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Defending the Electoral College since 2009

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Defending the Electoral College since 2009

Minnesota House hides, passes NPV compact
Trent England • Apr 20, 2023

A change to presidential elections is the last thing you might expect to find in an omnibus spending bill. But that is where you’ll find the National Popular Vote interstate compact (NPV) in Minnesota. After provisions about green space and the Hockey Hall of Fame, the compact language is buried on page 135. And on April 18, 2003, the Minnesota House of Representatives passed the bill.

Why hide such a monumental policy? Because supporters were uncertain whether it could pass in a fair, up-or-down vote. They also had good reasons to fear debate on their attempt to surrender control of Minnesota’s electoral votes to other states.

While 15 “blue states” have joined the compact, it often seems like a protest rather than a plan. Many NPV supporters are uninterested in how overlaying one election system on another might work—or fail. This is particularly apparent among Minnesota sponsors of the compact.

In committee hearings on stand-alone NPV bills, supporters railed against the Electoral College and focused on broad concepts like fairness and democracy. But they repeatedly dodged questions about whether the compact would actually work. These concerns have become more urgent and obvious with state adoptions of ranked-choice voting (RCV) laws and after the 2020 election controversies.

RCV illustrates the practical (and some legal) challenges with the NPV compact. Not every state conducts elections the same way. There is no national election process, nor is there any official “national popular vote.” The NPV compact would have an official in each compacting state come up with national totals for that state only. Just that fact means there could be different “national” totals, if states used different official records (they often disagree) or contested another state’s results.

RCV is a particular difficulty because it can produce two very different sets of vote totals—the initial “first round” results and the final, RCV-adjusted results. The latter only makes sense within an individual state. They cannot be combined with totals from other states, whether they use a normal election process or RCV, because the result is not mathematically valid. And if it’s not math, it certainly isn’t democracy, and it probably is illegal (a violation of the Constitution’s Equal Protection guarantee).

The 2020 election was a reminder of just how contentious the post-election process can be, with a multitude of lawsuits. Most of those were thrown out, but legal scholars have pointed out that some of these kinds of suits would be more successful if NPV ever took effect. Derek Muller, Professor of Law, University of Iowa College of Law, recently blogged about how NPV would give rise to new election contests and lawsuits.

If disputes arise over the tabulation of votes, whether parties have met the deadlines in the compact, which slates qualify (e.g., whether the “Stein-Hawkins” ticket in Minnesota in 2016 should be tabulated with “Stein-Baraka” tickets in the rest of the United States), how to approach non-compacting states’ tallies that may be not released consistent with the terms of the compact, or any other reason… the Supreme Court would step in to resolve disputes. It would be shades of Texas v. Pennsylvania from 2020, except these states assuredly would have standing to challenge issues.

There is no evidence that Minnesota NPV supporters have examined any of these concerns. In fact, they appear to be desperate to avoid serious questions, even as they try to change the most important election process in the country.

Time is running out

There is a real, immediate threat to the constitutional way we elect our president. National Popular Vote is 76% of the way to implementing their dangerous plan.

76%