Legal Scholar Paul Smith Makes the Case for the National Popular Vote

From the Campaign Legal Center:

“Under the U.S. Constitution, states have the power to determine how they award their electoral votes in national elections. States are increasingly showing that the will of their voters is to do away with the winner-take-all laws, which award all of its electoral votes to the presidential candidate who receives the most votes within the state. They are signing up for the National Popular Vote Compact.”

The Winner-Take-All Electoral College Benefits Big Battlegrounds, Not Small States

One of the most prominent argument in favor of keeping our current electoral system in place is that it keeps small states from becoming ignored. But in reality, the Electoral College is not doing much to promote the relevance of small states. From the New York Times:

The Electoral College’s small-state bias had essentially nothing to do with Donald J. Trump’s victory. In fact, he won seven of the 10 largest states, and Hillary Clinton won seven of the 12 smallest states.

Over all, the Electoral College’s bias toward small states probably cost her a net of four votes — essentially nothing.

If there is a benefit to protecting small states, the Electoral College is not doing a great job of providing it. Big states can dominate small ones under the system, and they have done so at times.

Let the People Decide if They Want the National Popular Vote

So far, the National Popular Vote Interstate Compact has only been passed by Democratic legislatures. But it’s also possible for the people to weigh in directly via the ballot box on whether they want every vote across the country to count equally. From Time:

Reed Hundt, head of the bipartisan Making Every Vote Count advocacy group, thinks the states that will put [the Compact] over the top might instead come from a successful ballot measure driven by grassroots support. Twenty-six states allow voters to approve either an initiative or a referendum on an issue, including potential interstate-compact targets like Ohio, Missouri and Arizona.

“The important thing is public opinion,” the former FCC chairman said. “The American people by large numbers need to say, ‘What’s up with this 18th century artifact? We don’t need to let it pick the president for us. We should pick ourselves.’”

Hundt remains optimistic that it will succeed eventually, in part because he thinks Electoral College results will increasingly cut against the popular will. A statistical analysis in 2017 done for Making Every Vote Count predicted splits between the Electoral College and the popular vote could happen in nearly one out of three elections in the next century, and neither party is likely to have a long-term advantage.

Based on how members of both parties have reacted in the past, a Republican loss under those circumstances would likely move public opinion on the right pretty quickly. And that, Hundt believes, could be what finally makes the difference.

The National Popular Vote is Bigger than Any One Candidate

Jamelle Bouie for the New York Times admirably explains that the national popular vote is about more than partisan fighting or the outcome of any one election and succinctly lays out the arguments in favor of reforming our current system, including:

  • The Electoral College undermines the principle of one person, one vote.

  • The Electoral College means that candidates can (and do) ignore rural voters in big and mid-size states like California, New York, Illinois, Alabama, and South Carolina because those states are taken for granted by one party or the other.

  • As a matter of math, California and New York could not dominate elections under the national popular vote.

    • In 2016, only about a quarter of all votes cast came from New York, California, Texas, and Florida in total.

    • Even if everyone in those states somehow voted unanimously, candidates would need to campaign elsewhere to win.

  • On the other hand, under the Electoral College, the 11 biggest states could decide election by bare majority in each state.

  • Under the national popular vote, people with similar interests across state lines can band together to make their voices heard.

  • Framers feared "pure democracy," but the real concern was there was greater suffrage in the north than the south because of slavery.

  • The Electoral College makes it possible for the House to decide the president, which would be chaotic and destabilizing. 

North Dakota Mistreated

I was kindly invited to speak on the Plain Talk podcast with Rob Port in North Dakota. Here’s what I tried to communicate:

  1. The 216,000 North Dakotans who voted for Donald Trump got three electors in the Electoral College, but only 174,000 Trump voters in Wyoming got the same number, and only 163,000 in Alaska got the same number. What's fair about not giving every vote in every state equal weight? The only way to do that is to count every vote in every state equally in a national contest for the presidency.

  2. There are according to various sources at least 583,000 eligible voters in North Dakota. Of course it is a Republican leaning state, but only 216,000, or 37%, voted for Donald Trump. Why? Because his campaign took the state's outcome for granted, and not every vote cast there mattered. This is how the electoral college system does not bring North Dakotans into full participation in the single national election. The result is that your citizens get less attention paid not only in the general election but generally in politics than they deserve. This is why, for instance, the tariff war doesn't help you, why the focus on manufacturing in Ohio does nothing for you, and so on.

  3. There are 60 million Americans in rural areas. By and large they are ignored relative to the residents of a handful of swing states, even though their concerns and issues are quite distinct. The reason is that almost all live in states that are taken for granted by the presidential nominees.

  4. According to Wikipedia, presidential visits to North Dakota are few and far between—only seven visits since Nixon—if you want to take that as evidence of being taken for granted.  By contrast, Barack Obama and Donald Trump alone have visited New Hampshire (a state with only one more electoral vote than North Dakota) seven times as presidents.

The Conservative Case for the National Popular Vote

Henry Olsen argues that it is “in conservatism’s long-term interest to trade the college for a major reform of our voting system that works for both parties:”

The majority of Americans will not consent to being ruled by a minority, nor should they. Whatever the republican theory of the founding generation, public opinion now conflates republican government with liberal democracy, and democracy cannot long endure the rule of the majority by a minority.

Continued endorsement of this system by conservatives and the Republican Party will, over time, convince a crucial segment of Americans, especially the young coming of age during this debate, that conservatives do not favor democracy. Forget the slanderous cries of “racist” and “fascist” frequently hurled by the left; if conservatives come to be seen as opposed to democracy itself, Americans will reject their cause.

Conservatives should also favor a change because of the perverse incentives the electoral college creates. We cannot change our country without a majority of people behind us. But the electoral college system encourages a president such as Trump to double down on a base-only strategy that maximizes the political power of important minority groups such as blue-collar whites. This prevents conservatives and Republicans from making the broader appeal necessary to win majority support, rendering their quest to change the country fruitless.

Many Ways: One Goal

All credit and honor to National Popular Vote, the non-profit that for years has championed the National Popular Vote Interstate Compact. By the end of this month 14 states and the District of Columbia, at least, will have passed and signed the bill. The total number of electors bound then will be 189, leaving 81 more to be committed to the same bill before it becomes effective.

As the finish line of 270 electors emerges from the fog of the future, I respectfully suggest to the advocates of the Compact that two ideas should be firmly embraced by them. First, for the good of the country and the long-term viability of the Compact it is critical to include voters from Republican-leaning states in the great advancement of one person, one vote as the means of choosing the president. Second, there is more than one way to slice an apple.

 With respect to the first, I hope the National Popular Vote folks will be much more open about the states in which they are advocating the Compact. They should post the names of contact people in every state. They should sponsor on-the-ground activists who enroll citizens in the great cause. They should endorse ballot measures as a technique for winning support. A good first step would be to find a legislature that puts the Compact on the ballot for the primary in 2020, so that both Republican and Democratic leaning voters can decide whether to support the Compact. Oregon is a good case in point. Why not take this step? Get the Oregon legislature to put the Compact on the ballot. Let the people pick the way the president is picked.

Second, State Senator Bill Ferguson of Maryland recently introduced a very thoughtful bill in the Maryland legislature. His idea was to maintain the Compact, passed in Maryland in 2007, but to supplement it by offering to pair Democratic-leaning Maryland's electors with the electors in a Republican-leaning state in an agreement both to support the national popular vote winner in 2020. Representatives of National Popular Vote opposed this bill on the ground that the Republican nominee might win the national popular vote and then Maryland Democrats wouldn't like having their electors bound to vote with the Republican electors in another state to this end. But hold on: everyone has to agree that the Republican nominee, meaning of course Donald Trump in all likelihood, might win the national popular vote. If that happens, he deserves to be president. Denying that on the bet that the Electoral College will help Democrats frustrate the will of the nation is quite contradictory to the entire thrust of the great one person, one vote cause. I hope the National Popular Vote advocates—who deserve all honor—will recant this unfortunate position and support Senator Ferguson's idea.

The Electoral College is a Security Risk

From NPR:

Swing states, and even individual precincts within those states, present a significant point of vulnerability when it comes to the threat of election interference because of their potential to impact the result in a presidential race, the current secretary of the Department of Homeland Security and one of her key predecessors both told senators Wednesday.

[L]ocal jurisdictions in places that can have an outsized effect on the outcome of national races — like Wisconsin, Pennsylvania and Michigan — will be forced to defend against cyber-threats posed by entire nation-state adversaries like Russia.

“The reality is: Given our Electoral College and our current politics, national elections are decided in this country in a few precincts, in a few key swing states," former DHS Secretary Jeh Johnson, who served under President Obama during the 2016 presidential election cycle, told members of the Senate intelligence committee. "The outcome, therefore, may dance on the head of a pin.”

Majority of Americans Support Getting Rid of Electoral College

The widespread discontent with the Electoral College has recently gone from a slow, constant simmer to a full-on boil.

Making Every Vote Count weighed in on Hardball with Chris Matthews tonight, as CEO Reed Hundt joined the show to discuss the system’s inequities.

Dispatch from the Land of the Ignored

As everyone probably knows, in seeking the 270 electoral votes, both parties' candidates in the general election take for granted more than 40 states, where more than 80% of Americans live.

Nevertheless, some people assert that this skewed game makes candidates pay attention to small states and the Midwest. That was demolished succinctly last night by a respected Republican strategist:

Screen Shot 2019-03-20 at 8.32.47 AM.png

In just the last day numerous presidential candidates have inveighed against the current system. They all grasp that no one in the country really wants the presidential election in 2020 to be determined by the two parties spending two or $3 billion on trying to persuade voters in just five or six states. 

Well, there is an exception. One presidential candidate tweeted that if every vote in the country mattered, and were counted equally to pick the president, then the candidates would ignore all small states and all states in the Midwest.

The idea that with a national popular vote system the parties would pay no attention to voters in the Midwest or Great Plains is about as logical as saying that Amazon doesn’t deliver products outside big cities or cell phones don’t connect to people everywhere in the country. Everyone in business knows how to reach everyone in the country, and in the business of politics with the national popular vote the candidates would do what businesses do: try to get every single customer. 

More than visiting, advertising, opening get-out-the-vote offices, going on radio, supporting small town newspapers, polling and calling people in small population states, the candidates would actually have to listen to people in every state. When every vote counts, every person gets attention.

Politicians who like the status quo might well dislike national campaigns by the presidential candidates. Republicans would have the incentive to rebuild their party in Vermont; Democrats would seek voters in the Dakotas. Two party contests would occur in most states, and some incumbents would lose their seats. Voters would have choices to make. Elections would not be foregone conclusions and mere coronations. The political parties would have to be big tents, where compromise was required to bond factions together. Small market newspapers and broadcast stations would be invigorated by advertising and news about candidate visits. Things would change. Democracy does that.

For those who think the country’s politics are heading in the wrong direction—and rural areas have high percentages of people who feel this way—the best possible antidote for the troubles of today is the election of the president by the people.

When I was the chairman of the FCC one of the reasons we wanted the Internet to touch everyone was precisely because we thought that if the political parties could reach everyone cheaply and efficiently through digital technology they would do so. The only reason that doesn’t happen now is the electoral college system makes 40 states and 80% of the people functionally irrelevant (taken for granted as) to the outcome of the presidential election.  

Beto O'Rourke Criticizes Electoral College

Beto O’Rourke has joined other 2020 candidates Elizabeth Warren, Pete Buttigieg, and Kirsten Gillibrand in noting the unfairness of the Electoral College as the system currently operates.

When asked about it on the campaign trail, O’Rourke said that the Electoral College "puts some states out of play all together. They don't feel like their votes really count." O’Rourke added that “if we really want every person to vote,” the system has to “make sure their votes count and go to the candidate of their choosing.”

Elizabeth Warren Calls for Constitutional Amendment to End Electoral College

At a town hall event in Jackson, Mississippi, Senator and 2020 presidential candidate Elizabeth Warren called for a constitutional amendment to end the electoral college “to make sure that every vote counts.”

Warren noted that “in presidential elections, presidents don’t come to places like Mississippi” because they aren’t battleground states.  “I think everybody ought to have to come and ask for your vote,” she stated.

Senator Warren is right that the Electoral College system, as it currently operates, means that candidates are free to ignore voters in Mississippi and Massachusetts.  However, we can work within the system without a constitutional amendment to make every vote count.  One option is the National Popular Vote Interstate Compact.  With the recent additions of Colorado, New Mexico, and Delaware, the Compact has 189 of the 270 votes needed to go into effect and guarantee that the winner of the national popular vote becomes the president.

Colorado Governor Signs National Popular Vote

Colorado Governor Jared Polis has signed the National Popular Vote Interstate Compact into law, officially adding Colorado’s nine electoral votes to the effort to get 270 electoral votes pledged to the candidate that wins the national popular vote.

Assuming the governors of New Mexico and Delaware follow suit and sign the bills that have recently passed in those states, as they both have stated they will, the Compact will have 189 electoral votes.

White Supremacy’s Anvil: The Electoral College

Take a look at this illuminating history of the Electoral College from Making Every Vote Count Co-Founder and CEO Reed Hundt on Medium. It discusses how the Electoral College was conceived to protect the institution of slavery, and how the Electoral College worked to create and preserve Jim Crow long after slavery was officially abolished.