The National Popular Vote bill is a curious piece of reform legislation circulating among the states. Here is a brief summary
Under the U.S. Constitution, the states have exclusive and plenary (complete) power to allocate their electoral votes, and may change their state laws concerning the awarding of their electoral votes at any time. Under the National Popular Vote bill, all of the state's electoral votes would be awarded to the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia. The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes—that is, enough electoral votes to elect a President (270 of 538).
I can't think of any cases (excepting Constitutional Amendments) where a very important reform passed by a state legislature would take effect only if enough other states acted in the same way. It strikes me that this makes it easier to pass the legislation now without knowing when or if it will accomplish anything. It has been introduced in the SD Senate.
My esteemed blogosphere colleague Cory Heidelberger has a good piece on the reform, and seems to be warming to it. I think Cory is surely right that the legislation isn't unconstitutional. It is surely intended to neuter the Electoral College and ensure the same result in Presidential elections as if we amended the Constitution to elect the President by raw popular vote. However, it does not violate any rules or procedures specified in the Constitution.
I like the Electoral College. In effect, it provides for states to choose the President. That benefits smaller states and especially less populous regions like the one that Cory and I inhabit.
It does involve two significant problems. One is that it can allow a candidate to win the Presidency even if his or her opponent won a larger share of the popular vote. That has happened only very rarely, but it did happen in 2000. I don't think that there is anything wrong with this in principle. It is undemocratic, but so are the U.S. Senate, the Supreme Court, and the Bill of Rights for that matter. However, it clearly makes a lot of us feel uncomfortable, and that is nothing to be ignored.
The more serious problem is that a close Presidential election can be decided by a very small number of votes in an electoral vote rich state like Florida or Ohio. That brought about a constitutional crisis in Florida in 2000 and it very nearly happened again in Ohio in 2004. If there is a sufficient reason for the National Popular Vote reform, that would be it. The national popular vote is far less likely to be close enough to occasion a crisis or invite cheating.
I believe, however, that the reform is too clever for any problems that it might solve. First, it involves a terrible inconvenience, one that Cory points out.
In 2000, SB 138 would have bound Secretary of State Joyce Hazeltine to designate three Democrats as South Dakota's Electors, based on the fact that Al Gore won the most popular votes nationwide, even though George W. Bush beat Al Gore 60–38 in South Dakota.
For better or worse, the Constitution gives South Dakota three electoral votes. This reform would mean that the people of our state would no longer have any control over those votes. No matter who we voted for, our electoral votes would be controlled by national outcomes. That may be more democratic nationally, but it is deeply offensive to democracy within this state.
Suppose a string of popular vote victories by candidates who are despised by the majority in South Dakota. Would the state's voters put up with this? Might they not conclude, quite reasonably, that there was little point in voting at all?
The NPV reform might be reasonable were there not a much simpler solution, one that does not require any multi-state compact and preserves the control of South Dakota over its own electoral votes. There is.
We need only replace the Unit Rule with a proportional rule. Under the Unit Rule, also called "winner take all", the ticket that wins a plurality in the state gets all the state's electoral votes. When Bush won 60% of the vote in South Dakota in 2000, he got 100% of our three electors. The NPV preserves that rule.
We could do something like this. With three electoral votes in play, any ticket that receives at least a third of the popular vote gets one electoral vote. In 2000, that would give one to Bush and one to Gore. The third vote would be awarded to the candidate who won at least a plurality (more than the other tickets) or the majority. That's a second vote to Bush. The outcome would reflect the popular vote in the state instead of ignoring it altogether as the NPV does.
In any state that adopted such a reform, the threshold for winning an electoral vote would depend on the number of votes the state enjoys. Such a system would remedy both the problems mentioned above if enough states adopted it. The Electoral College vote would rather neatly mirror the national popular vote. It would be very unlikely that a candidate would win the one without winning the other. If a controversy should arise over a few thousand or a few hundred votes in a state like Florida, only one electoral vote would be at stake instead of twenty five electoral votes.
It is a sign of dysfunction in our political culture that the National Popular Vote reform has gotten so much traction when a much simpler solution is available.