Can National Popular Vote end the voting wars?

By Rob Richie
April 17, 2014

One of the most pernicious outcomes of the intense political struggle between Democrats and Republicans is the parties’ breathtaking capacity to game our voting rules. Nothing makes voters more cynical than seeing political leaders seemingly supporting or opposing election laws based solely on their partisan impact — from redistricting reform to fights over whether to allow early voting. ­

But a reform win in New York could foreshadow a cease-fire in the voting wars. On April 15, Governor Andrew Cuomo signed legislation making New York the 10th state to pass the National Popular Vote (NPV) interstate compact for president. Overwhelming majorities of both Republicans and Democrats approved the bill, which seeks to guarantee election of the presidential candidate who wins the most popular votes in all 50 states and the District of Columbia.

We don’t need a constitutional amendment to achieve this goal. The Constitution gives each state power over how to allocate its electoral votes and the ability to enter into binding interstate compacts. The Founding Fathers gave states freedom to structure how to select the president — and national popular vote embodies that tradition.

It can only go into effect after adoption in jurisdictions that collectively hold a majority of electoral votes. Right now, the supporting states together have 165 of the 270 electoral votes necessary to activate the national popular vote. Once states with at least 105 more electoral votes pass it, we will hold a presidential election in which, for the first time in U.S. history, every vote in every state will count equally. The candidate with the most votes will always win.

It’s hard to overemphasize the value of passing the national popular vote. Today, a partisan wall blocks out meaningful competition in more than two-thirds of states and even larger majorities of congressional districts. As soon as a state has an underlying preference of more than eight or nine percentage points for one party — with New Mexico and Missouri examples of such former swing states — no amount of money or voter mobilization can influence that state’s presidential outcome in a nationally competitive year.

For the last few presidential cycles, more than 98 percent of general election campaign spending and campaign events bombarded only 12 states. Meanwhile, at least 35 states — small and large, Eastern and Western, Democratic and Republican — received less than one-hundredth of a percent of the attention they would likely receive under a national popular vote for president.

This perverse reality makes a mockery of the idea that in presidential elections all states and all voters should matter. All-consuming focus on swing states makes their voters’ concerns infinitely more important to presidential campaigns than the concerns of the other two-thirds of Americans.

These blinders distort what candidates talk about, what their campaigns address, where the party nominees travel, and which states receive federal grants. It’s no accident that swing states have greater voter turnout than the rest of the nation.

The National Popular Vote plan has been working its way through the states since 2006. It offers an elegant reform solution that pleases conservatives by preserving state power over elections and the future of the Electoral College, yet satisfies liberals who back constitutional change to achieve direct election. So it seems almost surprising that this system has not yet won national enactment. But that assumption would overlook the great suspicion both major parties bring to the others’ motives when it comes to voting laws.

With the 2000 election looming in the background, many Democrats ignored the 2004 election (where George W. Bush would have lost the White House with a shift of fewer than 70,000 votes in Ohio — despite his national advantage of more than three million votes) and immediately backed NPV. Many Republicans immediately questioned it for the same reason.

States run by Democrats passed national popular vote first, further suggesting that it was somehow a partisan proposal. With fewer and fewer “blue states” left, NPV could have been left far short of the 270 electoral votes needed to win.

Fortunately, the lead advocacy group National Popular Vote has, from the beginning, emphasized the nonpartisan value of its proposal. For how can opponents convincingly argue that electing the candidate with the most votes is partisan? It’s an eminently fair fight — with strong candidates from both parties able to win.

It comes down to whether parties have confidence in their policies and ability to earn majorities. If you do, you can be confident in winning majority support in a truly representative democracy.

Under the current system, however, majority support does not guarantee electoral success. In any given election, one party or the other can have an advantage based on the vagaries of the leanings of a few swing states. Republicans used to have an edge, but in recent elections, pundits like Nate Silver of 538 convincingly argue that Democrats have had an edge. The 2016 race, however, is anyone’s guess. We know that there will be a distortion — but we don’t know who it will help.

New York’s bipartisan vote for National Popular Vote underscores growing support for the notion that a fair vote is better than a gamed one. That fair vote should include all Americans when electing their president, and candidates should have incentives to seek votes everywhere — with every single voter equally important to winning a majority in a close election.

Not only did NPV earn the support of 25 of 27 Republicans and 28 of 30 Democrats in the New York state senate this year, but it passed Oklahoma’s heavily Republican state senate. Nebraska state legislators gave NPV a serious look, and other states are considering action.

The broader promise of setting aside the voting wars is tantalizing. Suppose the parties agreed to establish an explicit individual right to vote in the Constitution and passed measures that ensured no votes were cast by ineligible voters, but all eligible voters had fair access to the polls. Suppose Congress finally took on the problem of gerrymandered congressional districts and required all states to have independent commissions draw larger districts in which nearly all voters could elect preferred candidates using fair representation voting systems.

Nothing would be better for restoring Americans’ faith in their elected officials if those officials made it clear that voters and their democracy come first. Our political leaders should be willing to allow fair completion and encourage high participation in exchange for earning the consent of the governed as intended by our Constitution.

 

PHOTO (TOP): “I voted” stickers are shown at a polling station during a special election for mayor in San Diego, California, November 19, 2013. REUTERS/Mike Blake

PHOTO (INSERT): Voters stand in line to cast their ballots for the presidential elections at a polling place in the Richmond Public Library in Richmond, Virginia, November 6, 2012. REUTERS/Jonathan Ernst

9 comments

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A national popular vote would be a potential disaster. First, there is no such thing – the popular vote is a media report – CNN and AP may disagree on the vote totals. More importantly, in a close election, every precinct would be in play with a potential infinite multi-state legal fight – it would make Florida 2000 look easy. There is a reform which makes sense which does not require a constitutional amendment and is already in place – every state should do what Nebraska and Maine do – award electoral college votes by congressional district, with the statewide winner getting the bonus 2 votes. This would go a long way toward nationalizing the election (districts in Texas and New York actually would be in play), thus avoiding a presidential campaign limited to 10 states.

Posted by SayHey | Report as abusive

Deciding who wins office by counting all the votes and seeing who has the most is just called holding an ordinary election. It would not be a “disaster.”

SayHey, check out every-vote-equal.com. You can easily read Chapter 9, which addresses the myths about National Popular Vote that you refer to above.

As a quick response to the point about congressional districts, remember that the overwhelming majority of congressional districts are uncompetitive, so candidates would only need to campaign in a tiny number of swing districts. Meanwhile, the incentives for gerrymandering would skyrocket.

No state elects its governor by a winner-take-all electoral college system, and for good reason. A single national popular vote is the fair way to elect a single national executive.

Posted by DrewSpencer | Report as abusive

Current federal law (Title 3, chapter 1, section 6 of the United States Code) requires the states to report the November popular vote numbers (the “canvas”) in what is called a “Certificate of Ascertainment.” You can see the Certificates of Ascertainment for all 50 states and the District of Columbia containing the official count of the popular vote at the NARA web site.

Posted by oldgulph | Report as abusive

Under the current system of electing the President, every vote in every precinct matters inside every battleground state.

The current presidential election system makes a repeat of 2000 more likely, not less likely. All you need is a thin and contested margin in a single state with enough electoral votes to make a difference. It’s much less likely that the national vote will be close enough that voting irregularities in a single area will swing enough net votes to make a difference. If we’d had National Popular Vote in 2000, a recount in Florida would not have been an issue.

The idea that recounts will be likely and messy with National Popular Vote is distracting.

The 2000 presidential election was an artificial crisis created because of Bush’s lead of 537 popular votes in Florida. Gore’s nationwide lead was 537,179 popular votes (1,000 times larger). Given the miniscule number of votes that are changed by a typical statewide recount (averaging only 274 votes); no one would have requested a recount or disputed the results in 2000 if the national popular vote had controlled the outcome. Indeed, no one (except perhaps almanac writers and trivia buffs) would have cared that one of the candidates happened to have a 537-vote margin in Florida.

Recounts are far more likely in the current system of state-by-state winner-take-all methods.

The possibility of recounts should not even be a consideration in debating the merits of a national popular vote. No one has ever suggested that the possibility of a recount constitutes a valid reason why state governors or U.S. Senators, for example, should not be elected by a popular vote.

The question of recounts comes to mind in connection with presidential elections only because the current system creates artificial crises and unnecessary disputes.

We do and would vote state by state. Each state manages its own election and is prepared to conduct a recount.

The state-by-state winner-take-all system is not a firewall, but instead causes unnecessary fires.
“It’s an arsonist itching to burn down the whole neighborhood by torching a single house.” Hertzberg

Given that there is a recount only once in about 160 statewide elections, and given there is a presidential election once every four years, one would expect a recount about once in 640 years with the National Popular Vote. The actual probability of a close national election would be even less than that because recounts are less likely with larger pools of votes.

The average change in the margin of victory as a result of a statewide recount was a mere 296 votes in a 10-year study of 2,884 elections.

No recount would have been warranted in any of the nation’s 57 previous presidential elections if the outcome had been based on the nationwide count.

The common nationwide date for meeting of the Electoral College has been set by federal law as the first Monday after the second Wednesday in December. With both the current system and the National Popular Vote, all counting, recounting, and judicial proceedings must be conducted so as to reach a “final determination” prior to the meeting of the Electoral College. In particular, the U.S. Supreme Court has made it clear that the states are expected to make their “final determination” six days before the Electoral College meets.

Posted by oldgulph | Report as abusive

Dividing more states’ electoral votes by congressional district winners would magnify the worst features of the Electoral College system.

If the district approach were used nationally, it would be less fair and less accurately reflect the will of the people than the current system. In 2004, Bush won 50.7% of the popular vote, but 59% of the districts. Although Bush lost the national popular vote in 2000, he won 55% of the country’s congressional districts.

“In 2012, for instance, when Obama garnered nearly a half million more votes in Michigan than Romney, the Republican nominee still managed to carry nine of the state’s 14 congressional districts. If the by-district scheme had been in place for that election, Romney would have collected nine of Michigan’s 16 electoral votes — not enough to change the national result, but enough to make Michigan a net win for Romney, notwithstanding his decisive drubbing in the statewide election.” – Brian Dickerson, Detroit Free Press, Jan. 12, 2014

The district approach would not provide incentive for presidential candidates to campaign in a particular state or focus the candidates’ attention to issues of concern to the state. With the 48 state-by-state winner-take-all laws (whether applied to either districts or states), candidates have no reason to campaign in districts or states where they are comfortably ahead or hopelessly behind. Nationwide, there are now only 35 “battleground” districts that were competitive in the 2012 presidential election. With the present deplorable 48 state-level winner-take-all system, 80% of the states (including California and Texas) are ignored in presidential elections; however, 92% of the nation’s congressional districts would be ignored if a district-level winner-take-all system were used nationally.

In Maine, the closely divided 2nd congressional district received campaign events in 2008 (whereas Maine’s 1st reliably Democratic district was ignored). In 2012, the whole state was ignored. 77% of Maine voters support a national popular vote for President

In Nebraska, the 2008 presidential campaigns did not pay the slightest attention to the people of Nebraska’s reliably Republican 1st and 3rd congressional districts because it was a foregone conclusion that McCain would win the most popular votes in both of those districts. The issues relevant to voters of the 2nd district (the Omaha area) mattered, while the (very different) issues relevant to the remaining (mostly rural) 2/3rds of the state were irrelevant. In 2012, the whole state was ignored. 74% of Nebraska voters support a national popular vote for President

Awarding electoral votes by congressional district could result in third party candidates winning electoral votes that would deny either major party candidate the necessary majority vote of electors and throw the process into Congress to decide.

Because there are generally more close votes on district levels than states as whole, district elections increase the opportunity for error. The larger the voting base, the less opportunity there is for an especially close vote.

Also, a second-place candidate could still win the White House without winning the national popular vote.

A national popular vote is the way to make every person’s vote equal and matter to their candidate because it guarantees that the candidate who gets the most votes in all 50 states and DC becomes President.

Posted by oldgulph | Report as abusive

@ say hey…I like your concept of doing away with winner-take-all states. The big states then hold overwhelming influence in shaping presidential elections. California is a prime example of the problem, although I see that 48 states have that system. I stopped voting years ago. Here in California, issues get voted in, then special interests override the popular vote. So why vote? How does that problem get addressed?

I think that bringing back the vice president vote would also be worthwhile in stimulating voter interest and in keeping government fair.

Posted by goldminor | Report as abusive

” the National Popular Vote (NPV)… seeks to guarantee election of the presidential candidate who wins the most popular votes in all 50 states and the District of Columbia.”

The American system has never been based on a simplistic “the majority wins” system. Every state gets two Senators regardless of how large or small the population of the various states. The number of Representatives per state is only roughly proportional to the state population. A party getting 100% of the vote in one district and 49% in the rest would only win the one district and lose all the rest despite having an overall majority – because they are only the first choice in a single district. How votes are distributed should be just as important that how many votes candidates get. The current system prevents one group or sector from overriding everyone else because voting results must be widely distributed. The nine largest states contain 50.9% of the country’s population – ie a majority. If one party won every single vote in those nine biggest states but none in the remaining 41 states; then that party would still lose badly nationally under the current system in all three contests:
- the Presidency – only 241 of 538 Electors

- the Senate – only 18 of 100 Senators

- the House – only 209 of 435 Representatives

http://www.thegreenpapers.com/Census10/F edRep.phtml?sort=Popu#table

Posted by walstir | Report as abusive

the current electorate can be manipulated so easily…maybe they will re-elect Thomas Jefferson..

Posted by rikfre | Report as abusive

Are we gonna keep recycling CANDIDATES, or a chance will be given for change ???????
Because this is what is happening in Miami, and I suppose it is a National virus; CANDIDATES only able to emerge from RE ELECTION or from relatives, friends, friend of a friend, power and money………………
Please read more at mycampaign2014
This was a session with our Governor Rick Scott on FBook:
https://www.facebook.com/scottforflorida
This wasmy UNANSWERED QUESTIONS:
Dear Governor Scott, I am currently a Candidate for a Commissioner seat at Miami Dade County,District 10 running a humble Campaign, with great desire of Helping others to improve, impulse find solutions for every day life issues, I have been Listening to concerns, Greeting and meeting residents walking door to door in my Community for over two months, because I recognize and agree with what you said earlier in your t-page…”Rick Scott @ScottforFlorida to @CharlieCrist says person-to-person contact is important. We’re way ahead of you, Charlie…” As I value and respect your answers, you also been a CANDIDATE, Pls CAN you RESPOND: why I have been treated different from any other CANDIDATE ? my submitted Press-release NOT PUBLISHED (Personally contacted Miami Herald new President Office Ms.VILLOCH), Not even able to Identify myself as a CANDIDATE at Board of Commissioners Miami Dade County this past April 8th, 2014 ? and Many other VIOLATIONS that I have been enduring; Are my COMPLAINS really reaching SECRETARY OF STATE KEN DETZNER ? sent to him as per your OFFICE indication, and all other Government Inst. I have contacted also giving consideration to my allegations ? Are even my Complains already been filled as PUBLIC RECORDS ? Because I can not even find the letter I sent to you, “transparency” project, right? Are you AWARE of all of it???

Posted by MsMeadows | Report as abusive