Is the Electoral College Doomed?

The Electoral College is under fresh assault on the heels of Donald Trump’s victory last November—the second time in five presidential races the popularly elected candidate lost the election—but it’s not due to any groundswell in Congress for a constitutional amendment to adopt a national popular vote. Instead, the most viable campaign to change how Americans choose their leader is being waged at booze-soaked junkets in luxury hotels around the country and even abroad, as an obscure entity called the Institute for Research on Presidential Elections peddles a controversial idea: that state legislatures can put the popular-vote winner in the White House.

It was mid-February, inside a four-star resort in a third-world country, when I heard the pitch to transform American democracy. The institute flew 11 political journalists to Panama for an “educational seminar” on election reform. (My peers included reporters representing outlets ranging from Breitbart to U.S. News & World Report.) The trip presented a bargain: three days of sunshine, sightseeing, fine dining and free cocktails on the institute’s dime, in exchange for being educated by seminar coordinators in the pool, at the bar, overlooking the Panama Canal—and most aggressively, during the five-hour workshop in a windowless conference room—about the history and weaknesses of the Electoral College, and the potential of a radical alternative.

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The radical alternative is the National Popular Vote Interstate Compact—call it the “Compact,” for short. The most concise explanation: Rather than abolishing the Electoral College via constitutional amendment, state legislatures would change their laws to award their electoral votes to whoever wins the most votes nationwide, regardless of state-by-state results.

Technically, yes, this could happen. Article II of the Constitution gives states authority to allocate electors however they choose, and in fact two already do so differently from the rest: Maine and Nebraska award electoral votes by congressional district, while the other 48 adhere to a winner-take-all format. The Compact is written with a trigger clause: As soon as enough states have joined the Compact to account for 270 electoral votes, each of their state laws is activated. The next election, those states automatically throw their votes to the popular winner, and—regardless of what non-Compact states do—the leader of the free world will suddenly be determined by the full balance of voters in the union.

If this sounds farfetched—politically cumbersome, mechanically problematic, legally questionable—well, it is. Since its conception in 2006, the Compact has been criticized as a constitutional end run that shouldn’t be taken seriously. And yet it’s far closer to taking effect than most of us realize. Ten states, plus the District of Columbia, have already joined, representing 165 combined electoral votes. By its own rules, the Compact needs to secure only another 105 electoral votes to trigger the change. That said, those next 105 will prove infinitely harder to collect than the first 165. All 10 states in the Compact, plus D.C., are Democratic strongholds; neither a single battleground state, nor a single red state, has entered. This stands to reason: Swing states don’t want to forfeit their privileged status, and Republicans lost the popular vote in six of the past seven presidential elections. If it weren’t for the Electoral College, Al Gore would have been president in 2001—and Hillary Clinton would be commander in chief today. Republicans, then, are understandably wary of switching to what many believe would be an unfavorable system. (On the other hand, some in the party—including President Trump—believe the GOP would campaign much differently, and stand a better chance of winning the White House, if it focused on every voter in every state. Conservatives, in particular, seem intrigued by testing the “center-right nation” theory.)

If this sounds farfetched—politically cumbersome, mechanically problematic, legally questionable—well, it is.

The complexities of the Compact are equal parts politics and policy, however, and go beyond questions of party loyalty. For instance, would the strategy need ultimate approval from Washington? (Any interstate compact that threatens federal supremacy must get consent from Congress.) The uncertainty snowballs from there: whether it would unfairly diminish the influence of small states and rural areas; whether it would expose elections to widespread fraud because of one-party rule in newly competitive states, as some fear; whether the revised system would actually help the favoritism that exists when a handful of states are responsible for picking presidents, or just spread it around differently.

Hence the seminars. The only way to ensure a nuanced, in-depth discussion of a national popular vote is to lock people in a conference room for hours—and the only way to do that is to lure them to a swanky location promising an otherwise leisurely weekend of free food, drink and entertainment. The seminars initially targeted state lawmakers—whose votes back home will shape the Compact’s fate—but beginning last fall they have also been organized for journalists and opinion leaders in an attempt to gain broader recognition. (I attended to report on the Institute’s tactics as well as its ideas; I was not asked, nor did I offer, to write about the Compact in exchange for attending the seminar.)

Tens of millions of dollars have poured into the popular vote movement, and until recently, those investments appeared to be paying off. The Compact welcomed its most recent addition, New York, back in the spring of 2014, and momentum was on its side in the run-up to last year’s election. Lobbyists working on behalf of the Compact spent 2016 blitzing GOP lawmakers in states where they control both legislative chambers, and with Clinton comfortably ahead of Trump down the stretch of the campaign, Republican leaders in several of those states were preparing to introduce the Compact this year on the heels of an expected November defeat. 2017 was supposed to be a coming-out party.

And then Trump won the White House, while losing the popular vote by nearly 3 million.

Advocates of the Compact suddenly find themselves on the defensive, no longer bullish about picking off their first red state this year. They will be content, at this point, to persuade Republicans not to abandon the idea altogether—to keep this experiment in reshaping American democracy alive where others before it have perished.

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Distrustful of direct elections, the founders wanted a buffer of sophisticated, discerning people between the unwashed masses and the selection of a president. That explains the Electoral College’s genesis, but not why it still exists today. The reality is that that modern-day electors exercise little autonomy—very rarely rejecting the preference of their states’ voters—and the system has a long history of dissatisfaction. There have been more than 700 proposals to reform or abolish the Electoral College by constitutional amendment, according to the National Archives, but none gathered the requisite two-thirds support in both chambers of Congress to be sent to the states for ratification.

The roots of the Compact can be traced to a 2001 academic paper by Robert Bennett, a professor at Northwestern University Law School, who pointed out that states could, legally, pledge their electors to the winner of a national popular vote. Others built on this suggestion, most notably law professor brothers Akhil and Vikram Amar, who suggested achieving this “direct national election” via interstate compact. But the proposal grew real legs in 2006, when John Koza—a California Democrat who made his fortune by inventing the scratch-off lottery ticket—got behind it, co-writing a book, Every Vote Equal, and founding the Institute for Research on Presidential Elections. This is the “education” arm, a 501(c)(3) nonprofit group; Koza also started a sister organization, National Popular Vote, which is registered as a 501(c)(4) to lobby legislators.

Koza has bankrolled most of the pro-Compact efforts since 2006, including the Panama excursion. In an interview, Koza says he has spent more than $14 million on the project so far and has budgeted at least $2 million per year moving forward—and is hunting for new benefactors. It can be tricky to attract GOP lawmakers’ support when they learn the Compact push is funded by a liberal megadonor, so Koza was elated years ago to find a Republican partner, Tom Golisano, founder of the payroll and benefits services company Paychex, who poured $10 million of his own money into complementary efforts. But Golisano has pulled back from the campaign in recent years and is no longer involved. He did not respond to an interview request.

Koza isn’t coy about being a partisan. But he claims the Compact is about fairness rather than political gamesmanship. It seemed unfair that George W. Bush won the White House despite losing the popular vote—and extremely unfair that the entire race hinged on 537 votes in Florida. Koza had experience with interstate compacts—Maine, New Hampshire and Vermont had formed one to administer a lotto game—and decided two years after Bush’s reelection, which boiled down to battleground Ohio, to wage war on the Electoral College. “The current system is insane and unjustifiable,” Koza tells me. “It leaves at least 40 of the states out of the process.”

The current system is insane and unjustifiable,” John Koza tells me. “It leaves at least 40 of the states out of the process.”

His pitch is a one-two punch of political populism and electoral egalitarianism: first, that the process corrupts public policy because of the codependent relationships between presidential candidates and battleground states; second, that voters in reliably red or blue states basically have no voice in the election at all. Today, he notes, millions of Americans living in three of the country’s four biggest states—California, Texas and New York, none of which has been contested for a quarter-century—don’t bother to vote because their winner-take-all rules discourage participation from partisans who know they are badly outnumbered statewide.

He says he was shocked when, shortly after he announced his project in 2006, a number of state legislatures took up the legislative language he and his team of lawyers, lobbyists and political veterans were advocating. The first triumph came in Colorado, where the state Senate passed the bill only for it to die in the House. Then, in California, both chambers approved it—but Republican Governor Arnold Schwarzenegger vetoed. Emboldened, Koza’s group launched a massive lobbying initiative in 2007 and saw its language introduced in 42 state legislatures. Maryland became the first state to enter the Compact, in 2007, followed in 2008 by New Jersey, Illinois and Hawaii. Washington joined in 2009, then Massachusetts and D.C. in 2010. Vermont and California joined in 2011, followed by Rhode Island in 2013 and New York in 2014.

In the decade since Maryland joined, supporters and opponents of the Compact have refined their arguments to debate its implications. One devastating critique is that it would just create a new imbalance, and a new set of swing states, as presidential campaigns focus all their attention on the biggest cities and the biggest states. “If you look back at the constitutional convention, it’s pretty clear the framers thought that without an Electoral College, people running for president would go to the big urban population centers and ignore the more rural parts of the country,” says Hans von Spakovsky, a fellow at the Heritage Foundation and longtime critic of the Compact. “The Framers designed the system we have so that candidates wouldn’t have to win a national election, but a series of regional elections around the country.”

Koza and his allies come equipped with rebuttals to every critique imaginable—the latest edition of Every Vote Equal addresses 131 “myths”—but much of this back and forth exists in the abstract. After all, the United States has known nothing but the Electoral College; it is impossible to predict with any certainty the behaviors of candidates, campaigns, parties, interest groups and individual voters if confronted with a wholesale change to how we pick presidents.

Somewhat more forecastable are the political ramifications of a direct national election—at least one might think so, based on typical partisan reactions. “Democrats are reflexively for it, and Republicans are reflexively against it,” Saul Anuzis, a former chairman of the Michigan GOP and our seminar coordinator in Panama, told us.

There are partisan dissidents, however. In deep-blue Oregon, where Democrats control both houses of the legislature, the Compact recently failed for a third consecutive time, having previously been thwarted in 2013 and 2015. It passed the House in May, but the Senate president—who has long voiced concerns about the Compact marginalizing small states—inserted a clause that effectively killed the bill in July. Meanwhile, on the Republican side, key lawmakers in ultraconservative Utah have been whipping support for the Compact, emphasizing one parochial point: It would level the playing field with neighboring Colorado, a key swing state that gets outsize attention from Washington. (Compact supporters note how President Barack Obama signed the stimulus into law in Denver, despite Colorado’s unemployment rate in 2009 being lower than those in other states he won easily in 2008, such as Rhode Island and California.)

It can be no easy task convincing Republicans when their nominee lost by 2,868,691 votes last November—and still won the White House.

Intraparty dissent is often explicitly political: In New York, passage was delayed in part due to objections from liberal lawmakers who felt the party holds a clear edge in the Electoral College. (They also feared, surely, that GOP voters accustomed to skipping elections in New York would suddenly mobilize, jeopardizing down-ballot Democrats.) Many Republican endorsers of the Compact, it turns out, share the same concern about the Electoral College—that Democrats start with a structural advantage—and are eager to play under a different set of rules.

“I believe the Blue Wall is real,” Anuzis tells me. What he’s referring to: Eighteen states totaling 242 electoral votes went Democratic in every election from 1988 to 2012. Assuming they hold those states, Democrats need just 28 electoral votes to win the presidency; Florida alone has 29. Of course, Trump won the presidency by taking back three of those supposed Democratic locks—Pennsylvania, Michigan, Wisconsin—albeit by a combined 78,000 votes or so. To many Republicans, 2016 proved the Blue Wall is a myth; to others, Trump’s victory was an anomaly that will prove difficult to replicate.

For his part, Koza loathes talk of the Blue Wall and says those three states Trump won should never have been considered safe for Clinton. “There might be a Blue Wall. But it’s 196 electoral votes, not 242,” he says, subtracting the sum of Pennsylvania, Michigan and Wisconsin. Koza says he wishes the Compact debate revolved exclusively around policy instead of political jockeying. But he knows better. If his campaign is ever to hit the 270 mark, it will happen on the strength of conservative legislators in red states. And it can be no easy task convincing them, never mind their constituents, that Republicans are better off under the Compact when their nominee lost by 2,868,691 votes last November—and still won the White House.

***

Jim DeMint did a double take. The former Tea Party senator from South Carolina, recently ousted as president of the Heritage Foundation, was visiting with old colleagues at the think tank’s exhibition booth on the second floor of the Hyatt Regency in Denver. The neighboring booth was occupied by National Popular Vote. Both organizations were passing out literature to state lawmakers attending the American Legislative Exchange Council conference in late July. When DeMint glanced over, he was greeted by Anuzis and Ray Haynes, a former California state senator who spoke to our Panama seminar. The confusion on DeMint’s face said it all. Both Anuzis and Haynes worked for Ted Cruz’s presidential campaign—but they were helming the National Popular Vote booth. DeMint offered a dazed half-smile and walked away.

“There was definitely a level of cognitive dissonance right there,” Haynes tells me. He laughs, breaking into a robot voice: “I. Do. Not. Compute.”

If Anuzis and Haynes are evangelists for the Compact, coming to ALEC—an association of thousands of conservative state legislators—is like proselytizing a colony of atheists. In the exhibition hall, they encounter Republicans who are mystified, irritated, curious, frazzled, fascinated or some combination thereof. Anuzis and Haynes are in Denver to educate, but they find plenty of attendees already know the issue well. At one point, Anuzis engages a policy staffer with the Colorado Senate for nearly 30 minutes; the staffer, who asked not to be named, wrote the GOP leadership’s talking points earlier this year when the Compact came before the legislature. It died in committee on a party-line vote.

Their colloquy was like a short symposium on the complexities of changing an institution as foundational as the Electoral College—even if that institution seems obsolete.

“If you’re one of the four out of every five Americans who doesn’t live in a battleground state, your vote doesn’t count,” Anuzis tells him.

“What’s wrong with that?” the staffer responds. “What’s wrong with the fact that Nebraska is predictably Republican? Or that Oregon is predictably Democratic?”

“What’s wrong with it is it perverts public policy. I think we have ethanol because of Iowa. I think we have Medicare Part D because of Florida. I think we have steel tariffs because of Pennsylvania.”

“But all you’re going to do is change where the battleground states are. You’re not going to change the fact that there are battleground states, and that not every state is going to be one.”

“It’s not that every state is going to be a battleground state. It’s that we’re going to have campaigns targeting every voter they can get. We would change the way we campaign.”

“Yeah, they would go to Chicago, New York, Boston, San Francisco and L.A.—all Democrat-majority cities. All you’re going to do is turn out more Democrats.”

Around they go. Anuzis has heard these criticisms before, and he says eight out of 10 people walk away from a thorough debate convinced by his counterarguments. That estimate seems a tad inflated. In Panama, our crew of skeptical, mildly hungover journalists savaged the proposal from all angles—focusing mainly on policy, though a few right-leaning reporters suggested it would be suicide for the GOP—and the minority of us who walked away believing it was logistically achievable still weren’t convinced it would improve upon our current, undeniably flawed system.

All you’re going to do is change where the battleground states are. You’re not going to change the fact that there are battleground states.”

Two days after that encounter at ALEC, the staffer’s boss, Colorado Senate President Pro Tempore Jerry Sonnenberg, called me unsolicited. He told me not a single Republican senator in his state supported it. “If they want to change the Constitution, I don’t believe in using a back door,” Sonnenberg said. He conceded, though, that his opposition is rooted in Colorado’s battleground status. “If we went to a popular vote, we would never see a presidential candidate in places like Colorado. We have a limited number of voters, and it would decrease our influence.”

If no swing state legislators can be convinced, Koza’s campaign hinges on a narrower lobbying target—safe red states, whose legislative bodies are dominated by conservative Republicans. It once seemed realistic, even imminent: GOP-controlled chambers in Arizona and Georgia, two safe (for now) Republican states, flirted with entering the Compact last year. The bill passed the Arizona House, 40-16—among Republicans, it was 20 yeas and 14 nays—before dying in the Senate. In Georgia, it passed a House committee and had overwhelming support in the Senate—with 50 of its 56 members co-sponsoring the legislation, according to the Atlanta Journal-Constitution—until the chamber’s top Republican, who had previously backed the bill, abruptly quashed it following Trump’s victory, saying he had received “new data.” Indeed, November 8, 2016, may have been the turning point. This year, Idaho, Indiana, Missouri and Montana considered the legislation and then crushed it. “If the 2016 election had been normal, we believe we would have gotten enactments in red states in 2017,” Koza says. “We’ve been in a holding pattern, waiting to see if things cool down. … We’re currently in the process of figuring out what to do in 2018.”

The plan, according to Anuzis, is to kick off the year by targeting not just any Republican states but Utah and Oklahoma—two of the most conservative in the union—in pursuit of a symbolic breakthrough. They boast only a combined 13 electoral votes, but Koza and his team believe passage there could open the floodgates. “A lot of Republicans don’t want their state to jump first,” Anuzis says. “But if we get those two, we’ll get four or five more.”

Their ace in the hole is Curt Bramble, president pro tempore of the Utah Senate and a former Compact skeptic. Bramble warmed to the idea several years ago after dicing statistics on federal expenditures in battleground states and deciding that the playing field was uneven. With help from Koza’s machine, Bramble converted some colleagues, too, and was preparing for a vote this year—until Trump won the White House. Now he expects the legislation to come up early in the 2018 session. The House speaker is supportive, Bramble says, but his more powerful colleague, the Senate president, has concerns. “It won’t be an easy bill to pass,” he says. “There are a lot of misperceptions—the same misperceptions that I used to have.”

“Misperceptions” or not, there is no denying the complex and entirely legitimate questions that surround the Compact. Wouldn’t a contested election become a logistical nightmare, since every state has separate recount rules? Couldn’t “faithless electors” go rogue against the new system, adamant that whichever presidential candidate won their state should receive its electoral votes? What’s to stop candidates, if they are focusing on every single state rather than just a handful, to adopt 50 pet issues instead of a few, exacerbating the problem of federal favoritism instead of eliminating it?

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The biggest question of all: Does the Compact require congressional approval? Supporters say no, because states are given constitutional authority to appoint electors, and therefore the Compact does not threaten federal supremacy. Opponents say yes, because the changes would affect the election of a federal official. Both sides agree on one thing: If the Compact hits 270 electoral votes, states not involved would surely file a joint lawsuit against the member states. This would guarantee a trip to the Supreme Court, which would determine whether Congress has jurisdiction on the matter.

None of this drama will unfold anytime soon. Koza’s project, he concedes, is “a long, hard haul” dotted with near-victories and lopsided defeats. He is 74 and hopes to see a national popular vote in his lifetime, but he knows it might take much longer. All his troops can do is take it one seminar at a time—buying steaks and margaritas and beachfront hotel suites for legislators and journalists—and presenting them, at the outset, with the most compelling argument of all.

“We have 514,000 elected officials in this country,” Anuzis said in Panama. “And all of them are elected by who gets the most votes. Except for one.”

Tim Alberta is national political reporter at Politico Magazine.

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