9.19 Myths about the Operation of the Compact

Michael Maibach, a Distinguished Fellow at Save Our States and Director of the Center for the Electoral College,[398] has written:

“An NPV scheme would mean … The Iowa and New Hampshire primaries would never be held again.”[399]

The New Hampshire “First in the Nation” primary and the Iowa caucuses are part of the process of selecting delegates to the national party conventions that nominate presidential candidates.

The National Popular Vote Compact is concerned only with the November general election for President. In particular, the Compact is concerned with the process of selecting the presidential electors who attend the Electoral College in mid-December.

The National Popular Vote Compact does not affect any state’s laws or any political party’s procedures for nominating the President.

The New Hampshire primary and Iowa caucuses are creations of state laws and nominating procedures established by the political parties.

For example, in 2024, the Democratic National Committee altered the role of the New Hampshire presidential primary and the Iowa caucuses in the nominating process. This action by the DNC had nothing to do with the National Popular Vote Compact.

Footnotes

Professor Norman Williams of Willamette University incorrectly equates the National Popular Vote Compact with France’s flawed multi-party primary system for nominating presidential candidates.

“The French President is elected on a nationwide popular vote of the sort that the NPVC seeks to introduce in the U.S.”[400] [Emphasis added]

Williams’ statement is false. Specifically:

• The existing American system for nominating presidential candidates for the general election in November is nothing like the French system for nominating candidates.
• The existing American system for nominating presidential candidates for the final general election in November does not have the flaws of the French system.
• The National Popular Vote Compact would not change the existing American system for nominating presidential candidates.

Here are the facts about the French presidential election system.

The French presidential election system starts with a multi-party primary (the first round) in which candidates from different parties are forced to compete for one of two spots in the final general election (the second round). Then, the two candidates nominated in the primary (the first round) become the nominees who compete for the presidency in the final general-election (the second round).

Consequently, there is no guarantee in the French presidential election system that the final general election will include a candidate representing the main left-wing political party and a candidate representing the main right-wing political party.

In early 2002 in France, Jacques Chirac was the leading right-wing candidate, and Lionel Jospin was the leading left-wing candidate. Polls showed a very close race in the expected match-up of Chirac and Jospin in the final general election. In fact, 32 separate national polls in the month preceding the primary (the first round) showed both Chirac and Jospin with support in the narrow range of 48%–52% in the final general election.[401]

It was widely expected that Chirac and Jospin would come in first and second in the multi-party primary in April, and that they would then run against one another in the final general election in May.[402]

These expectations were upset, because there were numerous prominent left-wing candidates in the primary (including an independent socialist, a Green, a Trotskyist, and others in addition to Jospin), while the conservative vote in the primary was divided between only two candidates—Jacques Chirac and the ultra-conservative Jean-Marie Le Pen.

In the primary in 2002, Chirac came in first place (with 5.6 million votes), and ultra-conservative Le Pen (with 4.8 million votes) edged out the leftist Jospin (with 4.6 million votes) for second place.

Thus, voters were forced to choose in the final general election between a conservative (Chirac) and an ultra-conservative (Le Pen).

Left-wing voters (who would have enthusiastically voted for Jospin over Chirac) were forced to make the unpalatable choice of voting for one of the conservatives or not voting in the final general election.

The result was that the general election was a runaway in which the conservative (Chirac) won an unprecedented 82% of the nationwide popular vote.

The French presidential election system was widely (and justifiably) criticized for denying the voters any real choice in the final general election.

Contrary to Williams’ statement, the National Popular Vote Compact is not a copy of the flawed French system.

In particular, U.S. presidential candidates are not nominated in a French-style multi-party primary. The National Popular Vote Compact does not alter the existing American system for nominating presidential candidates in any way—much less “import” the French system.

Under the existing system for nominating presidential candidates in the United States, a Democratic presidential nominee emerges after competing against other Democrats in state-level primaries and caucuses. A Republican candidate emerges separately after competing against fellow Republicans in state-level primaries and caucuses. Similarly, the presidential nominees of minor parties emerge after competing against other members of their party for their party’s nomination.

Then, after the nominating process is over, the eventual Democratic nominee, the eventual Republican nominee, and various minor-party nominees compete in the November general election.

Moreover, the general election for President in the United States is not limited to two candidates (as it is in France).

Under the existing system for nominating presidential candidates in the United States, there is no possibility that the voters would face a choice such as that faced by French voters in 2002, namely two Republicans—but no Democrat and no minor-party alternatives in the November general election.

French voters were faced with a similar situation in 2022. Two right-of-center candidates (incumbent President Emmanuel Macron and ultra-conservative Marine Le Pen, daughter of the 2002 candidate) received 28% and 23% of the vote in the multi-party primary, respectively. Meanwhile, Jean-Luc Mélenchon, the leading left-of-center candidate received only 22% of the vote in the primary and therefore did not win a spot in the final general election. The result was that French voters were again forced to choose between two right-of-center candidates in the final general election in 2022.

“Most of the voters [for radical left candidate Jean-Luc Mélenchon] detest Macron’s policies and most of them abhor his persona. … In the words of some Mélenchon voters, it is a case of ‘choosing between plague and cholera.’”[403]

A post-election poll showed that more Mélenchon supporters had abstained than voted for Macron in the final general election in France (and virtually none supported Le Pen).[404]

The top-two system in Louisiana, Washington, and California

Louisiana has long used a top-two nominating process that is essentially the same as the French presidential system. In recent years, both Washington and California have adopted top-two systems.

The multi-party primaries in these states often produce undesirable situations in the final general election that are similar to those produced by the French presidential election, namely two right-wing or two left-wing candidates win the top-two primaries, and the electorate is presented with a very limited choice in November.

For example, the primary in California’s heavily Republican 4^th state Senate district (the Sierra Nevada area) in June 2022 featured six Republicans and two Democrats. The two Democrats on the ballot got 23% and 20%, while the six Republicans got 17%, 15%, 15%, 5%, 3%, and 2%.[405] Because only the top two candidates from the primary advance to the general-election ballot (with write-ins not allowed), voters in this heavily Republican district were forced to choose between two Democrats. The result was that a heavily Republican district was represented in Sacramento by a Democrat.

Similarly, the primary in California’s heavily Democratic 31^st congressional district in June 2012 included a multiplicity of prominent Democrats (including San Bernardino Council member Pete Aguilar), but only two prominent Republicans (Gary G. Miller and Bob Dutton). Because of the fragmentation of the Democratic vote in the primary, the two Republicans emerged from the top-two primary—with Democrat Aguilar running third. The result was that a heavily Democratic district was represented in Congress by a Republican.

Similar situations occurred in California’s 76^th state Assembly district in 2018, the 38^th state Assembly district in 2020,[406] and the 4^th state Senate district in 2022.[407] As Ballot Access News reported in 2023:

“The problem that the majority party might be kept off the general election ballot is so well-known that ever since California voters voted for a top-two system in 2010, no other state has put it into place. Voters have defeated top-two systems since then in Arizona in 2012, Oregon in 2014, and South Dakota in 2016.”[408] [Emphasis added]

In any case, the National Popular Vote Compact would not import France’s flawed top-two presidential election system into the United States.

Footnotes

An absolute majority of the electoral votes is required to elect a President in the Electoral College.

William Josephson, a New York attorney who opposes the National Popular Vote Compact, wrote:

“An Electoral College majority is not static, but NPV seems to assume that it is. If the NPV states ever constitute an elector majority, demographic changes will almost certainly alter it. Yet, NPV ignores that, even though it must know that the allocation of electors among the states changes, as a result of reapportionment of House. of Representatives seats after the Census every ten years. If any NPV member’s Electoral College majority is no longer an elector majority, what happens to NPV? Is it suspended until it regains a majority? NPV does not say.”[409] [Emphasis added]

Contrary to what Josephson asserts, the National Popular Vote Compact was specifically designed to deal with this contingency (and several other related contingencies, as discussed in section 6.2.3).

Article III, clause 9 of the Compact states:

“This article shall govern the appointment of presidential electors in each member state in any year in which this agreement is, on July 20, in effect in states cumulatively possessing a majority of the electoral votes.”

Thus, for example, if the compact were to go into effect with states possessing 270 or more electoral votes, but then the compacting states collectively were to end up with fewer than 270 votes on July 20 of some subsequent presidential-election year (perhaps because of a census), the Compact would simply hibernate until such time as its members again collectively possessed at least 270 votes. That is, the Compact would remain in effect, but it would not “govern” that year’s presidential election.

If subsequent enactments of the Compact were to raise the number of electoral votes possessed by the compacting states above the required majority by July 20 of an upcoming presidential election year, the ninth clause of Article III specifies that the Compact would again govern that election.

As a practical matter, this scenario could only arise if the number of electoral votes possessed by the compacting states were to hover very close to 270.

Moreover, changes in the number of electoral votes due to the census occur at a glacial pace.

For example, among the 15 jurisdictions that had enacted the Compact into law at the time of the 2020 census, California, Illinois, and New York each lost one electoral vote as a result of that census, while Colorado and Oregon each gained an electoral vote. The combined number of electoral votes possessed by compacting states at the time of the 2020 census thus changed by only one electoral vote—from 196 to 195. As it turned out, even that small change was illusory. In the 2020 census, New York lost one electoral vote to Minnesota (which had not approved the Compact at the time).[410] However, Minnesota enacted the Compact in 2023. Thus, there was no net effect on the Compact’s total number of electoral votes as a result of the 2020 census.

The next census will be in 2030, and the resulting allocation of electoral votes will apply to the 2032 election.

Footnotes

In an article entitled “Interstate Agreement Scheme to Elect President by Popular Vote Is Unconstitutional,” attorney Paul Ballonoff wrote:

“The states that are parties to the agreement would effectively elect the president. Amendment 12 of the Constitution states that the votes of all states’ electors are counted, not just a select group of electors from select [states] that signs an interstate agreement.”[411] [Emphasis added]

U.S. Senator Mitch McConnell (R–Kentucky) said the following about the National Popular Vote Compact:

“Under NPV, voters in states that haven’t signed onto the compact will be treated differently than voters in states that have.”[412] [Emphasis added]

The National Popular Vote Compact includes popular votes from all 50 states and the District of Columbia in computing the national popular vote total—regardless of whether the state belongs to the Compact.

The first clause of Article III of the Compact provides:

“The chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a ‘national popular vote total’ for each presidential slate.” [Emphasis added]

All voters in all states would be treated equally under the Compact—regardless of whether their state is a member.

Nothing in the Compact modifies the counting procedures of the 12^th Amendment. In fact, the operation of the National Popular Vote Compact relies on the 12^th Amendment’s procedures for counting electoral votes:

“The Electors shall meet in their respective states, and vote by ballot for President and Vice-President … The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted.” [Emphasis added]

Note also that the political complexion of the particular states belonging to the National Popular Vote Compact would not affect the outcome of the presidential election.

The National Popular Vote Compact requires that all the electoral votes of all the states belonging to the Compact be awarded to presidential electors nominated in association with the winner of the national popular vote. When the Compact is in operation, the states belonging to the Compact would have at least a majority of the electoral votes—that is, enough electoral votes to elect a President. Thus, the presidential candidate receiving the most popular votes in all 50 states and the District of Columbia would be assured sufficient electoral votes to be elected to the presidency.

Footnotes

With 158,224,999 votes having been cast in the 2020 presidential election, a tie in the national popular vote would be extraordinarily unlikely.

To deal with this unlikely contingency, the National Popular Vote Compact contains a tie-breaking procedure. Specifically, the sixth clause of Article III of the Compact states:

“In event of a tie for the national popular vote winner, the presidential elector certifying official of each member state shall certify the appointment of the elector slate nominated in association with the presidential slate receiving the largest number of popular votes within that official’s own state.”

That is, the Compact uses the statewide winner-take-all rule as its tie-breaking procedure.[413]

James David Dickson is Managing Editor of the news outlet of Mackinac Center for Public Policy. Note the word “only” (in bold below) in Dickson’s erroneous op-ed in The Hill on April 1, 2023:

“As the Michigan House Fiscal Agency found in its study of National Popular Vote, the state vote count would matter only in the event of a tie in the popular vote. That’s all but a statistical impossibility.

‘In the event of a tie of the National Popular Vote winner, the governor would certify the slate of whichever candidate received the most votes in Michigan,’

the nonpartisan agency wrote. In the name of ‘one person, one vote,’ state-level votes would be reduced from the deciding factor to a mere tiebreaker.”[414] [Emphasis added]

First, Dickson inaccurately quotes the Michigan House Fiscal Agency’s report. Here is everything that the Michigan House Fiscal Agency actually said about a nationwide tie:

“In the case of a tie for the national popular vote winner, each member state would appoint electors pledged to the candidate that won the popular vote in that state. (This is the ‘winner takes all’ system currently used by most states.)”[415]

Second, the word “only” (in bold in Dickson’s op-ed above) misrepresents what is actually contained in the National Popular Vote Compact.

The facts are that, under the Compact, every voter’s vote in every state (including every voter’s vote in Michigan) would count directly toward the national count of that individual voter’s preferred presidential candidate. The votes of all voters in all 50 states and the District of Columbia would be added together to produce the “national popular vote total.” The presidential candidate who received the largest “national popular vote total” would be designated as the “national popular vote winner.” That candidate would receive all of the electoral votes of all of the member states. Because the member states would possess a majority of the electoral votes, that candidate would become President.

In short, every voter’s vote from every state would count in every presidential election in determining which candidate wins the national popular vote.

Footnotes

In speaking in opposition to the National Popular Vote Compact in Connecticut, State Representative Christopher Davis said during the House floor debate in 2018:

“Currently when the citizens of Connecticut (and I believe every other state) go to the ballot, they are in fact casting ballots for electors of individuals. In fact, our ballot in 2016 said ‘presidential electors for’ and then you voted for that person. With the drafting of this language for this bill, it would be my interpretation that the ballot language would have to be changed and instead the citizens of Connecticut would not be voting for electors, but instead voting directly for those candidates.”[416]

“If this law were to be passed and signed by the Governor, then this language would be conflicting to other state statutes.”[417] [Emphasis added]

First, there is, in fact, no conflict between the National Popular Vote Compact and Connecticut’s existing law on ballot wording.

Second, and more importantly, even if there were a conflict, it wouldn’t matter, because an interstate compact always takes precedence over a pre-existing state law.

Concerning the first point, Connecticut voters will cast their vote for “presidential electors” under the Compact in the same way that they now do.

Connecticut, like all other states, uses the so-called “short presidential ballot” that enables voters to vote for the presidential and vice-presidential candidates (section 2.14). The voter’s vote is then “deemed” to be a vote for each of the seven candidates for the position of presidential elector who were nominated in Connecticut in association with the voter’s chosen presidential-vice-presidential slate. The Compact does not change Connecticut’s use of the short presidential ballot. The Compact does not change the appearance or wording of Connecticut’s ballot.

The Compact changes the way votes are counted to determine which presidential electors are declared elected in Connecticut.

Under Connecticut’s current winner-take-all law, the state’s seven presidential electors would be the presidential-elector candidates who were nominated by the party whose presidential nominee received the most popular votes inside the state of Connecticut.

In contrast, under the National Popular Vote Compact, the state’s seven presidential electors would be the presidential-elector candidates who were nominated by the party whose presidential nominee received the most popular votes in all 50 states and the District of Columbia.

In any case, there would be no need to modify the existing Connecticut law calling for the words “presidential electors for” to appear on ballots.

Concerning the second point, Representative Davis’ argument would not be valid even if there were an actual conflict between a pre-existing Connecticut law and the National Popular Vote Compact.

Conflicts between provisions of an interstate compact and state law are always resolved in favor of the compact.

As the U.S. Court of Appeals for the Third Circuit wrote in McComb v. Wambaugh:

“A Compact also takes precedence over statutory law in member states.”[418]

Footnotes