In two of the previous five presidential elections, the candidate who earned the most votes nonetheless lost the White House thanks to the Electoral College, a constitutionally-prescribed system that entrusts to states—not individual voters—the process of formally choosing a president. With the coming 2020 presidential election, some electoral prognosticators are saying that Donald Trump could lose by 5 million votes and still win the election. Troubled by the undemocratic nature of the Electoral College, aspiring reformers are examining proposals that, if enacted, could prevent America from again being governed by person whom a majority of voters do not support.
In 2001, a coalition of law professors started outlining an Electoral College workaround that became the National Popular Vote Interstate Compact, or NPVIC. In June of this year, Oregon governor Kate Brown signed a bill making her state the 16th jurisdiction to join it. Under this law, Oregon's electoral votes would go to whichever presidential candidate wins the most votes nationwide—no matter who wins the most votes in the state.
The Constitution grants each state a number of "electors," equal to its number of senators and members of Congress. Together, these electors compose the Electoral College, and they convene after each general election—usually in their state capitals—to cast the official votes for president. In almost every state, electors cast ballots for whichever candidate won the popular vote in that state, no matter how close the actual tally. Only two states, Maine and Nebraska, officially allow for some sort of split; in every other jurisdiction, to the victor go all the spoils.
The odd machinations of the Electoral College are why, for example, George W. Bush earned all 25 of Florida's electoral votes in 2000, despite beating Al Gore in the state by only 537 votes out of nearly six million cast. They also allowed Donald Trump, who racked up victories in small states, to win in 2016 even though some three million fewer people voted for him than for Hillary Clinton. The ensuing outcry so infuriated him that he fabricated a "voter fraud" conspiracy theory and the convened a blue-ribbon panel to investigate it, all to avoid facing the unpleasant reality that not as many voters wanted him to be commander-in-chief as he perhaps would have liked.
The Electoral College is enshrined in the Constitution, which makes its outright abolition subject to the onerous, near-insurmountable amendment process. But NPVIC language of Article II, Section 1 empowers states to appoint their electors "in such Manner as the Legislature thereof may direct." NPVIC proponents argue that their system doesn't require a constitutional amendment, and that states unsatisfied with the practice of awarding their electoral votes to the state's winner can simply choose to do something else.
Maryland was the first state to pass the NPVIC into law in 2007, followed by Hawaii, Illinois, and New Jersey a year later. But each state's commitment to support the national popular vote winner comes with a wrinkle: Only when the total number of electoral votes belonging to states who join the compact surpasses 270—the threshold required to win the White House—will they actually take effect.
This contingency means that for now, electors in those states continue to vote in the traditional manner. But it also means that not all states need pass the NPVIC in order for it to accomplish its intended outcome. As long as there are greater than 270 electoral votes guaranteed to go to the national popular vote winner, the national popular vote winner is guaranteed to win the presidency. Oregon brings the total number of electoral votes at stake in the NPVIC up to 196—about 75 percent of that 270-vote threshold.
Those last votes may prove tough to secure, though. The fastest states to join the NPVIC were those that recently backed candidates who won the national popular vote and lost the Electoral College—in other words, states that voted for Democrats. Each of the NPVIC's 16 members went for Hillary Clinton in 2016. No Republican governor has ever signed NPVIC legislation, and a Democratic governor—Steve Siolak of Nevada—actually vetoed one in May. “Once effective, the National Popular Vote Interstate Compact could diminish the role of smaller states like Nevada in national electoral contests,” he said. "In cases like this, where Nevada’s interests could diverge from the interests of large states, I will always stand up for Nevada."
Way back in 2014, Nate Silver of FiveThirtyEight predicted that the NPVIC was doomed because battleground states like Nevada have no reason to cede their outsized importance in presidential election. There just aren't enough deep-blue, vote-rich states to make the NPVIC effective by themselves, either. Even if every state Clinton won—deep-blue and otherwise—were to join the compact, that would of course have been insufficient to alter the election's outcome.
The compact's opponents also argue that the compact would increase the importance to candidates of campaigning in voter-dense urban areas, thereby diminishing the national influence of smaller, redder, less-populated states. In a handful of them, including Arkansas and Oklahoma, NPVIC legislation has managed to pass one Republican-controlled legislative chamber, but failed to advance any further. And as the Electoral College's role in preserving Republican political power grows more significant, it's hard to imagine red-state legislators voluntarily disenfranchising constituents in service of a blue-state-backed end-around.
There is also an unresolved question of whether NPVIC is legal, although because the compact is not yet effective, discussion of this issue has consisted mostly of professors arguing hypotheticals in law review articles. The NPVIC derives its name from the Compacts Clause, a constitutional provision that expressly allows states, with the consent of Congress, to enter into "compacts" or "agreements" with one another. The Supreme Court, reluctant to endorse mandatory congressional micromanagement of every aspect of interstate cooperation, has narrowed the consent requirement to apply to compacts that increase the power of states at the expense of the federal government.
It isn't immediately obvious that the NPVIC falls into this category, given that, again, the Constitution already lets states choose electors as they see fit. But if it were to take effect, non-compliance with the Compacts Clause would be a likely basis for lawsuits seeking to invalidate it.
In general, Americans are warming to the notion of awarding the presidency to the winner of the national popular vote. In a March 2019 Politico/Morning Consult poll, 50 percent of respondents voiced their support for such a system, compared to only 34 percent who favor continuing to use the Electoral College. In April 2018, the Pew Research Center recorded an even more significant 55-41 split, with the strongest support for reform among Democratic voters, and the strongest opposition to it among Republican voters in battleground states.
When it comes to the NPVIC in particular, however, voters are a little more skeptical. Curiously, a May 2019 Gallup poll found although 55 percent of respondents would favor a constitutional amendment to make the popular vote winner president, 53 percent oppose the NPVIC—even though the two proposals would have the same practical effect. Unless support for the compact can make inroads among leery purple-state voters, the proposal might be, for the time being, stuck.
