8-page Memo
“Agreement Among the States to Elect the President by Nationwide Popular Vote”
The proposed “Agreement Among the States to Elect the President by Nationwide Popular Vote” is a constitutional and politically practical way to implement nationwide popular election of the President—a goal supported by an overwhelming majority of Americans (70% in recent polls).
The National Popular Vote bill has legislative sponsors in 47 states. It is expected that the bill will have sponsors in all 50 state legislatures in time for the 2007 legislative sessions.
The New York Times endorsed National Popular Vote’s plan by calling it an “innovative new proposal” and “an ingenious solution.” The editorial urged that “Legislatures across the country should get behind it.” As the editorial said (March 14, 2006):
“The Electoral College distorts presidential campaigns. Candidates have no incentive to campaign in, or address the concerns of, states that reliably vote for a particular party. … According to estimates by National Popular Vote, the bipartisan coalition making the new proposal, … only 13 states, with 159 electoral votes, were …battleground states in 2004. As a result, campaigns and national priorities are stacked in favor of a few strategic states. Ethanol fuel, a pet issue of Iowa farmers, is discussed a lot. But issues of equal concern to states like Alabama, California, New York and Indiana are not.”
The Los Angeles Times endorsed the plan on June 5, 2006. The Sacramento Bee endorsed the bill saying “The governor and senators can get this process rolling in other states by acting this session” (June 3, 2006). The Chicago Sun Times called National Popular Vote’s plan “thinking outside the box” and said “It's time to make the change with this innovative plan” (March 1, 2006). The Minneapolis Star-Tribune said “It’s a lot to ask the Legislature to do the right thing and endorse the new compact. But it really should. So should other states—both red and blue—join, for the sake of a better democracy” (March 27, 2006). The Denver Post said that it is “time to rethink presidential elections” (April 19, 2006). Common Cause and Fair Vote (The Center for Voting and Democracy) have also endorsed the plan.
The National Advisory Board of National Popular Vote includes former congressmen John Anderson (R–Illinois and later independent presidential candidate), John Buchanan (R–Alabama—the first Republican elected to represent Birmingham), Tom Campbell (R–California), and Tom Downey (D–New York), and former Senators Birch Bayh (D–Indiana), David Durenberger (R–Minnesota), and Jake Garn (R–Utah).
SHORTCOMINGS OF THE CURRENT SYSTEM
The major shortcoming of the current system is that voters in two thirds of the states are effectively disenfranchised in presidential elections because they do not live in closely divided “battleground” states. Under the winner-take-all rule, presidential candidates have no reason to poll, visit, advertise, organize, or campaign in states that they cannot possibly win or lose.
Presidential candidates concentrate over two-thirds of their advertising money and campaign visits in just five very close states, and over 99% of their advertising money in just 16 battleground states. The spectator states in presidential elections include six of the nation’s 10 most populous states (California, Texas, New York, Illinois, New Jersey, and North Carolina), 12 of the 13 least populous states (all but New Hampshire), and a majority of the other states.
As Charlie Cook reported in 2004:
“Senior Bush campaign strategist Matthew Dowd pointed out yesterday that the Bush campaign hadn’t taken a national poll in almost two years; instead, it has been polling 18 battleground states.”
Kerry similarly pursued an 18-state strategy in 2004.
Another shortcoming of the current system is a candidate can win the Presidency without winning the most popular votes nationwide. Under the winner-take-all rule that is currently used by 48 states, all of a state’s electoral votes are awarded to the candidate winning the state. A shift of 60,000 votes in Ohio in 2004 would have given Kerry a majority of the electoral votes, despite President Bush’s 3,500,000-vote lead in the nationwide popular vote. A shift of a handful of votes in one or two states would have elected the second-place candidate in five of the last 12 presidential elections. The second-place candidate was elected in 2000, 1888, 1876, and 1824.
Both shortcomings have a single cause—the states’ use of the winner-take-all rule. The winner-take-all rule is not mentioned in the U.S. Constitution. It is not a federal law. It was not the choice of the Founding Fathers and it was used by only three states in the nation’s first presidential election. The winner-take-all rule exists only in state law. States have the power to change their own state laws at any time.
HOW THE PROPOSED INTERSTATE COMPACT WOULD WORK
At the present time, the Electoral College reflects the voters’ state-by-state choices for President in 48 states, while reflecting the voters’ district-by-district choices in Maine and Nebraska. The United States can have nationwide popular election of the President if the states reform the Electoral College so that it reflects the voters’ nationwide choice. This means changing the state laws that establish the state-level winner-take-all rule (or the district-level winner-take-all rule).
Under the state legislation proposed by National Popular Vote, the popular vote counts from all 50 states and the District of Columbia would be added together to obtain a national grand total for each presidential candidate. That is, state election officials would simply perform, in an official manner, the adding-up of the nationwide vote for President that is now performed by almanacs and news media. Then, state elections officials in all states participating in the plan would award their electoral votes to the presidential candidate who receives the largest number of popular votes in all 50 states and the District of Columbia.
Under the proposal, no state would act alone in offering to award its electoral votes to the nationwide winner. Instead, the National Popular Vote plan would take effect only when the plan has been enacted by states collectively possessing a majority of the electoral votes—that is 270 of the 538 electoral votes. This threshold guarantees that the presidential candidate receiving the most popular votes nationwide would win enough electoral votes in the Electoral College to become President. The 270-vote threshold corresponds essentially to states representing a majority of the people of the United States. The result would be that every vote in all 50 states and the District of Columbia is equally important in presidential elections.
The National Popular Vote plan is an interstate compact—a type of state law authorized by the U.S. Constitution that enables states to enter into a legally enforceable contractual obligation to undertake agreed joint actions. There are hundreds of interstate compacts, and each state in the United States belongs to dozens of compacts. Examples of interstate compacts include the Colorado River Compact (allocating water among seven western states), the Port Authority (a two-state compact involving New York and New Jersey), and the Multi-State Tax Compact. Some compacts involve all 50 states and the District of Columbia. Interstate compacts are generally subject to congressional consent.
As an additional benefit, National Popular Vote’s plan would eliminate the (unlikely) possibility of faithless presidential electors. The presidential candidate receiving the most popular votes in all 50 states and the District of Columbia would receive a guaranteed majority of at least 270 electoral votes coming from the states enacting the compact, and the nationwide winner candidate would receive additional electoral votes from whatever non-compacting states happened to be carried by the nationwide winner. Thus, in practice, the presidential candidate receiving the most popular votes nationwide would end up with about three-quarters of the electoral votes—more than enough to eliminate the remote possibility that an unfaithful elector could affect the outcome.
Because the presidential candidate receiving the most popular votes nationwide would be guaranteed enough electoral votes in the Electoral College to become President, another benefit of the National Popular Vote plan is that it would eliminate the possibility of a presidential election being decided by the House of Representatives (where each state would have one vote) and the vice-presidential election being decided by the U.S. Senate.
Nationwide election of the President would reduce the possibility of close elections and recounts. The current system regularly manufactures artificial crises even when the nationwide popular vote is not particularly close. Even though President Bush was 3.5 million votes ahead of Kerry in 2004 on election night, the nation had to wait until Wednesday to see if Kerry would dispute Ohio’s all-important 20 electoral votes. A shift of 60,000 votes in Ohio in 2004 would have given Kerry a majority of the electoral votes, despite President Bush’s 3,500,000-vote lead in the nationwide popular vote. Similarly, the disputed 2000 presidential election was an artificial crisis created by one candidate’s 537-vote lead in Florida in an election in which the other candidate had a 537,179-vote lead nationwide (1,000 times greater). In the nation’s most controversial presidential election, Tilden’s 3.1%-lead in the popular vote in 1876 was greater than Bush’s substantial 2.8%-lead in 2004; however, a constitutional crisis was created by very small popular-vote margins in four states (889, 922, 1,050, and 1,075). With a single massive pool of 122,000,000 votes, there is less opportunity for a close outcome or recount (and less incentive for fraud) than with 51 separate smaller pools, where a few hundred popular votes can decide the Presidency.
To prevent partisan mischief between the November voting by the people and the mid-December meeting of the Electoral College, the compact contains a six-month blackout period if any state ever wishes to withdraw from the compact. The blackout period starts on July 20 of each presidential election year and runs through the January 20 inauguration. Interstate compacts are contracts. It is settled compact law and settled constitutional law that withdrawal restrictions—very common in interstate compacts—are enforceable because the U.S. Constitution prohibits a state from impairing any obligation of contract.
Under existing law in 48 of the 50 states, the state’s electoral votes are cast by a group of presidential electors who were nominated by the political party whose presidential candidate carried their particular state. People nominated for this position are almost invariably long-time party officials or activists. Under the proposed compact, the 270 or more electoral votes possessed by the states belonging to the compact would be cast by a group of presidential electors nominated by the political party whose candidate won the nationwide vote in all 50 states and the District of Columbia. This group of electors—sufficient to guarantee the election of a President—would reflect the will of the voters nationwide. None of these presidential electors would be voting contrary to his or her political inclinations or conscience. Instead, the 270 (or more) presidential electors associated with the candidate who won the nationwide vote would simply vote for their own party’s presidential nominee (i.e., the nationwide choice of the voters from all 50 states and the District of Columbia). This approach implements the desire of an overwhelming majority of Americans (over 70% in recent polls), namely that the candidate who gets the most votes nationwide should become President.
Some may argue that voters would be uncomfortable with the electoral votes of their state being cast for a candidate that won the national popular vote—but not necessarily their state’s vote. However, the public is not attached to the current system. Indeed, less than 20% of the public supports it. A nationwide popular vote for President inherently means that the winner would no longer be determined on the basis of which candidate carries individual states but, instead, on the basis of which candidate receives the most citizen votes in all 50 states and the District of Columbia. All of the 270 (or more) presidential electors from the states enacting the compact will be from the political party associated with the nationwide winner. When these electors cast their votes for the candidate who received the most votes nationwide, they will be implementing the method of electing the President that has long been supported by an overwhelming majority of Americans; the method that the people’s elected representatives have enacted into law; and the method under which the campaign will have been conducted.
THE STATES’ EXCLUSIVE POWER TO AWARD THEIR ELECTORAL VOTES
The manner of conducting presidential elections is covered in Article II, Section 1, Clause 2 of the U.S. Constitution.
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….” (emphasis added).
The constitutional wording “as the Legislature thereof may direct” contains no restrictions. It does not encourage, discourage, require, or prohibit the use of any particular method for awarding the state’s electoral votes. In particular, the U.S. Constitution does not mention two of the most prominent present-day features of American presidential elections—the winner-take-all rule (awarding all of a state’s electoral votes to the candidate winning the state) and citizen voting for President. These features were not part of the original Constitution, nor were they installed by any subsequent federal constitutional amendment. Instead, these features were established by state laws that were enacted, over a period of decades, on a state-by-state basis.
The winner-take-all rule was used by only three states when the Founding Fathers went back to their states to organize the nation’s first presidential election in 1789. Today, it is used by 48 of the 50 states. A federal constitutional amendment was not required, nor used, to enact the winner-take-all rule in these 48 states. The 48 states simply used the power that the Founding Fathers gave them to enact this particular method for awarding their electoral votes. The states may change their decisions concerning the winner-take-all rule, at any time, by enacting a different state law.
Only half the states participating in the nation’s first presidential election gave voters a voice in presidential elections, whereas no state legislature has chosen the state’s presidential electors since 1876. A federal constitutional amendment was not required, nor used, to confer the presidential vote on the people. States simply enacted state laws implementing this concept.
The fact that Maine enacted a congressional-district system in 1969 (and Nebraska did the same in 1992) is a reminder that the manner of awarding electoral votes is entirely a matter of state law. Maine and Nebraska did not need a federal constitutional amendment to modify the winner-take-all rule because the winner-take-all rule was never part of the U.S. Constitution in the first place. The legislatures of Maine and Nebraska simply used the power that the Founding Fathers gave the states to decide how to award their electoral votes.
The U.S. Supreme Court has repeatedly characterized the authority of the states over the manner of awarding their electoral votes as “supreme” and “plenary” and “exclusive.”
In short, there is nothing in the U.S. Constitution that needs to be changed in order to implement nationwide popular vote of the President. This change can be accomplished in the same manner as the current system was originally adopted—namely the states using their exclusive and plenary power to decide the manner of awarding their electoral votes.
NATIONWIDE POPULAR ELECTION WILL GIVE A VOICE TO SMALL STATES
It is sometimes asserted that the current system helps the nation’s least populous states. It is also sometimes asserted that the small states confer a partisan advantage on one political party. In fact, neither statement is true.
Twelve of 13 smallest states are almost totally ignored in presidential elections because they are politically non-competitive. Idaho, Montana, Wyoming, North Dakota, South Dakota, and Alaska regularly vote Republican, and Rhode Island, Delaware, Hawaii, Vermont, Maine, and DC regularly vote Democratic. These 12 states together contain 11 million people. Because of the two electoral-vote bonus that each state receives, the 12 non-competitive small states have 40 electoral votes. However, the two-vote bonus is an entirely illusory advantage to the small states. Ohio has 11 million people and has “only” 20 electoral votes. As we all know, the 11 million people in Ohio are the center of attention in presidential campaigns, while the 11 million people in the 12 non-competitive small states are utterly irrelevant. Nationwide election of the President would make each of the voters in the 12 smallest states as important as an Ohio voter.
The fact that the bonus of two electoral votes is an illusory benefit to the small states has been widely recognized by the small states for some time. In 1966, Delaware led a group of 12 predominantly low-population states (North Dakota, South Dakota, Wyoming, Utah, Arkansas, Kansas, Oklahoma, Iowa, Kentucky, Florida, Pennsylvania) in suing New York in the U.S. Supreme Court, arguing that New York’s use of the winner-take-all effectively disenfranchised voters in their states. The Court declined to hear the case (presumably because of the well-established constitutional provision that the manner of awarding electoral votes is exclusively a state decision). Ironically, defendant New York is no longer a battleground state (as it was in the 1960s) and today suffers the very same disenfranchisement as the 12 non-competitive low-population states. A vote in New York is, today, equal to a vote in any of these small non-competitive states—all are equally worthless and irrelevant in presidential elections.
NATIONWIDE POPULAR ELECTION WILL MEAN A 50-STATE CAMPAIGN
In a nationwide vote, presidential campaigns would become 50-state campaigns. Neither Democrats nor Republicans could afford to ignore the concerns and interests of voters in spectator states such as California. The Democratic Party would suddenly care about whether it won California by 55% or 60% and would therefore campaign in California. Similarly, the Republican Party would have to campaign in California in order to win as many popular votes as possible.
Although it is sometimes conjectured that a national popular election would focus only on big cities, it is clear that this would not be the case. Evidence as to how a nationwide presidential campaign would be run can be found by examining the way presidential candidates currently campaign inside battleground states. Inside Ohio or Florida, the big cities do not receive all the attention, and they certainly do not control the outcome. Because every vote is equal inside Ohio or Florida, presidential candidates avidly seek out voters in small, medium, and large towns. The itineraries of presidential candidates in battleground states (and their allocation of other campaign resources) demonstrate what every gubernatorial or senatorial candidate in Ohio and Florida already knows—namely that when every vote matters, the campaign must be run in every part of the state.
Further evidence of the way a nationwide presidential campaign would be run comes from national advertisers who seek out customers in small, medium, and large towns of every small, medium, and large state. A national advertiser does not write off Indiana or Illinois merely because a competitor has an 8%-edge in sales in those states. Moreover, a national advertiser enjoying an 8%-edge over its competitors does not stop trying to make additional sales in Indiana or Illinois. National advertisers go after every single possible customer, regardless of where the customer is located.
Although no one can accurately predict how a presidential campaign would be run if every vote were equal throughout the United States, it is clear that candidates would have to run a 50-state campaign. In round numbers, both major-party candidates (and their closely allied supporting groups) had about a half billion dollars at their disposal in 2004 (that is, an average of about $1 million for each of the nation’s 435 congressional districts). Candidates have time for about 450 campaign visits during a three-month presidential campaign (that is, an average of about one visit in each of the nation’s 435 congressional districts).
Under a nationwide vote, each presidential campaign would have to reallocate its limited campaigning resources over all the nation’s 435 congressional districts. Because every vote would be equally important throughout the United States under the National Popular Vote plan, candidates would allocate, on average, one visit to each congressional district and $1,000,000. Thus, a small state such as Idaho with two congressional districts could reasonably expect two visits from both the Democratic and Republican candidates. Currently, of course, Idaho receives no attention from either party because the Republican candidate has nothing to gain, and the Democratic candidate has nothing to lose, in Idaho. Although Idaho would undoubtedly continue to deliver a statewide majority to the Republican presidential candidate, every vote in Idaho would suddenly matter to both the Democrat and the Republican candidates. It would be folly for John Kerry to write off Idaho because he would care if he lost Idaho by 227,000 versus some smaller or larger number. Similarly, it would folly for George Bush to take Idaho for granted because he would care if he won by 227,000 versus some larger or smaller number. As the Idaho State Journal editorialized in 2004,
“As we enter the home stretch of the quadrennial horse race known as the presidential election, it’s time to remember that this is an election for the president of the United States of America—all 50 states, not an election for the president of the Swing States of America.”
NATIONAL POPULAR VOTE EXPECTS TO HAVE SPONSORS IN ALL 50 STATES FOR THE 2007 LEGISLATIVE SESSIONS
Since National Popular Vote’s initial press conference in February 2006, the proposed interstate compact has passed in the Colorado Senate (April 17), the California Assembly (May 30), and the California Senate (August 22). The bill was vetoed in California on September 30.
The bill was filed during 2006 in six states.
In New York, five Republican Assembly members introduced National Popular Vote’s bill (A11563). The sponsors include Assemblyman Fred W. Thiele, Jr. (Republican, Independence, Working Families–Sag Harbor); Assemblyman Jim Bacalles (Republican, Conservative–Corning); Assemblyman Joe Errigo (Republican, Conservative–Conesus); Assemblyman Andrew Raia (Republican, Conservative, Independence, working Families–East Northport); Assemblywoman Teresa Sayward (Republican, Independence, Conservative–Willsboro).
In the Illinois Senate, the bill (SB 2724) was sponsored by Senators Jacqueline Collins (D), Kirk W. Dillard (R and Du Page County Republican Party Chair), James T. Meeks (I). The Senate bill now has seven sponsors. In the Illinois House, the bill (HB 5777) was sponsored by Representatives Robert S. Molaro (D) and Jim Durkin (R). The House bill now has 29 sponsors.
In Louisiana, the National Popular Vote bill (HB 927) was approved by the House and Governmental Affairs Committee on May 10.
On April 17, the Colorado State Senate passed the National Popular Vote plan (SB 223). Among the Senators voting for the bill were original Senate sponsors Ken Gordon (D), John Evans (R), and Lew Entz (R).
In Missouri, the bill (HB 2090) was sponsored by Representative Robert Johnson (R) and Representative Jeff Roorda (D). An informational hearing was held on April 25.
ADDITIONAL INFORMATION ABOUT THE NATIONAL POPULAR VOTE PLAN
Additional information is available at www.NationalPopularVote.com. The National Popular Vote proposal is described in detail in our 620-page book Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote. The book is available to be read or downloaded, for free, at www.every-vote-equal.com. Chapter 6 of the book describes the proposed interstate compact in detail.
Yours truly,
