US Voters are Closer than Ever to Electing the President During Elections

It may surprise some that the winner of US presidential elections is not necessarily the candidate who receives more votes than their opponent. For a country that likes to consider itself a democracy, such a reality is a bit contradictory from what many of us have been led to believe in our education and much of the media. In modern times alone there have been two elections where the president lost the popular vote but was still elected president. George W. Bush won in 2000 despite losing to Al Gore by 543,000 votes and Donald Trump won in 2016 despite losing the popular vote to Hillary Clinton by 2,868,686 votes.

So how are US presidents really chosen, if not by national vote totals? Answer: The Electoral College.

In short, the electoral college consists of 538 electors who physically cast their votes in order to choose the president. The number 538 comes from all of the members of the US House of Representatives (435) and the Senate (100) combined with Washington D.C’s votes (3), but note that these elected officials are not electors in the electoral college themselves- they instead represent each state’s electoral college votes. Each state is appointed one electoral vote for each Senate and House member they have in US Congress. Michigan, for example, currently has 2 state senators and 14 house members for a total of 16 Electoral College votes total.

When you as a regular voter cast your ballot for president, you are not technically choosing who the president will be but are instead voting for a college of electors who will then make the choice for you.

The origins of the electoral college go way back to the 1787 Constitutional Convention in Philadelphia. The electoral college was the result of a compromise between northern states who had higher populations and thus more voting power and southern states who had a smaller population, 40% of which was enslaved at the time. A political battle ensued, the result of which the electoral college was born, with each slave counting as three-fifths of a person for representation and electoral college votes being allotted by the number of US House of Representatives seats from each state coupled with each state’s two Senators.

To clarify: The House of Representatives itself represents a proportional system of representation. This means the states with higher populations have more Representatives than smaller states, and this number potentially changes every time a census is conducted. Michigan, for example, had as much as 21 electoral votes in the 1960s and 1970s because more people lived in the state, thus meaning Michigan had more House of Representative members or seats in US Congress. The Senate, on the other hand, benefits smaller states, since the smallest of states still get the same two Senators (and thus two electoral votes) as the states with the largest states. When some refer to the Senate as a minority institution, this is partly what they are referring to.  

One may then ask: who are these electors in the Electoral College and how are they chosen? The electors are chosen by a different process depending on each state. Some are chosen by the state’s political parties, some by the presidential candidates themselves. For example, Michigan, according to the Secretary of State:

“Presidential candidates on the Michigan ballot submit a list of 16 qualified electors to the Secretary of State’s Office. The 16 electors whose candidate wins Michigan’s popular vote will participate in the Electoral College at the State Capitol in December.”

In other words, for 2016, both Hillary Clinton and Donald Trump chose 16 people to represent them in the Electoral College should they win the state. Donald Trump won Michigan by 10,704 votes, (47.50% of votes to Clinton’s 47.27%) so all of Trump’s chosen electors ended up casting their vote for him, resulting in Trump’s 16 Electoral College votes from Michigan.

But wait, you may ask: since Trump won by only 0.23% in Michigan, wouldn’t it make sense for him to win a somewhat even but greater proportion of electoral votes than Clinton, say 9 of 16 votes instead of all 16? A proportional representation model may make more sense, but most states currently have a winner-take-all system in place which means that the candidate who wins more votes (basically one more vote than the other candidate) wins the entire state’s electoral vote total. The exceptions are Maine and Nebraska, who apportion their electoral votes by congressional district as opposed to the whole state.

So what is keeping the electors in the Electoral College from voting for anyone they damn well please? Technically, they could vote for anyone, but as the US National Archives puts it:

“There is no Constitutional provision or Federal law that requires Electors to vote according to the results of the popular vote in their states. Some states, however, require Electors to cast their votes according to the popular vote. These pledges fall into two categories—Electors bound by state law and those bound by pledges to political parties.

The U.S. Supreme Court has held that the Constitution does not require that Electors be completely free to act as they choose and therefore, political parties may extract pledges from electors to vote for the parties’ nominees. Some state laws provide that so-called “faithless Electors” may be subject to fines or may be disqualified for casting an invalid vote and be replaced by a substitute elector. The Supreme Court has not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution. No Elector has ever been prosecuted for failing to vote as pledged.

Today, it is rare for Electors to disregard the popular vote by casting their electoral vote for someone other than their party’s candidate. Electors generally hold a leadership position in their party or were chosen to recognize years of loyal service to the party. Throughout our history as a nation, more than 99 percent of Electors have voted as pledged.”

In other words, if an elector disregards the state’s popular vote, there will likely be ramifications of some sort, but it is a bit of a grey area since almost no electors have done so in the past.

If our Electoral College system seems complicated and convoluted, that’s because it is- remember, it was a hotly contested compromise from over 200 years ago when slavery still existed. But there is an alternative: tally all the votes nationwide and then have the candidate who receives the most votes win. In other words, a national popular vote: one person, one vote.

Enter the National Popular Vote Movement.

Or the National Popular Vote Interstate Compact, to be exact. Their website is here. This compact (which we’ll refer to as NPV), started in 2006, is a way to adopt a popular vote but still remain within the confines of the electoral college- in other words, getting around the electoral college without removing it entirely. Before I explain how NPV works, here is how the US Constitution delegates the choosing of the US president (bold is mine):

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector”

This is understandably arcane language and typical of political documents, but it should all make more sense in light of what we’ve discussed above. Essentially, the bold text affirms that the states have the power to choose how a president is chosen via electors, but the electors themselves cannot be an elected official.

Given this, here is how NPV works:

Step 1): this bill is introduced and passed in a state legislature (House of Representatives and Senate) and signed by the governor. Once this happens, the electoral votes for that state are then tallied into NPV’s electoral college vote total.

Step 2): Once enough states pass the bill to add up to 270 electoral college votes (which is a majority of the electoral college total of 538), the bill then activates and takes effect, thus ensuring that the next president is chosen via a popular vote. In other words, once the bill activates after a majority of electoral votes is achieved, the states who passed it then allocate their majority electoral college votes to whichever candidate wins the nationwide popular vote, instead of who won their particular state’s votes.

Thus, NPV uses the rules of the electoral college to institute a national popular vote without eliminating the electoral college entirely. Step 2 is where the process gets confusing, so note that currently in states who pass the NPV bill, their electoral votes are still allocated via the current method until enough states pass the bill to add up to 270 electoral college votes.

Let’s take a fictional scenario and say that Michigan is the first state to pass the NPV bill. The Michigan House and Senate pass the bill, then the governor signs it, thus adding all of Michigan’s 16 electoral votes to the total, which in this case would be only 16 votes since it’s the first state to join the compact. In this scenario, NPV only has 16 electoral votes total so the bill has not activated yet, meaning nothing changes outside of NPV’s hypothetical total being increased from 0 to 16.  Then Ohio passes the bill and adds their 18 electoral votes to NPV, meaning NPV now has 34 total votes. And so on until either NPV reaches 270 votes or the effort is abandoned.

Why have a movement that seeks to institute a national popular vote without actually eliminating the electoral college entirely, one may ask? Long story short: it would take a massively more difficult effort which would mean adding a Constitutional amendment. To add such an amendment would take either 1) two-thirds vote of the US House of Representatives and Senate or 2) three-fourths votes of all state legislatures. In contrast, passing a bill requiring a relative majority of states is trivial in comparison.

Where NPV Currently Stands

As of June 2019, NPV has a total of 189 electoral votes of the 270 that are needed. This graph from Wikipedia sums up the history of NPV to the present day:

Since 2006, 14 states and D.C. have passed the bill, with 2019 being one of its most successful years yet, as Colorado, Delaware, and New Mexico have recently signed on.

I had originally hoped to publish this article once Nevada signed the bill, as their House and Senate both recently passed it, but Nevada Governor Sisolak then unexpectedly vetoed the bill, thus effectively killing NPV in Nevada for the 2019 legislative session. That week ended up being a rough week for NPV, as Maine’s House of Representatives also rejected the bill.

Oregon is the top remaining candidate to be added this year to NPV. Their Senate passed the bill back in April and their House just passed the bill on Monday, June 3^rd. Governor Kate Brown is expected to sign the bill soon, having sent an endorsing letter to a committee back when she was Secretary of State.

It’s worth noting that even if a state rejects the NPV bill (or any bill) in a particular year, there is a new legislative session next year which could then pass it. Several states have gone this route, with NPV failing multiple times in previous sessions before being passed in a new one. In Nevada’s case, though, they will probably need a new governor before trying to pass NPV again.

Some have cast doubt on NPV passing, citing the fact that most states that have passed the bill are Democratic controlled states and that some swing states will need to pass the bill in order to succeed. They are likely correct and it’s worth mentioning that most NPV legislative votes have gone straight down party lines in the past. Despite this, Colorado passing the bill this year represents the first swing state to sign on, fueling speculation that Colorado is a sign of increased support for NPV nationwide. This may be true, but the polls (here and here) so far have not yet reflected this. From what can be seen so far support for a national popular vote has held steadily at a slight majority while opposition is around 40%.

The takeaway here is that bills which seek broad reform take a large amount of effort and time to pass- indeed our political system was designed that way in order to protect established power from the interests of the masses. Founding father James Madison wrote (bold is mine) :

“If these observations be just, our government ought to secure the permanent interests of the country against innovation. Landholders ought to have a share in the government, to support these invaluable interests and to balance and check the other. They ought to be so constituted as to protect the minority of the opulent against the majority.”

I’ve mentioned there is opposition to not just NPV, but to abolishing a national popular vote in principle. The reasoning typically ranges from three main objections. The first claims a popular vote is akin to “mob rule”, the second is maintaining the power of otherwise smaller states to choose the president. Steve Byas reports that Nevada Governor Sisolak, who recently vetoed NPV, explained his reasoning as follows:

“Over the past several weeks, my office has heard from thousands of Nevadans across the state urging me to weigh the state’s role in our national elections. After thoughtful deliberation, I have decided to veto Assembly Bill 186. Once effective, the National Popular Vote Interstate Compact could diminish the role of smaller states like Nevada in national electoral contests and force Nevada’s electors to side with whoever wins the nationwide popular vote, rather than the candidate Nevadans choose.”

The argument for keeping the electoral college because it gives smaller states more power in choosing the president is correct since smaller states do have more power per voter than larger states, but also runs counter to democracy, just in a more indirect way than simply decrying ‘mob rule’. In other words, saying smaller states (aka states with small populations) should have more power per resident versus larger states (aka states with larger populations), means that everyone’s vote should not be equal- some voters should have more power than others. Of course, our history books we were raised on don’t reveal this understanding when they mention the United States as land of democracy and freedom, but that doesn’t change reality.

The third main criticism is that instituting a national popular vote will result in presidential candidates only focusing on large population centers such as cities and neglecting more sparsely populated areas. This criticism appears the more legitimate of the three and theoretically it makes sense. The problem with this criticism is how the presidential election system is already run.

In our current presidential election system, candidates after the primaries focus massively on the battleground, or swing states which historically can vote either Democratic or Republican, depending on the cycle. These ‘purple’ states, including Michigan, Florida, Colorado, Iowa, Pennsylvania, New Hampshire, and others are where the candidates focus the vast majority of their resources and attention. A Republican has little reason to campaign in Alabama and a Democrat has little reason to campaign in California, since both candidates can practically ensure they will win. Thus, the candidates focus their attention on the states where they have the best chances to deny to their opponent, and those voters and up with a disproportionate amount of representation since the candidates cater to them hoping to win their support.

In other words, these swing states already garner a hugely disproportionate share of candidate attention, not to mention the fact that already candidates typically focus much of their campaign events and appearances on larger population centers.

The fact remains that for lowly populated areas, keeping the electoral college system in place doesn’t benefit them as they are largely ignored already. Flyover country is already a popular phrase, for instance. Adapting a national popular vote will do little if anything to change that.

The choice with a national popular vote is fortunately straightforward: should we the people choose democratically who shall be president, or shall a minority choose for us?