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A controversial movement is afoot to elect presidents by popular vote

Majority grabs back


On Nov. 8, 2016, local Democrats, clearly expecting an ascendant election, booked a massive room at The Antlers hotel. The crowd’s mood started off ebullient, gradually turned anxious and finally veered into despondency.

Party-goers, decked out in red, white and blue, could be seen openly weeping. Others looked shell-shocked, wandering the fast-emptying ballroom aimlessly.

Meanwhile, in a much smaller space down the hall, a claustrophobic horde of local Republicans had exploded into a riot of jubilation and patriotism.

The U.S. Electoral College — it was becoming clear — was about to elect Donald Trump president of the United States. The people of the country, on the other hand, favored Hillary Clinton, reportedly by more than 2.9 million votes.

It wasn’t the first time this happened. Most scholars cite five presidents that have been elected by the College while failing to garner the support of a majority of America’s voters. Aside from Trump, they are: John Quincy Adams in 1824, Rutherford B. Hayes in 1876, Benjamin Harrison in 1888 and George W. Bush in 2000. (Professor Robert Hardaway, of the University of Denver Sturm College of Law, a supporter of the Electoral College who has written several books on the subject, cites only four such elections however: Harrison in 1888, John F. Kennedy in 1960, Bush in 2000 and Trump in 2016. The discrepancy relates to the complexities of the College system, and disagreements about the counting of the popular vote.)

The Electoral College has long survived calls for its repeal. But those cries are growing louder now. While it’s rare for a president to be elected while losing the popular vote, it’s happened twice in the past 20 years.

The American trend toward minority rule is more obvious in the Senate, where each state is awarded two senators regardless of population.

“Given contemporary demography, a little bit less than 50 percent of the country lives in 40 of the 50 states,” Sanford Levinson, a constitutional law scholar at the University of Texas, told The New York Times in September 2017. “Roughly half the country gets 80 percent of the votes in the Senate, and the other half of the country gets 20 percent.”

Since both the Senate and the Electoral College give greater influence to less-populous states, it’s possible that the country will move further from majority rule as Americans continue to concentrate in fewer states. And, because justices are nominated by the president and confirmed by the Senate, a minority of the population could also, in a sense, be selecting the U.S. Supreme Court.
In the midst of this shift, there have been cries to do away with the Electoral College and even the Senate in order to ensure majority rule. And a little-known movement, which has been slowly gaining traction across the nation since 2006, now stands poised to become a cause célèbre.

Called the National Popular Vote, it asks state legislatures to pass a law pledging to throw their electoral votes to whichever presidential candidate wins the national popular vote — though the pledge doesn’t go into effect until states that hold a total of 270 electoral votes (enough to win the election) have signed on.

Sound like a long shot? Eleven states and the District of Columbia (representing 172 electoral votes) have already passed the NPV, and NPV supporters say bills are being considered by at least 10 more state legislatures, including the Colorado General Assembly.

Colorado’s NPV bill, Senate Bill 042, passed the Colorado Senate in late January.

The formation of the Electoral College was impacted by two big compromises during the drafting of the Constitution.
George W. Bush lost the popular vote to Al Gore in 2000, but was still elected. - ELVERT BARNES, VIA FLICKR.COM
  • Elvert Barnes, via
  • George W. Bush lost the popular vote to Al Gore in 2000, but was still elected.
The first, known as the “Great Compromise,” created the House and Senate. Large states wanted federal legislative representation based on population, while small states insisted they be given equal representation. Thus, the Senate gives each state two senators, regardless of population, while each state is given at least one representative in the House, and more based on population.

The second deal is known as the “Three-Fifths Compromise.” It allowed slave states to count each slave as 3/5 of a person for the purposes of determining the number of House representatives. (Obviously, this deal is no longer in effect.)

Each state was then awarded the same number of presidential electors as it has legislators (senators plus representatives), applying the outcome of the compromises to the presidential race. After some debate, the Founding Fathers left it to each state’s legislature to decide how to award its electoral votes — a power that has been confirmed repeatedly by the U.S. Supreme Court.

Currently, 48 of 50 states, including Colorado, have a winner-take-all model. This means if a majority of Colorado voters fill in a bubble on their ballot for, say, Hillary Clinton, all the state’s electoral votes are awarded to her electors. Presumably, those electors cast a ballot for her. In fact, in some states, including Colorado, state law requires they do so. (In some other states, however, electors are not “pledged” and may decide to vote for another candidate, though such a move remains rare.)

The winner-take-all model is so ingrained in our culture that calls to change it are often painted as un-American, but winner-take-all isn’t in the Constitution, nor has the Electoral College always functioned that way. In fact, only three states cast their votes winner-take-all style in the country’s first election, and a little more than a decade later, every state dropped the system.

States adopted winner-take-all laws again starting in the 1800s in an effort to have a greater influence on elections. That led to a domino effect that has now swept up every state except Maine and Nebraska.

In 2016, despite a massive increase in support for the Electoral College by Republicans following Trump’s win, Gallup found that most Americans preferred amending the Constitution to do away with the College rather than keeping the current system, 49 to 47 percent.

And that’s actually quite low. When Gallup asked the same question in 2004 and 2011, support for a constitutional amendment to ax the College stood at around 60 percent.

Those polls are reflective of an older mindset: Before the NPV, it was generally assumed that ditching the College would take a constitutional amendment, which must be either approved by two-thirds of the House and Senate and three-fourths of the states or proposed by a Constitutional Convention called by two-thirds of state legislatures and approved by three-fourths of the states. (Notably, ditching equal state representation in the Senate, on the other hand, requires the consent of every state.)

NPV gets around the amendment process by using an interstate compact — an agreement amongst states. It’s the brainchild of Dr. John Koza, who created a board game about the Electoral College when he was a young man (it never really took off) and authored the book, Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote. Now the chair of NPV, Koza had a career with the lottery, where he dealt with interstate compacts, and taught for a time at Stanford University.

Versions of the NPV have come before the Colorado Legislature before. It was first introduced in 2006, and passed the Senate. It had a repeat performance in 2007. 
In 2009, it passed the House, but not the Senate. The bill reappeared in 2017, but went nowhere.
The 2017 population of LA County is greater than the July 2018 population estimate of each state in blue, according to U.S. Census figures. Some worry a popular - vote will give big cities too much influence. But even partisan cities don’t award all their votes to a single candidate. - MAP BY PETCH ONE / SHUTTERSTOCK.COM / POPULATION FIGURES: U.S. CENSUS
  • Map by petch one / / Population figures: U.S. Census
  • The 2017 population of LA County is greater than the July 2018 population estimate of each state in blue, according to U.S. Census figures. Some worry a popularvote will give big cities too much influence. But even partisan cities don’t award all their votes to a single candidate.
The sponsor of this session’s SB042, Sen. Mike Foote, D-Lafayette, says since Trump’s election, more Republicans oppose the NPV. Indeed, all 16 of Colorado’s Republican senators voted against it and Jeff Hays, the outgoing chair of the Colorado Republican Party (who did not return our phone calls), has been a vocal opponent.

Speaking against SB042, Sen. Paul Lundeen, R-Monument, pointed out that under the NPV, Colorado’s electoral votes could end up going to a candidate that received a minority of Colorado’s popular vote.

“You want to give your votes to a different state?” he asked his fellow senators, incredulously. “Or do you want the votes of Colorado to matter, as the voice of Colorado?”

But SB042 stands a decent chance with Colorado’s Democratic-controlled Legislature and governor’s office. (The governor, reportedly, supports the NPV, as does the new secretary of state, Jena Griswold.)

“I feel like we have a good chance,” Foote says, “but you can’t count your chickens before they hatch.”

Foote says he supports the NPV for a big reason: “I believe in one person, one vote.” And he also points to the out-sized influence of battleground states (Colorado used to be one, but likely isn’t anymore) within the Electoral College system. It’s a common complaint of NPV supporters.

Opponents tend to counter that a popular vote would shift the focus to big cities, where the most votes are. But Foote doesn’t think that’s true.

He reasons that when the popular vote counts, candidates go everywhere. Just look at how presidential candidates campaign in battleground states, or how gubernatorial candidates campaign.

“They go statewide,” he says. “They have to, in order to win.”

And that’s a point that the NPV campaign emphasizes. While cities have influence with a popular vote, they can’t win an election alone. America’s 100 biggest cities together comprise less than a fifth of the country’s population and it’s not like all their votes go to a single candidate. Even in extremely partisan Los Angeles County, for instance, where Clinton took over 70 percent of the vote in 2016, over 620,000 people voted for Trump.
Some theorize that more people would vote, particularly in partisan states, if they knew their presidential vote would count. - ALEXANDRU NIKA / SHUTTERSTOCK.COM
  • Alexandru Nika /
  • Some theorize that more people would vote, particularly in partisan states, if they knew their presidential vote would count.
If you doubt the rhetoric about the importance of battleground states, consider this: The NPV campaign found general election events really only happen in battlegrounds. In 2012, for instance, 12 states saw almost all the general election campaign events, the NPV campaign states. Of 253 events, Ohio saw 73, Florida 40, Virginia 36, and Iowa 27. In 2016, the NPV claims, 94 percent of general campaign events were held in 12 battleground states.

Pat Rosenstiel, senior consultant to National Popular Vote and a longtime Republican campaigner, says that working on the campaign trail, he watched major laws cooked up simply to please small constituencies in battleground states. Medicare Part D courted seniors in a Florida corridor, he says, while No Child Left Behind sought the vote of moms in Hamilton County, Ohio.

Battleground states are also twice as likely to see a presidential disaster declaration (and the funding that accompanies it).

“We should elect the president of the United States,” he says, “not the president of the battleground states.”

Under a popular vote, Rosenstiel says, every vote would count in every state, and every vote in every state would thus be worth courting. (Even partisan states usually don’t give more than 63 percent of their vote to one candidate. Under the College’s winner-take-all laws, those states are a complete loss for the loser, but under popular vote, those states contribute toward a win.)

But what about the elephant in the room? With the exception of George W. Bush in his second term, no Republican has won the popular vote for president since George H.W. Bush in 1988.

Rosenstiel, who calls himself “a conservative Republican trapped behind a blue wall in Minnesota,” says it’s wrong to assume Republicans can’t win the White House on a popular vote.

“You change the nature of the system, you change the nature of the campaign,” he says. Think of it this way: “In NASCAR, I don’t drive to win every race, I drive to win the points, to win the cup.”

In other words, Republicans presidential candidates aren’t even trying to win the popular vote right now; they’re trying to win the Electoral College. Presidential campaigns would transform under NPV, Rosenstiel explains. The candidates might be different. Voters that sit out elections now might head to the polls, knowing that their individual vote — and not just the partisan swing of their state — would count.

While there’s no doubt that NPV has more support from Democrats now, Rosenstiel says many Republicans support it too. In 2016, he says, the NPV was sponsored by 156 Republican and 162 Democrat state legislators countrywide.

Talk to NPV opponents and they’ll tell you that the winner-take-all model of the Electoral College protects small states, or that it guards against the stupidity and selfishness of the populace — as John Adams put it, “the tyranny of the majority.” On that note, a recent editorial in the Gazette went so far as to claim that a change risked voiding our republican form of government in a foolhardy embrace of direct democracy that was indicative of “the ongoing moronization of our culture.”

Of course, given that the Founders never dictated the winner-take-all system, that seems a bit alarmist.

Hardaway, the University of Denver professor, offers a more thought-out opposition. An Electoral College junkie who debated (of all people) Al Gore, on the subject when they were both still in school, Hardaway has legal, pragmatic, and political objections to a change.

From a legal standpoint, he argues that a “cabal” of states seeking to dismiss the electoral influence of other states through an interstate compact violates the Constitution’s guarantee of equal state suffrage in the Senate (two senators per state), by making such representation irrelevant to the Electoral College calculation. He further contends that the NPV interstate compact is illegal, in part because it concerns a federal action (the presidential election) and because states cannot withdraw from the compact in the middle of an election cycle.

(Rosenstiel thinks the first argument is without merit — the Constitution is quite clear that the states can allot their votes however they choose — but says he expects a challenge on the second point. That said, he believes the court will uphold the compact.)

Hardaway also argues that the nation has no official count of the popular vote, because presidential votes actually go to electors (some of whom may vote for whomever they please).
“There is no national popular vote,” he says. “It’s an illusion.”

Because of that, the task of picking a winner, Hardaway says, would fall to the media. (NPV supporters, however, argue that voters do fill in a bubble for a candidate, and that tabulating the official vote is not difficult.)
As to the merits of the College, Hardaway sees many:

It preserves the union of states, which, he believes, might break should the interests of less-populous states be ignored.

It preserves the two-party system. Should that system collapse, the U.S. vote could split between 10 or 15 candidates, meaning a president (including a radical) with little support could be elected (see France, Italy, Russia).

The College, he says, rightly limits the influence of a single region.

If a recount were needed under NPV, he says, it would have to be conducted countrywide leading to a litigious mess that is not directed by current law.

Hardaway further argues that the Electoral College is part of a delicate system of checks and balances that has kept the country secure and prosperous. But history aside, one has to wonder if the Electoral College as we know it can survive public scrutiny as the country’s population shifts out of most states. Rosenstiel says it may lead the public to view its president as illegitimate. And a system that results in such distrust, he says, has “no redeeming quality.”

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