The Colorado legislature’s ratification of the National Popular Vote (NPV) Compact has provoked outrage because NPV cedes Colorado’s presidential electors to other states.
NPV suffers from severe constitutional problems. But experience teaches us that you can’t rely on the courts to void unconstitutional measures. So we need to take seriously what the NPV “progressives” are trying to force on us.
First, one should understand that the compact should be called “National Plurality Vote.” Under its terms, if states with 270 presidential electors ratify, then each subscribing state will yield its electoral votes to whomever wins a national plurality— not necessarily a majority. If Peter Fineagle wins a plurality of only 35 percent, he becomes president.
In NPV countries, such results are commonplace. A candidate does not need wide national support to contend for the presidency, because he can win with bare plurality in a fractured field. And NPV assures there is almost always a fractured field.
For example: In three of the last four elections in Honduras, the successful candidate for president won in multi-party elections with 43 percent of the vote or less. In 2013 in a field of four, the winner received less than 37 percent. In other words, more than 63 percent of Hondurans voted against the guy, but he became their president nevertheless. Welcome to National Popular Vote.
In the 2006 Nicaraguan election, a plurality of only 38 percent elected socialist Daniel Ortega. Once in office, Ortega did what socialist thugs commonly do: suppress opposition. Nicaragua has not had an honest election since. A similar incident occurred in 1970 when the Chilean Congress allowed socialist Salvador Allende to take office although he had won only a 37 percent plurality. The consequences for Chile were disastrous.
Like the U.S., Mexico is a sprawling, at least nominally federal, republic. Mexico chooses its president by NPV. In three of the last four elections, the victor has won without a majority. In 2006, only 36 percent elected the president. In 2012, only 38 percent did. Next to such results, Donald Trump’s 46 percent—just two percentage points behind Hillary Clinton—looks like a landslide.
In Panama, the winner of the last presidential election received only 39 percent. In the last Venezuelan election before the emergence of strongman Hugo Chavez, the winner garnered less than 31 percent. In all of Paraguay’s last four elections, NPV has awarded the presidency to candidates the majority rejected.
In the last Filipino election, 61 percent voted against Rodrigo Duterte, but got him anyway. In the four previous elections, the winner never obtained more than 42 percent. In 1992, Fidel Ramos was elected in an 11-candidate field with under 24 percent!
Many of these elections were tainted by corruption, and NPV would import that as well. NPV would encourage state officials to inflate their state’s popular vote totals by any means possible. Moreover, under the NPV compact, every state election officer would be required to accept certified vote totals from every other state—no matter how corrupt those totals were known to be.
Under NPV, the rot would soon spread to state elections. Most states have plurality election systems now, but their political parties are held together by the need to compete nationally. Once that need disappears, state elections would become as fractured as national races.
Many Americans are unaware of how our presidential electoral system has protected us from Third World results. To win under our system, a candidate must win a majority in the Electoral College, which is almost impossible to do without winning at least 40% of the popular vote. (The one time it happened, the results provoked civil war.) Moreover, if no candidate receives a majority of electors, the House of Representatives run-off enables leading candidates to form coalitions with majority support.
But the NPV compact would effectively disable not just the Electoral College, but the congressional run-off as well.
It is true that the current system occasionally produces a president who, while enjoying widespread popular support, hasn’t quite won a popular majority. But under NPV, corrupt Third World-style elections would regularly produce presidents opposed by overwhelming majorities.
It’s often claimed that left-wing “progressives” want to make America look more like Europe. Not true: Europe is moving away from socialism and toward free markets. They really want to make America more like the Third World.
(Editor’s note: All of Complete Colorado’s coverage of National Popular Vote is available here.)
Rob Natelson served as a law professor for 25 years, and nationally known as a constitutional scholar. He is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver, and author of The Original Constitution: What It Actually Said and Meant (3rd ed. 2014).