Electoral College — Point-Counterpoint


By InsideSources - Guest Columnists

Point: National Popular Vote Makes Every Voter Count, and Every State Equal

By Patrick Rosenstiel


Time and again, opponents of a national popular vote perpetuate old myths about this state-based compact to ensure that every voter in every state is politically relevant in every presidential election.

In a nutshell, the National Popular Vote interstate compact is the only reform plan that would absolutely guarantee the presidency to the candidate receiving the most popular votes cross all 50 states and the District of Columbia. It would take effect only when the National Popular Vote bill is enacted by states possessing enough electoral votes to elect a president (270 of 538). After it takes effect, all the electoral votes from all of the compacting states would be awarded to the presidential candidate who receives the majority of the national popular vote.

With respect to the national popular vote, opponents typically get four things exactly wrong:

—Mistake number one: States with small populations would lose political clout under a national popular vote.

In fact, the opposite is true. Under a national popular vote, the nature of presidential campaigns would fundamentally change to encompass all 50 states, regardless of size, population or voting histories.

As things now stand, 12 so-called “battleground” states with a propensity to “swing” from one party to another consume virtually all of the candidates’ time, money and attention. The remaining 38 states and the District of Columbia — which more predictably fall into either the “blue” or “red” categories — are virtually ignored, because candidates see no reason to campaign in places where they are so far behind they can’t possibly win, or so far ahead they can’t possibly lose.

It doesn’t take a rocket scientist to reason that if winning the White House with 270 electoral votes directly depended on winning the national popular vote, presidential candidates would be compelled to go after every vote in every state. Republican candidates would be chasing votes in solidly “blue” states like Oregon and Massachusetts. Democrat candidates would be barnstorming traditionally “red” states like Oklahoma and North Dakota.

—Mistake number two: The national popular vote movement is “anti” Electoral College.

In fact, under a national popular vote, the Electoral College stays in place, exactly as the Founders intended. The state-based National Popular Vote interstate compact simply ensures that the winner of the popular vote receives the necessary 270 electoral votes to be the president.

—Mistake number three: A constitutional amendment is the only legitimate way to reform our presidential election system.

In fact, while the Founders wisely and intentionally made it difficult to amend the Constitution, they made sure the document contained the necessary instruments for more modest change as future times would demand. The Founders explicitly gave states authority under the Constitution to form compacts like the National Popular Vote interstate compact. The Constitution also grants the states authority to award their electoral votes as they see fit, stipulating in Article 2, Section 1: “Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors …”

—Mistake number four: The “winner-take-all” system by which most states award all of their electoral votes to the winner of the popular vote within that state is inherent in the Constitution.

In fact, the winner-take-all method of awarding electoral votes was not part of the Constitution. Nor was it debated during the 1787 Constitutional Convention, nor mentioned in the Federalist Papers.

Under the National Popular Vote interstate compact, the presidential election of 2020 could be the first where the winner of the most popular votes across all 50 states and the District of Columbia is guaranteed to win the White House. It has already passed in 11 states and the District — jurisdictions possessing a total of 172 electoral votes — just 98 short of enactment. New Mexico and Colorado are moving the National Popular Vote bill as we speak. Make no mistake — this is a movement whose time has come. I urge legislators of all parties to move this bill forward and fix our presidential elections.

Counterpoint: National Popular Vote — Making Every Vote Unequal

By Tara Ross


Anti-Electoral College advocates see a window of opportunity to eliminate America’s unique presidential election system. They are seizing the moment, working to implement change before anyone realizes what happened.

They even think they can do it without a constitutional amendment.

National Popular Vote (NPV) is a California-based effort that has been running under the radar. Its proponents ask state legislatures to agree to an interstate compact. By the terms of that simple contract, each participating state would agree to allocate its entire slate of electors to the winner of the national popular vote. This is a change from the current system in which states award electors based on the internal state popular vote.

NPV claims it is simply using constitutional provisions in a unique way. In reality, the compact would effectively eliminate the Electoral College.

NPV’s plan goes into effect when states representing 270 electoral votes (enough to win the presidency) have agreed to the compact. To date, 11 states plus D.C. have approved the measure. Those states hold 172 electoral votes among them. NPV hopes to reach 250 electors by the end of the year. They would need just 20 more during the early months of 2020 to put their plan into action before the presidential election.

The idea is gaining steam. Legislative committees in Colorado and New Mexico approved NPV just last week. A House committee in New Hampshire is scheduled to consider the legislation this week. More efforts can soon be expected in places like Oregon, Minnesota and Virginia, where the legislation is pending.

NPV proponents rely heavily on simple sound bites such as “every vote equal” or “one person, one vote.” The sound bites are certainly appealing: They sound fair-minded and democratic. Ironically, though, NPV would ensure the precise opposite of its stated goal. If its compact goes into effect, NPV would guarantee unequal treatment of voters.

Some of the reasons are obvious. Others less so.

First, small to mid-size states can never receive equal treatment under a national popular vote system. How can they? Candidates have limited time and resources. They will not work to build support across state and regional lines without an Electoral College to force the subject.

Consider that Hillary Clinton won fully 20 percent of her individual votes from only two states: New York and California. The mistake cost her the election. But without the Electoral College, she would be rewarded for such behavior, and candidates would be sure to double down on the strategy. New Hampshire, Wyoming and other small-population states would easily be lost in the shuffle.

NPV guarantees unequal treatment of voters for a second, less obvious reason: NPV is state legislation, not a constitutional amendment. States participating in NPV cannot tell non-NPV states what to do. Thus, NPV cannot authorize creation of a single, national election code to govern everyone nationwide. Instead, some people will be given more time to vote, simply because of their state of residence. Others might have an easier time getting an absentee ballot than those in neighboring states. Some people might have ballots that contain more third-party options.

Today, no one cares if Texans have more time to early vote than voters in Colorado. A ballot cast in Texas can’t change the identity of Colorado’s electors. But with NPV in place, a ballot cast in Texas could dictate the outcome in Colorado. Suddenly, it matters a great deal that Texans had more opportunities to vote.

If the most basic rule of democracy is that the same set of laws should apply equally to everyone in the same election pool, then NPV will violate this rule egregiously, every presidential election year, without fail.

Don’t worry. Someone, somewhere will file an Equal Protection claim. The litigation will make Florida 2000 look easy.

NPV guarantees unfair treatment of voters in one final way: It acts as if “consent of the governed” is unimportant, pretending that a simple interstate compact can be used in lieu of the constitutional amendment process.

“We the People of the United States” consented to a Constitution that creates a state-by-state presidential election system. The Electoral College is just one of many checks and balances in our constitutional republic, preventing a bare, emotional or tyrannical majority from running roughshod over the rest of the country. “We the People” agreed that this process can be changed only if three-quarters of the states agree. Yet NPV attempts to skirt this process entirely. It is prepared to radically change the presidential election system, whether “We the People” consent or not.

Apparently, NPV doesn’t care so much about fairness after all.


By InsideSources

Guest Columnists

Patrick Rosenstiel is a senior counselor with National Popular Vote. Tara Ross, a retired lawyer and a former editor-in-chief of the Texas Review of Law & Politics, is the author of “The Indispensable Electoral College: How the Founders’ Plan Saves Our Country from Mob Rule.” They wrote this for InsideSources.

Patrick Rosenstiel is a senior counselor with National Popular Vote. Tara Ross, a retired lawyer and a former editor-in-chief of the Texas Review of Law & Politics, is the author of “The Indispensable Electoral College: How the Founders’ Plan Saves Our Country from Mob Rule.” They wrote this for InsideSources.