Connecting state and local government leaders
Since the 2016 election, Democrats in a number of states have been pushing lawmakers to adopt a compact to give a state's electoral votes to the presidential candidate who wins the popular vote. Will Republicans join the cause?
This story was originally published by Stateline, an initiative of The Pew Charitable Trusts.
For years, polls show, Republicans across the country championed a national popular vote to elect presidents, instead of the state-by-state tally of the Electoral College.
But something changed: Donald Trump got elected president.
Trump won the Electoral College handily in 2016 but lost the popular vote to Democratic candidate Hillary Clinton by nearly 3 million ballots. As of last year, only 32% of GOP voters supported a national popular vote, down from 54% in 2011, according to the Pew Research Center. Three-quarters of Democrats, meanwhile, supported a national popular vote. (The Pew Charitable Trusts funds both the Pew Research Center and Stateline.)
The Republican shift has altered the trajectory of state legislative efforts to change the federal system. State legislatures have the constitutional right to choose the method by which electoral votes are distributed, and more than a dozen support a way to work around the Electoral College in presidential contests.
Those behind the push for change want states to sign on to the National Popular Vote Interstate Compact, an agreement in which states would assign their electoral votes to the presidential candidate who gets the most voters across the entire country.
So far, with strong support from Democratic lawmakers and governors, 14 states and the District of Columbia have joined the compact, accounting for 181 electoral votes. The compact would go into effect once member states account for the 270 electoral votes needed to elect a president. To reach that goal, the compact is going to need Republican support.
Republican opinion surrounding the Electoral College, however, followed a similar path to Trump’s own opinion. In 2012, he tweeted, “The electoral college is a disaster for a democracy.”
The electoral college is a disaster for a democracy.— Donald J. Trump (@realDonaldTrump) November 7, 2012
Shortly after his victory in 2016, he changed his tune, tweeting, “The Electoral College is actually genius in that it brings all states, including the smaller ones, into play.”
The Electoral College is actually genius in that it brings all states, including the smaller ones, into play. Campaigning is much different!— Donald J. Trump (@realDonaldTrump) November 15, 2016
Today, there is bitter debate over the founding fathers’ intent when they created the Electoral College. Some think the Electoral College, by propping up smaller states, is working as it was originally intended.
Some supporters also note that the system empowers presidents who win a plurality, but not a majority, of the popular vote. In 1912 and 1992, third-party candidates held Democrats Woodrow Wilson and Bill Clinton to 41.8 and 43% of the popular vote, respectively.
But Wilson won 81.9% of the electoral vote and Clinton won 68.7%, allowing both to govern from a position of strength.
But some constitutional scholars say the Electoral College of today is far from what was imagined more than 200 years ago.
Andrew Shankman, a professor of history at Rutgers University-Camden, said the Electoral College was designed to give a small group of men—the electors from each state—the power to choose the president, instead of giving the power to the public. Before the ratification of the 12th Amendment in 1804, the presidential runner-up became the vice president.
The Electoral College changed over time, Shankman said, becoming more chaotic and dysfunctional with the rise of political parties and the growth of the nation.
“There’s nothing sacrosanct about the Electoral College,” he said. “The very idea of it is increasingly not compatible in American politics.”
Debate within the Republican Party, meanwhile, has not stopped. Many state lawmakers and former party officials, determined to change the way presidents are elected, are struggling to convince their colleagues not to abandon the movement.
“Republicans … think it’s a communist plot to make Al Gore and Hillary Clinton president,” said Saul Anuzis, who served as the chairman of the Michigan Republican Party from 2005 to 2009. “This is a federalist, states’ rights approach.”
Anuzis is now a senior adviser for National Popular Vote, a nonprofit based in California that advocates for the interstate compact. He’s been lobbying Republican state lawmakers on a new system, touting the support of eight former chairs of the American Legislative Exchange Council, a conservative nonprofit that focuses on state legislative efforts. He also has the backing of former Republican Speaker Newt Gingrich.
National Popular Vote spent $182,000 in the 2018 midterms on federal elections, according to the Center for Responsive Politics.
But getting more than a handful of Republican state legislators to sign on to the agreement in the past two years has been a challenge. This year, measures that passed in New Mexico and Colorado in March had not a single Republican backer.
In Delaware, which also signed on to the compact last month, just two Republican state senators supported the measure. One of them, Anthony Delcollo, recognizes the Trump effect.
“Sometimes folks get really passionate about things and, in this case, there was definitely a knee-jerk reaction that some had against this idea,” Delcollo said in an interview. “It’s much harder to convince someone who’s had that reaction to be open-minded.”
The current system “is bad for our nation,” Delcollo said, since swing states are the only ones deciding presidential elections. He said he hopes other Republicans will join in trying to fix it.
In Oregon, when a measure passed the state Senate in April, just two Republicans supported it. The measure now heads to the state House, where it’s expected to pass. The state House has passed the measure several times in the past decade, but Democratic Senate President Peter Courtney blocked the bills in his chamber.
In Nevada, where Democrats control both houses in the legislature and the governorship, a bill to adopt the national popular vote has a chance of passing this session. In April, it passed the Assembly without Republican support, and is now heading to the state Senate.
Since state legislatures control how electoral votes are distributed in states, a state could in theory leave the national compact if its lawmakers passed a new law.
Some Republican lawmakers who once supported the effort have changed their minds.
In Arizona, state Sen. J.D. Mesnard sponsored a bill in 2016—nine months before the presidential election—to join the accord. Before dying in the state Senate, the constitutional work-around passed the state House with the support of 20 Republicans.
Three years later, Mesnard says he wouldn’t support his own bill again.
“There are so many unknowns that it gives me pause,” Mesnard said in an interview. “I feel like I don’t understand the rules of the game because President Trump defied them in 2016. I wouldn’t feel comfortable pressing legislation if I don’t know the rules.”
There are several reasons Mesnard has backed off his support of the interstate agreement, including Arizona’s new prominence as a swing state, which will bring candidates and media attention to his state.
But among those reasons is Trump’s victory. (To be clear, he said, he believes Trump would have won the popular vote if that had been the system in place.)
States where measures enjoyed bipartisan support and marginal success now seem unlikely to support the interstate compact anytime soon.
Since the Oklahoma Senate passed the national popular vote bill in 2014, with 12 Democrats and 16 Republicans in favor, it has not had widespread support in the legislature there.
Similarly, in early 2016 a Georgia House committee unanimously passed the measure that was backed by then-Senate President Pro Tempore David Shafer and other Republicans.
But no Republican lawmakers have signed on to this year’s effort to pass the measure. Shafer has since left office.
After Trump’s election, those states weren’t interested in passing those bills anymore, said John Koza, who created the interstate compact and leads the National Popular Vote organization.
Koza, a former Stanford University computer science consulting professor, is a co-inventor of the scratch-off instant lottery ticket.
“Both parties seem to look at the last election and assume they won because the system is rigged to their advantage,” Koza said. “But there is no good logical argument that either party has an advantage with the current system. Only an emotional argument.”
After Democratic Gov. Jared Polis signed the bill for Colorado to join the interstate compact in March, Mesa County Commissioner Rose Pugliese started gathering signatures to overturn the agreement through a ballot measure. She needs nearly 125,000 signatures to make the ballot.
“People take their votes very personally,” Pugliese, a Republican, said. “Voters should be able to weigh in on this issue.”
Support has been overwhelming, she said. At her first public event for the petition in Grand Junction in March, the line of people waiting to get in wrapped around the building, she said. Thousands of volunteers, she said, are gathering signatures statewide before the Aug. 5 deadline.
Like many Republicans, Colorado state Rep. Lori Saine thinks the compact is unconstitutional.
There’s nothing in the U.S. Constitution that says states must allocate their electors based on who wins the popular vote in the state. The founding document simply says that the state legislatures can choose how to allocate electors.
This is what allows Maine and Nebraska to distribute their electoral votes differently than other states—in both states, two electoral votes go to the presidential candidate who wins statewide, while the other electoral votes are distributed to candidates who win in individual congressional districts.
The proposed compact may be overreaching, Saine said. “I think it’s unlawful to convert the electors of one state into the electors of another state. That’s inherently unfair.”
The compact lessens the voice of smaller states like New Mexico, said Republican state Rep. Bill Rehm, who was an outspoken opponent to the measure that passed in March. New Mexico, with its five electoral votes, ranks toward the bottom of states.
“If I were running for president, would I spend my time driving all over New Mexico talking to people,” Rehm asked, “or would I go to Chicago or other big cities?
“They’re not going to care how New Mexicans voted.”
Anuzis, the GOP advocate with National Popular Vote, said the proposed system would help Republicans overcome what he called the current “structural disadvantage” in the American political system.
Trump’s scaling of the “Blue Wall” of Democratic-leaning states in 2016 was “an aberration, not a norm,” he said, and Republicans should be concerned about states such as Arizona, Florida, Georgia and Texas looking better for Democrats.
Adopting the national popular vote, Anuzis thinks, would encourage stronger voter turnout among Republicans who don’t live in swing states. It would also pull media and campaign attention from swing states. Since 1992, 28 states and Washington, D.C., have voted for the same party in seven presidential elections.
“Many of our voters make a conscious, intelligent decision not to participate in the electoral process because their vote doesn’t count,” he said.
During the last presidential election, nearly all campaign events were held in just 12 states, according to a count from the National Popular Vote organization. Nearly two-thirds of events were held in Florida, Michigan, North Carolina, Ohio, Pennsylvania and Virginia. Only Virginia voted for Clinton.
Under a national popular vote, he argued, conservative turnout in left-leaning states such as California, Illinois and New York would actually matter.
The Cook Political Report ratings show there are just five “toss-up” states ahead of the 2020 presidential election: Arizona, Florida, Michigan, Pennsylvania and Wisconsin. Media attention and campaign events, like in previous elections, likely will concentrate mostly in these battleground states.
All About Trump
Since Trump’s election, the national popular vote has turned into a partisan issue, Anuzis said. Indeed, according to polls, more than twice as many Democrats support the national popular vote than Republicans.
Some state Republican lawmakers, he said, are wrongly conflating the interstate compact with amending the U.S. Constitution to abolish the Electoral College—a proposal being floated by Democratic presidential candidates such as New York Sen. Kirsten Gillibrand and former Texas Rep. Beto O’Rourke.
Gillibrand, in fact, introduced a constitutional amendment earlier this month; several of her Democratic Senate colleagues signed on. An amendment would need support from two-thirds of both houses of Congress and would have to be ratified by three-fourths of state legislatures.
No Republican senator has cosponsored Gillibrand’s proposed amendment.
Because Democratic presidential candidates have made abolishing the Electoral College a major campaign issue, often tying it to Trump’s 2016 victory, it can easily alienate Republican lawmakers and voters by making the issue into something partisan, said Wilfred U. Codrington III, a fellow at New York University School of Law’s Brennan Center for Justice, which has supported the national popular vote.
“The issue is bigger than Trump,” he said. “That’s the problem: The Electoral College is going to get conflated with Trump. It shouldn’t be about him.”
In March, Trump reaffirmed his support for the Electoral College, saying the “brilliance” of the Electoral College is forcing candidates to campaign in several states and preventing small states from “losing all power.”
“I used to like the idea of the Popular Vote, but now realize the Electoral College is far better for the U.S.A.,” he tweeted.
....just the large States - the Cities would end up running the Country. Smaller States & the entire Midwest would end up losing all power - & we can’t let that happen. I used to like the idea of the Popular Vote, but now realize the Electoral College is far better for the U.S.A.— Donald J. Trump (@realDonaldTrump) March 20, 2019
For the debate to move forward and once again get embraced by the GOP, it’s going to take a high-ranked, respected Republican who has a good relationship with the president to make the argument for the national popular vote, said Delcollo, the Delaware lawmaker.
“Really, we just need some leader with a little bit of courage who can credibly say that this is not about Donald Trump,” he said. “They need to be courageous enough to say, ‘The hell with it, let’s have a real discussion about the national popular vote.’”