Earlier this month, Oregon became the 15th state plus Washington, D.C. to join what's known as the National Popular Vote interstate compact. Under this agreement, participating states pledge to deliver all of their electoral college votes to the winner of the national popular vote.
If enough states join, it could spell the end of the electoral college, a temporary body of state-appointed "electors" who are ultimately responsible for choosing the president of the United States. The electoral college was created by the Founding Fathers as a way of checking the raw power of the people and giving a leg up to small states, but it also makes it possible for the winner of the popular vote to actually lose the presidential election.
That very thing has happened five times in American history, most recently with the 2016 election of Donald Trump, who won the electoral vote by a broad margin (306 to 232), but lost the popular vote to Hillary Clinton by more than 2.8 million ballots. In 2000, the closest presidential election in U.S. history, George W. Bush narrowly won the White House with 271 electoral votes while receiving 543,895 fewer popular votes than his opponent, Al Gore.
The electoral college is generally unpopular — a May 2019 poll found 53 percent of Americans think it should be abolished — and according to a 2019 report by the Congressional Research Service, there have been 700 different proposals floated in Congress that would reform or repeal the electoral college, which is enshrined in Article II of the Constitution and also in the 12th Amendment.
Despite centuries of opposition, the electoral college is alive and kicking because amending the Constitution or repealing an existing amendment is a huge political undertaking that requires supermajorities in Congress plus the president's signature. That's why electoral college critics are psyched about a new approach that uses the Constitution's own language to bring power back to the popular vote. And it's gaining traction.
The National Popular Vote plan doesn't require a constitutional amendment, because it doesn't get rid of the electoral college. Supporters believe it brings parity back to the voting process (every vote counts), while opponents claim that any state-sponsored attempt to mess with federal elections is by its very nature unconstitutional.
The Broken Electoral System
John Koza is chair of National Popular Vote, Inc., a nonprofit organization that's been lobbying states to join the movement since 2006. Koza's biggest gripe with the electoral college has nothing to do with what the Constitution says, but with state "winner take all" laws. These laws, which are on the books in 48 states plus Washington D.C., hand over all of a state's electoral votes to the candidate who gets the most votes at the state level.
"If you lose Florida by half a percent, you get nothing," says Koza, which is exactly what happened to Gore in 2000. And if you live in a state that constantly gives all of its electoral votes to the opposing political party, you start to feel like your vote doesn't even count.
A troubling side effect of the winner-take-all system is that presidential candidates have learned to campaign exclusively in so-called "battleground" states where both presidential candidates stand a good chance of winning. It makes perfect mathematical and financial sense. Don't waste time in states that are guaranteed to go blue or red, but go all in on the purple ones.
As a result, says Koza, in the 2012 election, 100 percent of campaign events and spending were focused on just 12 states. In 2016, 94 percent of events and spending occurred in those same 12 states.
"When there's no active campaigning in the majority of states, that affects government policy," says Koza. That's why manufacturers in a battleground state like Ohio get a lot more attention from White House policymakers than farmers in a solid red state like Idaho.
What Does the U.S. Constitution Say About the Electoral Vote?
The National Popular Vote movement hinges on a clause contained in Article II, section I of the Constitution:
"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." (emphasis added)
According to National Popular Vote supporters, the Constitution requires the use of electors to choose the president, but gives the states the right to pick those electors "in such a manner" as they see fit. And that's exactly what 15 states and Washington, D.C., have done. They have chosen to pledge all of their electors to the winner of the national popular vote instead of their state-level popular vote.
"The Constitution sets up the electoral college, but doesn't say how these electors get to the electoral college," says Koza. "It leaves it totally up to the states."
Incidentally, this is how 48 states plus D.C. ended up with a winner-take-all system in the first place. The winner-take-all idea isn't anywhere in the Constitution, explains Koza. States passed the legislation one by one as majority politicians tried to consolidate power in the decades preceding the Civil War. Only Nebraska and Maine divvy up their electoral votes by congressional districts.
What the Opponents of the National Popular Vote Say
Critics of the National Popular Vote scheme argue that even if the interstate compact isn't expressly unconstitutional, it's at least "anti-constitutional." They point to the fact that the Founding Fathers created the electoral college as a deliberate move away from direct democracy. By giving ultimate power over selecting the president to a representative body chosen by the states, it avoided the threat of "unchecked majoritarianism," according to the Congressional Research Service report.
The National Popular Vote plan, opponents say, would undermine the intent of the Founding Fathers by bringing back majority rule.
Other criticisms of the National Popular Vote proposal are that it would incur endless state recounts, because so much will be riding on every single vote nationwide, not just battleground states. That it would disadvantage smaller states over larger ones. And that it would encourage multi-party elections in which a candidate could win the presidency with a plurality of votes, but not a majority.
Koza calls all of these arguments "pretty weak." In the extensive Answering Myths section of the National Popular Vote website, the organization addresses these criticisms and many more, generally arguing that the National Popular Vote scheme won't be any worse than what we have now and has the potential to function far better. For example, state recounts are already a pain, and 15 American presidents have already won the White House without an absolute majority (more than 50 percent) of the popular vote. Further, most of the smaller states are currently ignored during campaign season because they are not battlegrounds.
The Race to 270
If you've paid attention on U.S. election night, you know that 270 is the "magic number" of electoral college votes needed to win the presidency. It's also the same number of electoral college votes required to make National Popular Vote a reality. The only way for the cooperative interstate scheme to work is if all of their pooled electoral votes add up to a majority.
As of this writing, National Popular Vote legislation has passed in states with a total of 196 electoral votes, which is 74 shy of the goal. Maine could be the next to add its four humble electoral votes, but it will take some bigger states to sign on, many of which voted for Trump, who once again stands to benefit from the electoral college in the 2020 election. While the vast majority of states who've signed on to the National Popular Vote have been Democratic strongholds, Colorado became the first "purple" state to join in May. Could more follow?