The Electoral College is under Fresh Assault on the heels of Trump’s Victory last November, the Second time in Five Presidential Races the Popularly Elected Candidate Lost the Election, but it’s not due to any Groundswell in Congress for a Constitutional Amendment to adopt a National Popular Vote to Replace the Electoral College.
The Electoral College process consists of the selection of the Electors, the Meeting of the Electors where they vote for President and Vice President, and the Counting of the Electoral Votes by Congress. The Electoral College today consists of 538 Electors. A majority of 270 Electoral Votes is required to Elect the President and Vice President.
Instead, the most viable Campaign to Change how Americans choose their Leader is being waged around the Country and even Abroad, as an entity called the Institute for Research on Presidential Elections peddles a Controversial Idea: that State Legislatures can put the Popular-Vote Winner in the White House.
The Radical Alternative is the National Popular Vote Interstate Compact (NPV), call it the “Compact,” for short. The most concise explanation: Rather than Abolishing the Electoral College via Constitutional Amendment, State Legislatures would Change their Laws to Award their Electoral Votes to whoever Wins the most Votes Nationwide, regardless of State-by-State Results.
Article II of the Constitution gives States Authority to Allocate Electors however they choose, and in fact Two already do so differently from the rest: Maine and Nebraska Award Electoral Votes by Congressional District, while the other 48 adhere to a Winner-Take-All Format. The Compact is written with a Trigger Clause: As soon as enough States have joined the Compact to Account for 270 Electoral Votes, each of their State Laws is Activated. Then the Next Presidential Election, those States Automatically throw their Votes to the Popular Winner, and—regardless of what Non-Compact States do, the Leader of the Free World will suddenly be Determined by the full Balance of Voters in the Union.
If this sounds farfetched, Politically Cumbersome, Mechanically Problematic, Legally Questionable, well, it is.
Since its Conception in 2006, the Compact has been Criticized as a Constitutional End-Run that shouldn’t be taken seriously. And yet it’s far closer to taking Effect than most of us realize. Ten States, plus the District of Columbia, have already Joined, Representing 165 Combined Electoral Votes. By its own Rules, the Compact needs to secure only another 105 Electoral Votes to Trigger the Change. That said, those next 105 will prove infinitely Harder to Collect than the first 165. All 10 States in the Compact, plus D.C., are Democratic Strongholds; neither a Single Battleground State, nor a Single Red State, has entered. This stands to reason: Swing States don’t want to Forfeit their Privileged Status, and Republicans Lost the Popular Vote in Six of the past Seven Presidential Elections. If it weren’t for the Electoral College, Al Gore would have been President in 2001, and Hillary Clinton would be Commander in Chief today. Republicans, then, are understandably wary of Switching to what many believe would be an Unfavorable System. On the other hand, some in the Party, including President Trump, believe the GOP would Campaign much Differently, and stand a better chance of Winning the White House, if it Focused on Every Voter in Every State. Conservatives, in particular, seem Intrigued by Testing the “Center-Right Nation” Theory.
The Complexities of the Compact are equal parts Politics and Policy, however, and go beyond questions of Party Loyalty. For instance, would the Strategy need ultimate Approval from Washington? Any Interstate Compact that threatens Federal Supremacy must get Consent from Congress. But do they? I think they Congress would have to Amend the Constitution to alter how the States Run their Elections.
The Uncertainty snowballs from there: whether it would Unfairly Diminish the Influence of Small States and Rural Areas; whether it would Expose Elections to widespread Fraud because of One-Party Rule in Newly Competitive States, as some fear; whether the Revised System would actually help the Favoritism that exists when a handful of States are responsible for Picking Presidents, or just spread it around differently.
Hence the Compacts Seminars. The only way to ensure a nuanced, in-depth Discussion of a Compact is to Lock People in a Conference Room for hours. The Seminars initially Targeted State Lawmakers, whose votes back home will shape the Compact’s fate, but beginning last Fall they have also been Organized for Journalists and Opinion Leaders in an attempt to gain Broader Recognition.
Tens of Millions of Dollars have poured into the Popular Vote Movement, and until recently, those Investments appeared to be Paying Off. The Compact welcomed its most recent addition, New York, back in the spring of 2014, and momentum was on its side in the Run-Up to last year’s Election. Lobbyists working on behalf of the Compact spent 2016 Blitzing GOP Lawmakers in States where they Control both Legislative Chambers, and with Clinton comfortably ahead of Trump down the stretch of the Campaign, Republican Leaders in several of those States were preparing to introduce the Compact this Year on the heels of an expected November Defeat. 2017 was supposed to be a coming-Out Party.
And then Trump Won the White House, while Losing the Popular Vote by nearly 3 Million.
Advocates of the Compact suddenly find themselves on the Defensive, no longer Bullish about Picking off their first Red State this year. They will be content, at this point, to persuade Republicans not to Abandon the Idea altogether, to keep this Experiment in Reshaping American Democracy Alive where others before it have perished.
Distrustful of Direct Elections, the Founders wanted a Buffer of Sophisticated, Discerning People between the Unwashed Masses and the Selection of a President. That Explains the Electoral College’s Genesis, but not why it still exists today. The Reality is that that Modern-Day Electors exercise little Autonomy, very rarely Rejecting the Preference of their States’ Voters, and the System has a long History of Dissatisfaction. There have been more than 700 Proposals to Reform or Abolish the Electoral College by Constitutional Amendment, according to the National Archives, but none gathered the Requisite Two-Thirds Support in both Chambers of Congress to be sent to the States for Ratification.
The Roots of the Compact can be traced to a 2001 Academic Paper by Robert Bennett, a Professor at Northwestern University Law School, who pointed out that States could, Legally, Pledge their Electors to the Winner of a National Popular Vote. Others built on this suggestion, most notably Law Professor brothers Akhil and Vikram Amar, who suggested achieving this “Direct National Election” via the Interstate Compact. But the proposal grew real legs in 2006, when John Koza, a California Democrat who made his fortune by Inventing the Scratch-Off Lottery Ticket, got behind it, Co-Writing a Book, Every Vote Equal, and Founding the Institute for Research on Presidential Elections. This is the “Education” Arm, a 501(c)(3) Nonprofit Group; Koza also started a Sister Organization, National Popular Vote, which is registered as a 501(c)(4) to Lobby Legislators.
Koza has Bankrolled most of the Pro-Compact Efforts since 2006, including the Seminars. In an interview, Koza says he has spent more than $14 Million on the Project so far and has budgeted at least $2 million per Year moving forward, and is Hunting for New Benefactors. It can be Tricky to Attract GOP Lawmakers’ Support when they learn the Compact push is Funded by a Liberal Mega-Donor, so Koza was elated years ago to find a Republican Partner, Tom Golisano, Founder of the Payroll and Benefits Services company Paychex, who poured $10 Million of his own Money into Complementary Efforts. But Golisano has pulled back from the Campaign in recent Years and is no longer involved.
Koza isn’t coy about being a Partisan. But he Claims the Compact is about Fairness rather than Political Gamesmanship. It seemed Unfair that George W. Bush Won the White House despite Losing the Popular Vote, and Extremely Unfair that the Entire Race hinged on 537 Votes in Florida. Koza had experience with Interstate Compacts, Maine, New Hampshire, and Vermont had formed One to Administer a Lotto Game, and decided Two Years after Bush’s Reelection, which boiled down to Battleground Ohio, to Wage War on the Electoral College. “The current system is insane and unjustifiable,” Koza said. “It leaves at least 40 of the states out of the process.
The current system is insane and unjustifiable. It leaves at least 40 of the states out of the process.” John Koza said.
His pitch is a One-Two Punch of Political Populism and Electoral Egalitarianism: first, that the Process Corrupts Public Policy because of the Co-Dependent relationships between Presidential Candidates and Battleground States; Second, that Voters in reliably Red or Blue States basically have No Voice in the Election at all. Today, he notes, Millions of Americans living in Three of the Country’s Four biggest States: California, Texas, and New York, none of which has been Contested for a Quarter-Century, don’t bother to Vote because their Winner-Take-All Rules discourage Participation from Partisans who know they are badly Outnumbered Statewide.
He says he was shocked when, shortly after he Announced his Project in 2006, a number of State Legislatures took up the Legislative language he and his Team of Lawyers, Lobbyists, and Political Veterans were Advocating. The first triumph came in Colorado, where the State Senate Passed the Bill only for it to Die in the House. Then, in California, both Chambers Approved it, but Republican Governor Arnold Schwarzenegger Vetoed. Emboldened, Koza’s Group Launched a Massive Lobbying Initiative in 2007 and saw its Language introduced in 42 State legislatures.
The 10 States and the District of Columbia who joined the National Popular Vote Compact:
MARYLAND - Joined: 2007, Electoral Votes: 10
NEW JERSEY - Joined: 2008, Electoral Votes: 14
ILLINOIS - Joined: 2008, Electoral Votes: 20
HAWAII - Joined: 2008, Electoral Votes: 4
WASHINGTON - Joined: 2009, Electoral Votes: 12
MASSACHUSETTS - Joined: 2010, Electoral Votes: 11
WASHINGTON, D.C. - Joined: 2010, Electoral Votes: 3
VERMONT - Joined: 2011, Electoral Votes: 3
CALIFORNIA - Joined: 2011, Electoral Votes: 55
RHODE ISLAND - Joined: 2013, Electoral Votes: 4
NEW YORK - Joined: 2014, Electoral Votes: 29
In the Decade since Maryland joined, Supporters and Opponents of the Compact have refined their Arguments to Debate its Implications. One Devastating Critique is that it would just Create a New Imbalance, and a New Set of Swing States, as Presidential Campaigns focus all their attention on the Biggest Cities and the Biggest States. “If you look back at the constitutional convention, it’s pretty clear the framers thought that without an Electoral College, people running for president would go to the big urban population centers and ignore the more rural parts of the country,” says Hans von Spakovsky, a Fellow at the Heritage Foundation and longtime Critic of the Compact. “The Framers designed the system we have so that candidates wouldn’t have to win a national election, but a series of regional elections around the country.”
Koza and his Allies come equipped with Rebuttals to every Critique imaginable, the latest Edition of Every Vote Equal addresses 131 “Myths”, but much of this back and forth exists in the abstract. After all, the United States has known nothing but the Electoral College; it is impossible to Predict with any certainty the Behaviors of Candidates, Campaigns, Parties, Interest Groups and Individual Voters if confronted with a Wholesale Change to how we Pick Presidents.
Somewhat more forecastable are the Political Ramifications of a Direct National Election, at least one might think so, based on Typical Partisan Reactions. “Democrats are reflexively for it, and Republicans are reflexively against it,” Saul Anuzis, a Former Chairman of the Michigan GOP and a Seminar Coordinator.
There are Partisan Dissidents, however. In Deep-Blue Oregon, where Democrats Control Both Houses of the Legislature, the Compact recently Failed for a Third Consecutive time, having previously been thwarted in 2013 and 2015. It passed the House in May, but the Senate President, who has long voiced concerns about the Compact Marginalizing Small States, inserted a Clause that effectively Killed the Bill in July. Meanwhile, on the Republican side, Key Lawmakers in Ultraconservative Utah have been whipping Support for the Compact, emphasizing one Parochial Point: It would Level the Playing Field with Neighboring Colorado, a Key Swing State that gets outsize Attention from Washington. Compact Supporters note how President Obama Signed the Stimulus into Law in Denver, despite Colorado’s Unemployment Rate in 2009 being Lower than those in other States he Won easily in 2008, such as Rhode Island and California. It can be no easy task convincing Republicans when their Nominee Lost by 2,868,691 votes last November, and still Won the White House.
Intraparty dissent is often explicitly political: In New York, passage was delayed in part due to objections from liberal lawmakers who felt the party holds a clear edge in the Electoral College. (They also feared, surely, that GOP voters accustomed to skipping elections in New York would suddenly mobilize, jeopardizing down-ballot Democrats.) Many Republican endorsers of the Compact, it turns out, share the same concern about the Electoral College—that Democrats start with a structural advantage—and are eager to play under a different set of rules.
“I believe the Blue Wall is real,” Anuzis tells me. What he’s referring to: Eighteen states totaling 242 electoral votes went Democratic in every election from 1988 to 2012. Assuming they hold those states, Democrats need just 28 electoral votes to win the presidency; Florida alone has 29. Of course, Trump won the presidency by taking back three of those supposed Democratic locks—Pennsylvania, Michigan, Wisconsin—albeit by a combined 78,000 votes or so. To many Republicans, 2016 proved the Blue Wall is a myth; to others, Trump’s victory was an anomaly that will prove difficult to replicate.
For his part, Koza loathes talk of the Blue Wall and says those Three States Trump Won should never have been considered safe for Clinton. “There might be a Blue Wall. But it’s 196 electoral votes, not 242,” he says, subtracting the Sum of Pennsylvania, Michigan, and Wisconsin. Koza says he wishes the Compact Debate revolved exclusively around Policy instead of Political Jockeying. But he knows better. If his Campaign is ever to hit the 270 Mark, it will happen on the Strength of Conservative Legislators in Red States.
If No Swing State Legislators can be Convinced, Koza’s Campaign Hinges on a narrower Lobbying Target, Safe Red States, whose Legislative Bodies are Dominated by Conservative Republicans. It once seemed Realistic, even Imminent: GOP-Controlled Chambers in Arizona and Georgia, two Safe, for now, Republican States, Flirted with entering the Compact last year. The Bill Passed the Arizona House, 40-16 among Republicans, it was 20 Yeas and 14 Nays, before Dying in the Senate. In Georgia, it Passed a House Committee and had overwhelming Support in the Senate, with 50 of its 56 Members Co-Sponsoring the Legislation until the Chamber’s Top Republican, who had previously Backed the Bill, abruptly Quashed it following Trump’s Victory, saying he had received “New Data”. Indeed, November 8, 2016, may have been the Turning Point. This year, Idaho, Indiana, Missouri, and Montana considered the Legislation and then Crushed it. “If the 2016 election had been normal, we believe we would have gotten enactments in red states in 2017,” Koza says. “We’ve been in a holding pattern, waiting to see if things cool down. … We’re currently in the process of figuring out what to do in 2018.”
The Plan, according to Anuzis, is to kick off the Year by Targeting not just any Republican States but Utah and Oklahoma, Two of the most Conservative in the Union, in Pursuit of a Symbolic Breakthrough. They Boast only a Combined 13 Electoral Votes, but Koza and his Team believe Passage there could Open the Floodgates. “A lot of Republicans don’t want their state to jump first,” Anuzis says. “But if we get those two, we’ll get four or five more.”
Their Ace in the Hole is Curt Bramble, President Pro Tempore of the Utah Senate and a former Compact Skeptic. Bramble warmed to the idea several years ago after Dicing Statistics on Federal Expenditures in Battleground States and Deciding that the Playing Field was Uneven. With help from Koza’s Machine, Bramble Converted some Colleagues, too, and was preparing for a Vote this Year, until Trump Won the White House. Now he Expects the Legislation to come up Early in the 2018 Session. The House Speaker is Supportive, Bramble says, but his more Powerful Colleague, the Senate President, has concerns. “It won’t be an easy bill to pass,” he says. “There are a lot of misperceptions—the same misperceptions that I used to have.” “Misperceptions” or not, there is no denying the Complex and entirely Legitimate Questions that surround the Compact. Wouldn’t a Contested Election become a Logistical Nightmare, since every State has separate Recount Rules? Couldn’t “faithless electors” go rogue against the new system, adamant that whichever presidential candidate won their state should receive its electoral votes? What’s to Stop Candidates, if they are focusing on every Single State rather than just a handful, to adopt 50 Pet Issues instead of a few, exacerbating the Problem of Federal Favoritism instead of eliminating it?
CLICK HERE for more Information about the National Popular Vote Interstate Compact (NPV).
NYC Wins When Everyone Can Vote! Michael H. Drucker
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