New MEVC Poll Finds that Voters Support the National Popular Vote Interstate Compact; Believe Person who Gets the Most Votes Should be President

A new poll released by Making Every Vote Count today finds nearly two of every three likely voters (62%) support using the national popular vote to decide who the president should be. While previous polls have shown consistent support for using the national popular vote to select the president, this poll asks voters about a specific solution – the National Popular Vote Interstate Compact (the Compact). The main reason for the overwhelming support: Americans think every vote should count equally.

Under the Compact, states agree to award their electors to the winner of the national popular vote once states with enough 270 combined electoral votes have enacted the Compact. This action will guarantee that the winner of the national popular vote also wins the Electoral College and becomes president. Four states have enacted the Compact in 2019, bringing the total number of jurisdictions in the Compact to sixteen (fifteen states and the District of Columbia) with a combined total of 196 electoral votes.

 The Compact goes into effect when the number of states that passed it account for a majority of the electors in the Electoral College, which means that additional states with at least 74 votes combined are needed. Then, then the Republic at last will have a truly democratic method of selecting the President – one in which every vote in the United States is weighed equally in the balance when deciding who most of the people want as the Chief Executive Officer of the government. This would be a fair system for all Americans.

Reed Hundt, former chairman of the Federal Communications Commission and co-founder of Making Every Vote Count said, “The American people disagree about many aspects of public life. However, they do actually agree on one problem: how we elect the president. They also agree that a national popular vote, ensuring every vote from every part of the country counts equally, is the solution. It’s time to make this common sense change.”

The survey of more than 800 Americans aged 18+ who are eligible to vote was conducted by Claster Consulting and commissioned by Making Every Vote Count. Respondents were weighted to represent the US citizen voting-age population – 53% women, 47% men; 70% white, 12% African-American, 11% Hispanic, 7% Asian-American; 18% age 18-29, 17% age 30-39, 19% age 40-49, 29% age 50-64, and 19% age 65+.

A summary of the results are highlighted here:

  • 71% of likely voters nationwide agree the candidate who gets the most votes nationwide should become president, including 88% of Democrats, 67% of Independents and 61% of Republicans

  • 65% of likely voters nationwide agree that we should change the rules so the candidate who wins the most votes nationwide always becomes president, including 82% of Democrats, 62% of Independents and 48% of Republicans

  • 62% of likely voters nationwide support using the national popular vote to select the president, including 79% of Democrats, 55% of Independents and 49% of Republicans

  • 60% of likely voters support their state joining the National Popular Vote Interstate Compact, including 79% of Democrats, 54% of Independents, and 44% of Republicans.

For more information on the poll, click here.



Open Letter to Howard Schultz

Dear Howard (we've met before):

I congratulate you on your promise to spend more than $100 million on promoting democracy in America. You have a very good chance, indeed a near certainty, of having more impact on the future of the American experiment by doing this than by running for president. Indeed, your impact can be more important even than the historical significance of entire terms of some presidencies.

Here's how:

1. The first and by far biggest problem with American democracy is that the system does not engage nearly enough Americans in the process of choosing the president. Choosing the president by national popular vote would not only make every vote count equally but would also make every vote matter. As a result, both campaigns would seek every vote everywhere, and tens of millions more would participate in the election, while everyone would recognize that in the election itself all are joining in a historical feat of collective action. 

2. If at least 60% or more of Americans were involved in picking the president via a national vote, the winner by necessity would do what most Americans want done by the chief executive. The measures that then would become law and part of the culture would include: rapid action to address the catastrophe of climate change, regulations limiting access to automatic weapons, and massive upgrades in the infrastructure of transportation, water, sewage, and communications. Other topics are important but substantial majorities of Americans want these actions and no one elected by a majority of the national popular vote would fail to make progress on these three imperatives of collective action.

3. Your $100 million is more than enough to cause the national popular vote to be the way the president is chosen. Here are the steps:

a. Spend about $10 million on a national advertising campaign explaining that equality of voting power is good for the majority of the country. You know how to create brands as well or better than anyone in business history. Use your talents to advertise for democratic voting for president.

b. Spend $10 million to defeat the ballot measure that puts to the voters in Colorado in November 2020 the proposition, intentionally worded in a deceptive manner, that repeals Colorado's enactment of the National Popular Vote Interstate Compact. Causing the voters of Colorado to rise up in opposition to the deep pocketed opponents of democracy would send a message to the whole country that the people want equal voting rights.

c. At a cost of about $10 to $15 million put on the ballot in Michigan for November 2020 that same Compact, so the voters in Michigan can pass it. The polling done by Making Every Vote Count shows that the measure will prevail by a strong margin if only someone funds the campaign. November 2020 will be a huge turn out year, and it would be tragic to miss the chance  to put this just and popular measure to the voters then. There is enough time yet to accomplish this big victory. Be relevant in 2020 in this way, please.

d. At a cost of about $5 million per state on average put the Compact on the ballot in 2022 in as many states as permit voter signatures to put proposed laws on the ballot. These include as many as two dozen states, so that's a spending package of about $50-60 million. If only four or five produce victories, then the Compact will have more than 300 electors bound to vote for the national popular vote winner. It will have been endorsed by millions of voters across the country. 

e. Don't pay for lawyers because Making Every Vote Count will deliver them pro bono. More than enough able lawyers want democracy and will vindicate the Compact and any related issues in the courts, no matter what specious arguments are raised by those who prefer minority rule that delivers outcomes most people do not want. 

4. I've left you about $10 million to fund a national green bank to finance the move from carbon to clean power—the next cause where the Nobel Prize goes to the businessperson who leads the way to generous green finance. 

Sincerely, Reed Hundt, CEO of Making Every Vote Count (and also Coalition for Green Capital)



Things Could Change

How would the major parties and their candidates behave if they had to win the national popular vote plurality to become president? Making Every Vote Count will hold a conference on October 7, 2019 in Washington, DC to discuss answers to this question.

Here are my somewhat speculative beliefs.

We have to start with a point of view about what happens in the general election of the president. Mine is that this is right: “boosting turnout [in the general election], primary election persuasion, and perhaps persuasion in special elections [such as for ballot measures] are possible…But evidence of persuasion in general elections remained negligible.”

If turnout is the chief goal of the major parties in the general election, then it follows that each of the two will define their bases in a new and different way. Namely, in the first instance they will pay little attention to the geographic location of their likely voters. No longer will they focus on how to obtain a plurality in a handful of states. No more will they identify voters primarily according to zip code and census tract.

Instead, the campaigns, with their billions of dollars, will determine how to achieve a majority of the votes (they need a plurality but will aim at majorities, not knowing how many votes a third or fourth party candidacy may siphon away from the two major parties). To do this calculation, they will analyze the tendencies of all those likely to vote, and also those who are registered but less likely to vote, in every precinct in the country.

Based on the analysis, the Republicans and Democrats will determine the left-right political leaning of the likely and less likely voters. Presumably they will discover that about 45% of the possible national electorate is inclined one way or the other, and about 10% is undecided. That is what most polls suggest.

For these two different bases of their leaners, the Republicans and Democrats will then divide the potential voters into demographic segments. Each segment will be defined by age, gender, religion, race, favorite spoken language. They will poll each segment nationally in order to determine policy preferences.

For example, do Democratic-leaning old Hispanic females attach great priority to preserving Social Security and Medicare? If so, then the Democratic nominee will highlight his or her commitment to that policy, perhaps in Spanish language advertisements, and bewail the risk to these benefits that the Republican nominee will present.

As another example, do Republican-leaning middle aged white males fear an assault weapon ban by a Democratic president? If so, the Republican nominee will want to ask the Democratic nominee in a debate whether he or she will seek such legislation.

Policy will follow pragmatism: the parties are not going to push policies that deny them the possibility of winning the national vote.

The question then presented is how the parties’ policies will change if they must win the national vote to get the prize. My view is that it depends on how many segments need to be bonded into a coalition in order to compose a majority. The Democrats and Republicans have needed only to achieve this feat as against each other in less than ten states. In 2020 they are going to try to build winning coalitions in not many more than Florida, Pennsylvania, Michigan, Wisconsin, and New Hampshire, while paying relatively little attention to their respective bases in the rest of the country. But to win a national election, the job of building winning coalitions necessarily will require a different calculation.

It may be that opposition to abortion will still be critical to the Republican Party whereas hostility to immigrants may be politically disastrous. It could be that supporting aggressive government action to move to a clean power platform might be a central plank of a Democratic platform, while support for an open border is anathema. Polling and practice will have to answer these questions.

After figuring out the composition of hypothetical national bases, the parties then will decide how to reach their likely voters. Cost is king. I imagine that neither party has unlimited funds, and in any case during the general election timing matters a great deal. My guess is that for the first time in modern political history the parties will each spend money on national television in order to present – “brand” – their candidates during the summer. They will buy advertising time during the Olympics, the World Series, and nationally broadcast football games. Historically, almost no money has gone to national television, because of course only a handful of states have constituted the battleground and it would be a waste to spend advertising dollars on national shows.

On the other hand, the cost for reaching demographic segments through local radio, local television and local newspapers is fairly low in most regions of the country. This is not true in major urban markets, but it would be very cheap for the two parties to buy local media advertising space in the Dakotas, for instance. For the first time in history, the outlets in thinly populated non battleground states would be a valuable way for either party to reach their bases. While their messages would be different, both parties would be able to generate several hundred thousand turned out voters in the Dakotas very cheaply. In most elections the Republicans have left many voters unsolicited and not encouraged to vote in the thinly populated states. They would not pass up the opportunity to run up the score in these places, while Democratic leaning segments would be less numerous but perhaps even cheaper to reach.

In most states it is probable that the general national election would cause the gap between the two parties to close. This might be uncomfortable for state politicians in whichever party now dominates in a particular state. For instance, there’s little doubt the Republicans would seek turnout in California, as opposed to dedicating no advertising or organizing effort to the state now. The result might be revival of the two party system in the Golden State. Perhaps Democrats would not like that. On other hand, in pursuit of this goal the Republican nominee might favor a compromise policy on immigration.

Social media permits advertisers to target consumers by individual identity, advertising with versioned content to each pair of eyes. Such a capability would be used by both parties to encourage their bases to turn out. Mass media does not enable nearly as much individuation in advertising so it is reasonable to think the current trend of spending proportionally more in campaign dollars on social media would continue.

But the targeted voters would be identified without regard to geography. Social media advertising therefore would enable either party to reach all farmers, all Mormons, all Native Americans – all of any segment. As a result, demographic segments that are ignored, and sometimes derogated, by the current system would have much more importance in the election. They would still be subject to the inexorable law of numerosity: if your group is small, your electoral weight is small. But today many populous groups – African Americans are the leading example – have an inequitably minor impact in the general election, because many of their members are located in states where they are outvoted by people in a different political party and so they choose no electors from those states.

It might be that with national voting suddenly relevant, the Republican Party would need to adopt policies more sympathetic to the concerns of African Americans. Just like in Lincoln’s day.

Surely there are many other consequences to adopting a national system. But for sure many myths would be dispelled. All could see that a national election would empower people in states with low population and rural inhabitants, whereas they are taken for granted now. All would recognize that minorities of many kinds – based on religion, race, etc.—would have to be assembled into coalitions to support either of the major parties, while now they are ignored or taken for granted.

Some will argue too that a national election will threaten the viability of national parties. But there’s no way a regional party can win a national election unless and until the country’s electorate decomposes into at least four or five different regional parties. The existing media are not likely to facilitate this development – they present candidates the way they sell burgers, trucks, and software. Everyone gets the same products, with scarcely any regional variation.

However, in the unlikely event that national elections for president cause the deterioration of the existing Republican and Democratic parties, one can ask two questions. How much will they be missed? And doesn’t that mean the antagonists could agree at last on amending the Constitution to create a run-off so that under all circumstances the winner of the presidency has won a majority of the votes cast in the country?



Democracy rules

As this article shows even one of the world’s most autocratic and corrupt leaders wants popular voting to give authority to his party’s rule. Might makes right, but it doesn’t create the appearance of justification for political power and it is inherently unstable.

If he thought about it creatively, Putin could consider adapting the American electoral college system to his purposes. In the United States the people don’t pick the president by vote. They are only told that they do.

Instead they pick electors, who, under the 10th Circuit’s decision in Baca v. Colorado Department of State, can choose anyone they want for president. Political parties nominate electors by opaque processes. It is reasonable to suppose that every elector has made or received sizable political donations in order to be noticed by the nominators. They are quintessential apparatchiks.

Perhaps to avoid embarrassment or to convince voters falsely that they are choosing the president, many states do not reveal the names of electors on the ballot. Even where they are identified the only voters sure to know them are their family members.

The electors from different states do not deliberate. They do not even meet with each other. Yet they are described as attending an electoral college. This college has no courses, instructors, or degrees. But the description persuades some otherwise reasonable people that this nonexistent institution effects a ratiocinative process for choosing the nation’s leader.

Just as mind-boggling is the way many people, including judges, think that history should command the country to perpetuate this process. In brief, it is thought by many that the writers of the Constitution wisely designed a system unchangeable for the ages when they imagined white men from 13 eastern seaboard states would travel by horseback for about four to five weeks to Philadelphia (or later, Washington) in order to negotiate on which slaveholder or slavery-tolerating person a majority of them would accept for president.

Electors are also described as representing the interests of thinly populated states (most in French territory at the time of writing the Constitution, so not contemplated as stakeholders by the framers). But it’s a good bet not one elector knows soy from sorghum and that all or almost all live in cities or suburbs. At any rate, we know that not a single elector has a published farm policy or a “small state” policy.

To top it off, the media collaborates enthusiastically with politicians in convincing the American people that their votes matter and that the system serves the best interests of the whole country.

How could Putin not win his elections with this method?

And if Russians could be convinced as easily as are many Americans that they actually had voted in a fair and meaningful way then he would have the legitimacy he craves for his exercise of autocratic control.

Just a thought.



NYT Editorial Board: Fix the Electoral College—Or Scrap It

Following the federal appeals court ruling allowing electors to vote for whomever they please, the New York Times editorial board notes that the Electoral College is not working anything like the way the Founders intended:

“[E]lectors aren’t distinguished citizens weighing whether the people have made a wise decision on their presidential ballot; they are men and women chosen because of their partisan loyalty. So it’s understandable that after years of tightly contested elections, Americans are aghast that an elector would dare to substitute his judgment for the will of the people.”

The piece also notes that “faithless electors” have been, and will continue to be rare, and are merely a symptom of larger problems within the system:

“The point is that faithless electors are not the real problem. What really disregards the will of the people is the winner-take-all rule currently used by every state but Maine and Nebraska. Giving all electors to the winner of the statewide popular vote erases the votes of citizens in the political minority — say, the 4.5 million people who voted for Donald Trump in California, or the 3.9 million who voted for Hillary Clinton in Texas. Nationwide, this was the fate of 55 million people in 2016, or 42 percent of the country’s electorate.

The winner-take-all rule encourages campaigns to focus on closely divided battleground states, where a swing of even a few hundred votes can move a huge bloc of electors — creating presidents out of popular-vote losers, like George W. Bush and Donald Trump. This violates the central democratic (or, if you prefer, republican) premises of political equality and majority rule.”

The Editorial Board gives several alternatives to the winner-take-all rule: splitting electoral votes by congressional district, splitting electoral votes proportionally, or the National Popular Vote Interstate Compact.  We have discussed the problems with splitting electoral votes here and here.  The Compact, on the other hand, is an “elegant solution” that would make votes outside of swing states actually count.  As the Times concludes:

“Critics say that relying on the popular vote would allow the presidency to be decided by the big cities on the coasts, but big cities don’t come close to having enough votes to swing a national election. At the same time, the Electoral College doesn’t do any of the things its defenders claim it does. For example, it doesn’t force candidates to win nationwide support, and it doesn’t protect smaller states, since winner-take-all rules give far more influence to larger states, especially battlegrounds.”



Our Presidential Selection System is Biased and Broken

Presidential elections where the winning candidate loses the national popular vote are becoming the new normal. It’s happened in two out of the last five elections, and would have happened again in 2004 if just 60,000 votes in Ohio had gone the other way.  In future elections, we can expect a split between the electoral college and the national popular vote up to 30-40% of the time.

As Washington Post columnist E.J. Dionne writes:

There is nothing normal or democratic about choosing our president through a system that makes it ever more likely that the candidate who garners fewer votes will nonetheless assume power. For a country that has long claimed to model democracy to the world, this is both wrong and weird.

And there is also nothing neutral or random about how our system works. The electoral college tilts outcomes toward white voters, conservative voters and certain regions of the country. People outside these groups and places are supposed to sit back and accept their relative disenfranchisement. There is no reason they should, and at some point, they won’t. This will lead to a meltdown.

Fortunately, we do not have to accept a status quo that routinely and systematically disenfranchises voters.  Under the National Popular Vote Interstate Compact, all votes would count equally—no matter who you are or where you live.



What do to about Baca, part 2

"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass - a idiot". -- Charles Dickens, in Oliver Twist.

The Baca decision holds that the framers intended for electors to decide as independent agents who should be the president and who the vice president. Each state has unfettered authority to decide how to appoint electors—by vote of the people, by vote of the legislature, by lot, by the machinations of horoscopes or ouija boards ("spirit of George Washington, who should be president?"), by sale to the highest bidder.

Could a state really sell elector seats? That's a law school question that may need to be answered in real existing politics.

Anyhow, other courts may agree or disagree with Baca, and perhaps the United States Supreme Court will have something to say about this matter. Surely it's important for everyone to know well in advance of the November 2020 election whether Americans are actually voting in a reliable, meaningful way for president or vice president, or whether instead they are delegating that choice to electors.  

If the Constitution means that voters are merely delegating the important choice to electors, then people deserve to know a lot more about who is taking on this important job. 

Many states do not even list the electors on the ballot. Even if on the ballot, they do not campaign. They do not explain why they deserve to be trusted with the responsibility to pick the nation's only two national government executives. To set forth their qualifications, they are going to need to raise money. The candidates for president in 2020 will spend, all in, a total of $3 to $4 billion on presenting their merits. If the voters are not in reality choosing among the parties' nominees, then all that money perhaps should be spent to present the electors to the voters. The electors themselves do not have to choose among the nominees of the parties anyhow, so there is little purpose to the political spectacle that we currently call the presidential race.

If the Baca becomes the law of the land, people leaning left and right on the political spectrum should agree that this law creates an ass of a system. The obvious alternative is to let the voters directly pick the president. Do not blame the Baca court. Instead, recognize that it's high time to amend the Constitution's broken, antedated, and otiose method of choosing the president. 

American history reveals a halting, sometimes wandering, but always vital expansion of democracy. The Baca reading of the framers' intent may be right. But in that case, the framers' conception at last should be updated to reflect the virtue, indeed the necessity, of a truly democratic process for choosing the nation's two top leaders.

In this process, step one is to decide if the candidates for president should be highly encouraged to campaign everywhere for everyone's vote. If the answer to that is yes, then the national vote must choose the president, instead of the current system according to which a handful of swing states attract all attention and distort policies and governance away from the desires of most people. 

Step two is to decide if every vote cast nationally should be of equal weight. It could be thought that the composition of the Senate, which cannot be changed by constitutional amendment, suffices to protect the interests of small states. In that case, there's no reason to give small state voters more weight in picking the president than voters in big states. But if the small states' officials want to demand greater voter weight in order to compromise on a constitutional amendment, then every voter can have their votes weighted according to the relative population of the state in which their vote is cast.

Step three is to make up the national mind about whether the president should always be chosen by majority vote, as opposed to having most people vote against the person as occurs fairly often. To produce a majority for the president, the United States would need to adopt some sort of run-off, either instant (also called ranked choice) or a two-stage voting method. 

Finally, in the amendment, the country could throw away the obviously anti-democratic back up methods of the Constitution, election by the House where each state has one vote or election by the Senate. 

 Baca presents anew the long-bruited, extremely obvious fact about the American system of choosing the president. It is terribly flawed. It does not serve either party well, and harms the whole country in numerous ways. The Baca judges are not idiots. They intended only to describe what the framers intended. The system, which did not work beyond the Washington Administration, has become more and more idiotic as the country has grown and changed. When the law is this much of an ass, it's incumbent on all of us to change it. 



What to do about Baca

Here is the letter we sent to the attorneys general of all states plus the District of Columbia:

Dear Attorney General:

 I write on behalf of the Making Every Vote Count Foundation, a nonpartisan organization dedicated to research and civic education on the merits of choosing the president by means of the national popular vote.

This month the United States Court of Appeals for the Tenth Circuit held unconstitutional a Colorado law providing for the removal of presidential electors who fail to vote for the presidential candidate receiving the plurality of votes within the state, Colo. Rev. Stat. § 1-4-304(5).  See Baca v. Colo. Dep’t of State, No. 18-1173, 2019 WL 3938266, at *2 (10th Cir., Aug. 20, 2019).  According to this decision, no state action of any kind – judicial, legislative or executive – can limit in any fashion the decision of an appointed elector to cast a vote for the President and Vice President of his or her choice. 

 The Baca court correctly acknowledged that each state has “the plenary power to appoint its electors.” Id. at 41.  However, the court also held that after the appointment, “the Constitution identifies no further involvement by the states in the selection of the President and Vice President.”  Id. at 48. Therefore, the court concluded that the Constitution does not empower a state to enforce in any way “a state-required pledge to vote for the winners of the state popular election.”  Id.

The Baca reasoning must bar any legal action to enforce an elector’s promise to vote for a certain candidate.  It also may mean that a state cannot bar from the ballot a slate of electors who promise only to exercise their good judgment in voting for president and vice president.

We believe it is imperative that your office consider the implications of Baca in a timely manner, given the relatively short time frame between now and the preparation of ballots for choosing electors for the presidency that commences in January 2021. We believe that as many as 30 states now have laws and regulations that Baca would invalidate, and others should be aware of what steps they now cannot take.

On the other hand, a state may still enact, and when it is effective also enforce, the National Popular Vote Interstate Compact.  The state has plenary authority, whether acting pursuant to legislation or ballot measure amending the constitution or laws of the state, to determine the manner of appointing electors.  To date, 15 states and the District of Columbia, with a total of 196 electors, have enacted the Compact.  It takes effect when enacted in states with electoral votes totaling 270 or more.  When effective, the chief election officer in states that have joined must determine who has won the most votes nationwide.  Based on that determination, the state will appoint the slate of electors nominated by the party whose presidential nominee has won the national popular vote.  The Baca decision does nothing to disturb this procedure.

A state adhering to the Compact may permit electors to aver that they, as a matter of conscience, favor voting for the winner of the national popular vote for president. They may state also that, if appointed, they will act in accordance with their conscience and vote for the presidential candidate who receives the most votes nationwide. The Baca reasoning does not preclude such pledges by would-be electors. 

In order to give guidance to those who might wish to be electors, to political parties, to voters, and even to presidential and vice presidential nominees, we urge you each to issue, as soon as practical, a formal opinion stating whether your state will follow the Baca reasoning, and whether you concur with our view that the Compact in any event may be adopted in any state.

We have consulted with our attorneys at the law firm of Covington & Burling LLP regarding these issues.  Should you wish to discuss this matter further, you may contact me directly or reach our attorneys, Gerard Waldron and Matthew Shapanka, at the firm.  Thank you for your consideration.

 Sincerely yours,

 Reed E. Hundt, Chairman & CEO

Directors:

Fred T. Goldberg, Jr.

Judge Lisa Foster (Ret.)

James K. Glassman

Richard S. Tedlow

Jake Fuentes

Jennifer A. Holmes

 

cc:Attorneys General of the 50 States and the District of Columbia



Invitation to Extreme Unpredictability: Summary of Baca v. Colorado Dep’t of State (10th Cir. 2019)

The United States Court of Appeals for the Tenth Circuit just reached a decision that expands the anti-democratic nature of the Electoral College into a new realm of unpredictability.

If this decision becomes the law of the land, then electors chosen by popular vote in a state, or by a national popular vote if that reform goes into effect, can ignore the voters and pick the president and vice president of their choice. They do not even have to choose between the candidates nominated by the two parties. An elector can pick anybody he or she likes.

The court felt that the framers of the Constitution intended to give electors this unfettered power. In the current century, this reading of original intent leads to many startling possible scenarios, including the use of unlimited funds and unthinkably powerful advertising techniques to persuade any and all of 538 electors that someone not chosen by the people of any state, much less the whole country, should be president.  

Here follows a summary of the decision:

 Plaintiff Michael Baca was a presidential elector appointed in Colorado, which, by statute, required its electors to vote for the winner of the popular vote in that state. Colo. Rev. Stat. § 1-4-304(5).  Even though a majority of Coloradans voted for Clinton, Mr. Baca attempted to cast his vote for John Kasich on the date that the electors met to cast their votes. The Colorado Secretary of State removed Baca as an elector, and replaced him with a substitute elector who voted for Clinton.

Baca sued under 42 U.S.C. § 1983 for an alleged deprivation of his constitutional rights provided by Article II and the Twelfth Amendment. The Tenth Circuit found that Baca had standing to challenge Colorado’s statute. The court further found that the “state’s removal of Mr. Baca and nullification of his vote were unconstitutional.”  Baca, at 2.

The court framed the question as “whether the states may constitutionally remove a presidential elector during voting and nullify his vote based on the elector’s failure to comply with state law dictating the candidate for whom the elector must vote.” Id. at 63. The court found that although the Supreme Court has not ruled on the question directly, it has stated in dicta, concurrences, and dissent, that the original intent of the Constitution “recognized elector independence.” Id.  at 66.

Colorado argued that “the power to bind or remove electors is properly reserved to the States under the Tenth Amendment.” Id. at 76. However, the court rejected the argument that the power to bind electors was “reserved” to the states under the Tenth Amendment “because no such power was held by the states before adoption of the federal Constitution.” Id. at 77.  Accordingly, “The Tenth Amendment thus can provide no basis for removing electors or canceling their votes . . . .” Id. at 78. Because the Tenth Amendment did not reserve the power to nullify the vote of a presidential elector, the court framed the question as “whether the Constitution expressly permits such acts.”  Id. at 78.

The state, relying on the president’s power to remove officials, argued that “the power to appoint necessarily encompasses the power to remove.” The court disagreed.  Though the court acknowledged that “the state legislature’s power to select the manner for appointing electors is plenary,” id. at 79 (quoting Bush v. Gore, 531 U.S. 98, 104 (2000)), it did not follow that the state also had “the ability to remove electors and cancel already-cast votes after the electors are appointed and begin performing their federal function,” id. The court distinguished presidential appointees, who are subordinate officers in the electoral branch and thus under the president’s control, from electors, who perform a separate federal function from the states that appoint them 

The court found that “Based on a close reading of the text of the Twelfth Amendment, we agree that the Constitution provides no express role for the states after appointment of its presidential electors.”  Id. at 84. The court noted that “From the moment the electors are appointed, the election process proceeds according to detailed instructions set forth in the Constitution itself,” and “Nowhere in the Twelfth Amendment is there a grant of power to the state to remove an elector who votes in a manner unacceptable to the state or to strike that vote.” Id. at 86.  The court concluded that “while the Constitution grants the states plenary power to appoint their electors, it does not provide the states the power to interfere once voting begins, to remove an elector, to direct the other electors to disregard the removed elector’s vote, or to appoint a new elector to cast a replacement vote.” Id.  at 86-87.  In other words, because the Constitution does not give the states an explicit right to remove electors or control their votes, no such right exists.

The court looked the words “elector,” “vote,” and “ballot,” and found that these terms, as they would have been understood at the time of the adoption of Article II and the Twelfth Amendment, established that no role for the state existed beyond the appointment of electors.  Id. at 88. The court found that contemporaneous dictionaries reflect that “the definitions of elector, vote, and ballot have a common theme: they all imply the right to make a choice or voice an individual opinion.” Id. at 90.  The court also looked at the term “elector” as it is used elsewhere in the Constitution, and found that “electors” in Article I and the Seventeenth Amendment “exercise unfettered discretion in casting their vote at the ballot box.”  Id. at 92. The court also found that the Federalist Papers were “conclusion that the presidential electors were to vote according to their best judgment and discernment.” Id. at 105-09.

The court noted that there had been a longstanding practice of requiring electors to pledge to vote for a certain candidate. However, the court found that the fact that Congress had previously counted every “anomalous” vote that had ever previously cast, pledges notwithstanding “weighs against a conclusion that historical practices allow states to enforce elector pledges by removing faithless electors from office and nullifying their votes.” Id. at 101.

Nor did the fact that most states do not even list their electors on the ballots change the court’s conclusion that interference with an elector was unconstitutional.  Id. at 101-105.  The court noted that the Supreme Court had found that “[t]he individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college.” Id. at 104 (quoting Bush, 531 U.S. at 104). Accordingly, even though all states now allow the citizens to vote for presidential electors the state “can take back the power to appoint electors.” Id. (quoting Bush, 531 U.S. at 104).  The court found that, similarly, “Although most electors honor their pledges to vote for the winner of the popular election, that policy has not forfeited the power of electors generally to exercise discretion in voting for President and Vice President.”  Id.

In conclusion, the court found that the Secretary of state “impermissibly interfered with Mr. Baca’s exercise of his right to vote as a presidential elector” by “removing Mr. Baca and nullifying his vote for failing to comply 114 with the vote binding provision in § 1-4-304(5). Mr. Baca has therefore stated a claim for relief on the merits, entitling him to nominal damages.”


We Can Make Sure the Person who Wins the Most Votes Becomes the President

In two out of the last five elections, the winner of the national popular vote lost the electoral college. This is not a fluke. According to a statistical model from Vinod Bakthavachalam and the Princeton Election Consortium, when the national popular vote is within a 4% margin, there is a 30% chance that the winner of the national popular vote will lose the election. And when the national popular vote is within a 2% margin, the chance of a clash between the national popular vote and the electoral college rises to 40%.

But what can we do about it?  Some people believe that the only way to make sure that the winner of the national popular vote becomes the president is to change the constitution to abolish the electoral college.  But there is another way to work within the system that the founders created and still respect the will of the people: the National Popular Vote Interstate Compact.

Here’s how the Compact works: The Constitution gives each state the power to award its electoral college votes as it sees fit.  Right now, all states (except Nebraska and Maine) give their electoral votes to the plurality winner of that state.  However, under the Compact, each member state will give its votes to the winner of the national popular vote. 

The Compact will not go into effect until states with 270 total electoral votes join—the number needed to secure a majority of electoral college votes.  Accordingly, the states will not award their electoral college votes to the winner of the national popular vote until there are enough electoral votes pledged to guarantee that the winner of the national popular vote also wins the electoral college.

The Compact already has 196 votes committed from fifteen states and the District of Columbia.  That’s more than 70% of the way to guaranteeing that the winner of the national popular vote also wins the electoral college. 

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Under the current system, millions of people stay at home on election day because they know that their states’ electoral votes are a lock for one candidate or another.  But if states with just 74 more votes join in, we can make sure that candidates pay attention to voters everywhere, not just those who live in swing states. The electoral college will sometimes favor Democrats and sometimes Republicans, but in the long run, everyone will be better off if every person’s vote counts equally.



States must react to this

This reasoned decision by the 10th Circuit makes clear that states cannot punish or in any meaningful way constrain an elector from voting his or her conscience.

Prospectively, this means that states must strike from their codes any statutory or regulatory infringement on the authority of an elector to think and not just act when it comes to choosing the president.

In implementing this reform, states might as well go ahead and also vote on the National Popular Vote Interstate Compact. Under that law, states would appoint electors nominated by the party whose candidate won the national popular vote. The electors cannot be punished if they choose otherwise, but the states plainly have plenary authority to appoint electors from the national vote winner‘s slate.

If states don’t want to pass the Compact then they still have to implement a method of appointing electors that preserves the freedom of these individuals to choose as president the person they think best suited for the job.

As I understand this case, they can choose any otherwise eligible American citizen.

Adopting the Compact might seem to many states the better way to organize the presidential selection system in the wake of this decision.



The System Tears Us Apart

The political parties change their shape—their leaders and policies—in order to win political power. In their current forms, they contribute to dividing the populace and intensifying animosity.

One major reason is that they both take for granted the outcomes in more than 40 states, leaving as few as six as the contested battlegrounds that determine the electoral college outcome. In those states, the two parties focus on turning out their base and then appealing to swing voters, but those swing voters do not necessarily represent in full the views of most swing voters in the country as a whole.

As a result, the presidential election system does not encourage either party's nominee to conduct a unifying, holistic campaign. Instead, the two major parties maximize negative campaigning, reflected in the content of their advertising and the themes of policy proposals. After such divisive elections, the country remains as factionalized and internally discontent as before the voting takes place.



Think the Electoral College will always favor Republicans? Think again

This article makes the very strong case that demographic shifts may lead to a “purple” or “blue” Texas in the very near future, making it extremely difficult for Republicans to win in the Electoral College as it exists today. Though some Republicans may oppose reforming the presidential selection system because they believe it confers a benefit to their party, the article urges them to rethink that position:

“[Republicans] warn that without the Electoral College, a few big cities would dominate the process, at the expense of rural areas and states. What they ignore is that 1) the 10 biggest cities have only 8% of the U.S. population and 2) urbanites don’t all vote the same way.

Trump got nearly 4.9 million votes in California and 2.8 million in New York — many of them in small towns and rural counties — but under the Electoral College, those votes meant nothing. Someday, the same may be true for the millions of conservatives in Texas.

Democrats take the peculiar view that each citizen’s vote should carry the same weight. They also contend that the candidate who gets the most votes from actual people should win — which happens to be how races for virtually every other office in the country are decided.

If Republicans want to salvage their future, they would be wise to join with Democrats now in pushing to elect presidents by popular vote. Because once Democrats have the upper hand in the Electoral College, they may just decide to keep it.”

Though it is understandable that both parties view the system—and any proposed reforms, particularly the National Popular Vote Interstate Compact—through the lens of the advantages they perceive to their own party, it is clear that all Americans would benefit from having their votes count equally in deciding who becomes the president.



More People Vote When They Know It Counts: A Case Study

Texas has been in the bottom five states for voter turnout for the past three presidential elections.  In the 2016 election, only 51.4% of eligible voters went to the polls, compared to 60.1% nationally

There are several reasons why Texas’s voter turnout rate is so much lower than the national average.  Texas is ranked as the state with the fifth highest difficulty of voting, according to a Northern Illinois University study that considered factors such as the registration deadline, restrictions on who is able to vote, ease of registration, the availability of early voting, voter ID laws, and poll hours. 

But voting difficulty does not fully explain Texas’s low turnout rate.  It is even more difficult to vote Virginia than it is in Texas.  Nevertheless, in 2016, despite obstacles to getting to the polls, voter turnout in Virginia 66.1%.

The difference is not that Virginians are more civic minded, or that Texans are lazy.  The differences is that, in recent elections, Virginians were told that their votes count more than Texans’ votes. In 2016, the presidential candidates hosted a total of 23 events in Virginia—the fifth highest of any state. The 2012 campaigns spent $21.6 million on advertising in Virginia—the third highest of any state.  Meanwhile, both parties ignored Texas, making little to no effort to court its voters.

However, in 2000, Virginia’s voter turnout was only 55.0%.  In the intervening years, Virginia shifted from a solidly Republican state to a swing state.  The increase in voter turnout in Virginia demonstrates that, even in states where it is very difficult to vote, people will make the effort if their votes may make a difference.  On the other hand, many Texans determined that it is not worth their time to vote for president because the result seemed pre-ordained. Though Texas and Virginia present particularly striking examples, voter turnout is generally lower in non-battleground states than in swing states lavished with the candidate’s attention.

But things are changing yet again.  Both parties may decide that Virginia is a safe state for the Democrats in 2020, and not bother visiting or spending money on ads and get-out-the-vote efforts.  In Texas, on the other hand, there is more and more talk that the old Republican stronghold may be shifting toward swing state status.  Accordingly, voter participation in Texas is likely to rise, but may fall in Virginia.

Wouldn’t it be better if every vote counted equally, no matter whether your state was a swing state in a given election? Under a national popular vote, 20 million or more voters as turnout surged across the country. 



The Electoral College at Work

From Axios newsletter August 9:

“Trump campaign officials and sources close to the president tell Axios that they believe Democrats' extraordinary charge that the president is a ‘white supremacist’ will actually help him win in 2020, Axios' Alayna Treene reports.”

If true, this is the electoral college at work. There is no way that this “charge” would help any candidate who had to win the national popular vote. But the demographic mix of the handful of swing states is quite a bit different than the rest of the country, and so this alleged claim by “sources close to the president” could be what they really think.

The Electoral College, of course, has its roots in the country’s attitude toward race. By extending the disproportional power given to the slave states in the House into power of the choice of the president, the system virtually assured that presidents would not limit the perpetuation and even expansion of slavery. This worked until 1860, after which the 13th, 14th, and 15th Amendments gave the Confederate states still more weight in the House by counting former slaves fully, even while they had little to no chance of sending an elector to vote for the president they wanted.

In different ways now, the Electoral College still tilts the scales of political power against people of color.



“It’s the swing states, stupid”

Here is a rare article about the economy and the upcoming election that addresses a sad reality: the only economies that really matter are the economies in the small number of states that will decide the next election. The rest of the nation—where the vast majority lives—hardly matters at all.



Demography is Destiny

As the chart below shows, the swing states' demographics — meaning their balance of whites and non-whites — are, put simply, hugely different than the mix in other, politically uncontested states. So the America that chooses the president is not the actual America. It is nonetheless the America that produces the political stance of, most obviously, Donald Trump.

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Battle in Colorado

A sign that the national popular vote movement threatens to succeed is this well-funded Republican effort to repeal Colorado's adoption of the National Popular Vote Interstate Compact. 

The goal for the Republicans is simple: maintain the possibility of obtaining the presidency while having most Americans vote against their nominee. This is called minority rule. It is utterly inconsistent with the Constitution which was specifically designed to have a majority pick the president—a majority of electors, state delegations, or Senators, as the situation required. This original intent has been twisted over time to be a mechanism by which voters in a consortium of states dominated by one party, plus pluralities in five or fewer swing states, choose the president, even while most Americans vote for someone else.

Some Republicans believe their party and the country would be better off if their party did not depend on the archaic and otiose electoral system to produce a Republican chief executive. They are being overcome by the party professionals and big donors who believe Donald Trump represents the sort of nominee the party will continue to produce, like it or not, and that therefore their nominee cannot win the national popular vote. These people generally favor keeping the country on the carbon platform that is burning up the world, maintaining the current levels of income and wealth allocation, and the current tax policies. They may not support the immigration or trade policies of the administration but they believe these stances are useful ways to win the electoral college and so must be tolerated.

Most Americans do not agree with these policies. If the national vote chose the president, neither party would nominate people who deny climate change, adopt racial references to rile up white voters, support extreme income and wealth inequality, or conduct trade wars that raise costs for all Americans. Democracy is, as it is supposed to be, the method of having political leaders do what most people want.

 But in Colorado, not to mention most of the country, you still see people like Governor Hickenlooper in this article, fail to note the importance of the national vote as a fight for democracy. It is time for the national vote reform to battle on a big stage.

To defeat the repeal effort, it will be necessary to contest the issue in three ways:

1. Get national and local attention to the issue, which is democracy versus autocracy. Let there be no mistake: the repeal cause in Colorado has its source in the battle for a permanent minority to choose the president.

2. Coordinate all grassroots activity in Colorado in an open, collaborative manner, with experienced personnel handling the many dimensions of the contest, as was done in the 2018 victories against gerrymandering in Michigan and elsewhere.

3. Use the legal resources of Making Every Vote Count and any other volunteers to take all appropriate issues to all appropriate courts, while endorsing the fundamental idea that a ballot measure to have the people pick the way to pick the president is precisely in line with the fundamental cause here: democracy should be expanded in America.