The plan and its mechanics
The National Popular Vote movement seeks to replace the Electoral College’s state-by-state selection of the president with a national popular vote without amending the Constitution. Peter Wallison, a co-director at AEI and a scholar, described the plan as simple: any state’s governor and legislature can declare that their electors will vote for the person who gets the national popular vote, not the vote within their own state. He used Iowa as an example — whoever gets the highest number of popular votes would receive Iowa’s electoral votes even if the people of Iowa did not vote for that person. Wallison noted the plan has not been tested in the courts. Will We Know Who the President Is on November 4? (2020)
Wallison said states with 196 electoral votes had voted through their state legislatures to send all of their electoral votes to the winner of the national popular vote, and that 74 additional votes would put the system into effect. He stated that only Democratic states had joined and that no state controlled by Republicans had voted to participate. Will We Know Who the President Is on November 4? (2020)
Ray Haynes, a former elected official who said he gave a speech against the compact on the floor of the Assembly and later concluded he had been wrong, described the compact as a state-based initiative that does not get rid of the Electoral College. He said it uses the language of Article II, Section 1 — “in such manner as the legislature thereof may direct” — to change the process of electing the president while keeping the Electoral College in place. He put the trigger at 270 electors, with the count then at 196 and 74 away, and said the legislatures of roughly 25 states would have to enact it. What’s Wrong with “Winner Takes All”? Another Look at the Electoral College (2020)
Haynes added that a state may withdraw from the compact if it concludes membership is not in its best interest, and that if the total falls below 270 the system goes away. He contrasted this with a constitutional amendment, which he said is difficult to enact and impossible to repeal, citing his own view that the 17th Amendment, the direct election of senators, was a bad idea he could never get rid of. What’s Wrong with “Winner Takes All”? Another Look at the Electoral College (2020)
The case for the compact
Haynes argued the compact makes every single vote in every single state important in every single election. He said a candidate cannot do something to help Florida without thinking about what people in Arizona, Nevada or Utah will think, and that this is how every American gets represented. He described Virginia and Colorado as battleground states in 2016 that by the time of the interview were not, calling them the belle of the ball four years earlier and the wallflower now, just like California and 38 other states. What’s Wrong with “Winner Takes All”? Another Look at the Electoral College (2020)
Haynes said the Electoral College keeps election law state-based, that there are no national elections because of the Electoral College, and that Article I, Section 4, which limits Congress’s power to enact election law, stays very limited for that reason. He called keeping the College in place for that reason absolutely important. What’s Wrong with “Winner Takes All”? Another Look at the Electoral College (2020)
Bob Zadek summarized the compact as a promise among member states that once states representing 270 electoral votes have signed on it springs into existence, with each state directing its electors by statute to cast all their votes for the candidate who won the national popular vote. He said a voter in a non-battleground state would under the compact count every bit as much as a voter in a battleground state, because the national popular vote dictates who wins. Haynes replied that this was exactly what the compact is about. What’s Wrong with “Winner Takes All”? Another Look at the Electoral College (2020)
The case against
Wallison’s central objection was that eliminating the Electoral College would end the two-party system. He argued there are two parties now only because a candidate must win a majority of the Electoral College, making two parties the only way one party can be assured of winning the presidency. Without it, he predicted ten or twelve parties — a Right to Life party, a Choice party, an anti-immigrant party, a pro-immigrant party, a pro-gun and an anti-gun party — plus wealthy individuals such as Michael Bloomberg running their own campaigns. Will We Know Who the President Is on November 4? (2020)
In that scenario, Wallison said, the winner would probably have 20 percent of the vote, and a president backed by one-fifth of the American people could not speak for the country the way a winner of the Electoral College has been able to. He cited the 1992 election, in which Clinton, Bush and a third candidate ran and Clinton got 43 percent of the vote, yet no one questioned that he was validly elected and could speak for the American people. Will We Know Who the President Is on November 4? (2020)
Wallison called the Electoral College the strongest source of a stability in American politics that exists nowhere else. He said the supporters of the National Popular Vote seem to believe two parties would survive its adoption, which he said is not true. Will We Know Who the President Is on November 4? (2020)
On partisan dynamics, Wallison attributed Democratic support for the movement mostly to the election of Donald Trump, saying many Democrats were angry enough about it to go to extremes, and that Trump won the Electoral College without a majority of the popular votes. He said the only times this has happened in modern times are when the Republican candidate won a majority of the electoral vote but not necessarily a majority of the popular vote. Will We Know Who the President Is on November 4? (2020)
Zadek, speaking as a supporter of federalism, said the effect of the movement would be to remove the concept of states, relegating them to nothing more than a department of the federal government. He also observed that in the Supreme Court’s last term the Court had considered faithless electors, and that under existing jurisprudence the Court was not likely to find the compact per se unconstitutional. Will We Know Who the President Is on November 4? (2020)
History and the founding design
Zadek described the electors in 21st-century jargon as the elites, wise men like the Senate, chosen so that voters could outsource the decision to people with more information, who were perhaps smarter and more well-traveled. He said direct election was not seriously considered during the debate over the Constitution in 1787, and that the system was a compromise like most important provisions of the Constitution. He noted the United States in 1787 invented the concept of president, which had not existed on Earth, and that the founders had to invent the chief magistrate. Will We Know Who the President Is on November 4? (2020)
Wallison said there was no serious opposition to the Electoral College during ratification. He explained that nobody really conceived of what it meant to have a president, because the powers as people saw them were going to be held by Congress, so the presidency was important but not as important as the elected people who would make the laws. Will We Know Who the President Is on November 4? (2020)
Zadek said the modern debate probably started with some seriousness after Bush v. Gore in 2000, and that there had been five instances in which the president elected through the Electoral College got less than a majority of the popular vote, the first being John Quincy Adams in 1824, elected by the House of Representatives without an electoral majority. He said Bush v. Gore started in earnest an examination by thoughtful people of whether the Electoral College was anachronistic, anti-small-d democratic, and a vestige of entitled white men’s vision of government 240 years ago. Will We Know Who the President Is on November 4? (2020)
Wallison identified the strongest argument against the College as the democratic one: if we really have a democracy, why not elect the president by a simple majority of the popular vote, rather than through what is in effect 50 separate presidential elections brought together in the Electoral College. He called that notion very powerful at a time when the importance of democracy is well understood. Will We Know Who the President Is on November 4? (2020)
Across episodes: the same question, two sides
The two episodes treat the same question — whether to replace the Electoral College’s state-by-state operation with a national popular vote — but from opposite sides, and the excerpts show no development between them. In the September episode, Wallison supplies the case against the compact, arguing it would end the two-party system and produce plurality presidents, and Zadek adds a federalism objection and a prediction that the Supreme Court would not find the compact per se unconstitutional. In the October episode, Haynes supplies the case for the compact, arguing it is state-based, uses Article II, Section 1, preserves the Electoral College as a protector of state-based election law, and makes every vote in every state matter. Both episodes cite the same figures — 196 electoral votes, 270 needed, 74 short — and neither excerpt shows either position being revised in light of the other.
What the sources do not cover
The excerpts do not state which states had joined the compact, the name or text of any state statute enacting it, or the outcome of any litigation over it. They do not identify the faithless-elector case Zadek alludes to, nor what it held or which constitutional provision it turned on. They do not give the full name or title of Haynes’s office beyond his reference to the Assembly, and they do not say when the compact would take effect beyond the 270-elector threshold. The excerpts also break off mid-sentence at several points, including Wallison’s discussion of what the American people approve and his remarks on universal mail-in voting.