9.37 Myth about State Identity

Under the National Popular Vote Compact, all the electoral votes from all the states belonging to the Compact will be awarded to the presidential candidate who receives the most popular votes in all 50 states (and the District of Columbia). The Compact will take effect when enacted by states possessing a majority of the electoral votes—that is, enough electoral votes to elect a President (270 of 538).

The policy choice presented by the National Popular Vote Compact is whether it is more important that the President be the candidate who received the most popular votes in the entire country or for the candidate who received the most popular votes in a particular state to get that state’s electoral votes.

It is the current system—not the National Popular Vote system—that disenfranchises voters.

In debating the National Popular Vote Compact in Connecticut in 2018, State Representative Laura Devlin said:

“[If] Connecticut votes for presidential candidate A, but the majority of the rest of the United States chose presidential candidate B, Connecticut would have to put its electoral votes to presidential candidate B, which totally disenfranchises the popular vote in the State of Connecticut.”[1007] [Emphasis added]

Representative Daniel J. Fox responded by pointing out that no voter in Connecticut would be disenfranchised by the National Popular Vote Compact:

“Connecticut’s current winner-take-all law creates the illusion that Connecticut's voice was 100 percent for Hillary Clinton in the 2016 election, when, in fact, it wasn’t, because it awards 100 percent of Connecticut's electoral votes to the candidate receiving the most votes in Connecticut. However, Connecticut’s true voice was about 900,000 votes for Hillary Clinton and almost 700,000 votes for Donald Trump.”[1008] [Emphasis added]

A state’s political “identity” is based on how all its citizens voted—not just how a plurality voted.

The National Popular Vote Compact would give voice to every voter in every state.

It is the current state-by-state winner-take-all method of awarding electoral votes that effectively disenfranchises voters—not the National Popular Vote Compact. The current system treats voters who supported a candidate who did not win the most popular votes in the state as if they did not exist.

Under the National Popular Vote Compact, every voter’s vote is directly added to the national total for his or her candidate.

Voters care more about who wins the presidency than who carried their state.

When voters watch presidential election returns, they are primarily interested in finding out which candidate won the presidency. The question of whether their preferred candidate won their state, congressional district, county, city, or precinct is of secondary concern.

When a voter’s preferred candidate loses the White House, it is no consolation that the candidate won a plurality in the voter’s own state. On Election Night in 2020, Donald Trump’s supporters in Texas were not celebrating because the Republican Party’s 38 nominees for presidential electors would be meeting in Austin in December to cast the state’s electoral votes for Trump.

The primary purpose of a presidential election is to choose the President—not presidential electors.

The primary purpose of a presidential election is to elect someone to serve for four years as the nation’s chief executive—not to choose the group of largely unknown party activists who meet briefly in the state Capitol in mid-December for the ceremonial purpose of casting electoral votes.

The average voter does not derive any satisfaction from knowing that some little-known activist associated with his or her political party won the ceremonial position of presidential elector. Indeed, it is the rare voter who even knows the name of any presidential elector.

Voters do not favor the current state-by-state winner-take-all method of electing the President, and most people would be happy if it were gone.

Both state and national polls conducted by numerous polling organizations show that voters do not favor the current method of electing the President, as shown by the numerous polls discussed in section 9.22.

We discuss below three polls in which voters were asked a push question that specifically highlighted the fact that the state’s electoral votes would be awarded to the winner of the national popular vote under the National Popular Vote Compact—rather than the winner of the statewide popular vote.

A survey of 800 Utah voters conducted on May 19–20, 2009, showed 70% overall support for the idea that the President of the United States should be the candidate who receives the most popular votes in all 50 states. Voters were asked:

“How do you think we should elect the President: Should it be the candidate who gets the most votes in all 50 states, or the current Electoral College system?”

By political affiliation, support for a national popular vote on the first question was 82% among Democrats, 66% among Republicans, and 75% among others. By gender, support was 78% among women and 60% among men. By age, support was 70% among 18–29 year-olds, 70% among 30–45 year-olds, 70% among 46–65 year-olds, and 68% for those older than 65.

Then, voters were pointedly asked a push question that specifically highlighted the fact that Utah’s electoral votes would be awarded to the winner of the national popular vote in all 50 states under the National Popular Vote Compact.

“Do you think it more important that a state’s electoral votes be cast for the presidential candidate who receives the most popular votes in that state, or is it more important to guarantee that the candidate who receives the most popular votes in all 50 states becomes President?”

Support for a national popular vote did drop after this push question was asked, but only from 70% to 66%.

On this second question, support by political affiliation was as follows: 77% among Democrats, 63% among Republicans, and 62% among others. By gender, support was 72% among women and 58% among men. By age, support was 61% among 18–29-year-olds, 64% among 30–45-year-olds, 68% among 46–65-year-olds, and 66% for those older than 65.[1009]

Similarly, a survey of 800 Connecticut voters conducted on May 14–15, 2009, showed 74% overall support for a national popular vote for President. The results for the first question, by political affiliation, were 80% support among Democrats, 67% among Republicans, and 71% among others.

Then, voters were asked the following push question that specifically highlighted the fact that Connecticut’s electoral votes would be awarded to the winner of the national popular vote in all 50 states.

“Do you think it more important that Connecticut’s electoral votes be cast for the presidential candidate who receives the most popular votes in Connecticut, or is it more important to guarantee that the candidate who receives the most popular votes in all 50 states becomes President?”

Support for a national popular vote dropped after this push question was asked, but only from 74% to 68%.

On the second question, support by political affiliation was 74% among Democrats, 62% among Republicans, and 63% among others.

Moreover, a survey of 800 South Dakota voters conducted on May 19–20, 2009, showed 75% overall support for a national popular vote for President for the first question and 67% for the push question.

Concern that voters will be dismayed when they discover that their state’s electoral votes were awarded to a candidate who did not carry their state.

In Nebraska in 2008, Barack Obama won the most popular votes in the state’s 2^nd congressional district (the Omaha area) and thereby received one electoral vote in the Electoral College. Obama received one of Nebraska’s electoral votes despite the fact that John McCain received the most votes in Nebraska as a whole.

Similarly, Joe Biden received one electoral vote from Nebraska in 2020—despite the fact that Donald Trump received the most votes in Nebraska as a whole.

Nebraska’s congressional-district method of awarding electoral votes was the choice of the people’s elected representatives in the state’s legislature. The public, candidates, and media all knew in advance that it was the law that would govern the awarding of the state’s electoral votes. In both 2008 and 2020, Nebraska’s law (passed in 1992) operated exactly as advertised, namely it delivered one of the state’s five electoral votes to the winner of the 2^nd congressional district—despite the fact that a different candidate won the statewide popular vote.

Nebraska’s legislature has had ample opportunity to repeal Nebraska’s congressional-district method of awarding electoral votes and replace it with the winner-take-all method of awarding electoral votes. Indeed, repeal bills have been introduced in the legislature almost every year to repeal the current law.

Moreover, the party (namely the Republican Party) that lost one electoral vote in 2008 and 2020 has controlled the state legislature by roughly a two-to-one margin in recent years.[1010]

In 2021[1011] and 2023,[1012], [1013] bills to change Nebraska’s district method of awarding electoral votes were again introduced in the Nebraska legislature. Those bills did not pass.

In 2024, despite the strong backing of Governor Jim Pillen and former President Donald Trump, the Nebraska legislature again rejected the bill.[1014] See section 9.35.1.

Similarly, in Maine in 2016 and 2020, Donald Trump won the most popular votes in the state’s 2^nd congressional district (the northern part of the state) and thereby received one electoral vote in the Electoral College—despite the fact that the Democratic presidential nominee had received the most votes in Maine as a whole. As in Nebraska, the party that lost one electoral vote in 2020 currently controls both houses of the legislature and the Governor’s office.

Moreover, the voters in both Nebraska and Maine have had access to the citizen-initiative process, which enables them to pass legislation that their legislature does not.

Concern that voters will be shocked when the national popular vote winner becomes President

Voters will not be shocked when the National Popular Vote Compact operates exactly as advertised and results in the winner of the national popular vote becoming President.

The reason is that the following events will have occurred before Election Day:

• The state legislatures and Governors of states possessing at least a majority of the electoral votes (270 of 538) will have responded to the wishes of their constituents and enacted the National Popular Vote Compact in their state (thus giving the National Popular Vote Compact sufficient support to take effect).
• A nationwide presidential campaign will have been conducted, over a period of many months, with everyone in the United States understanding that the presidential candidate receiving the most votes in all 50 states and the District of Columbia will become President.
• The public will have noticed that presidential candidates will have, for the first time, paid attention to voters in every state instead of just the voters in a handful of closely divided battleground states.
• The focus of polling during the campaign will have been on polls of the popular vote from the entire United States—not state-level polls in a handful of states. In fact, the concept of a battleground state would be obsolete under the National Popular Vote Compact.

Then, the National Popular Vote Compact will operate exactly as advertised and will deliver a majority of the electoral votes to the presidential candidate who received the most popular votes in all 50 states and the District of Columbia.

A state’s political identity would remain known under National Popular Vote.

For those who are concerned about state identity, information as to how many votes each presidential candidate received in a particular state (as well as every county, parish, city, town, district, or precinct) would be known to all—just as is the case today.

The concern that a state’s electoral votes might be cast, in some elections, in favor of a candidate who did not carry a particular state is a matter of form over substance.

The purpose of the National Popular Vote Compact is to replace the state-by-state method of awarding electoral votes with a system based on the national popular vote. Current winner-take-all laws enable a second-place candidate to win the presidency, make voters unequal, and make three out of four states and three out of four Americans politically irrelevant in presidential elections.

A thought experiment involving a hypothetical two-state interstate compact

One way to understand how the National Popular Vote Compact would operate is to consider it from the perspective of two states from opposite ends of the political spectrum—say, North Dakota and Vermont.

Politically, these states are almost mirror images of each other. They have approximately the same population, and they each possess three electoral votes. North Dakota is reliably Republican, and Vermont is reliably Democratic in presidential elections. They generate almost identical popular-vote margins for their favored presidential candidate. In 2020, North Dakota generated a 120,693-vote margin for the Republican presidential nominee, and Vermont generated a 130,116-vote margin for the Democratic nominee.

Under the current state-by-state winner-take-all method of awarding electoral votes, presidential candidates do not solicit the support of voters in North Dakota and Vermont, because neither party has anything to gain by paying any attention to them. These two states are not ignored because they are small. They are ignored because neither candidate has anything to win or lose by soliciting votes there. The Democratic presidential nominee is not going to carry North Dakota, and the Republican nominee is not going to carry Vermont.

Consider, for the sake of argument, a hypothetical two-state interstate compact in which both states enact a law agreeing to award their electoral votes to the winner of the combined popular vote in the two states. Such a compact would create a closely divided battleground “super-state” with six electoral votes.

Note that this hypothetical two-state compact operates differently from the National Popular Vote Compact in that North Dakota and Vermont would award their six electoral votes based on the combined popular vote from just those two states, whereas the National Popular Vote Compact would award the electoral votes of the enacting states based on the total popular vote in all 50 states and the District of Columbia.

Under this hypothetical two-state compact, voters in both states would suddenly matter in presidential campaigns. We can confidently make that statement, because presidential candidates pay considerable attention to closely divided states with six electoral votes. For example, the closely divided state of Nevada (which has six electoral votes) received 11 of the nation’s 212 general-election events in 2020 (section 1.2.1). The six electoral votes available from the two-state compact would be just as winnable and just as valuable as the six electoral votes available from Nevada.

The benefit to both North Dakota and Vermont of this hypothetical two-state compact would be that the issues and concerns of their voters would suddenly become relevant in the presidential campaign. Consequently, the candidates would start soliciting votes in those states. When presidential candidates need to solicit votes, they start thinking about the issues that are politically important to the voters involved.

The price to both North Dakota and Vermont of this hypothetical compact would be that North Dakota’s three presidential electors would not always be Republican, and Vermont’s three presidential electors would not always be Democratic. Under the hypothetical two-state compact, the presidential electors who meet in December in Bismarck and Montpelier would reflect the outcome of the combined popular vote in the two states—not just the vote in North Dakota and not just the vote in Vermont.

Currently, the vast majority of states and the vast majority of America’s voters are ignored by the presidential candidates because of the state-by-state winner-take-all method of awarding electoral votes. The National Popular Vote Compact would put every voter from all 50 states and the District of Columbia into a single pool of votes for purposes of electing the President. Under the National Popular Vote Compact, every voter in every state would be politically relevant in every presidential election. The Electoral College would reflect the choice of the people in all 50 states and the District of Columbia.

Footnotes

Tara Ross, a lobbyist against the National Popular Vote Compact who works closely with Save Our States, discussed a hypothetical minor-party candidacy of Texas Congressman Ron Paul when the Vermont legislature was debating the National Popular Vote Compact in 2011:

“Vermont probably did not nominate a slate of electors for Paul because he was not on its ballot. NPV’s compact offers a solution, but it is doubtful that voters in Vermont will like it. Paul would be entitled to personally appoint the three electors who will represent Vermont in the Electoral College vote. In all likelihood, he would select Texans to represent Vermont.”[1015] [Emphasis added]

Second, although Ross asserts that it is likely that Ron Paul would appoint Texans as Vermont’s presidential electors, historical evidence from the real-world shows that politicians would not behave in this manner.

Under the existing 1937 law in Pennsylvania, every presidential candidate, in every election, personally chooses every presidential elector in Pennsylvania.[1016]

Needless to say, no presidential candidate of either major political party has chosen an out-of-state presidential elector to be a member of Pennsylvania’s Electoral College in the many presidential elections since 1937. Indeed, it would be politically preposterous for a presidential candidate to gratuitously insult the voters of any state by selecting out-of-staters to the ceremonial position of presidential elector. It would be even more preposterous for someone who had just won the national popular vote (and was facing the task of unifying the country) to gratuitously insult the voters of any state.

Third, it would be unlikely that a minor-party presidential candidate would be strong enough to win the most popular votes nationwide, while being incapable of collecting the 1,000 signatures necessary to qualify for the ballot in Vermont. In fact, history shows that presidential candidates who have significant national support generally qualify for the ballot in every state as discussed in section 9.30.16.

Fourth, it would be extraordinary that a candidate who had just won the most popular votes in a nationwide election with perhaps 158 million votes could not find three supporters in Vermont.

Fifth, if anyone believes that Ross’ hypothetical scenario is politically plausible or potentially harmful, a remedy is readily available. Every state already has the power to adopt residency qualifications for presidential electors, and many have done so. As the U.S. Supreme Court said in Chiafalo v. Washington in 2020:

“Article II, §1’s appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint. … A State can require, for example, that an elector live in the State or qualify as a regular voter during the relevant time period.”[1017] [Emphasis added]

Sixth, the sole role of a presidential elector is to attend a single brief meeting in December for the purpose of dutifully casting a vote in the Electoral College. Unlike members of Congress, presidential electors do not cast discretionary votes on hundreds of anticipated and unanticipated issues over a multi-year period. That is, presidential electors have no ongoing role in setting public policy.

Even if a third-party presidential candidate were to perform the feat of winning the national popular vote, even if that candidate were unable to collect 1,000 signatures to get onto the ballot in Vermont, and even if that candidate were foolish enough to gratuitously insult Vermont by appointing three Texans to vote at the Electoral College meeting in Montpelier in December, the National Popular Vote Compact would nevertheless deliver its advertised result, namely the election to the presidency of the candidate who received the most popular votes nationwide.

Footnotes