Presidential popular vote compact would lead to chaos
The Electoral College has many critics, from frustrated partisans to political scientists convinced of their own ability to improve on the work of the American Founders. Lacking the national consensus necessary to change the Constitution, some of these critics are pushing the National Popular Vote Interstate Compact (NPV), which would have states commit (supposedly, at least) their electoral votes to the candidate who receives the most votes across the country.
The NPV compact would leave the country with 51 separate elections (every state plus the District of Columbia) operating under 51 sets of procedures and rules. All these separate elections cannot simply be added together to declare a winner — trying to do so would lead to chaos.
NPV member states would rely on a document called the Certificate of Ascertainment, which is prepared by each state, to get other states’ vote totals. But the numbers on those certificates are not always accurate — in 2012, New York’s Certificate of Ascertainment was missing roughly 361,000 votes compared to the Empire State’s final, certified vote total; in 2016 it left out about 95,000 votes. This was okay under the current Electoral College system, but could be a disaster under any kind of national vote.
Another problem with NPV is that states also have wildly varying rules regarding how they administer elections. For example, Colorado, Oregon and Washington conduct their elections primarily by mail. Adding to the complexity, in Colorado and Oregon mailed-in ballots must be received by election day to count, but in Washington it just needs to be postmarked by election day.
States also have different polling hours. In New York, polls are open for 15 hours on election day, while in most states voters have 12 or 13 hours, or as few as eight in smaller precincts in some states. Again, all this is fine when each state’s election is contained within that state, but it becomes the rationale for serious legal challenges when votes from different states are all tallied together.
Voting technology varies by state, and between counties and towns as well. Some leave “paper trails” that allow for recounts; others ask us to trust data on a hard drive. And states have radically different laws concerning when vote totals can be challenged, when recounts are required, and what standards govern those recounts.
None of these differences matters much under the current system, where each state chooses its own presidential electors. This is one upshot of the Electoral College: power is dispersed among the states; no presidential appointee back in Washington is in charge of presidential elections. But under a nationwide, direct election, this diversity among the states would lead to endless litigation as lawyers argue and courts decide what is and is not “fair.”
It would be the Florida 2000 recount all over again any time the election was thought to be close, except on a vastly larger scale with lawsuits in most, if not all, of the nearly 4,500 counties and townships that administer elections.
The end result of either NPV or a constitutional amendment abolishing the Electoral College likely would be a federal takeover of state and local elections. This would eliminate another of the checks and balances that define our republic — that states run elections for federal officeholders.
The Electoral College is an indispensable and remarkably stable part of our constitutional system of checks and balances. It should not be discarded in favor of what is sure to be a chaotic and unstable replacement.
Sean Parnell is an adviser and senior legislative director for Save Our States, which defends the Electoral College. He is senior fellow for philanthropic freedom for the Philanthropy Roundtable. Follow him on Twitter @seandparnell.