An Attempt to Upend the Electoral College, Explained

A push for a national popular presidential vote faces constitutional problems.

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Protesters demonstrate after the election of Donald Trump to the presidency on November 13, 2016, in Philadelphia. (Photo by Mark Makela/Getty Images)

Can states frustrated with the Electoral College circumvent it, even without a constitutional amendment?

Lawmakers in 16 states and the District of Columbia think so: Their legislative bodies have passed measures pledging their electoral votes to the presidential candidate who wins the national popular vote, regardless of how the candidate actually fared in those particular states.

But the effort’s critics—and even some supporters—say that the compact creates a host of constitutional concerns.

How does it work?

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  1. Avatar photo
    Ben Connelly

    This is a terrible idea. Every previous democratizing reform has made things worse. This would be a terrible plan.

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  2. Soccerdaddy08

    I like the Electoral College. It makes the candidates work for voters.
    Trump won in 2016 because he crisscrossed the country until election day. He actually listened to his vote counters and went wherever he was told to go. Hillary did not put as much work in as Trump and lost.
    As a never Trump person I was not happy. That being said, I know if Hillary had won the investigation circus would have started on day one. There would have been no good outcome of the 2016 election either way.
    We really need better candidates

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    1. BPhillips

      Eh, If you live in a deep red or deep blue states presidential candidates pretty much ignore you.

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  3. Tom Johnson

    What would happen if an individual state, apart from any compact with others, decided right now to start awarding its electoral votes to the popular vote winner?

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    JohnD

    I think the closing thought experiment comment is spot on. Despite the likely unconstitutional nature of the compact, in a practical sense I see it unlikely that California will give there electoral votes to a Republican…they would likely back out at the 11th hour if it looked likely a Republican would win the popular vote. Plus election decentralization actually helps ensure election safely; it is likely easier to hack into one national election than 50 separate ones. I think we will have the electoral collage with us for quite some time!

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  5. R. James

    The country is too big and too divided to settle the Presidency by a national popular vote.

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  6. Georges

    My guess is the dems could dominate presidential elections for decades to come by a very small shift towad the political center.
    A small price to pay indeed and they seem constitutionally (pun intended) incapable of doing this.
    Nope, they’d rather try an end run around the constitution etc. One that will bite them should they ever find themselves in the popular minority.
    And they call the gop the stupid party. Sheesh.

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    1. Avatar photo
      Jeff Younger

      They have the same short-sighted approach to the Senate filibuster (although that’s not a Constitutional issue). Progressives want it all, right now, and if that pesky Constitution gets in the way, too bad. They seem convinced, like their patron Saint Barry the Pious, that they’ll be a natural majority forevermore, and they might as well speed up the process. Meanwhile, something as simple as a couple of flipped Senate seats would make the Democrats scream bloody murder about the need for the filibuster’s return, and a popular vote win for a GOP candidate who loses the EC would set Democrats hair on fire if their “compact” bit them in the butt. Could you imagine electors from California flipping to the GOP nominee because he won the national vote while losing CA? I can’t. I’m certain they would find a way to weasel out of the compact. Like most scenarios, the rules only apply for Democrats when they are convenient. We need to remain flexible, right? “Living Constitution” and all that jazz, right?

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      1. Georges

        In my not so distant younger years I would have expressed things very much as you have. Your example about CA electors flipping their votes to a gop candidate is priceless.
        Now I just shake my head at the silliness of it all.
        The sad part - for the dems anyway and perhaps the country - is that victory is within their grasp, thanks in no small part to gop fecklessness. But they cannot push back against their looney left flank. It ought to be easy: paraphrasing Bill Maher, if it looks like a headline from the Babylon Bee DON’T DO IT. It really is that simple guys.
        This opportunity will not last forever.
        He who does not when he may, when he will he shall have nay.

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    Rjosephpaquette

    The other problem with a national popular vote, now California has to trust Texas doesn’t stuff the ballot box and vice versa.

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  8. Ken Motamed

    "Supporters also say a national popular vote scheme would encourage presidential candidates focusing on battleground states at the expense of others." Shouldn't that be "discourage"?

    Also, there are no "purple-leaning" states. You must have meant blue-leaning. Good piece, otherwise.

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    Rick Henderson

    Easier than amending the U.S. Constitution would be a state-by-state effort to require some sort of proportional representation among state electors, as is done in Maine and (I think) Nebraska. State legislatures or voters via referendum would decide the method, and it wouldn’t interfere with the federal constitution at all.

    The winning party in each congressional district gets one EV, and the statewide winner gets two. Or EVs are apportioned based on the statewide presidential vote (or the vote for the statewide election that garners the most votes), etc.

    It’s doable. I think this method might actually reduce the influence of blue states in presidential elections, however, because even blues states elect some Republicans to Congress. But it would be legal and more “democratic.”

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    1. Avatar photo
      TheMatMan

      The issue with splitting a state's electoral votes is it diluted the state's power.

      Right now, winning a purple state like Wisconsin is worth 10. If they go proportional, winning is worth 2-3 because the loser is picking up some of those 10. If you're solid in the red or blue camp, splitting the electoral delegates only helps the "wrong" team.

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      Dave.W.Boyd

      Such a system would have led to Republican victories over Barack Obama in 2008 and 2012. The concentration of Democratic support in a relatively few urban districts means that even Obama in his victorious campaigns only won a minority of Congressional Districts. I am not sure how 2020 would have shaken out in this regard
      The only way we will get rid of the Electoral College is if, sometime relatively soon, the Republicans are screwed by the electoral college system, creating a bipartisan consensus. This could happen, as in some recent elections, notably 2008 the EC actually gave the Democrats a tailwind (that Obama didn't need.)

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    3. Ken Motamed

      You're right about this approach not running afoul of the Constitution. But I don't see how the scheme would reduce the influence of blue states. As you said it yourself, it would be a state-by-state effort. I don't see deep-blue states giving up any electoral advantage by giving some of their electoral votes to the Republican candidate.

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  10. Jack H Wolf

    As much as we might argue the propriety and/or constitutionality the fact remains that this is very unlikely to go anywhere.
    This was best explained by Nate Silver of 538 in this Wiki on the NPV:
    "Political analyst Nate Silver noted in 2014 that all jurisdictions that had adopted the compact at that time were blue states (all of the states who have joined the compact then and since have given all of their electoral college votes to the Democratic candidate in every Presidential election since the compact's inception), and that there were not enough electoral votes from the remaining blue states to achieve the required majority. He concluded that, as swing states were unlikely to support a compact that reduces their influence, the compact could not succeed without adoption by some red states as well.[228]
    And it is clear to me that no red state is going to support it.

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