9.43 Myth about Origins and Funding of the National Popular Vote Campaign

Hans von Spakovsky of the Heritage Foundation has stated:

“National Popular Vote Inc. is one of California’s lesser-known advocacy organizations. Its chairman, John Koza, is best known as the co-founder of Scientific Games Inc., the company that invented the instant lottery ticket.

“Now Mr. Koza and his fellow liberal activists want to ‘scratch off’ the Electoral College.”[1054] [Emphasis added]

The facts are that over 80% of the contributions supporting the National Popular Vote effort over the years have come—in about equal total amounts—from

• Tom Golisano (a pro-life, anti-Buffett-rule, registered Republican businessman currently residing in Florida) and
• John R. Koza (a pro-choice, pro-Buffett-rule, registered Democratic businessman residing in California).

John R. Koza’s contributions have largely been spent by National Popular Vote, a 501(c)4 non-profit corporation.

Tom Golisano’s contributions have largely been spent by Support Popular Vote, a 501(c)(4) non-profit corporation (originally called “National Popular Vote Initiative”).

Footnotes

Save Our States (the leading group that lobbies against the National Popular Vote Compact) claims:

“The idea behind National Popular Vote was developed by three law professors.”[1055]

The facts show otherwise.

In 1971, Dale Read Jr., then a student at Duke University Law School and later a practicing attorney in the Seattle area, wrote the first known written discussion of the ideas underlying the National Popular Vote Compact.

Read’s work was contained in a 105-presearch paper entitled “Electoral College Reform: Direct Popular Vote Without a Constitutional Amendment.”[1056]

In 1976, Read published a shortened version of his 1971 paper in the Washington Law Review.[1057] Read said:

“The states, without federal action, possess the capability of implementing the direct popular election of the President.”

Read’s 1976 article in the Washington Law Review described what he called “The National Vote Plan as follows:

“The states possess the power to institute direct popular vote and they can do so more readily than the Constitution can be amended. Reform can be accomplished if the states change their election laws to require electors to support the national popular-vote winner, rather than the individual state winners.”

“This National Vote Plan would eliminate the winner-take-all system and its resulting inequities just as effectively as would a constitutional amendment implementing direct popular vote. Technically, an indirect electoral system would remain, but the faults presently attributable to such a system would be substantially eliminated, because the electors would vote for the national winner.”[1058]

Read’s proposal envisioned states separately passing similar laws—what we today call the “single-state” approach (discussed in section 9.44.1 in connection with a different proposal made in 2019). Read estimated that the plan would work if adopted by states possessing perhaps 108–135 electoral votes:

“The plan can work even if fewer than one-half of the electoral votes are committed to the national winner, because the winner will undoubtedly receive electoral votes from states that retain the existing system. Indeed, states that hold 20-25 percent of the total electoral college votes (108–135 electoral votes) can effectively implement the system.”[1059]

In the 1990s, Congressman (and later U.S. Senator) Charles Schumer of New York proposed a bi-state compact in which New York and Texas would pool their electoral votes in presidential elections. Both states were, at the time, noncompetitive in presidential politics and therefore received little attention in presidential campaigns except for as a source of donations. Schumer observed that the two states had almost the same number of electoral votes (at the time, 33 for New York and 32 for Texas)[1060] and that the two states regularly produced majorities of approximately the same magnitude in favor of each state’s dominant political party (at the time, about 60% for the Democrats in New York, and about 60% for the Republicans in Texas). The purpose of Schumer’s proposed bi-state compact was to create a presidentially competitive super-state (which would have had more electoral votes than California had at the time) that would attract the attention of the presidential candidates during presidential campaigns. Schumer attempted to interest Texas Republicans in the proposal, but no action ever occurred.

The 2000 election stimulated discussion by a number of people of ideas about how direct election of the President might be achieved by state-level action.

On December 30, 2000, Brent White of Seattle wrote the following on the “Full Representation” mail server entitled “Direct Prez Election W/O Amendment.”

“If the goal is to eventually have the president elected directly, then there is a straighter path to get there—one that does not require an amendment to the US Constitution.

“Article II of the Constitution grants each state legislature the power to determine how that state’s presidential electors will be allotted. A state legislature could, if it so chose, award that state’s electors to the winner of the national popular vote.

“If even one state gives its electoral votes to the national popular winner, the voters of every other noncompetitive state would be instantly re-enfranchised, causing an immediate bump in the presidential turnout.”

“If several Democratic-leaning and several Republican-leaning states give their electoral votes to the national popular winner, they would form a block that virtually assures victory to the popular winner.

“If states carrying a majority of the Electoral College do this, they will make the popular winner the automatic electoral winner.”[1061] [Emphasis added]

On December 31, 2000, Tony Anderson Solgard of Minneapolis commented on White’s web posting and wrote:

“Brent’s proposal … would provide a result consistent with the national popular vote. And that is precisely the point: the presidency is a single-winner office without a need for proportionality in an electoral college.

“The political problem would be the criticism that it gives away the decision of each state’s voters to the nation as a whole. And unless all the other states went along with it, you couldn’t convince one state to disenfranchise its voters.

“To get around this, a variation on Brent’s idea would be to put a multi-state compact clause into the proposal: when X number of states agree to adopt the same allocation plan, then the law goes into effect.”[1062] [Emphasis added]

At a January 11–12, 2001, conference and in an April 19, 2001, web posting, Professor Robert W. Bennett, former Dean of the Northwestern University School of Law, observed that a federal constitutional amendment was not necessary to achieve the goal of nationwide popular election of the President, because the states could use their power under Article II of the U.S. Constitution to allocate their electoral votes based on the nationwide popular vote.[1063], [1064]

In June 2001, the Harvard Law Review published an article on the Electoral College.[1065]

In December 2001, law Professors Akhil Reed Amar and Vikram David Amar cited Professor Bennett’s earlier 2001 posting and continued the discussion about the fact that the states could allocate their electoral votes to the national winner of the popular vote.[1066]

One variation of the proposals made by Professors Robert W. Bennett, Akhil Reed Amar, and Vikram David Amar was based on the politically implausible premise (discussed in section 9.44.1) that single states would unilaterally enact laws awarding their electoral votes to the nationwide winner without regard to whether other states had enacted similar legislation.

Another variation was based on the impractical assumption (discussed in section 9.44.1) that carefully selected pairs of states of equal size and opposite political leanings could be found to enact the proposal.

Initially, these writers argued the resulting multi-state arrangement would not constitute an interstate compact, and, as a result, the proposed arrangement would not require congressional consent.[1067] Later, the use of an interstate compact was suggested.

In 2002, Bennett expanded his thoughts in subsequent publications suggesting several variations on his basic idea. [1068], [1069]

In September 2004, the authors of this book started developing the National Popular Vote Compact.

National Popular Vote held its initial press conference in Washington, D.C., and released its book Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote. The press conference featured former Congressmen John Anderson (R–Illinois and Independent presidential candidate) and John Buchanan (R–Alabama), former Senator Birch Bayh (D–Indiana), Common Cause President Chellie Pingree, FairVote Executive Director Rob Richie, National Popular Vote President Barry Fadem, and Dr. John R. Koza, originator of the National Popular Vote Compact.

Later in 2006, Jennings “Jay” Wilson analyzed the numerous variations proposed by Professors Robert W. Bennett, Akhil Reed Amar, and Vikram David Amar in 2001 and 2002. Wilson’s analysis points out the political impracticality of the various proposals made in 2001 and 2002.[1070]

These earlier proposals differ from the authors’ proposed “Agreement Among the States to Elect the President by National Popular Vote” in several respects.

None of the earlier proposals contained a provision making the effective date of the system contingent on the enactment of identical laws in states that collectively possess a majority of the electoral votes (i.e., 270 of the 538 electoral votes). No single state would ever be likely to unilaterally enact a law awarding its electoral votes to the nationwide winner. For one thing, such an action would give the voters of all the other states a voice in the selection of the state’s own presidential electors, while not giving the enacting state the benefit of a voice in the selection of presidential electors in other states. Moreover, enactment of such a law in a single state would encourage the presidential candidates to ignore the enacting state. Such unilateral action would not guarantee achievement of the goal of nationwide popular election of the President. These issues are discussed in detail in section 9.44.1 in connection with a different 2019 proposal.

Moreover, the earlier proposals do not work in an even-handed and non-partisan way if enacted by states possessing less than a majority of the electoral votes. Suppose, for example, that a group of states that consistently voted Democratic in presidential elections were to participate in an arrangement—without the electoral-majority threshold—to award their electoral votes to the nationwide popular vote winner. Then, if the Republican presidential candidate won the most popular votes nationwide (but did not carry states with a majority of the electoral votes), the participating (Democratic) states would award their electoral votes to the Republican candidate—thereby achieving the desired result of electing the presidential candidate with the most popular votes nationwide. On the other hand, if the Democratic presidential candidate won the most popular votes nationwide (but did not carry states with a majority of the electoral votes), the similarly situated Democratic presidential candidate would not receive a symmetric benefit. Instead, the Republican candidate would be elected, because the Democratic candidate could not receive any additional electoral votes from the group of states involved, because the Democratic candidate would already be getting all of the electoral votes from that group of states. In short, a Republican presidential nominee would be the only beneficiary if only Democratic states participated in such an arrangement, and vice versa. In fact, an arrangement without an electoral majority threshold would operate in an even-handed and non-partisan way only in the unlikely event that the participating states were equally divided (in terms of electoral votes) among reliably Republican and reliably Democratic states. In contrast, if the states participating in the arrangement possess a majority of the electoral votes, the system operates in an even-handed and nonpartisan way without regard to the political complexion of the enacting states. With an electoral majority threshold, the political complexion of the enacting states becomes irrelevant.

In his 2006 article, Wilson proposed his own “bloc voting” variation (in which only the popular votes of only the enacting states would decide which candidate received the electoral votes of the enacting states).[1071] The obvious flaw of this variation is illustrated if one considers a scenario in which one or more Republican-leaning states were to enact the “bloc voting” proposal. If, subsequently, a group of Democratic-leaning states that together generated a larger popular-vote margin than the existing Republican group were to enact Wilson’s “bloc voting” proposal, all the electoral votes of the less-muscular Republican group would be go to the Democrats. In other words, the Democratic group of states would have commandeered the electoral votes of the Republican states. More important, this would occur irrespective of whether the Democratic presidential candidate received the most popular votes nationwide.

The authors submit that the proposed “Agreement Among the States to Elect the President by National Popular Vote” does not have the above problems of any of the other variations that have been previously discussed.

In any event, specific legislative language was never created for any of the other proposals, and none of the other proposals has ever been introduced in any state legislature. Soon after National Popular Vote’s initial press conference on February 23, 2006, the National Popular Vote Compact had been introduced in all 50 state legislatures.

Footnotes