Adam A. Marshall
J.D. Class of 2014
George Washington University Law School
For decades, some Americans have been unhappy with the Electoral College as the means of choosing the President. Quite simply, they want the candidate with the most votes to be the winner. Most people think that the only way to fix the problem is by amending the Constitution, which is a non-starter because that would require two-thirds of both Houses of Congress, plus approval of three-quarters of the states.
But in recent years, a new movement -- called National Popular Vote (NPV) -- has figured out another way to democratize our presidential election, and transform the current process that effectively disenfranchises the voters in most states, and narrowly focuses the attention and spending of the candidates on fewer than a dozen swing states. It's a simple matter of enough states agreeing to change how they cast their electoral votes. The process of change is well underway, if under the radar of most voters. Here's why it's needed and how it will work.
Under the Constitution, each state receives one electoral vote for each Member of the House of Representatives, and one vote for each of its two Senators. With the three votes given to the District of Columbia by the 23rd Amendment, that makes the total 538, with a candidate needing 270 to be elected. Although each State may decide how it will cast its votes, almost all states give the winner of the state popular vote all of its Electoral College votes. The exceptions are Maine and Nebraska, which allocate votes according to who wins each congressional district, with the two Senate votes going to the overall winner. Under this system -- which is unique among the world's democracies -- the national popular vote winner may not win the election, which strikes most people as undemocratic.
Four times in our history (1824, 1876, 1888 and 2000) the Electoral College has produced a president with less than a plurality of the national popular vote. Most recently, Al Gore secured 537,000 plus more votes, nationwide, than George Bush, but lost the election because Bush received 537 more votes in Florida, giving him all 25 of that state's Electoral College votes and, ultimately, the Presidency. The result is very hard to explain to those who believe in the simple premise of democracy -- the person with the most votes should win.
The Electoral College also causes other democracy deficits. Because most states today regularly favor either the Democratic or Republican presidential candidate, the outcome in all but a dozen or so states every election cycle is not in doubt. Everyone knows this, and so the candidates, quite sensibly, ignore the safe (or hopeless) states and focus entirely on the swing states, which tend to be small to mid-size, in the center of the country. Overall, those states also tend to be less racially diverse than the safe states. Whether they are fairly representative of the country as a whole is debatable, but that they control the outcome is not. The impact on presidential races is clear. For example, in 2012 Barack Obama, Mitt Romney, Joe Biden and Paul Ryan attended a total of 253 post-convention campaign events. But they occurred in just 12 battleground states, and over two-thirds of them were held in just four states -- Ohio, Florida, Virginia and Iowa. As a result, vast portions of the American population -- such as those in California, Texas and New York -- are usually ignored during presidential campaigns.
In addition, the Electoral College magnifies the potential for crisis and fraud because it splits what should be one simple election into 51 different elections. Every four years Americans wait with bated breath as the results from Ohio and Florida come in. Television anchors go into incredible detail on a county-by-county level, hypothesizing which one will deliver the few votes needed to tip the state one way or the other. The fact that the votes in a single state or even county can control the entire presidential election, in the face of a clear outcome in the popular vote, is worrisome for anyone who believes in democracy.
The premise of the NPV movement is that whoever gets the most votes should be elected President. Its leaders have figured out that we don't have to eliminate the Electoral College to bring about that goal, or even pass a constitutional amendment. Because the states have the unfettered right to decide how to cast their electoral votes, if states having a majority of electoral votes agree to vote for the candidate who receives the most popular votes, that candidate will be elected president. Of course, the system will work only if all the states, or at least the states with a majority of the electoral votes, bind themselves to follow it.
Under the leadership of the individuals and groups supporting NPV, eight states and the District of Columbia -- California, Maryland, Washington, Illinois, New Jersey, Massachusetts, Vermont and Hawaii -- having 132 electoral votes, have passed a law committing to support the NPV. Under the NPV Compact, as soon as states having a total of the 270 electoral votes join in, the NPV will become effective, and all the member states will cast all their Electoral College votes in accordance with the national popular vote instead of the state's popular vote. That will allow the president to be elected by a simple, nationwide majority vote, without having to change the Constitution.
Beside the obvious impact that this change will have on the way that the votes are counted, it will radically alter the way that presidential races are conducted. No longer will candidates spend almost all their time and money on swing states. Instead, candidates will look for votes where they are easiest to find, perhaps in the safe states that they ignored, or in the hopeless ones where they think that their followers will show up on Election Day. Voters for the likely winner or loser in a safe state will no longer see their votes as "wasted," since each vote will count equally, no matter where it is cast. And campaign pitches, now honed to win swing state voters, will have to have broader appeals.
Aside from garnering enough states so that the plan can become operative, there is one potential hurdle that the sponsors of the NPV originally thought could be bypassed, but now have decided to meet head on. There is a little-known provision in Article I section 10 of the Constitution, referred to as the Compact Clause, that requires the consent of Congress if states enter into significant agreements with other states. While the reach of that Clause is not certain, it probably includes the NPV agreement both because of its impact on the states that do not join it, and because of its significant impact on the election of the President. The NPV sponsors also realize that failure to obtain congressional approval would almost certainly provoke a lawsuit in the event of a disputed election (and perhaps before that).
Congressional approval is desirable, not only for the legal and political covers that it brings, but also because there are a number of issues relating to how NPV would be implemented that can best be resolved by federal legislation as part of the compact approval process. One problem is that of timing. As written, the NPV would go into effect once states with 270 combined Electoral College votes have joined, as long as that threshold is passed before July 20th of a presidential election year. Therefore, it is possible that the necessary critical mass could be reached well into a presidential campaign season, which would give candidates just over three months to switch gears and adopt a new strategy to capture the national popular vote. That seems unwise, and, unless changed, it may deter some states from supporting NPV.
A more fundamental concern is how the votes will be counted. The NPV says that each member state is responsible for making its own independent calculation of the national popular vote from numbers that are transmitted from the other states. But what if one state thinks that the vote tally from another state is wrong, or there is a recount ordered in another state's vote tally?
Suppose a state refuses to transmit its vote count to other states, or there is an extremely close national popular vote, leading to the candidates requesting recounts in dozens of states.
There are not merely hypothetical problems. In the 1960 election, John F. Kennedy received just over 100,000 more votes than Richard Nixon -- a tiny percentage of the national popular vote. In 1880, James Garfield had just 1,898 more votes nationwide than Winfield Hancock -- a margin of only 0.04 percent. If such a situation developed today, candidates would surely contest the results, prolonging the election with contentious court battles and leaving the nation with uncertainty. Meanwhile, no state could make a proper determination of the national popular vote winner, and therefore could not select its Electors. The 2000 presidential election in Florida and, the subsequent ruling of the Supreme Court, demonstrates the nightmare that can result from a crunched recount period.
Some of these problems are solved under existing federal law. Under the so-called "safe harbor" provision, states must transmit their votes to the federal government six days before the electors meet in December to cast their votes, which means that any recounts must take place before that date. However, it usually takes states a few weeks to complete the official vote count, and some are not completed until just before the safe harbor date. Under the NPV, this becomes especially problematic, as the candidates will want to know the national vote tally before deciding whether to request recounts in individual states.
Proponents of the NPV acknowledge these problems, and have suggested enacting a federal recount law to solve them. The proposed approval law includes such measures as pushing back the safe harbor date and when the electors meet; adopting a federal recount procedure; and requiring states to have prompt and comprehensive recount procedures in place.
We think that the decision of NPV supporters to seek federal legislation is the correct approach to solving many of these problems. However, we also believe much more could be done to address the outstanding constitutional and pragmatic questions. In particular, federal legislation should resolve the following issues:
• First, the law must express Congress's consent to the NPV to dispel any uncertainty over its constitutionality under the Compact Clause. The last thing we need is another constitutional crisis over whether the states have the power to enact the NPV, especially after an election has already been conducted using it. Congressional consent would head off a court challenge, even if the question of whether that consent is constitutionally required would remain open.
• Second, federal law should establish a streamlined clearinghouse for receiving the popular vote counts from each state and transmitting those numbers to the rest of the states. Leaving those matters to individual states invites uncertainty and differing results, which runs counter to the goals of transparency and predictability that all elections should embody.
• Third, there should be a federal recount procedure to push back the safe harbor and elector meeting dates, which would still assure the constitutionally-mandated Inauguration on January 20th and give the President-elect enough time to fill his top offices. At the same time, it must ensure that, if a recount is needed, states have enough time to proceed with a thorough and responsible plan that will safeguard the integrity of every vote.
• Finally, Congress should condition its consent to the NPV on giving candidates at least a year in order to develop a campaign strategy before NPV goes into effect. It hardly seems fair to change the game as late as three months before an election.
If this is the first you have heard of the NPV, you are almost certainly among the vast majority of Americans. If the idea of electing a President by a truly democratic system appeals to you, it's time you started telling your friends, your state legislators and your Members of Congress to get on board. The NPV will make our presidential elections more democratic, but it still needs to be enacted into law.
CORRECTION: A previous version of this post incorrectly stated the 1880 Election was with John Hancock. It was with Winifield Hancock. The post has been updated to correct this.