Opinion | This blue-state election compact could create a constitutional crisis

The aim is to replace the electoral college with an improvised popular-vote system for electing presidents without amending the Constitution. Minnesota’s move means that 16 states and D.C., controlling 205 electoral votes, are now parties to the compact. Michigan’s Democratic-controlled legislature is also set to vote on the compact. If the Great Lakes State becomes the 17th to approve it, compact member states will control 220 electoral votes, bringing them more than 80 percent of the way to 270.

Problems with the plan have been well-documented since Maryland became the first state to sign on in 2007. As a constitutional matter, the compact probably requires the assent of Congress. But let’s say the United States started an election season on the expectation that it would be in effect.

The winner-take-all electoral college has limited the number of viable candidates to two in most elections; a popular-vote free-for-all could invite five or six or more. If politicians would just need a national vote plurality to automatically be awarded the compact’s 270 votes — and wouldn’t need to win across a range of states — more candidates would think they have a chance. Larger candidate fields would lower presidential vote shares and weaken presidential mandates.

This concern might seem abstract. But Donald Trump’s effort to overturn the 2020 election ought to bring home the risks of monkeying around with states’ time-honored systems for assigning electors. Trump wanted to prevent states such as Arizona and Georgia from delivering their electors to Joe Biden, even though Biden narrowly won those states. The compact has a nobler purpose, but it asks states to do the same thing: award their votes to a candidate other than the state’s winner.

That extraordinary demand would raise incentives for subversion. Would swing-state Democratic governors certify a Republican presidential candidate as the winner of their state’s electoral votes if most voters in their states voted for the Democratic candidate? The governors could claim a prerogative to ignore the compact under federal or state constitutional provisions.

There’s also the problem of the country’s patchwork of election laws. Under the compact, the national popular vote would be calculated as the sum of the popular vote in each state, even though states run elections under different rules. Officials in red states could complain that blue states were juicing Democrats’ national popular-vote numbers with extended voting windows; officials in blue states might complain that voter identification rules in red states distort the national popular vote.

The Supreme Court declined to consider Texas’s last-ditch lawsuit against Pennsylvania to overturn Joe Biden’s 2020 election because Texas wasn’t harmed by Pennsylvania’s election practices — the two states chose their electors separately. But as University of Iowa law professor Derek Muller told me, that logic might not apply if, under the compact, Texans’ and Pennsylvanians’ presidential votes were mixed together for the purpose of calculating the national popular-vote total. States would be at one another’s throats over their internal election policies.

Even if courts found a consistent way to interpret the compact, members of Congress could balk at accepting slates of electors that don’t reflect state-level results. Under the Electoral Count Act, a majority in both houses of Congress can reject a state’s electors. Unlike on Jan. 6, 2021, lawmakers could have a plausible constitutional argument for doing so.

It once seemed unthinkable that a sufficient number of states would agree to surrender control over their own electoral votes in an agreement with other states. But political polarization is thrusting the compact forward: Opposition to the electoral college has become almost universal in the Democratic Party after its candidates won pluralities of the popular vote but lost the presidency in 2000 and 2016. As soon as Democrats control a state’s legislature and governorship, the state becomes a candidate for joining the compact. The progressive website Daily Kos speculates that the compact could be in place in 2028 if Democrats romp in intervening election years.

No states that have joined the compact to date have exited it. But as the compact presses into more competitive states like Michigan, it could face defections if there is partisan turnover in the state legislature. That means the U.S. system for choosing presidents could swing back and forth based on elections in one or two states.

It’s not impossible to imagine the compact going into effect successfully — especially if it were tested and institutionalized in a handful of elections in which the popular vote and electoral college vote aligned. But the rickety contraption could also fall apart under the pressure of the next split between electoral and popular votes — either in Republicans’ or Democrats’ favor. Such splits are more likely in eras of close elections, as in the late 19th century and (so far) the early 21st century, and they can favor either party.

The transfer of power depends on a sense of legitimacy and the losers’ voluntary acquiescence. Trump showed how a determined presidential loser can create a crisis in the post-election period; the popular-vote compact creates more paths to crisis by adding uncertainty and instability in the mix. Perhaps some progressives hope a more just society could emerge on the other end of such a crisis. More likely: chaos, if not worse.