Ingenuity & The Law of Unintended Consequences

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Carroll G. Robinson
November 8, 2024

This is a piece about the reality of American political ingenuity. A genius that stretches as far back as the transition from The Articles of Confederation to The Constitution of The United States.

Every new solution in the American political system has simply become a new challenge to be overcome by the “smart” people involved in electing public officeholders. Just look at what has happened to all the campaign finance reform laws that Congress has passed since Watergate. (See, e.g., Ally Mutnick, Jessica Piper and Madison Hernandez, Senate Republicans to save millions of dollars on ads—thanks to the FEC, POLITICO, 10/10/24, 08:07 PM EDT). The newest example of the political ingenuity I am referring to in this piece.

Eliminating the Electoral College (by amending The Constitution) and moving to a direct national popular vote (with a plurality winner) to elect the President of the United States, or doing so indirectly through the National Popular Vote Interstate Compact, will not be the simple and elegant solution so many people seem to think it will be. (See, e.g., Myra Adams, Tim Walz is right: Scrap the Electoral College, THE HILL, 10/11/24, 7:00 AM ET).

This piece will not delve into the many likely constitutional issues and possible legal challenges involving the Interstate Compact, should it ever be used.

The push for electing the president by a plurality national popular vote is built on two faulty assumptions. First, that a national popular vote is a national ballot. It is not. There is no one national presidential ballot access law or process, in our nation. Second, that the two national political parties-Democrats and Republicans-will be the only parties that can run a successful national campaign. Again, this too is a mistaken belief in light of the decentralized nature of the American presidential electoral system. (Just remember this year’s Trump, Cornel West and Robert Kennedy presidential ballot access cases. See generally, Aziz Huq, Why The Supreme Court Might Cast The Final Vote for President, POLITICO Magazine, 10/9/24, 12:00 PM EDT.)

The biggest flaw in the national popular vote solution for electing the president is that Democrats gain their popular vote advantage in only three states-New York, Illinois and California. Not only are these three states losing population, but in a national popular vote presidential election, Republicans, as well as Democrats, will likely help place third party candidates on the ballot in each of those states to reduce the other party’s share of the popular vote. Look at this year’s presidential ballot access court cases and remember the impact of Ralph Nader, in Florida, on the race between George W. Bush and Al Gore as well as the impact of Jill Stein on the race between Hillary Clinton and Donald Trump. These examples are small potatoes compared to what is to come in a plurality popular vote presidential election system. 

Also, consider how each major party now spends millions of dollars trying to influence the United States Senate and gubernatorial primary election results of the other party. Why would you think they would not do something similar when it comes to winning the biggest prize in American politics-the presidency?

Not only will the multi-candidates vote dilution strategy play out in New York, Illinois and California, it will also likely be utilized in Texas and Florida along with the possibility of high profile Black, Hispanic and women becoming independent or third party candidates in strategic states (as opposed to swing states) to exercise political leverage over policy or to be spoiler candidates. 

Every state could possibly become a battleground state but not as anticipated by Myra Adams as discussed in her piece Tim Walz is right. Cited above. 

In a plurality national popular vote presidential election system, state ballot access laws will be the new political Wild West of litigation or state legislative intrigue unless a national presidential ballot access standard is implemented by Congress. No such standard is included in the National Popular Vote Interstate Compact. 

Ballot access, especially for Independent and third party candidates, has always been a point of contention in our political system. That tension is likely to increase, if our nation moves to a plurality popular vote presidential election system.

Even under existing ballot access laws, the current two major party system will not dominate a plurality national popular vote presidential system. In fact, a plurality national popular vote presidential election system is likely, over time, to fuel the growth of stronger national third parties beyond the Green Party and Libertarian Party. This may, or may not, be a good thing. A multi-party democracy has been praised by some and criticized by others and many political scientists attribute our nation’s political stability to our two major party political system. (But See, Matt K. Lewis, 50-50 elections are bad for America, THE HILL, 10/16/24.)

Stronger Third Parties will also likely start winning state legislative elections, and likely seats in Congress, if more states continue to move to open primaries and rank choice voting general elections. 

At a minimum, a plurality based national popular vote election for president could end up electing presidents with minimal support among the American people and little to no real political capital with Congress. 

For every solution, there are always unintended consequences, even if they take some time to reveal themselves. Think for example not only of the current debate surrounding the Electoral College but also of the 3/5ths compromise, the fact that United States Senators were originally selected by state legislatures and women were denied the right to vote, just to name a few examples. 

In the realm of politics and public policy, there are no perfect, perpetual solutions. It is self-evident that (even as good as it has been) not even the original Constitution of The United States has been a perfect, perpetual solution. It has had to be amended and still is being debated today, as reflected in the recent calls for a new Constitutional Convention.

No one should assume that a plurality popular vote presidential election system will guarantee them (or their political party) victory. The law of unintended consequences is always at work.

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Author: Carroll G. Robinson is an Associate Professor of Public Administration and Political Science at Texas Southern University’s Barbara Jordan-Mickey Leland School of Public Affairs in Houston, Texas. 

 

 

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