Month: April 2026

While mid-decade gerrymandering has attracted more attention, another initiative with potentially broader impact on voting is advancing largely under the radar. The National Popular Vote Interstate Compact (NPVIC) is a proposed agreement among states to award each participating state’s electoral votes to the presidential candidate receiving the most popular votes nationwide regardless of whether that candidate won the popular vote in that state. Its premise is that presidential elections should be decided by direct popular vote rather than the current electoral college process.

The NPVIC movement began in 2006, inspired mainly by the 2000 presidential election in which George W. Bush narrowly lost the popular vote to Al Gore but prevailed in the electoral college. There have been four other instances, most recently 2016, when the presidential winner lost the popular vote.^[1]Donald Trump in 2016, Benjamin Harrison in 1888, Rutherford B. Hayes in 1876, and John Quincy Adams in 1824. Adams lost both the popular vote and in the electoral college but was elected by the House … Continue reading By its terms, the NPVIC will take effect only if it attracts enough states to control 270 electoral votes, the number needed to decide presidential elections. According to its website, 18 states and the District of Columbia, now holding a total of 222 electoral votes, have signed up so far. The most recent addition is Virginia, which joined just this year. The NPVIC currently needs to add states having only 48 more electoral votes to become operative.^[2]The exact number is subject to change since the allocation of electoral votes among states will undergo revision following the 2030 census.

A reasonable case can be made that the NPVIC would advance democratic principles. Electing the president by popular vote certainly seems more democratic. It’s fair to argue that the electoral college is anachronistic and the Constitution would instead provide for direct popular election of the president if it were written today. Presidential elections by popular vote should also enhance citizen engagement since the competition would truly be nationwide rather than limited in practice to the handful of swing states that now tend to determine the electoral college winner.

However, the NPVIC also carries many potential downsides. For starters, there are profound issues over its constitutionality. It’s an obvious attempt to circumvent the state-based process adopted by the framers of the Constitution, who specifically rejected presidential election by direct popular vote. Indeed, it would  nullify the formula for allocating electoral votes the framers carefully crafted to strike a balance between larger and smaller states.

While the Constitution grants states broad discretion over how to choose their electors, it’s questionable whether this extends to making themselves irrelevant by scrapping the state-based system that is central to the Constitution’s design and essentially outsourcing their electoral vote to other states. Another issue is whether the Constitution’s Compacts Clause requires congressional consent to the NPVIC.^[3]See here and here for a detailed discussion of these and additional legal issues.

Elections subject to the NPVIC would present many practical complications as well. A system in which every vote in every state is in play would likely increase election challenges and recount demands exponentially, perhaps requiring nationwide recounts. Simply arriving at initial national vote totals would be a protracted process.^[4]It took California five weeks to certify its 2024 popular vote. All this could leave the presidential election outcome in limbo for an inordinate period.^[5]See here and here for more on these and other practical challenges.

Additionally, the NPVIC has a pronounced partisan tilt. While the initiative has received scattered bipartisan support, its proponents lean heavily Democratic. Every state to adopt the NPVIC so far as well as the District of Columbia is deep blue or blue-leaning. Democrats held a “trifecta” (control of both legislative chambers and the executive) in 17 of the 19 jurisdictions.^[6]In another, Hawaii, the Democratic legislature overrode the Republican governor’s veto of the bill to join. Public opinion polls also show a sharp partisan divide. While a majority of Americans favor popular election of the president, support is much higher among Democrats than Republicans.^[7]See the 2024 polls by Pew and Gallup. Importantly, these polls were taken before the 2024 presidential election.

Another question is whether citizens would readily accept the consequences of the NPVIC if it took effect. It’s one thing to favor direct popular election in the abstract, but would majority voters in states whose electoral votes went to the candidate they opposed really be OK with that? While Democrats apparently feel that popular vote election gives them an edge, they should be careful what they wish for. Trump won the popular vote in 2024; thus, under NPVIC he would have won the electoral vote from all solid blue states whose majorities voted against him. His narrow popular vote margin over Kamala Harris (about 1.5 percent) would have translated to a landslide win in the electoral college.

Finally, there’s a clearly legal, less convoluted alternative to the NPVIC that would achieve the democratic benefits of presidential election by popular vote while preserving the Constitution’s current electoral college framework as well as the integrity of each individual state’s electoral vote. It would also avoid many of the NPVIC’s practical complications.

The fundamental problem with our current system isn’t the electoral college per se but the fact that most states award their electoral votes on a winner-take-all basis. This problem could be solved if each state instead allocated its electoral votes to reflect as closely as possible the popular vote within that state. For example, if the presidential candidates split the popular vote in a state with 10 electoral votes 60 to 40 percent, the winner would receive six of those electoral votes with the losing candidate getting the other four. This approach would consistently align electoral college and nationwide popular vote results, and it’s clearly constitutional. In fact, two states, Maine and Nebraska, now use a variant of it.

Alas, preferable as this approach might be, it seems politically infeasible in our current polarized, hyper-partisan environment. Implementing it would require a degree of collaboration between red and blue states that is hard to envision. Solid Republican and Democratic states would have to cede a significant portion of their now reliable electoral votes to the other party. Nevertheless, those who genuinely seek more democratic presidential elections might at least consider it.

 

 

 

 

 

Confusion abounds over exactly why the United States started the current war on Iran, what its strategic objectives are, and what the war’s likely outcome and long-term consequences will be. Major military operations are necessarily complex and unpredictable; hence the term “fog of war.” However, the evolving and frequently inconsistent explanations by the Trump administration along with President Trump’s erratic threats, actions and increasingly unhinged rants compound the inevitable uncertainty.

Two accounts–one unverified but plausible, the other clearly true–do shed light on how the war came about. Both are troubling. 

A remarkable New York Times story offers a detailed narrative of the presidential decision-making process. It suggests that the pivotal event was a February 11 White House meeting at which Israeli Prime Minister Netanyahu made a “hard sell” for the war to Trump and a small circle of his advisors. Netanyahu insisted that the war could be completed quickly and would result in ousting Iran’s radical regime. He discounted the risk that Iran would close the Strait of Hormuz or attack neighboring countries. After listening to Netanyahu’s pitch, Trump supposedly replied “sounds good to me.”

Of Trump’s advisors, only Defense Secretary Hegseth shared his enthusiasm; the rest expressed varying degrees of skepticism. Over the following days, U.S. intelligence officials assessed Netanyahu’s prediction of an uprising leading to regime change as “detached from reality” and “farcical.” Joint Chiefs Chairman General Dan Caine warned Trump that a major campaign against Iran would drastically deplete U.S. weapons stockpiles and emphasized the risk of Iran blocking the Strait of Hormuz. Vice President Vance opposed the operation outright.

The timetable for reaching a decision was pushed up by intelligence that Iran’s ayatollah would be vulnerable to assassination on a particular day. In the end, none of Trump’s advisors pushed back significantly against his initial inclination to go to war despite their reservations. According to the article, all deferred to Trump’s instinct that the war would be a quick and decisive win.

If even the gist of this account is true, it presents a disturbing picture: Trump launched a major military action based largely on his own instincts, favoring the rosy scenario pushed by Netanyahu over cautionary assessments by military and intelligence officials as well as mainly skepticism by the few advisors he consulted. While its accuracy can’t be established definitively, this account does align with Trump’s consistent tendency to operate mainly by whim with little interest in or tolerance for opposing views. 

The second disturbing feature, which is clearly true, is the absence of any consultation with Congress. The Constitution explicitly vests the power to declare war in Congress. Over time, war powers have shifted dramatically from Congress to the president. Nevertheless, the total absence of congressional participation in this case is striking. Law Professors Bob Bauer and Jack Goldsmith describe the Iran war as “among the most consequential [congressionally] unauthorized presidential uses of force in all of American history,” probably second only to the Korean War, and also “a new nadir in the decline of Congress’s check on presidential war.”

The lack of congressional input is more than an abstract legal concern. Bauer and Goldsmith note that the constitutional authority to declare war was assigned to Congress “to ensure a democratic check on unilateral presidential military adventurism.” They see a direct connection between the absence of consultation with Congress before or since the Iran war began and the volatility with which the administration has conducted it. They submit that “the need to justify and explain [the war] to government leaders outside the presidential bubble might have surfaced the many problems that have become apparent over the last month and counseled a steadier course.”  

Nothing illustrates this better than the conundrum over Iran’s closure of the Strait of Hormuz. Most experts regard this tactic by Iran as entirely foreseeable. General Caine reportedly highlighted the risk to Trump, but Trump brushed it aside and his “bubble” offered little resistance. They now face a variant of Colin Powell’s Pottery Barn rule (“you break it, you own it”). One expert submits that the crisis Trump created regarding the Strait may have caused the war to morph from one of choice to one of necessity.

Trump’s varying responses to the closure have ranged from asserting that reopening the Strait is someone else’s problem, to saying it will somehow reopen itself, to making the reopening an essential part of any settlement of the war. He has now ordered the U.S. military to conduct its own blockade of the Strait.

How the war turns out remains to be seen, but all outward signs along with the above reporting suggest that Trump started it with no coherent, realistic strategy. Moreover, he is operating without either internal or congressional guardrails.

Clearly, the U.S. military is performing at a high level; perhaps the war will achieve strategic outcomes justifying its huge costs and other consequences. However, surely this is not the way to initiate and conduct a major war. The track record of U.S. military actions over recent decades is not good even when undertaken by more conventional presidents with more serious advisors than the ever more bizarre Trump and his gang of sycophantic enablers.       

 

One downside (among many) of the age of Trump is the tendency of his opponents to stoop to his level, adopt his tactics, and join him in a race to the bottom. Virginia’s radical gerrymandering proposal is a case in point:

• • It would debase Virginia’s redistricting process from one of the fairest in the Nation to the least fair.
  • It would make Virginia the most extremely gerrymandered of all states.
  • While promoted as a “temporary” measure to counter Trump, it would remain in effect for at least three election cycles, well after Trump leaves office, and perhaps longer.
  • It’s unlikely to significantly impact the net outcome of the 2026 House elections.
  • What it’s certain to do is devalue the constitutional voting rights of hundreds of thousands of Virginians and further degrade our already abysmal politics.

The official explanation for the proposal on the April 21 ballot is a Trump-worthy masterstroke of misinformation. The claim that its purpose is “to restore fairness in the upcoming elections” is patently false. The proposal would do precisely the opposite by restoring the unfairness of gerrymandering that the independent redistricting process it overrides was designed to prevent. Indeed, it would change Virginia’s grade on the nonpartisan Princeton Gerrymandering Project’s Redistricting Report Card from an A to an F.

The other claim in the official explanation, that the proposal would only “temporarily” supersede the independent process, is highly misleading. The gerrymandered districts would remain not just for the 2026 elections but for at least the following two election cycles reaching into the next decade. By then, those districts and their incumbents would be entrenched. If Democrats still control the state government, they will almost surely try to keep their advantage by putting off the independent process again. Conversely, if Republicans control the state, they will be itching for payback and anxious for a gerrymander of their own, invoking the Democratic “precedent.”

The new map that has already been enacted by Virginia Democrats is extreme even by gerrymandering standards. If it works as intended, it would flip one-third of the state’s U.S. House seats from a fairly balanced 6-5 split in favor of Democrats (reflecting Virginia’s political makeup) to 10 Democrats and only one Republican. This would make Virginia the most gerrymandered state in the Nation, with Republican-leaning voters more underrepresented than minority party voters in any other heavily gerrymandered state, red or blue. For example, Republicans would hold a higher proportion of House seats in deep blue Illinois than in Virginia; Democrats would be more proportionally represented in deep red Texas (even with its new gerrymander) than Republicans in Virginia.^[1]Virginia Republicans would have about the same minimal proportional  representation as California Republicans (taking California’s new gerrymander into account), but of course Virginia has a far … Continue reading 

Even proponents find the proposal distasteful but justify it as necessary to counter Trump’s mid-decade gerrymander push. Democratic Congressman Don Beyers conceded that while the proposal “seems unfair in Virginia,” voters should “hold their nose” and support it. But the justification that this is only a defensive measure to counter Trump is belied by the fact that Virginia’s gerrymandered districts would continue for at least four years after Trump leaves office.

Moreover, it’s doubtful that the proposal would significantly affect the national election outcome in 2026. Trump’s gerrymandering push lost steam after Texas and California cancelled each other out. Even if other states belatedly join in, most experts think the most likely nationwide outcome from any additional gerrymandering will be a wash or at most a net gain of only a seat or two for one side or the other. Whether Democrats win a House majority in 2026 depends on many factors that are much more influential than newly gerrymandered districts.

In sum, there is no substantive or high-minded justification for this major assault on the constitutional voting rights of Virginians. Approval of the proposal would be a huge step backward for Virginia and yet another step lower in our national politics.

 

 

 

 

 

 

The fact that Transportation Security Administration (TSA) employees are now receiving their pay again is, of course, a good thing. For weeks they had been unfairly forced to work without pay, imposing great hardships on themselves and major inconvenience to the public, because Washington politicians refuse to do their jobs. However, the method of payment is patently illegal.

This inconvenient and somewhat obscure problem has attracted little attention given the popular outcome, but it sets a terrible precedent. If the president can bypass Congress and pay TSA salaries after Congress fails to act on the specific appropriation for this purpose, he can dip into the treasury and spend money directly for a host of other purposes he favors without congressional approval and even in the face of congressional opposition.

By way of background, the appropriation for TSA employee salaries expired on February 14 as part of the current partial government shutdown and remains nonexistent since Congress failed to agree on a carveout to revive it. Notwithstanding this, President Trump ordered the Secretary of Homeland Security in coordination with the Director of the Office of Management and Budget (OMB) to pay TSA employees from funds that have a “reasonable and logical nexus to TSA operations.”^[1]The order consists mainly of a political attack on Democrats.

This order contradicts the express terms of the Constitution (Art. I, § 9, Clause 7), which provides: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”  Where, as here, Congress fails to enact the specific appropriation for a particular object, the President can’t invoke another more general funding source that might arguably have some “nexus” to it. Obviously, doing so would effectively nullify the constitutional prohibition.^[2]See, e.g., here: An agency cannot use an appropriation account having a logical relation to an expense when another appropriation account specifically covers that expense.

The so-called Antideficiency Act (31 U.S.C. § 1341) has been interpreted to permit the president to order essential employees to continue working during an appropriations lapse, receiving backpay after their appropriation is enacted. However, it does not permit such employees to actually be paid during the appropriations lapse. On the contrary, the Act restates the general prohibition against any federal officer or employee making or authorizing an expenditure exceeding the amount available in an appropriation. Indeed, the Act (31 U.S.C. § 1350) makes knowing and willful violations of this prohibition a crime.

Trump is probably oblivious to these legal constraints (or indifferent if he has been briefed on them). On the other hand, OMB Director Russell Vought surely is not. Vought undoubtedly knows that paying the TSA employees here is illegal. This is another all too familiar example of a fringe ideologue and sycophantic Trump enabler violating his oath of office to do Trump’s bidding.

Certainly, congressional leaders and at least senior members of both parties are likewise aware of this illegality. However, they appear willing to cynically ignore it since the end result eliminates one major cause of public outrage justifiably aimed at them for failing to perform their basic obligation to fund these important government services. Ending this significant pain point also eases pressure on them to come to their senses quickly and fulfill their constitutional responsibilities. (Congress is now on a two-week break.)

Once more, it’s great that TSA agents are being paid and airport screening delays are abating. But for anyone paying close attention this comes at a heavy potential cost to the proper functioning of our government whose ramifications remain to be seen.