Maryland Bill Could Bring Us Closer to Choosing the President by Popular Vote

Maryland Senator Bill Ferguson has introduced a bill, SB 582, that “he hopes will speed up the move to a national popular vote if other states also adopt the idea.”  Under SB 582, Maryland’s 10 Electoral College votes would go to the winner of the national popular vote if a state that voted for the Republican candidate in the last election also pledges at least as many electoral votes to the winner of the national popular vote. 

The bill’s supporters hope that red and blue states will work together to pair up their votes to make it less and less likely that a president could be elected without winning the popular vote.  As Senator Ferguson explained:

This is about expediting Maryland moving toward the popular vote. It breaks the political logjam through a pairing strategy. All of those states that sign up for the pairing strategy will send their votes to the winner of the popular vote.

The Maryland bill is a complementary effort to the National Popular Vote Interstate Compact.  As attorney Jonathan Blake stated in his testimony in favor of the bill:

The Compact’s objective is to guarantee, after the Compact becomes effective, that the winner of the national popular vote become president, whereas SB 582 seeks to improve the chances that the winner of the national popular vote becomes president during the period until the Compact becomes effective.

The Electoral College "Has Not Stood The Test Of Time"

In an excellent piece in the New York Times, Jamelle Bouie explains that the Electoral College has almost never worked as it was intended, and states the case for making a change:

The history of the Electoral College from [1800 on] is of Americans working around the institution, grafting majoritarian norms and procedures onto the political process and hoping, every four years, for a sensible outcome. And on an almost regular schedule, it has done just the opposite.

Americans worried about disadvantaging small states and rural areas in presidential elections should consider how our current system gives presidential candidates few reasons to campaign in states where the outcome is a foregone conclusion. For example, more people live in rural counties in California, New York and Illinois that are solidly red than live in Wyoming, Montana, Alaska and the Dakotas, which haven’t voted for a Democratic presidential candidate in decades. In a national contest for votes, Republicans have every reason to mobilize and build turnout in these areas. But in a fight for states, these rural minorities are irrelevant. The same is true of blue cities in red states, where Democratic votes are essentially wasted.

Candidates would campaign everywhere they might win votes, the way politicians already do in statewide races. Political parties would seek out supporters regardless of region. A Republican might seek votes in New England (more than a million Massachusetts voters backed Donald Trump in 2016) while a Democrat might do the same in the Deep South (twice as many people voted for Hillary Clinton in Louisiana as in New Mexico). This, in turn, might give nonvoters a reason to care about the process since in a truly national election, votes count.

Former Governor LePage’s Racist Attack on the National Popular Vote

Former governor of Maine Paul LePage stated that white people will become a “forgotten people” if the winner of the national popular vote became the president.  LePage went on to say that if the president were chosen by popular vote, “white people will not have anything to say. It’s only going to be the minorities that would elect.” 

This is not the first time LePage has made racist comments, including referring to ”people of color or people of Hispanic origin” as “the enemy” and  falsely claiming that “90 plus percent” of drug dealers in Maine are minorities, who “half the time they impregnate a young white girl before they leave.”

Maine is currently considering joining the National Popular Vote Interstate Compact, under which all member states would pledge their electors to the winner of the national popular vote if states with 270 electoral votes join the Compact.   

If the Compact goes into effect, it will guarantee that all votes across the country would be counted equally, regardless of race. Under the current system, many African-American voters see their votes systematically disregarded, along with many other Americans who do not happen to live in swing states.

Testimony of Jon Blake in Support of Maryland Popular Vote Bill

Below is the testimony of Jonathan Blake on behalf of Making Every Vote Count before the Maryland Senate Education, Health, and Environmental Affairs Committee in support of SB 582. SB 582 will assign Maryland’s electoral votes to the winner of the national popular vote if a state that voted for the Republican candidate in the last election also agrees to pledge as many or more electoral votes to the winner of the national popular vote.

Testimony of Jonathan Blake

In Support of SB 582

Presidential Election–Voting by Electors

Senate Education, Health, and Environmental Affairs Committee

February 28, 2019

My name is Jon Blake and, on a pro bono basis, I am testifying on behalf of Making Every Vote Count, a non-profit, bipartisan organization dedicated to reforming the country’s deeply defective and increasingly destructive presidential election system which falls far short of the country’s guiding principles like one-person-one vote and “government of the people, by the people and for the people.”

Blair Levin, a director of MEVC, is submitting written testimony explaining why MEVC strongly supports SB 582.  My testimony addresses the opposition to the bill led by Dr. John Koza, who as head of the National Popular Vote, spearheaded the successful effort in 2007 for Maryland, as the trailblazer among all states, to adopt the National Popular Vote Interstate Compact legislation.

I admire Dr. Koza for his championing presidential reform and the Compact concept that would achieve this reform.  MEVC also ardently supports and will continue to support the Compact.  MEVC has the same ultimate goals as Dr. Koza and the other groups he has marshalled to oppose SB 582--Common Cause, the League of Women Voters and Fair Vote. 

Their opposition is a terrible shame, unnecessary and based on a near total misunderstanding of SB 582 and MEVC’s support of it. 

  • Their opposition assumes that SB 582 and the Compact are rival proposals, whereas they are complementary and each would be effective for wholly different time stages in the reform process.

  • Their opposition assumes that the short-term objectives of SB 582 are the same as the Compact’s longer term objectives, and, therefore, it does not evaluate SB 582 against the desirable objectives it is trying to achieve.  The Compact’s objective is to guarantee, after the Compact becomes effective, that the winner of the national popular vote become president, whereas SB 582 seeks to improve the chances that the winner of the national popular vote becomes president during the period until the Compact becomes effective.  Toward that end, SB 582 would automatically become null and void when that occurs.

  • The opponents denigrate the new remedial ideas made possible by SB 582 even though the new Compact ideas and their supporters are in a situation similar to NPV’s when it launched its new ideas in Maryland in 2007.  We urge the opponents of SB 582 to understand it accurately, withdraw their opposition to it, and affirmatively support it. 

  • We can think of no significant movement in this country’s history that has not been advocated for, benefited from and succeeded without the support of different groups with different perspectives, different ideas and different strategies.  Addressing a serious, destructive, undemocratic, unfair and inequitable system for electing the entire nation’s leaders is and should be regarded as a major movement.  As in the case of other major movements, a multiplicity of voices should be similarly accommodated in its support. 

In sum, Making Every Vote Count strongly supports SB 582, and it also strongly supports the Compact.  It fully believes that, short of a Constitutional amendment, the Compact is the best, most reliable, legally binding way to remedy the damage-inflicting defect in the country’s current presidential election system.  But what is also needed are immediately-attainable measures to improve the system until the Compact becomes effective.  That is what SB 582 and MEVC are attempting to do in a novel and imaginative manner that invites support across political divisions. 


There follows MEVC’s responses to Dr. Koza’s 12 page letter and attachment to Senator Ferguson of February 12, 2019, on a point by point basis. 

1. SB 582 could inadvertently create a politically one-sided situation and Republican partisan advantage.

Point 1 of Dr. Koza’s memo mistakenly concludes “a Missouri-Maryland pairing under SB 582 would equally give both political parties 10 electoral votes worth of protection against being denied the Presidency after winning the national popular vote” (emphasis added)  It is difficult to understand this assertion other than that Dr. Koza intends the Democratic Party candidate to win if its candidate earns the most votes nationwide, but perhaps not when the Republican candidate earns the most votes.  But I do not believe Dr. Koza intends that meaning.  Instead, when either party wins the national popular vote, its candidate should win the presidency.  That’s the goal of the compact, Dr. Koza, SB 582, Senator Ferguson, and MEVC.  It is also the goal of Common Cause, League of Women Voters, and Fair Vote.  The primacy of the popular vote is the goal of all of us. 

Similarly the hypothetical Wisconsin-Maryland Trump example cited in Dr. Koza’s memo fails to show any defect in SB 582, because the example’s central premise is that President Trump has won the popular vote.  In fact, the example, shows that the proposed reform could achieve our common goal.

Note that in offering an invitation to red states to transcend narrow, political self-interest in order to reform the country’s current presidential election system that has destructive consequences for all states and almost all voters, SB 582 would encourage any combination of red states, with electoral college totaling 10 or more to pass similar contingent legislation (i.e., 7+3, 6+4, 5+5).  The offer is not limited to red states with 10 electoral votes.  Dr. Koza’s footnote 2 recognizes this point.  But it doesn’t appreciate that Maryland’s paired-state proposal could be triggered if a red state with more than Maryland’s 10 electoral votes allocated 10 of its electoral votes to the winner of the national popular vote.  If desired, an amendment to SB 582 could clarify this point.

2. SB 582 would not guarantee the Presidency to the national popular vote winner – and, in fact, wouldn’t even come close to accomplishing that goal.

The premise of Dr. Koza’s argument is that red state Missouri’s and blue state Maryland’s 20 electors are not by themselves enough to guarantee that the candidate who earns the most popular votes across the country will become president.  True, but that is not the objective of SB 582.  It is also true that the Compact does not yet provide any guarantee because it is not yet effective.  In contrast, as soon as a red state(s) with 10 or more electoral votes allocates its electoral votes to trigger Maryland’s paired-state law, that law will become effective.  It won’t guarantee the election of the popular vote winner but it will increase the chances that the popular vote winner will become president. 

In addition, MEVC intends to pursue various strategies for red states to adopt reforms that would result in additional electoral votes being allocated to the national popular vote winner. 

3. SB 582 does not create any reason for presidential candidates to be bothered campaigning beyond the dozen or so closely divided battleground states – and, in fact, increases the already-excessive importance of the battleground states. 

The paired-state concept was first proposed this month.  It had to start somewhere, one state at a time, just as NPV started in 2007.  Maryland was that state for NPV then, and Senator Ferguson’s bill would mean that Maryland would take a different and important next step along the same path -- a step that is compatible with the Compact.

Dr. Koza’s comparison of what the Compact would achieve once and if it becomes effective with what the paired state proposal hopes to achieve now is like predicting the ultimate height of a month-old infant compared to the ultimate height of a 12 year-old.  (In this case, the month-old infant is the product of a two-year gestation period as MEVC criss-crossed the country and consulted with all manner of experts to craft a reform proposal that could partially ameliorate the problem right away until the Compact becomes effective.

Also, the paired-state strategy, whether it succeeds or fails, poses no threat to Dr. Koza’s efforts to persuade states to adopt the Compact legislation.  In fact, the paired-state effort will help address perhaps the most pressing challenge facing efforts to enact Presidential election reform – which is a combination of indifference and lack of awareness of (a) the damaging and steeply escalating consequences of the present system and (b) the fact that reform can come only from the states, as clearly mandated by Article II Section 1 of the U.S. Constitution. 

4. SB 582 would not make every vote equal throughout the United States, but would, even under the most optimistic assumptions, make a voter in Maryland worth only a small fraction (about 1/24) of a voter in a battleground state. 

The analysis above under points 2 and 3 applies with similar force to point 4.  The only standard Dr. Koza recognizes is whether a reform proposal achieves the ideal.  He ignores the value of a proposal that can achieve improvement for an interim period of uncertain duration.

5. SB 582 is based on an assumption that an unidentified Republican state with 10 electoral votes is ready and willing to join Maryland in this deal. 

There is no basis for this assertion.  Neither SB 582 nor MEVC assumes that a particular Republican state is “ready and willing” to enact legislation parallel with Maryland’s.  Moreover, it is not a “deal.”  It is based on Maryland’s and other states’ authority to enact legislation whose effectiveness depends on another state’s passing similar legislation.  Such “contingent legislation” is commonly and successfully used in a wide range of circumstances.  Maryland should use it here.

Dr. Koza’s use of the word “unidentified” in the context of the rest of this point 5 implies a secret, surreptitious, hidden arrangement.  MEVC knows of no such arrangement. If there were one, MEVC would hail it as an accomplishment and an additional reason to support paired-state legislation.  But it is also true that in its two-year long effort to develop a viable interim solution, MEVC has spoken to many experts, thought leaders and citizens in various parts of the country in a variety of demographic categories who expressed views that the paired strategy would be responsive to.  Taken at face value, as it should be, SB 582 offers an opportunity for red states to adopt similar legislation.  The circumstances are little different from those when Maryland adopted the Compact legislation in 2007.

If NPV could convince legislatures in states with enough electoral college votes to satisfy the trigger point for the Compact so as to become effective for the 2020 election, that would achieve the goal that MEVC, like its critics, strives for, and would lead to a happy resolution of today’s differences.  But the shared-state strategy was intended, and has been crafted, to respond to the questions:  what if the Compact doesn’t become effective for the 2020 or even the 2024 presidential election; what measures can be adopted in the next 15 to 18 months that could advance the likelihood that the candidate who earns the most votes nationwide will become president in 2020, 2024 or beyond.  SB 582 answers those questions. Dr. Koza’s criticisms, boil down to actively opposing any proposal that would improve the chances that the winner of the national popular vote will become president, but not guarantee it, until the Compact takes effect. 

MEVC asks the opponents of SB 582 to join it in supporting SB 582.  It is the right thing to do.

Democrats and Republicans Agree: Every Vote Should Count

Watch James Glassman, a Republican who served as Under Secretary of State for Public Diplomacy for George W. Bush, explain that Americans from across the political spectrum agree that the person who gets the most votes should become the president and that we don’t need a constitutional amendment to make it so.

Workers Too

In the same commission process that illuminated the bias against African-Americans, Alexis Herman pointed out that the primary process’s schedule “affects which voices within the party are the loudest, which issues are given the most prominence. Where, she asks, is the vote of the manufacturing worker?”

In 2005, the commission mitigated the bias created by putting Iowa and New Hampshire early by moving South Carolina and Nevada, with their very different demographic compositions, up close behind the early two.

This in Primary Politics by Elaine Kamarck at 80-81.

In the general election, the winner-take-all system is biased against the interests of every working group not in a key precinct in a battleground swing state. That includes almost every constituent of the AFL-CIO. Labor should insist in every state that at least some electors are allocated to the national winner. The Chamber of Commerce should have the same view. Every business not big in a swing state gets taken for granted in the general election. That is almost all of business.

A History of the Electoral College

In this video, Professor Richard Tedlow gives a fascinating history lesson on how and why the Electoral College came into existence. 

Professor Tedlow explains the Electoral College, as it currently operates, is out of line with what the Founders envisioned and what most Americans want.  He discusses the practical obstacles to holding a popular election at a time when transportation and communication infrastructure was so poor as well as the compromises necessary to get slave states to agree to the new Constitution. He dispels a few common myths about the Electoral College, including that it’s working the way our Founding Fathers intended and that it protects small states. 

Professor Tedlow also explains that we are not stuck with our current system, and we don’t need a constitutional amendment to make the changes we need.

Eric Holder Voices Support for the National Popular Vote

Former Attorney General Eric Holder calls for the presidency to be decided by the voters:

Colorado Governor to Sign National Popular Vote Bill

In an interview with The Hill, Governor Jared Polis of Colorado has stated that he will sign the bill, passed last week by the Colorado state legislature, to enter into the National Popular Vote Interstate Compact.  Polis stated that he has “long supported electing the president by who gets the most votes” and noted that the Compact is “a way to move towards direct election of the president.”

 Colorado joins eleven other states and the District of Columbia in agreeing to pledge their electoral votes to the winner of the national popular vote once states with a total of 270 electoral votes join the Compact. After Colorado’s nine votes are added to the total, the Compact will have 181 electoral votes.  New Mexico, which has five electoral votes, has passed a similar bill in its state House. The bill is currently awaiting a vote in the state Senate.

Republicans' Small-State Advantage Is an Optical Illusion

Besides the obvious fact that Republicans won 'wrong-winner' victories in 2000 and 2016, one of the main reasons why GOP leaders believe the Electoral College generally helps their candidates is their supposed advantage in small states.  That bit of conventional wisdom is not confined just to Republicans.  Here's a recent statement from a respected neutral source, the fact-checking website Politifact:

Two factors explain why today’s political environment, if anything, gives Republican states a leg up in the Electoral College. First, smaller states get a disproportionately large impact in the Electoral College, because each state (plus the District of Columbia) gets a guaranteed two electoral votes before the rest of the electoral votes are allotted based on House seats (and thus, indirectly, on population). While there are some smaller blue states, the smallest states are disproportionately Republican-leaning.

Looking at any of the familiar blue-red Electoral College maps from recent elections, it's easy to see why such a perception took hold:

Screen Shot 2019-02-22 at 11.04.14 AM.png

Huge red swaths on the map represent vast, sparsely populated, solidly Republican states—Alaska, Idaho, Montana, Wyoming, the Dakotas.  Blue small states, in contrast, tend to be small in area as well as in population—Hawaii, Vermont, Rhode Island, Delaware, the District of Columbia.  They're easy to overlook, so glancing at a map may result in an optical illusion rather than a reliable answer.  Instead, let's examine actual numbers from elections over the last three decades:

Screen Shot 2019-02-21 at 8.28.55 PM.png

In four of the last seven elections, the Democratic candidate won more small-state electoral votes than the Republican!  Over the same period, the median number of small-state votes won by the two parties is exactly the same—30 each.  In the two most recent elections, votes from small states split almost evenly, as they gave a one-vote margin to Obama in 2012 and a two-vote edge to Trump in 2016.  In short, the idea that small states reliably give Republicans a leg up in the Electoral College is a myth.

Jack Nagel is Professor Emeritus of Political Science at the University of Pennsylvania. This is Part II of his series debunking the myths that the Electoral College always benefits Republicans and that the national popular vote would necessarily benefit Democrats.  Read Part I here.

Colorado Legislature Passes National Popular Vote Bill

Both chambers of the Colorado legislature have passed the National Popular Vote Interstate Compact. If Governor Jared Polis signs the bill, as he has pledged to do, Colorado will join eleven other states and the District of Columbia in agreeing to pledge their electoral votes to the winner of the national popular vote once states with a total of 270 electoral votes join the Compact. After Colorado’s nine votes are added to the total, the Compact will have 181 electoral votes.

If the Compact becomes effective, it will “eliminat[e] any chance that a candidate can win the presidency without winning the popular vote nationally.”

The New Mexico House has passed a similar bill. It is awaiting a vote by the state’s Senate.

California Dreaming

But for the electoral college system, would the sort of confrontation reported below between a first-term president and the biggest state be imaginable? I have a dream of one country bound by a national election where every vote was weighed, measured, and counted equally. 

WASHINGTON — A day after California filed a lawsuit challenging President Trump’s emergency declaration on the border, the Transportation Department said it was exploring legal options to claw back $2.5 billion in federal funds it had already spent on the state’s high-speed rail network.

The Trump administration also said it was terminating a $929 million federal grant to the California High-Speed Rail Authority, according to a letter the Transportation Department sent Tuesday.

Republicans Should Dislike Winner-Take-All

Democrats use a proportional system to nominate their candidate for president.

But “Republicans tend to use winner-take-all systems that reward candidates who win by even the slimmest margins.” Kamarck at 88-92. This “means that Democratic contests that make it past the early states can go on much longer than Republican contests.”

Proportional systems were favored by “early twentieth-century progressive reformers who saw proportional representation as a way to break the power of big-city political machines.” Proportionality was revived by Democrats in their presidential nominating process in the wake of the divisive 1968 nominating experience.

The result is that Democrats typically attract more attention, more voters register Democratic, Democrats build a big tent and a big base, and Republicans hope that greater control by an elite over the process gives them a candidate who aligns with the wishes of the elite.

In 2015-16 the winner-take-all system greatly helped Donald Trump’s take-over of the Republican party. If the Republicans had used proportionality to choose delegates, Trump would have had a much more difficult time getting so many delegates so early. He might well have won the nomination anyhow, but the theory of an elite controlling the process is now debunked.

By contrast, while using the equitable proportional system almost exclusively since the 1990s, the Democrats have nominated candidates who won the national popular plurality in every general election from 1992 to 2016, with the sole exception of 2004. That is six wins out of seven.

One person, one vote builds a bigger, better, reliable base for a national party.

The Civil Rights Case for the National Vote

Elaine Kamarck explained that in 2004, testifying to a Democratic commission formed to reform the nominating process, Ron Walters, a “veteran of Jesse Jackson’s two presidential campaigns,” described “how difficult it was for African American candidates” to “do well” in the “all-white states of Iowa and New Hampshire.” He said that if “Section 2 [of the Voting Rights Act] suggests that we shouldn’t dilute the voter of minorities,” then putting these two states up-front in the process has “the effect of diluting the black vote.” The reason is that the results in these two states matter more than the results that follow in later states, where the percentage of African-American votes is much higher. Page 79.

The winner-take-all system of allocating electors has the same effect. In states where African-American votes typically are cast for the losing presidential candidate, such as across the states in the former Confederacy, those votes are “diluted.” Indeed, they are systematically discarded.

The only two ways to make those votes matter equally to white votes are to have all states adopt a proportional system of allocating electors according to the popular vote in states OR to have some states allocated some electors to the national winner, thus forcing the candidates to seek a national win based on a one person-one vote principle in order to get enough electors to be president.

The former solution works only if all states adopt it. If all were willing to do that, they might as well simply amend the Constitution by calling for direct election of the president. (Americans have long favored that step, but professional politicians have stood in the way.) The latter works even if only a few states chose to allocate electors to the national winner. The way to avoid diluting any group’s votes – not just African-Americans, but any group’s votes – is for some states to allocate some electors to the national winner. There probably is a Voting Rights lawsuit to bring on this topic. 

The View from Utah

This piece in the Salt Lake Tribune explains how the Electoral College, as it currently operates, harms Utah voters:

Any power smaller states gained under the original system has been lost to unpredictable battleground states, of any size. In 2016, why did Iowa (after primary season), with 3 million people, a strong rural component and six electoral votes (all like Utah), get 21 campaign events and Utah only one? Because Iowa’s a battleground state.

In Utah, we had 10 presidential contenders. The Republican won the statewide popular vote with only 46 percent of the total. The other nine candidates combined won 54 percent. The result? The six electors chosen by winner-take-all to ride our Electoral Bus to its destination represented fewer than half of our voters. That’s how Utah contributed to the infamous popular vote/electoral vote split, and with margins in presidential contests growing tighter every cycle, keeping these state winner-take-all laws makes the possibility of more splits loom over every future election.

 However, if the winner of the national popular vote became the president:

[B]ig states, small states, big cities, small cities, rural communities nationwide — where you vote won’t matter, that you vote will. Every vote in states like Utah will be as powerful as every vote in states like Florida, and candidates must go everywhere to get them. On that election night, for the first time in American history, finally, electors representing the nation’s entire vote will ride Electoral Buses to their destination: the selection of the president.