Toward a Popular Vote

The "Hamilton Electors" and Electoral College protestors didn't succeed on Dec. 19. [AP Photo/Elaine Thompson]

“She has made history. In a nation that is good at so many things but that has made it uniquely difficult for a woman to be elected to federal office. She became the first major party nominee as a woman to be president and last night won the popular vote of Americans. That is an amazing accomplishment.”  -- Tim Kaine, Nov. 9

Almost three million more Americans voted for Hillary Clinton than for Donald Trump last month. This is both true and yet practically meaningless given the Electoral College. 

There are more dimensions to the 2016 presidential election outcome than one can wrap their mind around. The Democratic Party’s reckoning alone will likely last years. 

But the sharp popular vote / Electoral College divergence this year is a big part of what happened. It was decisive. How do we respond to the second split in five elections?

The 1st question to consider: Is the Electoral College is a worthwhile voting method? 

While there some interesting defenses of the institution, I think the answer must be no. If the United States is to be a presidential democracy, basic logic dictates that the candidate receiving more votes than any other is always the winner. All citizens must have equal access to the vote and their votes must be weighted equally. 

Elections for the Senate and House don’t use an Electoral College system. Neither do elections for state governors, secretaries of state, or attorneys general. Every other presidential democracy in the world elects the winner of the popular vote, perhaps using a ranked-choice system or with a runoff round for the top two vote-getters. “Most votes wins” is fairly uncontroversial.

And despite some pre-election speculation that a “blue wall” might lead the Electoral College to favor Democrats, it’s clear now that was a ridiculous assertion. 

The 2nd question is more difficult: how do we make the popular vote winner the president moving forward?

Passing an amendment to the U.S. Constitution is one of the most difficult political goals to achieve in the country. Anything with support from two-thirds of Congress and three-quarters of 50 state legislatures requires both broad consensus and considerable political will. 

Abolition of the Electoral College does not meet these conditions. But don’t despair yet.

The National Popular Vote Interstate Compact (NPVIC) is the best vehicle to elect the president by popular vote because it avoids these obstacles. The Compact takes advantage of the broad latitude that Article II of the Constitution gives to states to assign their electoral votes how they see fit. The NPVIC is an agreement among states to award their electoral votes to the presidential candidate who wins the national popular vote (rather than the winner within their states). It would go into effect when states adding up to 270 or more electoral votes ratify the compact.

The 10 states + D.C. which have signed onto the NPVIC. [270towin]

The push to make NPVIC a reality is farther along than you might think given how little mainstream media attention it has attracted. Ten states and the District of Columbia (*) totaling 165 electoral votes have approved the compact, more than half (61.1%) of the 270 that are needed.

You might be thinking, “Wait, aren’t those all solid blue states?”

Given the growing partisanship of the Electoral College as an issue and how weak Democrats are on the state level, it will be difficult to advance the NPVIC further. But the path is more promising than it appears.

Connecticut (7), Delaware (3), and Oregon (7) are three states that have not signed onto the NPVIC. Democrats also have state government “trifectas” in all three states, meaning that the governor is a Democrat and both the lower and upper houses of the state legislature are controlled by the party. Legislators in those states should make it a priority to advance legislation to join the Compact in 2017 and 2018. If they did, it would bring the electoral vote count to 182.

Further steps forward for the NPVIC rely on such a Democratic wave in 2018 (**). The lowest hanging fruit at the state level are in states Clinton won in 2016:

• Democrats control both houses of the state legislatures in New Mexico (5) and Nevada (6), which are led by term-limited Republican governors. Electing Democratic governors in those states in 2018 would make them blue trifectas.
  
• Colorado (9) is led by a term-limited Democratic governor and the State House has a Democratic majority. The State Senate has a narrow 18-17 Republican majority. Picking up one or more State Senate seats and electing a Democratic successor to Gov. John Hickenlooper would make it a blue trifecta.
  
  
• Minnesota (10) has an outgoing Democratic governor and both the lower and upper houses of the state legislature will be controlled by Republicans. However, as recently 2013-14, both houses were controlled by Democrats. It is a logical target for the NPVIC.
  
  
• Maine (4) has a Republican governor, an 18-17 GOP majority in the State Senate, and a Democratic House of Representatives. The ranked-choice voting system that will be in effect for the first time in 2018 will benefit progressive candidates. A Democratic trifecta is very possible in the state. And given that Maine already splits electoral votes by congressional district, the state is willing to tinker with the Electoral College.

New Hampshire (4) and Virginia (13) should absolutely be targets for Compact supporters but right now they are both dominated by Republican legislators and relatively competitive states at the presidential level, meaning the Electoral College has disproportionately benefited them. These are the most difficult Clinton states for NPVIC advocates to organize in.

If approved by the states mentioned in bullet-points, the NPVIC would be at 216 electoral votes, 54 short. 

There is no getting around the Compact will need to be passed by states currently controlled by Republican governors and Republican legislators. The anti-democratic right-wing reactionaries who run most state governments in this country need to be replaced for many reasons. Passing national popular vote is just one. 

The final stretch for the National Popular Vote Interstate Compact will have to run through one of two groups of states: 

• safe red states unlikely to receive much attention from major party presidential candidates under an Electoral College system, such as the Deep South and Mountain West states
• the swing states where it all went wrong in November: Florida (29), Michigan (16), Ohio (18), Pennsylvania (20), and Wisconsin (10) after Democrats take control of those state governments. Those states would have to set aside the benefits of receiving outsized attention under the present system.

Senator-elect Harris (probably) thinks other states should join California on the NPVIC. [Damian Dovarganes/AP]

Making either group (or even some combination of members of both) support the NPVIC will be an uphill battle. In all likelihood, Kamala Harris, Elizabeth Warren, Cory Booker, or whoever is the candidate in 2020 will have to win 270 Electoral College votes to become president. Assuming the U.S. still has free and fair elections in four years.

But is trying to make the candidate who wins more votes president more ambitious than pushing restrictive voter ID and voter registration laws or eliminating early voting locations more likely to be used to blacks? 

More audacious than the legislative coup North Carolina legislators executed: effectively overturning an electoral loss during a lame duck session after a court ruled those same legislators unconstitutionally gerrymandered the districts they drew for themselves?

If a Republican was ever on the wrong end of a popular/electoral split, they would get rid of the Electoral College the next day.

The Electoral College is not a fact of nature. Its creation and continued existence is a product of civic choices. 

It’s a cliche, but it’s true: anything worth doing in politics is hard. If you live in a state that hasn’t joined the NPVIC, contact your state lawmakers about the issue, join (or start!) local organizing efforts. Make it a live issue.

National popular vote can happen if we make it happen.

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(*) California, D.C., Hawaii, Illinois, Massachusetts, Maryland, New Jersey, New York, Rhode Island, Vermont, Washington

(**) It is desperately important to the future of the country for the 2018 election to be a Democratic wave. Many of the officials who will be in charge of the next round of redistricting will be elected in two years. This is when gerrymandering happens. 

Given that midterm elections are referenda on the president’s party and Donald Trump will enter office as one the most unpopular in history, the ingredients for success are there. But after this year, nothing is inevitable. I don’t want to minimize the amount of political organizing work it will take.