Since Donald Trump won the presidency despite losing the popular vote to Hillary Clinton by three million votes, the Electoral College has once again taken a thorough public flogging. Democrats, in particular, are enraged that the loser of the popular vote has now won two of the past five elections, first by a few hundred votes in Florida in 2000, and then in 2016 by fewer than 80,000 combined votes in three Rust Belt states.
But there is an even deeper problem with the Electoral College as it operates today, even when the popular vote winner and the Electoral College winner are the same. In every presidential election, the voters in all but a handful of states, and their concerns and views, are ignored by the campaigns and later by the administration of whoever is elected. This affects both Republicans and Democrats, voters in small states and voters in big states. As Wisconsin Governor Scott Walker, then a serious contender for the Republican nomination, put it in the fall of 2015, “The nation as a whole is not going to elect the next president. Twelve states are.” The Constitution asks us to elect a president of the United States. What we get is a president of Ohio and Florida.
This problem is actually not the Electoral College itself. The Constitution lets each state legislature decide how to award its electoral votes. Two states, Nebraska and Maine, award votes by congressional district, while the remaining states award all of their Electoral College votes to the winner of that state’s popular vote. It’s these state-level winner-take-all laws that make the votes of millions of Americans effectively meaningless.
The good news is that, just as states were free to adopt or not adopt a winner-take-all approach, they remain free to change their laws to ensure that the popular vote winner becomes president. The way to do this is simple: pledging to award all their Electoral College votes to whoever wins the national vote. A project to make this happen is already under way. It’s called the National Popular Vote Interstate Compact.
Ten states (and the District of Columbia, which has three Electoral College votes) have already passed legislation to take this approach, with a proviso that the law kicks in only when the number of Electoral College votes of the enacting states reaches 270, the number necessary to win the presidency. So far, 165 electoral votes have been pledged. Twelve more states (with ninety-six votes) have passed the law in one legislative body. If these states, plus just a few others, pass the law, then the Electoral College will function as most Americans want it to: it will award the presidency to the winner of the popular vote. More importantly, presidential campaigns will finally start paying attention not just to the very few voters in “battleground” states, but to all voters, everywhere.
If your only knowledge of U.S. geography came from watching presidential campaign appearances, you would be forgiven for thinking that the most powerful country in the world is a pretty small place. Clinton and Trump, and their running mates, made a total of 399 campaign appearances after officially winning their party’s nomination. Of these appearances, over two-thirds were in just six states: Florida, North Carolina, Pennsylvania, Ohio, Virginia, and Michigan. If you add in the next six states considered competitive, that accounts for 375 of the 399 visits. In other words, the candidates campaigned almost exclusively in only twelve states. (Three or four of these are true battlegrounds every four years; the others lean Democratic or Republican, but are still contested.) Consider Pennsylvania, population 12.7 million. The candidates went there fifty-four times to meet with voters. Do you want to guess how many times they visited neighboring New York, New Jersey, Maryland, and West Virginia (combined population 36.4 million)? If you guessed zero, you would be right. In fact, just shy of half of all states were completely ignored by the campaign road show. See Figure 1.
Not surprisingly, the lack of attention candidates pay to non-battleground, or spectator, states also reflects itself in what issues are prioritized, so the declining coal and steel industries in Rust Belt Ohio and Pennsylvania, like the foreign policy preoccupations of Cuban immigrants in Florida, take center stage in presidential politics. Meanwhile, barely a word is spoken about, say, the catastrophic droughts faced regularly in spectator states like California and Texas.
It would be bad enough if the battleground problem only manifested itself in campaign schedules and local TV saturated with almost nothing but campaign ads. But because presidents never really stop campaigning—either for reelection or for their sucessor—battleground states exert a gravitational pull on their agendas even after they take office. The fact that it took until 2016 to move away from the absurd Cuba embargo is not, of course, because Cuba changed in some important way, but rather because a rapprochement would have alienated a bloc of Cuban American voters in south Florida crucial for winning that state’s Electoral College votes.
The battleground problem affects not only the positions presidents adopt, but also how their administrations distribute tax dollars. The 2009 stimulus bill, for instance, set aside money for high-speed rail and gave President Obama discretion as to where to build it. So where did he decide the first project should be? Maybe the D.C.-to-Boston corridor, the nation’s busiest and perhaps most dilapidated commuter rail line? Or possibly one of the top priorities of the voters of the nation’s most populous state, a high-speed rail connection between San Francisco and Los Angeles? No, the president instead proposed spending $2.4 billion in federal funds to build a high-speed rail line covering the eighty-four miles between Tampa and Orlando. (In 2011, Florida’s then Governor Rick Scott told Obama to spend the money elsewhere.)
That’s just one anecdote, of course. But in his 2014 book, Presidential Pork, political scientist John Hudak found that, controlling for other factors, battleground states receive 7 percent more than other states in federal grant money, even in a president’s second term.
In short, the winner-take-all approach of awarding a state’s Electoral College votes hurts the majority of Americans no matter who ends up in office. Unless you live in one of the very few battleground states, your concerns, your policy preferences, and your votes simply don’t matter. And your taxes are disproportionately funneled to the states whose citizens get an outsize role in calling the shots on who will be the president.
The momentum for moving to a popular vote without amending the Constitution began brewing after the 2000 election, when the law professor brothers Akhil and Vikram Amar, as well as Robert Bennett, wrote papers introducing the idea and pointed out that if just the eleven most populous states adopted it, they would clear the 270 electoral vote hurdle. In 2006, computer scientist Dr. John Koza, now chairman of the National Popular Vote organization, wrote up a detailed proposal for what he called the National Popular Vote Interstate Compact. Here is how it works: A state legislature passes a statute pledging its electors to whoever wins the national popular vote. The brilliant part is that the law doesn’t kick in until states representing at least 270 Electoral College votes have passed the law as well. That ensures that Texas, for instance, wouldn’t risk giving a victory to a Democrat who won the popular vote but otherwise wouldn’t have won the Electoral College.After their party’s nominations, Clinton, Trump, and their running mates made 399 campaign appearances. More than two-thirds were in just six states: Florida, North Carolina, Pennsylvania, Ohio, Virginia, and Michigan.
In the decade since National Popular Vote (on whose board I sit) got started, it has made swift progress. In 2007, Maryland became the first state to pass the compact, after Jamie Raskin, a state senator (and now congressman), spearheaded the effort and Governor Martin O’Malley signed it into law. Since then, nine more states (plus the District of Columbia) have followed suit, including small states like Rhode Island and Vermont and big states like Illinois, New York, and California. In twelve additional states, including Arizona and Connecticut, the measure has passed one state legislative body. See Figure 2.
Opponents of the compact raise a number of objections. First, they claim that the state-level winner-take-all approach used by most states today is what the Founding Fathers wanted. This is false. Only three states used it in the first presidential election. It did not come into widespread use until 1836, after a dozen presidential elections had been held using other methods.
Another argument is that the Electoral College gives more weight to small states that would be drowned out in a popular vote. By giving all states one elector per senator, plus one for each member of the House of Representatives, the smallest states have three electoral votes instead of just one. Switch to a popular vote, some critics worry, and small states will be totally ignored as New York, California, and Texas voters call the shots. (A variation of the argument is that small states tend to vote Republican. In fact, the eleven states besides New Hampshire that have only three or four electoral votes, plus D.C., are split evenly between red and blue.)
But in practice, it’s not true that small states get any benefit from the Electoral College. If their votes were so important, candidates would seek them out. Yet Iowa, Nevada, and New Hampshire are the only states with fewer than five million citizens among the twelve that the campaigns paid attention to in 2016. Having three electoral votes instead of one doesn’t mean anything if your state is uncompetitive—just ask true-blue Vermont, which got zero general election campaign appearances while purple New Hampshire (four electoral votes) got twenty-one. The important distinction is battleground versus spectator, not big versus small. If you live in an uncompetitive state, whether it’s California or Wyoming, your vote has the same practical value: zero.
Still others object that the National Popular Vote Interstate Compact is an end run around the Constitution and that the proper way to solve the problem is via a constitutional amendment. In fact, the current winner-take-all system in the states has no basis in the Constitution. The Founding Fathers’ original vision was for state legislatures to decide how to assign their electoral votes in the best way for their citizens. The compact is completely in line with that vision: letting the spectator states decide for themselves to adopt a popular vote means letting them opt in to a system that will bring them more attention from presidential candidates and a fairer share of the economic pie from presidents.
A final objection is not substantive, but practical: Why would Republicans, who overwhelmingly control state governments, go for this? After all, their guy won thanks to the Electoral College—twice. Why give up such a clear advantage?
First of all, all spectator states, red and blue alike, are getting punished by the current system. Governors and state legislators want federal money flowing to their states. They want their policy concerns to carry weight with the White House. But President Trump doesn’t have to pay the slightest attention to what Texans want, because Texas’s thirty-eight electoral votes are safely Republican. It’s true that the states to have fully passed the compact so far are all blue states. But in both Oklahoma and Arizona, two reliably red states, one of the two legislative houses has passed the popular vote statute in an overwhelming and bipartisan vote. It also passed 57–4 in the Republican-controlled New York state senate. These Republican lawmakers recognize that no matter what your party is, it’s not good for your state to be irrelevant in presidential politics.
Second, while it’s true that the GOP benefited from the Electoral College in 2000 and 2016, the tables can turn. In fact, they almost did in 2004, when George W. Bush won the popular vote by three million but only won the Electoral College because he carried Ohio, with twenty electoral votes, by about 120,000. A shift of 60,000 votes in Ohio from Bush to John Kerry would have given Kerry the state and a 271–266 Electoral College victory. Kerry would have become president despite losing the popular vote, just as Bush did four years earlier.
Third, demographic changes may soon make heretofore reliably red states such as Arizona, Georgia, and Texas up for grabs. If that happens, the Electoral College could spell doom for Republican presidential prospects.
Several leading national Republicans have expressed support for moving to a popular vote. Newt Gingrich has endorsed National Popular Vote explicitly, writing in a letter to John Koza that “our president must be the president of an enormously complex and varied country—of those in midtown Manhattan and southern California, as well as those in rural Oklahoma and the wilderness of Alaska.” Trump himself called the Electoral College a “disaster for democracy” in 2012 and, shortly after his 2016 victory, told 60 Minutes, “I’m not going to change my mind just because I won. But I would rather see it where you went with simple votes.” In December, he tweeted, “I would have done even better in the election, if that is possible, if the winner was based on popular vote—but would campaign differently.” And in January, the Wall Street Journal reported, he brought up replacing the Electoral College with a popular vote in a meeting with congressional leaders.
Trump’s claim may have been yet another example of salesman’s bluster, or it could be true; there’s no way to know. Campaigning really would be different in a popular vote system. There are tens of millions of votes given up for dead by both parties because they’re in states that inevitably go for the other party. One reason the Democrats seem to have an advantage in the popular vote is that the GOP doesn’t even bother going after Republican voters in California and New York, two of the biggest states. But California has five million registered Republicans; Trump got about 4.5 million votes there, just shy of his total in Texas. Who knows how many more Republican votes Trump could have gotten in California (or how many more Democratic votes Clinton could have gotten in Texas) if they had had reason to make an effort?
Enacting the National Popular Vote Interstate Compact wouldn’t just make presidents campaign and govern for the whole country. It would also create radically more room for political engagement overnight. If there is anything about the American political system that gets as much abuse as the Electoral College, it is the fact that so few people vote. The two problems are related: turnout is about 11 percent higher in battleground states. Presidential contests are the one situation in which almost every person knows who the candidates are and has an opinion on them. Yet the votes of almost every person not living in a battleground state simply don’t matter. People know that, and hence don’t waste their time voting. The compact will increase voter turnout, plain and simple, by giving every voter in the country a reason to participate in our democracy.The winner-take-all approach of awarding a state’s Electoral College votes hurts the majority of Americans no matter who ends up in office. Unless you live in one of the very few battleground states, your concerns, your policy preferences, and your votes simply don’t matter.
The popular vote may also be the only way of keeping things from getting much worse. Some deeply partisan Republican political operators are introducing state legislation to award Electoral College votes based on who wins the popular vote in each congressional district. This would be a disaster, even if every state were to adopt it. Fewer people live in “swing districts” than in swing states, meaning the system would take us even further away from the national popular vote. And in the many districts with extreme partisan gerrymandering, candidates would win electoral votes beyond their proportional share of a state’s popular vote. Republican candidates would peel away electoral votes from states that otherwise go blue in presidential elections. The popular vote compact is the best way to neutralize these and other anti-democratic efforts, because once 270 electoral votes’ worth of states sign on, it doesn’t matter what the rest of the states do.
There are many problems with American democracy that seem impossible to fix. The Electoral College is not one of them. The national popular vote initiative is well on its way to making sure that the loser of the popular vote never again is awarded the presidency and that presidential candidates and administrations pay attention to all Americans—whether Democrat or Republican, urban or rural, living in big states or small states—and all fifty states, not just twelve.
But it needs one last push, and the commitment of 105 more Electoral College votes, to get over the finish line. Ultimately that is up to the American people. Signing a petition urging a constitutional amendment feels good, but accomplishes nothing. The road to the popular vote runs through statehouses. State legislators, unlike U.S. senators, pay attention to letters and phone calls from constituents, in part because they don’t receive that many. If the popular vote compact is to become a reality, it will be because enough Americans, tired of being ignored by the president and the campaigns, tell their state legislators to fix the system using the power that the Founding Fathers gave them.