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Defending the Electoral College and the Constitution since 2009

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A failed attempt to reconcile NPV, RCV in Maine
Trent England • May 14, 2021

Maine has the most unique presidential election process. It splits its electoral votes by congressional district, one of only two states to do so today. And in 2020, after contentious political and legal wrangling, it became the only state to use the complex system known as Ranked Choice Voting (RCV) to choose presidential electors. All this is threatened by the National Popular Vote interstate compact (NPV).

The incompatibility of NPV and RCV caught some people off guard. Maine Secretary of State Shenna Bellows, an advocate for both, suggested changes to Maine’s laws at a legislative hearing on NPV bills that seem aimed at resolving the conflict between NPV and RCV, but they would not.

The obvious conflict between RCV and NPV is that RCV can change vote totals and produce two different tallies for each candidate, and the NPV compact says nothing about which to use, either initial raw totals or RCV-adjusted totals. Those RCV adjustments involve moving votes from one candidate to another and throwing out ballots that don’t include lower-ranked choices. The NPV compact simply grants power to the top election official in each state to determine the national popular vote winner for that state. In other words, officials in various states would just decide, on their own and with no legal guidance, which numbers to use from Maine or any other states using RCV or similar election systems.

The changes suggested by Secretary Bellows seek to solve this problem by reporting only the final RCV-adjusted numbers to other states on Maine’s Certificate of Ascertainment. Yet unless Maine is going to hide the initial totals, officials in other NPV states could still decide to ignore Maine’s preference and use the raw numbers from the statewide canvas. After all, only the raw numbers are comparable to the results in non-RCV states. Short of hiding election data, Maine has no power to tell California (for example) which set of numbers to use.

The more fundamental conflict between RCV and NPV is that you cannot cobble together a meaningful national election result if states count votes in fundamentally different ways. Supporters and opponents of RCV agree it is a very different way to vote and to count votes—some see this as a feature, others as a bug. But no state would hold an election for governor with some counties using RCV, others using ordinary voting, and then amalgamate those numbers. They are apples and oranges. The statewide “total” would be invalid, the process obviously unjust. Constitutionally speaking, it would be a blatant violation of the Fourteenth Amendment’s guarantee of equal protection.

A final thought…. As far as I can tell, NPV was created by people who would prefer to amend the Constitution to eliminate the Electoral College. That is hard work and might take decades, so they looked for an easier way. An interstate compact with states agreeing to give away their electoral votes based on the national popular vote was ingenious—in theory. The trouble is, overlaying one system on another would be worse than either one by itself. NPV promises a national popular vote but does not create a national election. Instead, it tries to synthesize the result with fingers crossed, powerless to resolve differences among the states. The inescapable conflict between RCV and NPV is just one example.