Why the National Popular Vote Compact Deserves a Hard No From Conservatives

Imagine a salesman knocks on your door with a deal. "Your state," he says, "will keep its electoral votes. We only ask that you promise to hand them to whoever wins somewhere else." You would check your wallet. But that is, in plain English, what the National Popular Vote Interstate Compact asks of a state legislature. It is dressed in the most attractive slogan in politics, "one person, one vote," and it goes down easy. Who could be against that?

I can be, and so can you, and I intend to show why without a single shouted slogan. A conservative who cares about the Constitution's structure should look at this proposal the way a homeowner looks at a contract: read the fine print, ask who benefits, and then ask what happens if the other party doesn't perform.

How the compact works

The mechanism is simple, which is part of its charm. A state that joins the compact passes a law saying that its presidential electors will be awarded to the candidate who wins the most votes across all fifty states and the District of Columbia, not the candidate who wins the most votes in that state. The agreement takes effect only when states that together hold at least 270 electoral votes, a majority of the 538, have joined. Until then, nothing changes.

Notice the clever part. The compact does not abolish the Electoral College. It tries to hollow it out from the inside, so that the electors still exist, still meet, still vote, but are bound in advance to follow a national total. And it does this without a constitutional amendment, which would require two-thirds of each chamber of Congress and three-fourths of the states. The proponents argue that Article II, Section 1 gives each state legislature the power to choose how its electors are appointed, so a state may choose this method. That argument has some force. Let me give it its due, then take it apart.

The strongest case for the compact

Here is the best version of the pro-compact argument, stated the way its supporters would accept.

One. In a democracy each citizen's vote should count equally. Two. In a winner-take-all system, the votes of a Republican in a deep-blue state, or a Democrat in a deep-red state, do nothing for the candidate they preferred, and the campaigns largely ignore those states. Three. Four times in American history, in 1876, 1888, 2000 and 2016, the candidate who won the presidency received fewer popular votes than his chief rival. Four. A winner who lost the national vote has a weaker claim to speak for the country. Five. Therefore the President should be the person who got the most votes, and the Constitution lets the states get there themselves.

That is a respectable case. Its factual premises are sound, and its value premises are respectable. The conclusion is where the argument goes wrong, and it goes wrong in five places.

Answer one: the design was a choice, not an accident

The Electoral College grew out of the Great Compromise of 1787. The big states wanted representation by population; the small states wanted equality. The solution was a House based on population and a Senate with two members per state. The electoral count is the sum of the two: House seats plus Senate seats. A President is chosen by a body that reflects both the people and the states.

Alexander Hamilton defended the design in Federalist No. 68, arguing that the choice should be made by electors chosen in the states, acting separately, so that no cabal could gather the whole. The point was never to produce the largest raw number. The point was a President with a broad base across a continental country, not a President of the three or four biggest metropolitan areas.

That is an argument about what kind of government you want, and it is a conservative one. In the words of the federalist design, the unit that counts is the state. A compact that tells a state to give its electors to whoever wins elsewhere is a state agreeing to be erased from the count.

Answer two: campaigns that must build coalitions

Under the present system a candidate has to assemble a majority of states across different regions: farm country, coastal cities, industrial towns, the mountain West. That forces compromise. A candidate who ignores rural voters cannot reach 270 even with huge margins in a few cities.

Under a pure national total, the economics of campaigning change. A vote in a dense city costs less to win than a vote in a sparse county. The rational strategy is to run ad dollars and rallies where the largest number of persuadable voters can be reached cheaply. Farms, small towns and mid-sized states drop down the list. Folks, I want a President who has to knock on doors in Iowa and New Hampshire and Nevada and Georgia, and who has to listen when a rancher tells him what the grazing rules are doing to the ranch. Remove the map and you remove the reason to listen.

Now the fair point on the other side: today's campaigns already ignore most states, and the battleground list has shifted over the decades. True. But that is an argument for broadening the map, and I have yet to hear one that explains why trading a broad map of states for a few big metropolitan markets helps rural America.

Answer three: the compact asks a state to override its own voters

Here is a hypothetical, labelled as one. Suppose a state votes 55 percent for the Republican candidate, and the compact is in force. If the Democrat wins the national total by a few points, that state's electors would have to be the Democrat's electors. The citizens who turned out in the majority in that state would watch their votes counted, ignored, and handed to someone else.

A conservative should find that offensive on principle. A state's legislature is accountable to the state's voters, and a government that binds its voters to the choices of other states has given something away that is not the legislature's to give. It is hard to imagine telling a Texas rancher or an Ohio steelworker, "Your state voted for X, but we have decided to count the votes of strangers instead."

Answer four: the Compact Clause and the missing consent

Article I, Section 10 says that no state shall, without the consent of Congress, enter into any agreement or compact with another state. The compact's backers say they do not need congressional consent, and they point to the Supreme Court's case law, which has held that the clause applies only to agreements that increase the political power of the states in a way that could encroach on federal supremacy. That is the reading from Virginia v. Tennessee (1893), reaffirmed in United States Steel Corp. v. Multistate Tax Commission (1978).

Whether this compact fits that exception is the great unanswered question. An agreement that shifts the selection of the President, the one national official elected by the nation as a whole, and that binds states to each other on how to choose him, strikes me as precisely the kind of arrangement that affects federal power. Its supporters have not sought the consent of Congress, perhaps because they fear they would not get it. Notice that even a friendly court would have to answer the question, and a legal theory that depends on a favorable ruling about a never-tested clause is not a safe foundation for choosing the President.

Answer five: the recount nightmare

This is the practical objection, and I think it is the most underrated. Today recounts are local. If a state's result is within a thin margin, that state counts again under its own law, and the dispute stays inside its borders. Fifty states have fifty sets of recount rules: automatic thresholds in some, candidate-requested in others, different standards for what counts as a valid ballot, different deadlines for mail ballots, different rules for provisional ballots.

Under the compact, the national total would decide everything. If the national margin were razor-thin, every state's results, in every county, would become relevant in a single nationwide dispute. There is no national recount law, no national election authority, no single standard. What would the rules be? Who would order a recount? Each candidate would have an incentive to dig for votes in every state, and to challenge every standard. The 2000 Florida recount, which took place in one state, dragged on for more than a month and ended up in the Supreme Court. Picture that repeated across fifty jurisdictions at once. The Electoral College, with all its flaws, contains a dispute within the state where it occurs.

There is one more point here. A national recount scheme would call for a larger federal role in running elections, and that is the opposite of what conservatives should want. The federalism thread that runs through this whole debate is the subject of Three Towns, Three Rule Books and the Case for Letting States Differ.

A bonus problem: fifty sets of rules, one pot

There is a related trouble that the slogan hides. Under the present system, a state's election rules affect that state's electors. Strict voter identification, generous early voting, mail ballots, how long ballots may arrive after Election Day, how voter rolls are kept clean: each state decides, and each state answers to its own voters for the choice.

Pour every state's votes into one national pot and each state's rules suddenly affect everybody's presidential election. A state that makes voting easier, or harder, changes the national total. Every state would have reason to care about every other state's rules and no authority over them. Voters in a state with tight rules would see their ballots diluted by the practices of a state they have no say over, and vice versa. Whatever you think of any particular rule, a system in which that rule's effect spills across fifty borders is harder to defend and harder to fix. Policy arguments about ID, list maintenance and mail-ballot deadlines belong where voters can reach the officials responsible, which is in the state.

Then there is the exit door. As I read the compact's text, a state that withdraws within the last six months of a presidential term does not take effect until the next President is qualified, which is a sensible guard against mid-season defections. But it also shows how fragile the arrangement is. It rests on the continuing good faith of legislatures that can pass a new law at any time. Imagine a state that joins when its party likes the result and leaves when it does not. A mechanism for choosing the President should not depend on that.

The honest alternative: amend the Constitution

If you want to abolish the Electoral College, the path is Article V. Two-thirds of both chambers propose an amendment, and three-fourths of the states ratify it. With 50 states, three-fourths means 38. It is hard on purpose. A direct-election amendment passed the House in 1969 and died in the Senate. Reformers hate that this is hard. The founders wanted it to be.

If the idea is as popular as its backers say, then it should be able to win 38 states in the open, with a debate, and with every state on record. That would give the result a legitimacy no clever workaround can supply. A change this big should come through the front door. Read Article V Explained, and the Amendment That Took More Than 200 Years to see how rare and how durable the results are when it works.

What I'd say to a neighbor who disagrees

I'd say: you have a point about fairness, and the 2000 and 2016 elections left many Americans uneasy. I would not insult you for it. But a fair system is not the same as one that counts all votes in a single pot. A federal republic counts them in two pots on purpose, one for the people and one for the states, so that a President needs both. The compact would collapse the two into one without asking the country to amend its Constitution.

I'd add that the Electoral College is explained in full in How the Electoral College Works, From Election Day to the Joint Session, and that its history of hard cases is in Four Elections That Tested the Electoral College, From 1800 to 1888. Read them both, then decide. And if your state legislature takes up the compact, Contacting Congress, who reads your message and what moves a member shows how a short, specific message reaches an elected official, and the same approach works for your state senator and representative.

The bottom line

• The compact would bind a state's electors to the winner of the national vote, taking effect once states holding 270 electoral votes join. It does not amend the Constitution.
• Its best argument is equality of the vote. The answer is that the founders built a federal republic on purpose, counting both the people and the states, and the Great Compromise is the reason the count looks as it does.
• A national total would shift campaigns toward cheap, dense media markets and away from farms and small towns, force a state to override its own voters, raise an unresolved Compact Clause question, and create a recount no one knows how to run.
• If reformers want direct election, the honest road is an amendment: two-thirds of Congress and 38 states.
• Ask your state legislators how they stand, and ask them to read the text. Say no to the shortcut, and yes to a debate held in the open.