Chris Weigant: Popular Vote Speculation Interlude

You'll have to forgive me for opening with a joke, but there's been a "song" running through my mind all week. It's from an old comedy routine I heard decades ago, so I have no idea which comedian to credit. The comedian was suggesting new lyrics for our national anthem, with a practical interpretation based on when we usually actually sing it. So, everyone sing along with me, in your collective heads:

"As we stand here waiting / For the ball game to start..."

Don't know why that's been running through my head... heh. Actually, that's a lie. I'm just as interested as the next pundit in what the Supremes are going to say tomorrow about Obamacare, but I just don't think it's worth talking about here until it happens, that's all. Instead, I'd like to take a summertime flight of electoral fancy.

Once or twice per presidential election, I like to engage in the sheerest of blue-sky speculation about possible interesting outcomes that could happen. Four years ago, I engaged in idle speculation about a 269-269 tie in the Electoral College. This time around, the scenario I've been hearing bandied about is that Barack Obama wins the Electoral College vote, but Mitt Romney wins the popular vote. Barring Supreme Court cases, this would mean a second term for Barack Obama, of course.

In recent history, we've already had one such election, as Al Gore got hundreds of thousands more votes than George W. Bush did. This would merely turn the tables on the 2000 outcome, to put it one way.

The Republicans would certainly howl about such an outcome. It is debatable which side of the political aisle is more effective at such howling (and which side does a better job of such yowling and outrage), but it's fairly certain that we would look back at all the birther nonsense as being a walk in the park compared to what conservatives would be saying about Obama, should this scenario actually play out.

Howling and yowling aside, though, there would likely also be an interesting (and more concrete) effect should Obama win his second term in this fashion -- Republicans would suddenly discover an effort which has been quietly building steam ever since the 2000 election. I speak of the "National Popular Vote" effort.

This organized effort is, at its heart, an end-run around trying to get a constitutional amendment. According to the National Popular Vote organization, this does not mean it is an unconstitutional effort, though (a major distinction worth making).

The idea is simple, at its heart. The Constitution says that each state may allocate its electoral vote as it sees fit. The "NPV" effort aims to convince enough states to change their electoral laws so that whichever candidate wins the national popular vote will be guaranteed the White House.

Nine states, to date, have approved this NPV scheme by passing identical laws. These laws state that the entire delegation of state electors will vote for the nationwide winner of the presidential vote no matter what the actual vote result is in each state. Say you lived in California, for instance. The state votes overwhelmingly for Obama, but when it comes time for the Electoral College to vote, all 55 votes are cast for Mitt Romney (to use the Obama/Romney election as an example).

Be advised, however, that there's a "trigger" built in to this law -- it will not go into effect in any state until enough states have passed the same NPV law so that their electoral votes add up to the 270 Electoral College votes necessary to win the election. So the whole scheme wouldn't come into play until it was actually meaningful (and fair) to the ultimate result.

As you can see, this sort of thing would be much better handled by an actual constitutional amendment that abolished the Electoral College and simply decreed that the national vote was the ultimate arbiter. But since constitutional amendments are almost impossible to get passed, the National Public Vote folks are trying to incrementally build support for the national vote being final.

The problem with this effort -- up until now -- is the unbalanced nature of the states that have passed such laws. The nine states where this is now election law are: California, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Vermont, Washington, and Washington, D.C. You'll immediately note that these states are mighty blue indeed -- nary a red state among them. Chalk this up to the aftermath of the 2000 election. But also please note that this means that a total of 132 state electoral votes have now signed up for the scheme -- which is roughly half of the 270 needed.

Fast-forward to 2013, when President Obama is sworn in with less than a majority of the popular vote. Among the howling from conservatives, there will likely be an effort to do something about the problem. I can easily see quite a few red Republican states suddenly discovering the NPV effort, and moving legislation in their respective statehouses. If Texas led the way and passed NPV first, then only 100 more electoral votes would be needed to make the plan a reality, to put the situation in perspective.

Move even further forward in time, to the next election where the Electoral College vote didn't match the national popular vote, and we'd be in for one whale of a court fight (which would make Bush v. Gore look tame, indeed).

The interesting thing, however, is if the Obama scenario plays out, and if the National Popular Vote folks get their wish with the addition of a pile of red states (two mighty big "ifs," to be sure) -- the result would be an almost evenly-divided bipartisan effort between blue states and red. This would tend to give it more legitimacy with the public, one assumes. If only blue (or near-blue) states totaling 270 electoral votes passed the NPV law, and then a subsequent election were determined by the scheme, it would look a lot different than if the states were evenly mixed between blue and red.

The truth of the matter is that if we ever did get to the point of having an electoral majority of states pass such a law, then likely the public would be a lot more open to an actual constitutional amendment which solved the problem more simply, by just abolishing the Electoral College once and for all.

But that doesn't stop me from my idle summertime speculation, as we stand here waiting for nine players to take the field (so to speak), and the Obamacare ball game to start.

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Chris Weigant blogs at:

Follow Chris on Twitter: @ChrisWeigant
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Follow Chris Weigant on Twitter: www.twitter.com/ChrisWeigant

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