Steve Silberstein, a supporter of the National Popular Vote plan, has this comprehensive article about the plan in Washington Monthly. Although the arguments for and against the plan tend to be repeated, this article is especially useful because of the extensive data about how battleground states get more federal government support than other states. Also the article has useful data about the overwhelming extent to which national major party presidential campaigns focus only on the battleground states. And it rebuts the idea that the current system was the choice of the founding fathers, by pointing out that in the first presidential election, 1789, only three states used the system we use today.
The article does not mention which states those were, but they were Maryland, New Hampshire, and Pennsylvania. Thanks to Michael Ochs for the link.
To say that only 3 states used the system we used today is a little disingenuous, they didn’t use popular votes back then but the votes were still apportioned according to the states House and Senate Numbers. They also didn’t directly elect senators back then either but each state still had the 2 we still use today.
In 1789, in the nation’s first election, a majority of the states appointed their presidential electors by appointment by the legislature or by the governor and his cabinet, the people had no vote for President in most states, and in states where there was a popular vote, only men who owned a substantial amount of property could vote, and only three states used the state-by-state winner-take-all method to award electoral votes.
In the nation’s first presidential election in 1789 and second election in 1792, the states employed a wide variety of methods for choosing presidential electors, including
● appointment of the state’s presidential electors by the Governor and his Council,
● appointment by both houses of the state legislature,
● popular election using special single-member presidential-elector districts,
● popular election using counties as presidential-elector districts,
● popular election using congressional districts,
● popular election using multi-member regional districts,
● combinations of popular election and legislative choice,
● appointment of the state’s presidential electors by the Governor and his Council combined with the state legislature, and
● statewide popular election.
I would welcome a change from the winner-take-all approach that 48 of the states use and go towards a type of proportional system that allocates electors based on percentage of vote of each state, but in order to change the system of vote allocation to states it would require an amendment, which I would not get behind. Even if the NPVIC were to get enough states it would be stuck in legal limbo for many years facing challenges on several aspects of it.
Without a constitutional amendment, presidential electors could be divided proportionally in a state.
There are good reasons why no state awards their electors proportionally.
Although the whole-number proportional approach might initially seem to offer the possibility of making every voter in every state relevant in presidential elections, it would not do this in practice.
The whole number proportional system sharply increases the odds of no candidate getting the majority of electoral votes needed, leading to the selection of the president by the U.S. House of Representatives, regardless of the popular vote anywhere.
It would not accurately reflect the nationwide popular vote;
It would reduce the influence of any state, if not all states adopted.
It would not improve upon the current situation in which four out of five states and four out of five voters in the United States are ignored by presidential campaigns, but instead, would create a very small set of states in which only one electoral vote is in play (while making most states politically irrelevant),
It would not make every vote equal.
It would not guarantee the Presidency to the candidate with the most popular votes in the country.
The National Popular Vote bill is the way to make every person’s vote equal and matter to their candidate because it guarantees that the candidate who gets the most votes in all 50 states and DC becomes President.
There is nothing in Article II (or elsewhere in the Constitution) that prevents states from making the decision now that winning the national popular vote is required to win the presidency.
See Section 2 of the 14th Amendment, case law on denial of the right to an effective vote through dilution of impact — and this Website:
http://www.asagordon.byethost10.com/map.htm
The 14th Amendment was of course adopted after the original language in Article II and elsewhere in the initially adopted Constitution (and after the 12th Amendment as well), so it controls over them. Thus, the plenary power of legislatures to determine how electoral votes are to be allocated is subject to the 14th Amendment; so is the ability to form interstate compacts.
(And the 14th Amendment is in turn modified by further extensions of the right to vote in later amendments — most notably on this point, arguably, by the 19th, 23rd, 24th, and 26th Amendments.)
Susan,
What happens if a state lowers the voting age to 16, or permits non-citizens to vote?
I don’t care for the idea of a national popular vote, and I don’t think this project will get off the ground.
I do like the idea of changing how states allocate their electors. Something is odd when a candidate who doesn’t get a majority of a state’s popular vote gets all of its electors. In a case like that, it goes against the majority of that state’s voters, because a majority didn’t want that candidate.
I like the idea of proportionate allocation. States are currently free to do this. However, I don’t think that a state would do this by itself, as it would be unilaterally diminishing its influence in the Electoral College. Colorado, I believe, proposed this about ten years ago, and its referendum on this question was defeated largely for this reason. I think a variation of this is more possible — WTA for a candidate that gets an outright majority; proportionate allocation otherwise.
Because each state has independent power to award its electoral votes in the manner it sees fit, it is difficult to see what “adverse effect” might be claimed by one state from the decision of another state to award its electoral votes in a particular way. It is especially unclear what adverse “political” effect might be claimed, given that the National Popular Vote compact would treat votes cast in all 50 states and the District of Columbia equally. A vote cast in a compacting state is, in every way, equal to a vote cast in a non-compacting state. The National Popular Vote compact does not confer any advantage on states belonging to the compact as compared to non-compacting states. A vote cast in a compacting state would be, in every way, equal to a vote cast in a non-compacting state. The National Popular Vote compact certainly would not reduce the voice of voters in non-compacting states relative to the voice of voters in member states.
Article I-Section 10, Clause 3 of the U.S. Constitution specifically permits states to enter interstate compacts. In fact, there are hundreds of major compacts currently in force (and thousands of minor ones)
The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote:
“The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States”
The National Popular Vote bill was approved in 2016 by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).
Since 2006, the bill has passed 35 state legislative chambers in 23 rural, small, medium, large, Democratic, Republican and purple states with 261 electoral votes, including one house in Arizona (11), Arkansas (6), Maine (4), Michigan (16), Nevada (6), New Mexico (5), North Carolina (15), and Oklahoma (7), and both houses in Colorado (9) and New Mexico (5).
The bill has been enacted by 11 small, medium, and large jurisdictions with 165 electoral votes – 61% of the way to guaranteeing the presidency to the candidate with the most national popular votes and majority of Electoral College votes.
The National Popular Vote bill is the way to make every person’s vote equal and matter to their candidate because it guarantees that the candidate who gets the most votes in all 50 states and DC becomes President.
All voters would be valued equally in presidential elections, no matter where they live.
Candidates, as in other elections, would allocate their time, money, polling, organizing, and ad buys roughly in proportion to the population
Every vote, everywhere, for every candidate, would be politically relevant and equal in every presidential election.
No more distorting, crude, and divisive and red and blue state maps of predictable outcomes, that don’t represent any minority party voters within each state.
No more handful of ‘battleground’ states (where the two major political parties happen to have similar levels of support) where voters and policies are more important than those of the voters in 38+ predictable states that have just been ‘spectators’ and ignored after the conventions.
I believe that the train is leaving the station for the NPV Compact. It seems doubtful that enough states will support it, and more people are becoming aware that it doesn’t resolve more fundamental questions of mere plurality voting: the election of a minority President is still possible (consider that Bill Clinton got elected with 42% of the popular vote in 1992), and the wasted vote problem still exists.
With the current system of electing the President, none of the states requires that a presidential candidate receive anything more than the most popular votes in order to receive all of the state’s or district’s electoral votes.
Since 1828, one in six states have cast their Electoral College votes for a candidate who failed to win the support of 50 percent of voters in their state
Not a single legislative bill has been introduced in any state legislature in recent decades (among the more than 100,000 bills that are introduced in every two-year period by the nation’s 7,300 state legislators) proposing to change the existing universal practice of the states to award electoral votes to the candidate who receives a plurality (as opposed to absolute majority) of the votes (statewide or district-wide). There is no evidence of any public sentiment in favor of imposing such a requirement.
In elections in which the winner is the candidate receiving the most votes throughout the entire jurisdiction served by that office, historical evidence shows that there is no proliferation of third-party candidates and candidates do not win with small percentages. For example, in 905 elections for governor in 60 years, the winning candidate received more than 50% of the vote in over 91% of the elections. The winning candidate received more than 45% of the vote in 98% of the elections. The winning candidate received more than 40% of the vote in 99% of the elections. No winning candidate received less than 35% of the popular vote.
Since 1824 there have been 17 presidential elections in which a candidate was elected or reelected without gaining a majority of the popular vote.– including Lincoln (1860), Wilson (1912 and 1916), Truman (1948), Kennedy (1960), Nixon (1968), Clinton (1992 and 1996), and Trump.
Americans do not view the absence of run-offs in the current system as a major problem. If, at some time in the future, the public demands run-offs, that change can be implemented at that time.
The bill ensures that every voter is equal, every voter will matter, in every state, in every presidential election, and the candidate with the most votes wins, as in virtually every other election in the country.
Every voter, everywhere, for every candidate, would be politically relevant and equal in every presidential election.
Every vote would matter in the state counts and national count.
The bill would give a voice to the minority party voters for president in each state. Now their votes are counted only for the presidential candidate they did not vote for. Now they don’t matter to their candidate.
In 2012, 56,256,178 (44%) of the 128,954,498 voters had their vote diverted by the winner-take-all rule to a candidate they opposed (namely, their state’s first-place candidate).
And now votes, beyond the one needed to get the most votes in the state, for winning in a state, are wasted and don’t matter to presidential candidates.
Utah (5 electoral votes) alone generated a margin of 385,000 “wasted” votes for Bush in 2004.
Oklahoma (7 electoral votes) alone generated a margin of 455,000 “wasted” votes for Bush in 2004 — larger than the margin generated by the 9th and 10th largest states, namely New Jersey and North Carolina (each with 15 electoral votes).
8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).
@Jim Riley: By gum, sir, I think you’re right — it *is* Susan! How on earth did you recognize her with that disguised name?
Why is there a need for a compact?
If the popular vote and electoral vote winner are the same, if the state winner is also the same there will be no difference in outcome. If the state winner is opposite, switching to the PV winner will only increase the EV margin.
If the popular vote and electoral vote winner are opposite, then if the state winner is the same as the popular vote winner then the result will be unchanged. But if the state winner is opposite the PV winner, then there is a chance the state will correct the electoral vote result.
One question I have is if the compact ever does go anywhere, who appoints the electors? and what happens if there are faithless electors, which they already kind of would be voting against the will of their states people?
States appoint electors who are pledged to the presidential candidate who won the national popular vote. If the plan had been in effect in 2016, because Hillary Clinton got the most popular votes nationwide, all the states in the pact would have appointed Democratic Party electors.
The compact will guarantee the majority of Electoral College votes and the presidency to the candidate who receives the most popular votes in the country.
The bill would take effect when enacted by states with a majority of the electoral votes—270 of 538.
All of the presidential electors from the enacting states will be supporters of the presidential candidate receiving the most popular votes in all 50 states (and DC)—thereby guaranteeing that candidate with an Electoral College majority.
The electors will be dedicated party activist supporters of the winning party’s candidate who meet briefly in mid-December to cast their totally predictable rubberstamped votes in accordance with their pre-announced pledges.
States have enacted and can enact laws that guarantee the votes of their presidential electors
The U.S. Supreme Court has upheld state laws guaranteeing faithful voting by presidential electors (because the states have plenary power over presidential electors).
“The bottom line is that the electors from those states who cast their ballot for the nationwide vote winner are completely accountable (to the extent that independent agents are ever accountable to anyone) to the people of those states. The National Popular Vote states aren’t delegating their Electoral College votes to voters outside the state; they have made a policy choice about the substantive intelligible criteria (i.e., national popularity) that they want to use to make their selection of electors. There is nothing in Article II (or elsewhere in the Constitution) that prevents them from making the decision that, in the Twenty-First Century, national voter popularity is a (or perhaps the) crucial factor in worthiness for the office of the President.”
– Vikram David Amar – professor and the Associate Dean for Academic Affairs at the UC Davis School of Law. Before becoming a professor, he clerked for Judge William A. Norris of the United States Court of Appeals for the Ninth Circuit and for Justice Harry Blackmun at the Supreme Court of the United States.