The Fact Zone:
- The “National Popular Vote Interstate Compact” is an agreement to give the presidential candidate who won the popular vote all of the electoral votes needed to win the election.
- The only way to elect the president is through the Electoral College. Article II Section 1 of the Constitution
- There are 538 electoral votes. 435 votes reflecting the number of state representatives in the House of Representatives, 100 votes for the U.S. senators, and 3 for the District of Columbia, totaling 538 votes.
- The “Permanent Apportionment Act of 1929” froze the total number of representatives for the country at 435, in spite of the ever-growing population.
- The 15 states that have signed the agreement now have control of 189 electoral votes.
- A candidate must win at least 270 electoral votes—slightly over 50%—to win the presidency.
- The “National Popular Vote Interstate Compact” is constitutional.
We have laid out the hard facts of the The National Popular Vote Interstate Compact (NPV). We know what it is and what it does. Now, let’s get into the weeds and parse out the possibilities that are brought about through this agreement. The NPV does not go into effect until enough states sign on to reach the magic number of 270 votes to win. Until then, elections will function as we have always known them to. If, however, the agreement reaches the requisite number of electoral votes, whoever wins the national popular vote is guaranteed to win the presidency. This means if the majority of Californians vote Democrat, but the Republican candidate wins the national popular vote, all 55 of California’s electoral votes would go to the Republican.
This method runs counter to what currently happens: The candidate who wins the popular vote within a state wins all of the electoral votes of that state. This is what is known as the “winner take all” method of awarding electoral votes. The only exceptions to this general rule are Nebraska and Maine, which use a system to award electoral votes based on congressional districts. That is to say, if congressional district 1 votes for candidate A, one electoral vote goes to candidate A. If congressional district 2 votes for candidate B, one electoral vote goes to candidate B, so on and so forth.
The Electoral College has accurately reflected the popular vote in most of our presidential elections, though there are five exceptions, the biggest being Bush v Gore and Trump v Clinton. In both of those elections, the president was elected despite losing the popular vote, casting doubt on the veracity of the Electoral College. So, how might a presidential candidate win an election without also winning the popular vote?
Before we answer this question, let’s take a detour into another mess in our electoral process—the practice of gerrymandering.
Every 10 years, a nationwide census is held. The census counts the number of people in each state, and conducts a simple survey of economic standing, race, educational background, fertility, etc. When the census is completed, each state finds out how many representatives it gained or lost of the available 435 (Colorado gets 9, New York gets 29, etc.). Once they have that information, each state legislature has to draw a corresponding number of congressional districts of roughly equal population.
The last step—drawing congressional districts—is where you get gerrymandering. Whichever political party controls the state legislature generally gives itself an advantage by concentrating or diluting voters based on party affiliation, in an effort to guarantee they will control the state for the next decade.
Gerrymandering doesn’t have an effect on the way we currently run our presidential elections, because of the practice of winner take all. However, it is important to note that it is intimately tied to the requirements listed in the Constitution for electing the president, as well as the Permanent Apportionment Act of 1929, which froze the number of representatives available to the states at 435. Gerrymandering is noteworthy because without the Permanent Apportionment Act, there would be incrementally more representatives for each state, and thus more electoral votes required to win the presidency.
As it stands, major population centers are at a disadvantage due to the Permanent Apportionment Act because their congressional districts encompass many, many more people than less populated states. In Wyoming, one electoral vote represents 193,000 people; meanwhile, in California, one electoral vote represents 718,000 people. That being said, any presidential candidate hoping to win the Oval Office must focus their attention on relatively small states and “battleground” states. It is a strategy of death by a thousand cuts.
Proponents of the National Popular Vote claim that by enacting the agreement, every vote will matter, thereby placing everyone on equal ground. In Colorado, Democrat representatives Jeni Arndt and Emily Sirota argued that the NPV would end the practice of winner take all, end disproportionate campaign visits to the states, increase voter participation, and eliminate the advantage that swing states have in presidential elections.
Opponents of the NPV claim that the agreement will do the opposite of what representatives Arndt and Sirota argued. Bobby Lawrence, founder of Protect Your Vote—a national grassroots organization—reported, “The winner-take-all portion is detrimental to voter participation . . . The crux of the matter is that they want to make it a winner-take-all nation.” Lawrence further states, “If you want to make as many votes count as possible, then let’s return to the way the founders envisioned it to work, and that was, every district elected their elector.” The model that Lawrence references is the same as what is used in Nebraska and Maine.
Constitutionally speaking, Article I Section 10 specifies, “No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State.” However, to answer the question of consent, the Supreme Court ruled in the case of Virginia v Tennessee that, “The compact in this case, having received the consent of Congress, though not in express terms, yet impliedly, and subsequently, which is equally effective, became obligatory and binding upon all the citizens of Virginia and Tennessee. . . . After such compacts have been adhered to for years, neither party can be absolved from them upon showing errors, mistakes, or misapprehension of their terms . . .”
In the same vein, Article II Section 1 of the Constitution states, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” The Supreme Court further explained this in the case of Bush v Gore, 531 US 98 (2000), when it affirmed:
“The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College . . . the state legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution.”
All of that means the “National Popular Vote Interstate Compact” is entirely constitutional.
The NPV has enough support to reach 189 electoral votes, making it nearly two-thirds of the way to enactment. With more states considering the agreement, we may see a major shift in the way that we elect the President of the United States.
The “National Popular Vote Interstate Compact” is bad for the people. Rather than correcting the very real problem of the “winner take all” system that we have, the NPV makes the problem worse by expanding the concept to the entire country.
Los Angeles County alone has two million registered Democrats. My home state of Colorado has around three million registered voters total. I cannot think of a reason any Coloradan should bother to vote for the president if a single county in another state can override two-thirds of our votes. It is because of the Electoral College that the NPV steals votes, and it is because of the Electoral College that individual votes matter.
The “National Popular Vote Interstate Compact” is being sold as a way to “make every vote count,” yet in practice, it disenfranchises those who are not living in major population centers. The votes of a heavily-populated state completely override at least one small state, possibly more. This means that instead of swing states, candidates will be campaigning only in the states with the largest population. Votes in Wyoming, Idaho, New Mexico, Utah, and more, simply don’t matter under the NPV. Those states don’t have enough people to even come close to affecting the overall vote.
In addition to that problem, if the NPV becomes common practice, it completely eliminates the possibility of a viable third party. When you base your elections purely on popularity, the voters have to coalesce around candidates they may not like, and may not agree with, simply so that the “other guy” doesn’t win. This mentality is prevalent even under the current arrangement, however, this would go into overdrive in a system where sheer numbers are the only thing that matter.
If sheer numbers were the only thing that mattered, wouldn’t it behoove presidential candidates to bribe voters? If voters are bribed, how do we know we are electing the right person for the job? Would Congress be bypassed so that the president can deliver on the bribes that were promised? They would have a “mandate,” after all.
There are many problems with the NPV that are not discussed, not the least of which that it literally steals the electoral votes of people in individual states. I believe the best way to conduct our elections is through proportional voting, though done differently than in Nebraska and Maine. I believe if you distribute electoral votes proportionally, based on the percentage of votes that each candidate won in the state, they will never know where their votes come from. This forces them to campaign in every state.
This is where the Permanent Apportionment Act of 1929 comes into play for me. If the act is repealed and replaced with a maximum number of people per district (I prefer 500,000), we would increase Congress by 284 members, bringing the total to 719. This idea would provide greater public access to representatives. Additionally, it provides larger states, such as California, with the representation they deserve. If you couple the expansion of Congress with proportional voting, each vote counts, and you are extremely unlikely to end up in a situation where the president is elected without also winning the popular vote.
Under the system that I propose, Hillary Clinton would have won 340 to 333, with 46 votes going to third-party candidates. This was all a tabletop exercise of course, though it does appear to me to be far more representative of the country and individual voters than the system that we have now or the NPV.
Regardless of your opinion, I believe this conversation is vitally important to have. I encourage anyone and everyone to join in the discussion so we may come to an agreement as to how we should or should not address the apparent limitations of the Electoral College.