9.34 Myth about Politically-Motivated Mid-Year Enactment

David Gringer has propounded a hypothetical scenario in which the Texas legislature might “perniciously” gain partisan advantage by enacting the National Popular Vote compact on the basis of a mid-year poll indicating that its favored presidential candidate is poised to win the popular vote—but not the electoral vote—in an upcoming presidential election.

“Until now, this Note has assumed that states are not acting perniciously in considering the NPV.… This Note [now] poses a hypothetical scenario in which a state moves to the NPV to achieve partisan advantage, not to remove the inequities of the electoral college or to increase its influence in the presidential election process.

“As the 2020 elections approach, the Republicans who control the Texas Legislature are getting nervous. The Latino population has grown from 28.6% of the overall state population in 2006 to 37.6%. This growth has led the state’s politics to trend Democratic. Republicans need not worry about losing their majority in the state legislature, however, because that legislature enacted an extreme partisan gerrymander during the 2010 redistricting.

“Unfortunately for the Republicans, early polling shows likely Democratic nominee New York Governor Eliot Spitzer with a substantial lead in Texas over the soon-to-be Republican nominee South Dakota Senator John Thune. If the Democratic nominee carries Texas in the general election, he will have a ‘lock’ on the electoral college, as Democrats still dominate the Eastern seaboard, California, and Illinois.

“At the behest of Republican Party leaders, the state legislature passes a bill awarding its electoral votes to the winner of the national popular vote. The Republican Governor of Texas signs the bill into law.”

“With the addition of Texas, enough states now participate for the NPV to take effect.”[611]

Gringer certainly makes a plausible case that demographic changes might cause Texas (with its 38 electoral votes) to become Democratic by 2020. He also makes a plausible case that a future Republican presidential candidate would probably find it difficult to assemble a majority in the Electoral College if the Republicans could not rely on Texas’ formidable bloc of 38 electoral votes.

Gringer’s hypothetical scenario about a state activating the National Popular Vote compact in mid-July for partisan advantage is, however, implausible for several reasons.

First, the National Popular Vote compact cannot be brought into effect at the spur of the moment. The compact governs the conduct of a particular presidential election only if it has been enacted (and, importantly, has taken effect) in states possessing 270 electoral votes on July 20 of the presidential election year.

Second, Gringer’s hypothetical scenario is based on the existence of mid-year polling that is sufficiently persuasive to cause a state legislature and Governor to make a significant political decision before July 20 of the presidential election year.

It is virtually impossible to predict whether a particular presidential candidate is going to win the national popular vote—but not the electoral vote—immediately before Election Day, much less before July 20 of a presidential election year.

This point was illustrated in the week before Election Day in 2000, when most polls indicated that George W. Bush was poised to win the national popular vote—but not the electoral vote. Indeed, the Bush campaign was planning for just that eventuality.

As the New York Daily News reported on Wednesday November 2, 2000, in an article entitled “Bush [is] set to fight an Electoral College loss:”

“Quietly, some of George W. Bush’s advisers are preparing for the ultimate ‘what if’ scenario: What happens if Bush wins the popular vote for President, but loses the White House because Al Gore won the majority of electoral votes?”

“‘The one thing we don’t do is roll over,’ says a Bush aide. ‘We fight.’

“How? The core of the emerging Bush strategy assumes a popular uprising, stoked by the Bushies themselves, of course.

“In league with the campaign—which is preparing talking points about the Electoral College’s essential unfairness—a massive talk-radio operation would be encouraged. ‘We’d have ads, too,’ says a Bush aide, ‘and I think you can count on the media to fuel the thing big-time. Even papers that supported Gore might turn against him because the will of the people will have been thwarted.’

“Local business leaders will be urged to lobby their customers, the clergy will be asked to speak up for the popular will and Team Bush will enlist as many Democrats as possible to scream as loud as they can. ‘You think ‘Democrats for Democracy’ would be a catchy term for them?’ asks a Bush adviser.

“The universe of people who would be targeted by this insurrection is small—the 538 currently anonymous folks called electors, people chosen by the campaigns and their state party organizations as a reward for their service over the years.…

“Enough of the electors could theoretically switch to Bush if they wanted to—if there was sufficient pressure on them to ratify the popular verdict.”[612]

Nate Cohn wrote in 2012:

“There is a high evidentiary burden for demonstrating that any candidate holds a structural advantage in the Electoral College. The Electoral College almost always follows the popular vote, and even when the popular vote winner fails to secure the necessary electoral votes, it isn’t necessarily apparent in advance. Heading into Election Night 2000, the fear was Gore winning the Electoral College and Bush winning the popular vote. The exact opposite happened only a few hours later. In an extremely close national election, deviations of only a few percentage points in the closest few states can complicate even the best gamed electoral scenarios.”[613] [Emphasis added]

Third, presidential elections in which one candidate wins the popular vote—but not the electoral vote—are necessarily close elections. Tilden’s 3% margin in 1876 was the largest difference in the national popular vote among the nation’s four “wrong winner” elections (table 1.22). In 2000, the difference in the national popular vote between the two candidates was ½% (about a half million votes nationwide). Modest winning margins such as 3% are inside the margin of error of political polls.

An article on July 24, 2012 (four days after July 20), by Nate Silver in the New York Times, entitled “State and National Polls Tell Different Tales About State of Campaign”[614] reinforces the point. Silver pointed out that the Real Clear Politics average of national polls at the time gave President Obama a nationwide lead of 1.3%. However, at the same moment, Obama led by a mean of 3.5% in the Real Clear Politics averages for 10 battleground states (Ohio, Virginia, Florida, Pennsylvania, Colorado, Iowa, Nevada, Michigan, New Hampshire, and Wisconsin) that were considered (at the time) to be most likely to determine the outcome of the 2012 election. Both the 1.3% margin and the 3.5% margin were inside the margin of error for most political polls (typically plus or minus 3% or 4%). It seems implausible that mid-year polls in 2020 showing 1.3% and 3.5% margins similar to the just-mentioned July 2012 polling would be sufficiently persuasive to cause Texas Republicans to “perniciously” enact the National Popular Vote compact.

Fourth, even if political polls had no margin of error, they merely reflect public opinion at the time they are taken. Many things can happen between July 20 and Election Day in November.

July 20 is three and a half months before the November presidential election. That date is well before the national nominating conventions of the major political parties, and it is well before the date when a party’s (non-incumbent) vice-presidential choice is typically announced. The impression created by a party’s national convention (particularly the keynote speech, nominating speeches, acceptance speeches, and the absence of divisive intra-party fighting), the choice of the vice-presidential candidate, the debates, the day-to-day conduct of the campaign are examples of the numerous post-July-20 events can significantly impact the eventual outcome in November.

In August 1988, Michael Dukakis led George H.W. Bush by 18% in national polls; however, Bush won on Election Day by an 8% national margin.

A June 1992 nationwide poll taken immediately before the Democratic National Convention showed that Bill Clinton had 25% support (with Perot having 39% support and incumbent President George H. W. Bush having 31%).[615] However, Bill Clinton took the lead immediately after his convention and retained the lead all the way to Election Day.

Fifth, as a practical matter of state legislative scheduling, a decision to enact the National Popular Vote compact would have to be made considerably earlier in the year than July 20. Winning approval of a new state law in a given state is a multi-step process in which each step is subject to numerous time-consuming delays.

The ninth clause of Article III of the compact provides:

“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.” [Emphasis added]

A new state law can be “in effect” by July 20 only if it has previously been:

• approved by both houses of the state legislature,
• acquired the Governor’s signature (or been passed by overriding the Governor’s veto), and
• taken effect in accordance with the state’s constitution schedule specifying when state laws take effect.

Although procedures exist in each state legislature to accelerate the progress of a bill, these exceptional procedures can generally only be invoked by super-majorities. Given that the premise of Gringer’s hypothetical scenario is that partisan advantage is a “pernicious” partisan motivation for the enactment of the National Popular Vote compact, the minority party in the legislature would oppose such efforts. In fact, the minority party would vigorously employ the numerous tools at its disposal to slow or block the bill. Taking the specific case of Texas mentioned in Gringer’s article, Texas is one of four states with a two-thirds quorum in the legislature. Texas Republicans did not have a two-thirds majority in either chamber of the Texas legislature as of November 2012. Section 9.11.1 provides additional details on the difficulties associated with trying to pass legislation over the determined opposition of a legislature’s minority.

Moreover, even if a new state law could be instantly enacted, most state constitutions provide for a significant delay between the time of the Governor’s signature and the effective date of the newly enacted law (e.g., 60, 90, 120 days, in many cases, longer). The information in table 9.12 and the accompanying discussion in section 9.11.1 indicate that Gringer’s hypothesized partisan maneuver would have to be executed many months before July 20 in most states.

In Texas, for example, new state laws take effect 90 days after enactment. Thus, the National Popular Vote compact would have to be enacted by April 20, 2020, in order to be “in effect” by July 20, 2020. This 90-day delay can only be waived by a two-thirds vote of both houses of the legislature.

Sixth, there is an additional reason why Gringer’s hypothetical scenario could not be executed in Texas even by a date as early as April 20, 2020. The Texas legislature only meets for a few months in odd-numbered years for passing general bills. Gringer’s hypothetical scenario could be executed in Texas during the spring of 2019—that is, 18 months before the November 2020 presidential election. However, if the bill were not passed in the regular session in the odd-numbered year (2019), a special session would have to be called to consider the bill. If a special session were called in the even-numbered year (that is, 2020) for the purpose of passing an elections bill that is perceived to be of immediate partisan advantage to the Republican Party, Texas Democrats would fiercely oppose that bill. Given the two-thirds quorum in the Texas legislature, it would be impossible to pass the bill in the spring of 2020 or, indeed, any time after the legislature’s regular session in the odd-numbered year (2019).

If this partisan maneuver were contemplated in a state possessing fewer electoral votes than Texas, the question would arise as to whether that state could alone make the difference.

Others have suggested an even less plausible hypothetical scenario, namely that a politically motivated state legislature might repeal the compact before July 20 of a presidential-election year based on mid-year polls indicating that its favored presidential candidate is poised to win the electoral vote—but not the popular vote. This hypothetical scenario is implausible for all the same reasons mentioned in connection with Gringer’s hypothetical scenario involving Texas.

Footnotes