House Bill 1028 Regarding the National Popular Vote

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Mr. Chairman and members of the Committee, my name is JohnSamples. I am Director of the Center for Representative Governmentat the Cato Institute in Washington, D.C. The Cato Institute seeksto broaden the parameters of public policy debate to allowconsideration of the traditional American principles of limitedgovernment, individual liberty, free markets and peace. Allow me tothank you for the opportunity to testify about the National PopularVote proposal for an interstate compact to bring about directelection of the president of the United States.

As part of my analysis, I have a constructed a measure of therelative gain or loss in influence over the presidential electionfor each state. The results may be found in Table 1 attached to theessay I provided to the committee.

Permit me to summarize my findings. Twenty states may expect togain from moving to direct election. Most of those gains are quitesmall. Six states may expect to substantially gain from the change.I should note that my analysis suggests that Pennsylvania will gainthe most, relative to its current influence.

In contrast, twenty-nine states and the District of Columbialose influence from the move to direct election. Of those, twentystates and the District of Columbia may be expected to losesubstantial influence.

The twenty states that may expect to gain from the changecontrol 321 electoral votes, 51 more than a majority. The statesthat gain substantially from the change (more than 10 percent)control 121 electoral votes. The states that gain a great deal fromthe change are not a majority in the electoral college.

According to the Constitution, states require the consent ofCongress to enter into an interstate compact (Article I, sec. 10).Looking only at relative losses, the U.S. Senate will have 58 votesagainst approving the NPV interstate compact. States that lose morethan 10 percent of their influence could collectively cast 40 votesin the U.S. Senate to sustain a filibuster of the NPV compact.Looking only at relative gains and losses, the NPV compact isunlikely to be realized.

The data in Table 1 also enable us to explore some conjecturesabout moving to direct election. Some have claimed, for example,that Democratic presidential candidates would be well served bythat change.

I have assessed this claim by examining statistically. Ingeneral, the conjecture that Democrats would gain from directelection cannot be accepted. The summary of the results of therelevant regression may be found in Appendix 1 of the paper.

Consideration of the NPV plan should not be a matter of normalpolitics. The states that gain cannot have their way on electing apresident because of the necessity of congressional approval of aninterstate compact. They must convince the states that loseinfluence under direct election that such a change is normativelydesirable. Is it normatively desirable?

In my view, the success of the NPV plan would harm the politicalculture of the United States in three ways.

First, there are questions of legitimacy. The Oxford EnglishDictionary defines legitimate as "conformable to law or rule;sanctioned or authorized by law or right; lawful; proper." ArticleV of the U.S. Constitution provides a procedure for amending thefundamental law.

The supporters of NPV concede that their proposal seeks tocircumvent the amendment process in the basic law of the UnitedStates. One might wonder why anyone should consent to the electionof a president who has come to power through illegitimatemeans.

Second, the NPV plan teaches that majorities should have whatthey want whatever the costs to other values. But the United Statesis a republic, not a democracy under unlimited majority rule.

Third, the NPV proposal continues the nationalization of theUnited States and centralization of power in the federalgovernment. Under the NPV proposal, the president will be electedindirectly by the nation acting as an electorate. Inevitably thischange will foster the creation of a more national consciousnessamong Americans, a unified and centralized political identity. Thepresident will be the agent of this enhanced national identity. Heor she may be more likely to pursue national interests at a cost tostate or regional concerns. Such a president "might also be likelyto pursue policies that enhance or enlarge the scope and power ofthe federal government."

More practical problems exist. As in 2000, the strugglesassociated with an election dispute are likely to be confined toone state. The same would not be true of the NPV alternative.Candidates or party leaders would have reason to dispute resultsthroughout the nation to overturn close outcomes. Indeed, moreresults will be disputed since the necessary votes to overturn anational result could be found nationwide.

We are ill-prepared for that outcome. As political scientistDavid Lublin has noted, the parties and the media would find itdifficult to supervise recounts and litigation around the country.As Lublin argues, "We might not even be able to have a nationalrecount. All existing recount laws were designed to addresselections within states. Compact states cannot compel other statesto participate."

The authors of NPV note that many uncompetitive states arewritten off as a certain win or loss in presidential elections andthus receive no attention from the candidates. In contrast, adirect popular election would value all votes equally and beequally sought.

The states, and not the Constitution, create the problemcomplained of by the NPV authors. Currently 48 of the 50 statesallocate their electors according to the "winner-take-all." Statelegislators could divide electors according to the popular vote ifthey thought it benefitted their states compared to"winner-take-all." But we observe that few states do so. Thatsuggests most legislators believe "winner take all" benefits theirstate more than the alternative.

Even if all votes are weighed equally in an election, the costof attracting a marginal vote for president would vary. Forexample, it would be less expensive to attract votes in populousstates because per-capita media costs would be lower. Recentelections have seen a modest relationship between the closeness ofstate presidential result and the number of its eligible voters. Inthat respect, the marginal effect of the NPV plan would be to drawcandidates toward large, competitive states, the same as the statusquo.

The cost of votes also depends on the efficiency of a campaignorganization. The least costly votes are likely to be found inlarge, competitive states where the organizations have becomeefficient through competition and in large, non-competitive stateswhere party organizations may have unique advantages in "running upthe score." In the latter case, the NPV plan might bring somecandidate attention to states that are now non-competitive andignored. But running up the score in party strongholds may alsoincrease the regionalization of presidential politics.

NPV advocates have argued that their compact will create aclear, nationwide winner. State legislatures might withdraw fromthe compact if their commitment elects a president opposed by amajority in the legislature. The Constitution empowers states toselect presidential electors. It does not say a legislature cannotchange its manner of selection or that its choice must be madeprior to election day.

The Supreme Court might force a state legislature to hold to theterms of the NPV compact, but the issue would certainly belitigated, perhaps between election day and the day when electoralvotes are cast. In any case, the compact has no backup provision ifa state withdraws. Its electoral votes would remain in limbo.

NPV advocates note that the current system could elect apresident who finished second in the popular vote. That resulthappened, of course, in 2000. The last time it had happened priorto that was 1888. (It happened two other times in the 19thcentury.) Judging by the past, the 2000 result is unlikely tohappen again in our lifetime.

John Samples

Committee on Intergovernmental Affairs
Pennsylvania House of Representatives