A battle for the popular vote

Millions of ballots are cast in a presidential election, but winning the White House comes down to just this: 270 votes.

That’s the majority in the Electoral College, which picks the president. Sometimes the selection follows the national popular vote, sometimes not, and a candidate can become president by winning as little as 11 states.

Of the 45 presidents who have served since the founding of the Republic, five received fewer votes than their rivals but won in the Electoral College, including Donald Trump in 2016.

The states would award their electoral votes in presidential elections to whichever candidate receives the most popular votes across all 50 states and the District of Columbia.

The issue is especially critical in California, the nation’s most populous state, which overwhelmingly supported Trump’s rival, Hillary Clinton.

This time around, a number of states are banding together to try to make sure that the popular vote winner and the winner of the election are one and the same.

And that brings us to the National Popular Vote Interstate Compact, or NPVIC.

The NPVIC is an agreement signed by several states to award their electoral votes in presidential elections to whichever candidate receives the most popular votes across all 50 states and the District of Columbia.

Essentially, it is an agreement by the states to bind their respective electoral votes to the popular vote. The compact, if adopted by enough states to reach the Electoral College majority of 270 votes, would guarantee that whoever wins the popular vote would also win the presidency.

“If proponents were serious about making the process more Democratic, they would support proposals in states to award the electoral votes by congressional district, ensuring a robust presidential campaign in every state.” — Richard Temple

So far, the NPVIC has been enacted in 16 jurisdictions, including large electoral states such as California, Illinois, New York, and New Jersey, as well as smaller states such as Virginia, Delaware, Hawaii, Rhode Island and the District of Columbia.

Altogether, the 15 states and D.C. have 196 electoral votes, or 74 votes shy of the 270 needed to elect a candidate. They represent 36.4% of the Electoral College members.

The idea behind the NPVIC was first introduced in 2001 by Northwestern University Law Professor Robert Bennett in an academic publication. In 2007, the NPVIC legislation was introduced to 42 states, and Maryland became the first state to join the compact in April of the same year. California adopted the bill in 2011 under former Gov. Jerry Brown, making it the ninth jurisdiction to do so.

Now, in light of the 2016 election and looking towards 2020, the decade-old effort is coming back to national prominence.

Republican critics of the NPVIC argue that it a partisan attempt for Democrats to effectively bypass the Electoral College system, weaken President Trump’s reelection chances, and enable them to win without a traditional electoral college majority.

Since 1992, Democrats have won the popular vote in every presidential election except 2004. Republicans fear that enacting the NPVIC, especially with the support of large electoral states such as California, New York, Illinois, and New Jersey, would give Democrats an unfair advantage.

Constitutionally, the National Popular Vote Interstate Compact would modify the way participating states follow Article II, Section 1, Clause 2 of the U.S. Constitution.

Effectively, the weight of those states in the popular vote could overpower the combined voting power of smaller, more rural, and traditionally red states.

“If proponents were serious about making the process more Democratic, they would support proposals in states to award the electoral votes by congressional district, ensuring a robust presidential campaign in every state.  They won’t because they aren’t,” said veteran political strategist Richard Temple of McNally Temple Associates.

The mostly Democrat proponents of the NPVIC argue that candidates under the current “winner-take-all” system tend to focus disproportionately on battleground states, not only during the election but also in terms of policy and increased federal aid.

Advocates also emphasize that 5 out of the 45 U.S. presidents have come into office without winning the popular vote, noting that near-misses in only one state can cost the popular vote candidate the entire election.

In 2016, Trump lost by 2.86 million votes, but won the Electoral College vote by 304-to-227 over Hillary Clinton, a victory attributed in part to razor-thin margins in three battleground states — Michigan, Wisconsin and Pennsylvania.

Constitutionally, the National Popular Vote Interstate Compact would modify the way participating states follow Article II, Section 1, Clause 2 of the U.S. Constitution, which established the Electoral College but left it to the states to decide how the electors are chosen.

So far, all the states that have adopted the compact are blue states, and there are not enough electoral votes in remaining Democratic states to carry the NPVIC to 270.

The current winner-take-all system is in effect in 48 of the 50 states — Maine and Nebraska are outliers — but it is not a constitutional obligation.

There is still debate over whether the NPVIC constitutes a new interstate compact and would thus require congressional approval under the Compact Clause. Still, organizers of the NPVIC have stated they plan to seek congressional approval if enough states adopt the legislation.

Political observers are skeptical about whether the full compact ultimately would take effect before the 2020 elections.

“It’s kind of like a pie in the sky as far as I’m concerned,” said campaign data expert Paul Mitchell of Political Data, a company that markets election information to both major parties.

“Even if the NPVIC went to Congress, representatives might take issue with codifying something that may not make sense beyond today’s polarized political climate,” he added.

So far, all the states that have adopted the compact are blue states, and there are not enough electoral votes in remaining Democratic states to carry the NPVIC to 270.

Colorado is the only swing state to have adopted the compact since 2014, and most swing states appear unlikely to support legislation that reduces their influence.

“With the Electoral College you almost have to be a calculus expert.” — Roger Salazar.

The NPVIC bill has passed at least one house in eight additional states — Arizona, Arkansas, Maine, Minnesota, Michigan, North Carolina, Nevada and Oklahoma — and these states together total 75 electoral votes.

Recently, however, Maine’s House defeated the bill and Nevada Gov. Steve Sisolak vetoed after it passed both chambers. In Minnesota, the state Legislature adjourned without acting on the legislation.

For California, a state that has consistently voted Democrat since 1992, this new policy could effectively guarantee that the desires of its large electorate are reflected in presidential election outcomes.

Conversely, if a Republican candidate managed to secure the popular vote, under the NPVIC California would be forced to give up its 55 electoral votes to the candidate regardless of the state electorate’s majority preference.

Beyond the voting system, if enacted, the National Popular Vote Interstate Compact would also fundamentally alter campaign strategies across the board.

“With the Electoral College you almost have to be a calculus expert,” said political consultant Roger Salazar of ALZA Strategies. He said  a national popular vote would broaden the scope of candidate conversations and force them to speak to a wider audience than they do now.

It is possible that with the NPVIC coastal and urban areas such as California would receive more attention from candidates.

The math of the Electoral College is daunting.

The number of electors in a state is equal to its number of U.S. senators, plus the number of members of Congress. Each state, large or small, has two senators and at least one member of Congress, for three electoral votes. California, with its two senators and 53 members of Congress, has 55 electoral votes, the largest of any state.

A presidential contender could win the election with only 11 of the nation’s 50 states — California (55), Texas (38), New York (29), Florida (29), Illinois (20), Pennsylvania (20), Ohio (18), Michigan (16), Georgia (16), North Carolina (15) and New Jersey (14).

Conversely, a candidate could lose 39 states and still win the presidency.

Under NPVIC, the current battleground states would no longer receive such intense focus as every vote in every state would effectively count equally in getting to 270.  The states in the NPVIC would also not become the sole focus, as their electoral votes would only mirror the nation-wide popular vote outcome.

It is possible that with the NPVIC coastal and urban areas such as California would receive more attention from candidates, as they currently are often shunned due to overt partisanship.

In theory, at least, candidates would have to spend their time and resources gaining the most votes possible and focusing less on the number of electors a state has or whether it will tip the balance in their favor.

Others aren’t convinced.

“To think that we’re going to see more resources and effort made in California which will still just be an ATM state to presidential candidates, I think, is a misguided way of thinking,” Republican Rep. Doug LaMalfa of Richvale, a former state lawmaker, cautioned back in 2011 when California approved NPVIC legislation.
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Editor’s Note: Corrects electoral college vote in 19th graf to 304 for Trump and 227 for Clinton. Nahima Shaffer is a Capitol Weekly intern from the University of California at Davis.