A flawed national popular vote could work to Trump’s advantage

It’s anyone’s guess at this point whether Donald Trump will win the Republican nomination for president in 2024. Many Democrats have mixed feelings, hating Trump and what he’s done to the country but thinking he might be the easiest Republican opponent for President Biden (or perhaps any other Democrat) to beat.

But what if Trump faces insurmountable obstacles in seeking the Republican nomination? What might he do, particularly if he’s not likely to back down? 

Trump recently refused to commit to supporting the Republican nominee if he doesn’t get the nod, prompting his former attorney general, William Barr, to claim Trump would ruin Republicans’ chances by “telling his base to stay home.” 

There may be another tactic that could be better for Trump but worse for us all.

Having long focused on the proposed National Popular Vote Interstate Compact (NPVIC) and its critical conceptual flaw that permits the election of a president with a small minority of the popular vote, I’m intrigued by a possible move by Trump to win even if he loses.

NPVIC attempts to bypass the undemocratic overweighting of smaller states in the Electoral College (mirroring their overweighting in the Senate, where each state has two representatives regardless of population). When states aggregating 270 electoral votes (the number necessary to elect the president) sign the compact, all those states would be contractually committed to casting their electoral votes for the winner of the vote nationally. 

States with 195 electoral votes have already adopted the compact, so NPV is only 75 electoral votes short of success. But the supporting states are all heavily Democratic states. Michigan (16 electoral votes) and Minnesota (10 electoral votes), which have both passed NPVIC in one branch of their legislatures, elected fully Democratic legislatures and governors in the midterms, so NPVIC may soon come within 49 electoral votes of success.

NPVIC has passed one branch of the legislature in seven other states totaling 62 electoral votes (Arkansas, Arizona, Maine, North Carolina, Nevada, Oklahoma, and Virginia), but those states are now at least partially controlled by Republicans. So the initiative is now largely up to Republicans, putting aside likely legal challenges.  

Although Republicans initially indicated some support for the compact, many seem to have recognized that just as they benefit from the Senate bias, they benefit from the Electoral College tilt. Few of the remaining states with Republican control of one or both branches of the legislature (and/or the governor) have been serious contenders to push past the 270 electoral vote threshold for NPVIC.  

But the critical flaw with the NPVIC concept — that it would elect the winner of the most votes nationwide even if it’s not a majority of voters — might play to Trump’s advantage. If Trump believes he would have the support of the 39 percent who view him favorably or that others will support him when they see the alternatives, he might be willing to gamble on winning the presidency as an “independent” candidate, for which he has the name recognition and financial support to be uniquely competitive. As he would likely not win many states, and therefore not obtain many electoral votes in the traditional way, the compact might be a more successful route.

Trump’s many supporters in state legislatures would likely be able to help pass the NPVIC compact in well more than enough additional states to make it effective. Trump’s support in state legislatures has proven powerful. Although the GOP establishment has admitted to the Republican bias in the Electoral College system, general Republican support for some form of a national popular vote last year was 42 percent, up from only 27 percent in 2016, and that may be buoyed further now, as Republican House candidates received more votes than Democratic candidates nationwide in 2022. The many Democratic legislators in those states who have consistently supported NPVIC, not only to overcome the Electoral College bias but also on “good government” grounds, would likely join the Trump Republicans. As Charles Dudley Warner noted: “Politics makes strange bedfellows.”

Adopting NPVIC might support Trump even more than apparent at first glance. Voters showed strong support for Sen. Bernie Sanders (I-Vt.) in 2016 and combined support for Sanders and Sen. Elizabeth Warren (D-Mass.) in 2020. Might progressives, restless with the more incremental changes supported by the Democratic center, chance backing their own candidate under NPVIC, which permits plurality election of a president?

Would Trump go this route? This month’s repeat that Trump might not support the Republican nominee echoed similar threats in 2015 and 2016, which were interpreted then as a prelude to a possible independent candidacy, as it has been by some now. A movement by Republican legislators in the next year to support NPVIC might confirm such a move. 

And although he has not been entirely consistent, Trump has long criticized the Electoral College system and said he is in favor of a popular election of the president (support touted by NPVIC). His support for NPVIC now might even be seen as a level of consistency and a focus on the public interest rather than his own, thereby possibly leaving a better permanent legacy even if he loses. Strange bedfellows indeed!

NPVIC supporters — and states that have passed it — may want to be prepared with a simple amendment addressing the fixable flaw of the election of a populist without popular support. Whether they’re named Trump or not.

Andy Schatz practiced law for over 30 years and has served as president of the American Civil Liberties Union of Connecticut and on the national ACLU board and executive committee. He has spoken publicly and testified about election issues and currently serves on the Commission on Social Action of Reform Judaism. This is his personal view and does not represent the views of any organization.