Maryland has become the first state in the nation to join an “interstate compact” that would, in theory, guarantee an Electoral College majority to the winner of the national popular vote. The compact takes effect if, and only if, 270 electoral votes’ worth of states sign up. If and when that happens, all of the “compact” states agree to pledge their electors to the nationwide winner, regardless of the states’ own tallies.
Having read up on the “interstate compact” plan for my Electoral College paper, let me just say, this is an unbelievably bad idea. Even if you support getting rid of the Electoral College and replacing it with a popular-vote system, this plan is a woefully inadequate and downright dangerous means of doing that. It will almost certainly lead to a major constitutional crisis in the event of a very close election.
If you want a direct popular election, you have to eliminate the Electoral College, not just circumvent it. More importantly, you have to eliminate it and replace it with something, namely an altogether new and unprecedented numerical organism called the “national popular vote.” Presently, there is no official accounting of the national popular vote — it is little more than an invention of the news media, and Dave Leip — and incredibly, the “interstate compact” plan doesn’t even attempt to remedy this glaring problem. Instead, it leaves the tallying up of the nationwide numbers to the individual states, meaning that if (or rather, when) a close national election leads to disputed tallies in multiple states, each “compact” state would have the responsibility of deciding which numbers from the disputed states to add into the tally. You could (or rather, would) have different states awarding their electors on the basis of different accountings of the national popular vote.
There is also no provision for a nationwide recount, even if the vote tally is Florida-close (a margin of less than 0.01%). And while the “compact” states might adopt laws agreeing to recount their own tallies when the national race is close, certainly the non-compact states won’t, so there is no possibility of an adequate recount in a race so close that it clearly requires one. The idiots at NationalPopularVote.com think this won’t be an issue unless there’s an election decided by “a few hundred or a few thousand votes out of 122,000,000“; apparently they don’t understand elementary math. You have to look at the percentages, not the raw totals. Any nationwide margin less than a couple hundred thousand votes (~0.2%) borders on a statistical tie, and if it’s less than 10,000 votes, it would be closer, in percentage terms, than Florida’s 537-vote margin in 2000. In either case, a national recount would indisputably be necessary. But under this system, it would not happen. (Just for perspective’s sake, many states require a recount in any statewide election where the margin is less than half a percent — 0.5%. The national popular vote tallies in 1880 and 1960 easily met that criteria, and 2000 was damn close to it.)
In addition, there’s a serious argument that the plan is unconstitutional on its face. My classmate Derek Muller wrote an excellent paper on this topic, which he recently uploaded to SSRN (though I can’t get it to download at the moment).
There are about a hundred other glaring, overwhelming, legitimacy-destroying, constitutional-crisis-creating problems with the “interstate compact” plan, but I don’t have the time or energy to go into them here at the moment. Of course, many more of them will be in my paper, which is still a work in progress. Hopefully I’ll be able to share it with y’all here, in some form, eventually. For now, let us all — Electoral College defenders and critics alike — please take a moment to shake our fists at Maryland, which has just agreed to a truly awful piece of legislation.