The Presidency of the United States is determined by a vote of electors from each state and not the winner of the national popular vote.
In the majority of elections, the winner of the electoral vote and the popular vote are the same. However, in two of the last five presidential elections — in 2000 and 2016 — the winner of the presidential election did not win the popular vote.
A movement began in 2006 to guarantee that the winner of the national popular vote wins the electoral vote. The National Popular Vote Interstate Compact takes a state-by-state approach to electoral reform that is distinct from the long history of attempts to amend the constitution’s requirement for an Electoral College.
Electoral Votes and the U.S. Constitution
The U.S. Constitution requires the use of an Electoral College for presidential voting. Article II, Section 1 states that the president and vice president are chosen by electors from each state with each delegation equal to the state’s number of U.S. representatives and senators. The date for elector voting is established by Congress with all states voting on the same day.
The 12th Amendment ratified in 1804 created separate presidential and vice presidential ballots for electors. As originally defined, electors selected presidential candidates on a single ballot with the top vote recipient selected as president and the runner-up the vice president. This process created partisan tensions when political opponents John Adams and Thomas Jefferson were elected president and vice president in 1796. The 1800 election resulted in an electoral tie between Jefferson and Aaron Burr, resulting in a contentious congressional vote in favor of Jefferson.
Reformers from the nation’s early years through the 20th century focused on changing the U.S. Constitution to tweak or eliminate the Electoral College.
The National Popular Vote Interstate Compact relies instead on the constitution’s allowance for states to choose how their electoral votes are distributed. This flexibility led Maine and Nebraska to pass laws allocating their votes based on presidential winners of congressional districts in 1969 and 1991, respectively. The compact would require participating states to pass laws allocating electoral votes to match the winner of the national popular vote.
Implementing the National Popular Vote Interstate Compact
The National Popular Vote Interstate Compact is an agreement among state legislatures designed to keep the Electoral College and empower states to use a constitutional right often left untouched. The compact requires participating states to select electors bound to the winners of the popular vote in all states and the District of Columbia. Since electors typically meet in mid-December, the compact allows state election officials to complete absentee and provisional vote tallies that may decide a close national election.
Legislators in each participating state approve the compact’s binding mechanism similar to other legislation. The compact allows states to revert to the previous system if the national popular vote is tied or too close to call by the meeting of electors. States can also vote to withdraw from the compact though they must do so at least six months prior to a presidential election for the withdrawal to immediately take effect.
The compact does not require approval by legislators in all 50 states and the District of Columbia to take effect. Rather, the national popular vote bill passed by participating states activates following approval by states representing 270 of the 538-vote Electoral College. This provision means that the popular vote across the country would decide the presidency even if every state does not approve the compact.
Progress Toward a National Popular Vote
As of April 5, 2019, the National Popular Vote Interstate Compact was approved by 14 states and the District of Columbia totaling 189 electoral votes. These states include California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Massachusetts, Maryland, New Jersey, New Mexico, New York, Rhode Island, Vermont, and Washington.
The compact does not take effect until participating states represent 270 electoral votes, so legislative approval only commits to the binding mechanism with passage by additional states.
Support and Opposition
Support
National Popular Vote Inc. is the primary group advocating for the interstate compact. A primary reason for National Popular Vote Inc.’s work is a belief that current state laws regarding electoral votes discourage presidential candidates from speaking to most voters. The organization argues that the current system allows candidates to visit and spend money in a small number of competitive states.
National Popular Vote Inc. uses the 2012 and 2016 presidential elections as examples of limited campaign maps. Republican nominees Mitt Romney and Donald Trump deployed significant resources to 12 competitive states in each election. The compact is designed to push presidential candidates to run national campaigns that seek votes in most states.
Supporters of the compact also point out that the current electoral voting system allows second-place finishers in the national vote to win the presidency. Republican candidate George W. Bush won the 2000 presidential election in the Electoral College despite losing the national popular vote. This result was repeated in 2016 with Republican candidate Donald Trump defeating Democratic candidate Hillary Clinton in the Electoral College despite a national vote loss. The compact’s implementation would ensure consistency between electoral and popular vote results.
FairVote, an electoral reform organization, lists various groups as supporters of the compact. The American Civil Liberties Union, the League of Women Voters US, and the Sierra Club are prominent supporters of the national popular vote idea. This list also includes endorsements from The Boston Globe, The Los Angeles Times, and The New York Times. National Popular Vote Inc. also includes eight American Legislative Exchange Council chairs, former Speaker of the House Newt Gingrich (R), and former U.S. Rep. Bob Barr (R) among the plan’s endorsers.
Opposition
Connecticut’s 2018 passage of the National Popular Vote Interstate Compact generated a variety of arguments against the legislation. Republican State Sen. Toni Boucher argued that the previous system benefitted the state due to its small population. Boucher and other Republicans suggested that few presidential candidates would visit Connecticut when resources could be used in states with larger populations. State Rep. Gail Lavielle (R) also noted that Connecticut’s electors may be required to cast ballots against the wishes of state voters depending on the winner of the national popular vote.
Edward Zelinsky, a law professor at Benjamin Cardozo School of Law, opposed the compact’s approval due to the lack of uniformity in state election laws. Zelinsky argued that the compact would apply equal weight to each state’s popular vote despite different election laws across the country. He used minimum voting ages as an example of how one state’s voting impact could vary significantly from a similarly sized state. Zelinsky believes that electoral reform should take place at a state-by-state level similar to Nebraska and Maine rather than using a national compact.
The Congressional Research Service published a report on arguments for and against the compact in October 2018. Under the compact, state and national parties may file lawsuits in every state to win as many votes as possible to strengthen the national vote. The report also noted that opponents want the compact to feature an expiration date similar to the standard seven-year ratification period on a federal constitutional amendment. Opponents also argue that the national popular vote could allow a candidate to win under 40 percent of the vote and become president if three or more viable candidates ran for office.