How Texas Gets Standing Next Time: NPV

By Steve Haner

When Texas went to the United States Supreme Court last month complaining about the election processes in four other states, the case was dismissed on the issue of standing. The Court correctly replied Texas had no right to complain about how the Electoral College votes were determined in other states but could only control selection of its own presidential electors.

But what if Texas had been part of an interstate compact that required it to choose electors based on which candidate won the highest number of votes in the entire nation? That is what the National Vote Compact does: States that join, once enough agree, ignore the will of their own voters. They will certify electors pledged to the candidate with the most votes overall, even if that person failed to win in that state.  Suddenly they have a larger stake in how those other states run elections.

Might Texas then have had valid reason to poke into the election process of Pennsylvania or Wisconsin and challenge its rules? Challenge a quirky rule about eligibility? Review challenged ballots on its own? Virginia might be able to do the same (or be challenged), because the 2021 General Assembly is being asked to join the National Popular Vote Compact. Legislation failed in 2020 but may pass now.

Here is another undiscussed implication of the National Popular Vote approach, illustrated by what we just went through.  Suddenly instead of the few recounts we saw after November 3, a nationwide recount is possible. Could voters in one state challenge the recount process in another state? There are many variations in how recounts work – could Virginia send observers to a California recount, or vice versa? 

States that do or do not use a universal mail ballot system might file cross claims against each other, arguing which should be the standard.

The last two months increased public awareness of our complex path to choosing a U.S. President. They probably added to the confusion over how a candidate can trail in the popular total vote and still win. Perhaps public disapproval of the Electoral College has grown, as feared. More Americans may now want a single national election, not the 51 separate smaller contests we have now.

But the value of our indirect Electoral College process, designed to diminish the dangers of pure democracy and to protect the political importance of individual states, was proven once again. Last year also demonstrated that if enough Americans still want to change to a straight-up national election, the half-baked approach of the National Popular Vote Compact is the wrong way to get there.

The bills to include Virginia in the compact are back in front of the General Assembly that starts today. House Bill 1933 is sponsored by Delegate Mark Levine of Alexandria and Senate Bill 1101 is sponsored by Senator Adam Ebbin from the same city.

The process they envision is neither a direct national election nor the federalist approach but a weakened hybrid that won’t survive.  It comes without any of the rules, guidelines, and protections in a truly nationalized election.  Which means we are opening the doors to the legal horrors of the 2020 disputes but with no roadmap or precedent on how to get to the resolution.

Last year, Levine’s House version passed that body on a party-line vote but ran into a wall in the Senate Privileges and Elections Committee.  This year’s Senate bill is loaded with co-sponsors, House and Senate, including Senator Majority Leader Richard Saslaw and Senate Finance Chairwoman Janet Howell.

The organization behind the coordinated National Popular Vote campaign has now developed a special tracking page for each state, including Virginia. In 2020 the popular vote and Electoral College result did align, which should reduce the pressure for passage. But the 2016 misalignment has not been forgotten and the massive Democratic majorities available in New York and California are too attractive for Democrats to ignore.  The rest of America is swamped by them.

All of the other recent changes to election rules in various states pale in comparison to the impact of this idea, should it be implemented and survive legal challenge. It is simply an end-around on the traditional Constitutional amendment process, which proponents know would be much harder to sell.

At this point, there is no official national vote total.  Nobody tallies it and certifies it. Do we take the media’s word for it? Would states, instead of sending a list of electors, send their certified vote numbers to Congress for it to conduct a tally? Would not disputed elections be just as ugly, if not uglier, than through the current Electoral College process?

If there is to be a direct national election of the President, we should make the change by amendment and then address all the new wrinkles it creates. It will have to be a nationally-managed election process with a uniform set of rules and integrity protections. The National Popular Vote structure provides none of that and will create even greater voter distrust.

This is a bad idea whose time has passed, and the 2020 result should lower the heat, not raise it. Senator Creigh Deeds, chairman of the Senate committee that snuffed this last year, said he was reluctant to change Virginia’s process right before the election. Now the next election is more than three years away, and a vote this month might be seen as acting both in haste and in retribution.

This was poorly thought out before. Now it is clear there are even more hidden implications. The National Popular Vote Compact needs to be rejected.

First published this morning by the Thomas Jefferson Institute for Public Policy.

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23 responses to “How Texas Gets Standing Next Time: NPV

  1. I wrote a critique of the NPV that was posted on Bacon’s Rebellion on October 15, 2020.

    Steve Haner’s article raises another objection to its adoption.

    I would not be surprised if other people will be able to offer further objections to its adoption by Virginia.

    • I think this is my third or fourth installment, sir, but happy to have you along. This train is nonetheless speeding down the track… is all part of the grand scheme to change the election landscape for a generation.

  2. So, is this Haner getting out of his lane?


  3. James Wyatt Whitehead V

    Trust. There are many who have none in the Electoral College and the same can be said of the National Popular Vote Compact. Mr. Haner speaks of changes of the election landscape for a generation. Maybe this has already happened. I found this nifty webpage that shows the polling equipment used in every locality in the state of Virginia. It has a timeline slider at the top that will show the dramatic changes between 2006 and 2020. It also has a national map. I had no idea how technical counting votes has become. A real science all by itself.

    • That is a nifty website. We mark ballots by hand but use an optical scanner and it appears that’s a fairly common method in Virgina.

      The optical sanner is pretty fast and voters put their marked ballot in it, at least in our county.

      It kicks out what is known as overvotes – which is someone making two marks in the choices for one office. I believe that ballot is put in a “spoiled” pile and a new one given to the voter.

  4. Nice political jiu jitsu, Steve. What’s sauce for the goose is sauce for the gander. The use of political compacts can cut many ways. Democrats, be forewarned.

  5. You raise a lot of valid points, many of which had not occurred to me. Indeed, I think they would not have occurred to most people if it had been for the turmoil of this past election.

    I continue to advocate abolishing the electoral system and electing the President by a majority of the popular vote. This past election has probably increased the support for such an idea, but, because the popular vote and electoral vote did align and because the population has a short memory, I doubt if there is enough support to get it passed.

    I disagree that electing the President by majority vote would require “a nationally-managed election process with a uniform set of rules and integrity.” States could still have their own electoral processes. Granted, it would be messier, but federalism is messy.

    As for how to make such a vote official, you make a good point. One possibility would be for states to submit their certified vote totals to the National Archivist who then would officially certify who received the most total votes. That is how it is done with proposed amendments to the Constitution.

    • Thank you for my first lesson of the day, about the archivist. Didn’t know that. If Congress wants to do this, do it through the amendment process and pass the appropriate enabling legislation to deal with some of these problems. Or enough state legislatures could pass resolutions to initiate an amendment process. But yes, the small states will oppose. And if this gets close to activation, the small states will be in court testing it (with standing!)

    • People only complain about the EC when it doesn’t break their way.

      “I disagree that electing the President by majority vote would require “a nationally-managed election process with a uniform set of rules and integrity.” States could still have their own electoral processes. Granted, it would be messier, but federalism is messy.”

      They could not, any slight deviation would produce room for error. It would have to be federalized and the states would no longer have a say.

  6. Right now, it’s winner take all on a state basis.

    ” Maine and Nebraska have taken a different approach. Using the ‘congressional district method’, these states allocate two electoral votes to the state popular vote winner, and then one electoral vote to the popular vote winner in each Congressional district (2 in Maine, 3 in Nebraska). This creates multiple popular vote contests in these states, which could lead to a split electoral vote. ”

    So I wonder if Maine and Nebraska have a better method and puts it in the middle of state-level-winner takes all and NPV.

    I haven’t done the math but I wonder how this election would have turned out if the battleground states had done votes like Nebraska and Maine.

    Beyond that, there is going to be a battle royale about extending the more liberal voting policies more permanently in the states after COVID , I suspect.

  7. Interesting. They were denied standing meaning they could not show a tangible injury, causality with the action, or viable redress.

    So, a witness to a pedrestrian struck by a car cannot sue the driver of the car because he needs to show all THREE conditions to have standing,… but if he steps in front of the car… he still mightn’t get the redress.

    If that’s the case, why wouldn’t, say, California declare that they are going to unilaterally decide to assign their electors based on the national popular vote, and then sue the other 49 for not doing it that way?

    I’m afraid Steve, that it might look like this. Texas is in yellow.

  8. There’s sometimes a silver lining to the dark and in this case, we’re all getting an “education” in civics and government and really, some are even questioning how our government has been set up by our Founding Fathers.

    Some do not like our current governance laws, rules, policies,

    Lawsuits are flying left and right!

    I suspect more than a few of us sometimes snoozed in Govt and Civics in High school… 😉 and now, we’re getting a helluva “refresher” !

  9. Thanks. Had already sent in my concerns and asked them to vote no.

  10. Of course, all else being equal, Pennsylvania has way less impact on the national vote difference of 7 million votes than on the 20 votes to the electoral count, so your injury is nonexistant. No standing.

  11. I think the way that Maine and Nebraska choose electors, with one elector for the winner in each congressional district, and two electors for the statewide winner, is fairer than winner takes all. It also keeps the founding fathers (or parents?) intent of balancing large and small states. They feared a “pure” democracy where 51% of the population could have total control over the other 49%.

    • Yes, it is the two electors tied to the Senate seats — 2 for California and 2 for tiny Rhode Island — that really rein in the mega-states. There might also be a Virginia bill to do the congressional seat split, since Republicans see that as giving them at least 3-4 votes in today’s situation. (Which is why THAT fails in a Blue General Assembly.)

      • They had their chance earlier, but were content with the situation while Virginia was voting for Republican Presidential candidates.

      • If we did that for all states, would the outcome have been different?

        We need to make it EASY to vote and HARD to vote illegally.

        The idea that we can’t do both so don’t allow the former is not democracy. We’ve spent decades trying to keep some people from voting.

        I also support citizen-initiated referenda like Colorado and others – high bar for getting on the ballot.

        That’s will hit the back-door guys in the butt pretty good.

        • “We need to make it EASY to vote and HARD to vote illegally.”

          They succeded in doing that, Larry. It’s called Georgia. Ya gotta love it. They used every legal means possible to purge the rolls, reduce ease of polling and hardened the ID requirements, and still lost. But, god bless ’em for admitting it; for not giving in to temptation and for being scrupulously honest in the count.

          Maybe when all is said and done all 50 will be that way, and we can eliminte the lie that led to last week.

          • Need all 50 to that – for EVERY election – all the time and stop the excuses for making it hard to vote.

            Yes, Georgia did succeed – against forces that tried to suppress or change the vote – that has not gone away.

  12. Elections are overrated. I’d prefer random selection

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