove difficult, as it requires support by a state’s legislature and governor before the parties’ nominating conventions.

A simple change in NPVIC could fix the flaw and still provide the benefits of a popular election. NPVIC should only require states to cast electoral votes for a national winner who reaches a threshold percentage of the national vote; perhaps 40 percent. Candidates would campaign in all states and need broad coalitions because every vote might count and candidacies unlikely to reach the threshold would be deterred. 

The concept of a threshold is not new. The original modern proposal for a national popular vote was a proposed constitutional amendment in 1969 that passed the House of Representatives overwhelmingly and was filibustered in the Senate. It provided for a run-off election between the top two candidates in the event the winner received less than 40 percent. But NPVIC allows neither run-off nor reallocating votes received by the weakest candidates (ranked-choice voting).

Election by 30 percent of the popular vote — even of a mainstream Democrat or Republican — would undermine legitimacy of the presidency far more than anything under the current system. Let’s avoid such mischief and ensure that any popular election of our president means more votes for the winner, not fewer!  

 Andy Schatz practiced law for over 30 years and has served as president of the American Civil Liberties Union of Connecticut and on the national ACLU board and executive committee. He has spoken publicly and testified about election issues. This is his personal view and does not represent the views of any organization.