How to Circumvent the Electoral College and Enact a Popular Vote

Fourteen states have signed a law pledging their electoral votes to the national popular vote winner, regardless of whether that candidate wins the state.
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At a recent CNN town hall in Jackson, Mississippi, Elizabeth Warren laid out her ambitious policy platform to a crowd of rapt attendees. Of all her ambitious proposals, it was her promise to abolish the electoral college, per the New York Times, that received some of the greatest plaudits. "Every vote matters, and the way we can make that happen is that we can have national voting, and that means get rid of the electoral college," she proclaimed.

Warren isn't the only Democratic candidate to sound that note. South Bend Mayor Pete Buttigieg has called for an end to the electoral college; so too has Washington Governor Jay Inslee, and New York Senator Kirsten Gillibrand. And Democratic presidential hopefuls aren't the only ones now striving to get rid of the electoral college. Last week, Senators Brian Schatz (D-Hawaii), Dick Durbin (D-Illinois), and Dianne Feinstein (D-California), joined Gillibrand in introducing a constitutional amendment that would do away with the electoral college, resulting in the direct election of presidential candidates via popular vote. Senator Jeff Merkley (D-Oregon) also introduced a package of election reforms including a bill aimed at getting rid of the electoral college.

Such a move would be popular: In the aftermath of the 2016 election—one of two elections since 2000 in which the winner lost the popular vote—some 60 percent of Americans said they'd prefer to see the president elected via popular vote. That number has remained high, with a recent Politico poll finding that some 50 percent of voters continue to hold that conviction.

Polling data on the favorability of the electoral college has long indicated that American voters oppose the program, but that popular disapproval has rarely crossed over into serious debate or policy proposals within the chambers of the federal government. But even with abolishing the electoral college's current traction within mainstream politics, these proposals are extremely unlikely to be enacted: they require passage of a Constitutional amendment with a two-thirds vote in both chambers of congress, and ratification by three-fourths of states. Andrew Shankman, history professor at Rutgers University–Camden and author of Original Intents: Hamilton, Jefferson, Madison and the American Founding, says, "I don't think there's any chance at all of there being an amendment."

In lieu of an amendment, however, there is a campaign to circumvent the electoral college that's been gaining momentum in state houses across the country. The National Popular Vote Interstate Compact is a law that pledges a state's electoral votes to whichever candidate is the winner of the national popular vote, even if that candidate loses that particular state. In the past few weeks alone, both Colorado and New Mexico have passed laws signing themselves onto the collective, bringing the total number of committed states to 14 overwhelmingly blue states—including California, Illinois, and Maryland (plus the District of Columbia)—accounting for 189 electoral votes in total. The bill will only take effect once states totaling 270 electoral votes have passed it into law.

The National Popular Vote Interstate Compact would provide a legal and effective workaround to the electoral college while avoiding the burdensome amendment procedures. The electoral college would still exist, but would be altered by the state's own procedures such that it would yield a functional popular vote election result.

While it's grown quickly in popularity, there's little indication that the requisite 270 votes will be achieved by the 2020 election. Part of the problem is the notable absence of historically red states from the list—though the law isn't partisan, Republicans have benefited from the workings of the electoral college more than Democrats and would be far less enthusiastic about the notion of a true popular vote. "The Republican Party depends on every institutional benefit that allows a minority to rule, it's the only real chance they have to win the presidency," Shankman says.

But even if the compact fails to reach critical mass, there are other ways that states could reorient the electoral college on their own, according to Robert Bennett, who wrote about the nationwide popular vote movement in his 2006 book Taming the Electoral College. Two states on opposite sides of the political aisle—New York and Texas, for example—could choose to pair up and offer their shared electoral votes to the nationwide popular vote winner, which would immediately change the campaigning process, if their respective leadership decided there was sufficient popular opposition to the electoral college. Two smaller swing states, like Michigan and Wisconsin, could also bundle their votes, which would alter the electoral calculus as well. "It would make it very unlikely that the loser of the popular vote would win," Bennett says.

Any state-based circumvention that doesn't enshrine the procedure constitutionally comes with a certain degree of risk. Subsequent state legislatures and governors could choose to withdraw their state from the agreement, which means that trust would play an essential role in the pact's viability. And there's always the problem of faithless electors, who cast their votes against the voting wishes of the region they represent. In 2016, there were seven such defectors, including five Democrats, who cast votes for Colin Powell, Faith Spotted Eagle, and Bernie Sanders, and two Republicans who gave their votes to John Kasich and Ron Paul.

But despite those possible weaknesses, the National Popular Vote compact could gain enough support to prove the feasibility of major democratic, procedural reforms. A serious attempt to retool the electoral college could provide the inspiration to initiate a nationwide reckoning with other less democratic parts of the federal government as well. Democratic senators received far more votes on the whole than Republicans in the most recent election cycle, yet Republicans maintain a majority advantage in the Senate. Representation in the House of Representatives has often skewed away from popular vote totals. So even if the conversation surrounding the electoral college never rises above the level of rhetoric, it could play a key role in reshaping the democratic process.

"The electoral college is a flashpoint," Shankman says. "The fact that the conversation is happening shows that mainstream people are becoming disaffected from our nation's political institutions. That should be noted as significant looking forward; it's a scary thing."

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