Joe Biden
Credit: Joe Biden/Flickr

The Electoral College has never felt more outdated than during the first week of November 2020. Americans waited four days to learn whether Joe Biden or Donald Trump would be the next president even though the popular vote winner was clear almost immediately. Within 24 hours, Biden had built an insurmountable two million vote lead that has grown to over seven million. Due to the bizarre way we choose our president, a few thousand votes in key swing states matter more than millions nationwide. It wasn’t until Biden’s margins in Pennsylvania and Nevada grew large enough that he was declared victorious. Fortunately, there is a chance 2020 will be the last time a candidate can win the presidency while losing the popular vote.

Slowly but surely, that ingenious plan to fix the Electoral College called the National Popular Vote Interstate Compact has gained momentum. Because the Electoral College was created in Article II Section 1 of the Constitution, amending the Constitution is the most direct path toward reform. However, given the partisan divide over the issue–89 percent of Democrats support an amendment while 77 percent of Republicans prefer the status quo—getting two-thirds of Congress and three-fourths of the states to support an amendment is extremely unlikely. The Compact offers a different path.

You’ve probably heard of it before, but it’s critical to understand the details and why it’s important again, even though in 2020, the President-elect won the popular vote and the electoral vote, unlike 2000 and 2016.

A refresher course: The compact is an agreement between states in which each state would award all of its electoral votes to whichever candidate wins the national popular vote. For example, even if Donald Trump got the most votes in Wyoming in 2020, if Wyoming were part of the Compact, Joe Biden would still win the state’s three electoral votes because Biden won the national popular vote. The Compact does not take effect until states totaling a majority of electoral votes (270 as of 2020) have joined. Once that happens, the Compact would ensure that the candidate who wins the popular vote always wins the Electoral College.

There are concerns, of course, that even if the Compact is enacted, it will not work as intended. Would Vermont really award all of its electors to a Republican candidate even if two-thirds of its residents supported the Democrat? But the Supreme Court’s recent decision in Chifalo v. Washington supports the notion that a state’s electors must do as they are told. The decision allows states to require presidential electors to vote for the person they promised to choose when they were initially nominated, which would seem to strengthen the Compact’s hold on its members. Though the specific question would likely need to be litigated, the Compact at least has recent precedent working in its favor.

So far, the push for the Compact has primarily been a Democratic effort. Since 2007, fifteen states and Washington D.C. have joined, including California, New Mexico, Maryland, and New York. The effort recently gained another victory when Colorado voters approved Proposition 113. Colorado initially joined the Compact in March of 2019, but a repeal effort put the question directly to Colorado’s voters. For the first time, voters were asked to choose whether their state’s voters or the will of the national electorate should matter more in electing a president. By a 52 to 48 margin, Coloradans chose the latter, opting to stay in the Compact, keeping the current total at 196 electoral votes, just 74 short of success. The victory in Colorado was crucial, given that it was the first “purple state” on board.

Getting the Last States

Of course, getting those last 74 votes will be a substantial challenge. Because Republican candidates have lost the popular vote in seven of the last eight presidential elections, some outspoken Republicans have made deeply flawed arguments defending the Electoral College. But as I’ve written before, none of those arguments can withstand scrutiny, which the 2020 election proved once again.

Proponents argue that the Electoral College prevents small states from being ignored, but that isn’t true. Small states are already ignored. In 2020, over 90 percent of general election campaign events were concentrated in just twelve states, with the majority taking place in Pennsylvania, Florida, North Carolina, Michigan, and Wisconsin, some of the most populous states in the country. For every New Hampshire or Nevada, which were small swing states, there were more small states like Hawaii, Wyoming, Vermont, or North Dakota that were ignored. Much more than magnifying the power of small states, the Electoral College magnifies the power of politically divided states—an unfairly arbitrary criterion that results in presidential candidates lavishing attention on Wisconsin and North Carolina rather than Texas or New York.

Proponents also contend that the Electoral College prevents a dangerous “tyranny of the majority” in which the candidate who wins the most votes imposes their will on the minority. But they can never explain why a democratically elected executive who is checked by two other branches of government amounts to a tyrant. Or why letting the candidate who did not win the most votes impose their will on the majority is a guarantor of minority rights.

As for the argument that without the Electoral College, a few big states or cities would rule over the rest of us, the error in that line of thinking is that places don’t have any will to exert. Only people have interests, and votes are the best way to reflect those interests. A popular vote would more accurately reflect the will of the people in every state than the Electoral College’s winner-take-all method. Five million Californians voted for Trump, more than in multiple small states combined. Their voices would count in a popular vote election. As would the millions of Democratic votes, largely African-American, in the red southern states like Alabama, Tennessee, Arkansas, or Mississippi. And of course, no Electoral College supporter can explain why a voter in Pennsylvania or Wisconsin should have more influence than a voter in Wyoming or California, solely because the former states are more politically divided.

So how can the Compact succeed, in spite of opposition, before our next presidential election?

Does It Need Congressional Approval?

Supporters of the Compact have already reaped most of the low hanging fruit—solidly blue states. In fact, Biden won every state that has already joined the Compact. But there are still some blue-leaning states out there for the picking. Virginia has not gone red since 2004, and it’s been even longer for Maine and New Hampshire. Adding those three states to the Compact would bring the total up to 217. But to cross the 270 threshold, the Compact will win the support of more swing states such as Colorado.

There have been signs of hope on that front. The Compact has been approved by at least one branch of the state legislatures in Minnesota, Arizona, Michigan, and North Carolina. The Compact also passed both houses of the Nevada legislature in 2019, only to be vetoed by Nevada’s Democratic Governor Steve Sisolak, who said that the Compact “could diminish the role of smaller states like Nevada.” Taken together with Virginia, New Hampshire, and Maine, those five states would be more than enough to successfully enact the Compact. Getting that many new states on board before 2024 will be difficult, and the closer we get, the more opponents will mobilize against it. For example, the march toward ratification for the Equal Rights Amendment slowed dramatically after reaching thirty-four states. But the Compact recently added four new states in 2019. Adding a bigger state like Florida or Pennsylvania would really speed things along.

The obvious challenge of getting swing states on board is that the more state legislators believe their state benefits from the current system, the less likely they are to support a national popular vote. Not only do swing states receive more campaign visits than other states, but studies also show that they get more federal grant money and disaster declarations as well. To overcome those incentives, Compact advocates must emphasize the nonpartisan benefits of a popular vote, of which there are many.

For starters, just because the Electoral College has helped Republicans recently doesn’t mean it will happen in the future. In 2004, if 60,000 George W. Bush supporters in Ohio had voted for John Kerry instead, Kerry would have won the Electoral College while losing the popular vote. Anyone who thinks the Electoral College will always work in their favor is playing with fire.

Second, a popular vote would solve the winner-take-all problem in which any voters in the minority party of a “safe state” are effectively wiped off the books. A popular vote would give Republicans in California and New York or Democrats in Oklahoma or Missouri more incentive to cast their ballots.

Third, a national popular vote would also create more definitive results in elections when one candidate wins the popular vote by a substantial margin, as Joe Biden did in 2020. Granted, Donald Trump would probably cry foul under any system. Still, it is much easier to stoke conspiracy theories of voter fraud and a stolen election when the margin is tens of thousands of votes in swing states than when the margin is millions of votes nationwide. Those reasons should be enough for legislators in swing states to put their country’s interests ahead of their own.

Even if the Compact surpasses the 270 electoral vote threshold, it would likely face one final challenge—litigation. There is a debate as to whether the Compact requires Congressional approval and whether it even constitutes an “interstate compact.” A report issued by the Congressional Research Service in 2019 stated that Supreme Court case law “supports reading Article II of the Constitution to broadly provide states with wide discretion as to how its electors are selected” but that “given the lack of any precise precedent respecting the constitutionality of the NPV” the constitutionality of the Compact remains an open question.

Nonetheless, the Compact represents our best and only chance of fixing the Electoral College before the next presidential election. And if enough activists who support a popular vote ask their state legislators to support the Compact in the interests of the greater good, we may be able to sleep soundly on November 5, 2024, knowing that the candidate who wins the most votes will also win the presidency.

David Edward Burke

Follow David Edward on Twitter @DavidEBurke. David Edward Burke is the founder of Citizens Take Action, a nonprofit organization that advocates for political reform.