House Bill 1028 Regarding the National Popular Vote

October 18, 2007 • Testimony

Mr. Chairman and members of the Committee, my name is John Samples. I am Director of the Center for Representative Government at the Cato Institute in Washington, D.C. The Cato Institute seeks to broaden the parameters of public policy debate to allow consideration of the traditional American principles of limited government, individual liberty, free markets and peace. Allow me to thank you for the opportunity to testify about the National Popular Vote proposal for an interstate compact to bring about direct election of the president of the United States.

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

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

In contrast, twenty‐​nine states and the District of Columbia lose influence from the move to direct election. Of those, twenty states and the District of Columbia may be expected to lose substantial influence.

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

According to the Constitution, states require the consent of Congress to enter into an interstate compact (Article I, sec. 10). Looking only at relative losses, the U.S. Senate will have 58 votes against approving the NPV interstate compact. States that lose more than 10 percent of their influence could collectively cast 40 votes in the U.S. Senate to sustain a filibuster of the NPV compact. Looking only at relative gains and losses, the NPV compact is unlikely to be realized.

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

I have assessed this claim by examining statistically. In general, the conjecture that Democrats would gain from direct election cannot be accepted. The summary of the results of the relevant regression may be found in Appendix 1 of the paper.

Consideration of the NPV plan should not be a matter of normal politics. The states that gain cannot have their way on electing a president because of the necessity of congressional approval of an interstate compact. They must convince the states that lose influence under direct election that such a change is normatively desirable. Is it normatively desirable?

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

First, there are questions of legitimacy. The Oxford English Dictionary defines legitimate as “conformable to law or rule; sanctioned or authorized by law or right; lawful; proper.” Article V of the U.S. Constitution provides a procedure for amending the fundamental law.

The supporters of NPV concede that their proposal seeks to circumvent the amendment process in the basic law of the United States. One might wonder why anyone should consent to the election of a president who has come to power through illegitimate means.

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

Third, the NPV proposal continues the nationalization of the United States and centralization of power in the federal government. Under the NPV proposal, the president will be elected indirectly by the nation acting as an electorate. Inevitably this change will foster the creation of a more national consciousness among Americans, a unified and centralized political identity. The president will be the agent of this enhanced national identity. He or she may be more likely to pursue national interests at a cost to state or regional concerns. Such a president “might also be likely to pursue policies that enhance or enlarge the scope and power of the federal government.”

More practical problems exist. As in 2000, the struggles associated with an election dispute are likely to be confined to one state. The same would not be true of the NPV alternative. Candidates or party leaders would have reason to dispute results throughout the nation to overturn close outcomes. Indeed, more results will be disputed since the necessary votes to overturn a national result could be found nationwide.

We are ill‐​prepared for that outcome. As political scientist David Lublin has noted, the parties and the media would find it difficult to supervise recounts and litigation around the country. As Lublin argues, “We might not even be able to have a national recount. All existing recount laws were designed to address elections within states. Compact states cannot compel other states to participate.”

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

The states, and not the Constitution, create the problem complained of by the NPV authors. Currently 48 of the 50 states allocate their electors according to the “winner‐​take‐​all.” State legislators could divide electors according to the popular vote if they thought it benefitted their states compared to “winner‐​take‐​all.” But we observe that few states do so. That suggests most legislators believe “winner take all” benefits their state more than the alternative.

Even if all votes are weighed equally in an election, the cost of attracting a marginal vote for president would vary. For example, it would be less expensive to attract votes in populous states because per‐​capita media costs would be lower. Recent elections have seen a modest relationship between the closeness of state presidential result and the number of its eligible voters. In that respect, the marginal effect of the NPV plan would be to draw candidates toward large, competitive states, the same as the status quo.

The cost of votes also depends on the efficiency of a campaign organization. The least costly votes are likely to be found in large, competitive states where the organizations have become efficient through competition and in large, non‐​competitive states where party organizations may have unique advantages in “running up the score.” In the latter case, the NPV plan might bring some candidate attention to states that are now non‐​competitive and ignored. But running up the score in party strongholds may also increase the regionalization of presidential politics.

NPV advocates have argued that their compact will create a clear, nationwide winner. State legislatures might withdraw from the compact if their commitment elects a president opposed by a majority in the legislature. The Constitution empowers states to select presidential electors. It does not say a legislature cannot change its manner of selection or that its choice must be made prior to election day.

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

NPV advocates note that the current system could elect a president who finished second in the popular vote. That result happened, of course, in 2000. The last time it had happened prior to that was 1888. (It happened two other times in the 19th century.) Judging by the past, the 2000 result is unlikely to happen again in our lifetime.

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