Colorado Is Poised to Join the National Popular Vote Interstate Compact and Alter the Dynamics of the Movement

Posted in: Election Law

The election reform movement known as the National Popular Vote (“NPV”) interstate compact plan is nearing some significant milestones. To appreciate that, a bit of background is needed. As I have written in a number of columns analyzing various aspects of the NPV movement, the essential idea—a version of which was seriously floated by a small number of people including me, my older brother (Akhil Amar), and also (separately) by Professor Robert Bennett over a decade ago—seeks to permit and encourage various states to sign onto an agreement that would require each signatory state to cast its electoral college votes not for the candidate who garners a plurality of popular votes in that state, but for the candidate who wins the most popular votes nationally.

If enough states join as signatories, this system would (assuming presidential electors live up to their promises and do not act “faithlessly”) essentially guarantee that the winner of the presidential contest would be the person who had won the largest number of votes from individual voters nationwide. In this way, the plan would ensure that every voter—regardless of the state in which she lives—would have her vote count equally to that of every other voter in the country. It would also mean that candidates would have incentives to campaign in (and tailor policies to) all places where there were significant numbers of undecided voters, not just so-called swing states where the median voter is in play.

The agreement, by its own terms, would not go into effect until a sufficient number of states to comprise a majority of the electoral college—that is, states whose electoral college allotments collectively total 270 or more—ratify it.

Since I last discussed the NPV plan for this website about two years ago, Connecticut became the 12th jurisdiction—joining Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, Vermont, California, New York and Rhode Island) and the District of Columbia—whose legislature has adopted the NPV plan. These eleven states and DC make up 172 electoral college votes—well more than half the needed 270 votes. Importantly (and sadly), to date only predictably blue (Democratic dominated) states have joined the movement, fueling the misguided notion that the electoral college system today necessarily helps Republicans and hurts Democrats. This perception stems from the fact this century, two Republicans (George W. Bush and Donald Trump) have won the White House even though their Democratic opponents (Al Gore and Hillary Clinton) had more popular votes.

But, in fact, in 2000, George W. Bush could easily have won the popular vote and lost the electoral college to Al Gore, and in 2004, John Kerry almost won the electoral college even though he trailed George W. Bush by about 3 million nationwide popular votes. (I should note, as I have in the past, that we cannot know with any certainty which candidate would have won the national popular vote if the NPV plan had been in effect in 2016, because the candidates would have campaigned differently; for example, it is at least possible that Mr. Trump could have run up the margin of victory in some solidly red states—and narrowed the margin of loss in some deep blue ones—had every vote counted equally.)

In fact, people in red states like Texas should want to consider the NPV plan, since under the current system predictably red states get ignored in the election campaign just as surely as predictably blue states do. Moreover, we are at a moment in history in which the traditional operation of the electoral college doesn’t really favor either major political party over the other one. (Statistician Nate Silver has asserted that the electoral college has actually helped Democrats in the 2008 and 2012 elections, even though it hurt them in 2000.) I would add that even if there were reason to believe that a move towards a national popular vote would aid one political party right now, that still would allow for adoption of the plan with an effective date set far in the future—when demographics cannot easily be predicted—if national voter equality is, as I believe, a compelling idea.

In recent months, however, there are indications the logjam may be about to break. Perhaps most significantly, Colorado is on the verge of adoption; both houses of the state legislature have passed the plan, and the governor has indicated an intent to sign the measure. Why is Colorado significant (aside from its nine electoral college votes)? For three reasons.

First, Colorado is a not a deep blue state. As I have written many times before, the NPV movement will not get to 270 and—more importantly – will not have legitimacy in the eyes of America until red and blue states have joined it. Until a red state joins the mix, it will be, as I have said, “hard to debunk the fear that red state folks have that the National Popular Vote bill is a Democratic scheme rather than a democratic idea.” Colorado is not a reliably red state, but neither is it reliably blue over the last quarter century; the Republican presidential candidate won in 1996, 2000, and 2004, and the Democrat won in 2008, 2012, and 2016. Adoption in Colorado is thus a good stepping stone to adoption in truly red states.

Second, Colorado’s status as a purple (rather than a red) state actually means that Coloradans are acting selflessly to embrace the NPV. As I have written before, the handful of mid-sized to large swing states are the winners in the current electoral college game—a sizeable swing state gets a great deal of attention and promises from the candidates seeking to win over the state’s median voter. So for Colorado to make a statement against interest, so to speak, helps illustrate that presidential elections can and should be about national principle, and not just about party or state self-interest. Colorado’s statement in this regard would be particularly meaningful, given that Colorado voters 15 years ago roundly rejected Amendment 36, a measure that would have shifted from a winner-take-all allocation of electors to an allocation among the presidential candidates in proportion to the popular vote. Amendment 36 failed in part because it would have unilaterally reduced Colorado’s clout in the electoral process—an effect that opponents of NPV in Colorado today worry about. But Amendment 36 was bad policy primarily because it was driven by partisan considerations: Democrats wanted to split the state’s electors rather than lose them all in the 2004 Bush/Kerry presidential election. As I have argued over and over, NPV shouldn’t be viewed as a partisan play given the national balance in popular votes in modern times.

Mention of direct democracy points up the third reason consideration of NPV in Colorado is so important. Opponents of NPV there have indicated they will seek a popular referendum to overturn the law after the governor signs it. How could the prospect of such a referendum ultimately be a good thing for NPV? Because NPV’s chances of ultimate success in red states (which are necessary for its success overall) depend on the use of direct democracy to adopt the NPV compact. Given the hyper-partisan mindsets of many elected officials today, to get red state elected legislators and governors to see that NPV won’t necessarily hurt their party (and to get blue state elected legislators and governors to stay committed to the plan if red states do join on) may be hard. Or at least harder than getting voters (even in red states) to see the virtues of the plan; polling data generally confirm that Republican voters in red states embrace NPV much more than do Republican legislative officials in those states. So Colorado’s use of direct democracy to adopt (or at least confirm adoption of) the NPV opens the door to other red states (like Arizona or Oklahoma) that, under their state constitutions, have robust initiative and other direct democracy devices. (In Oregon there have also been discussions over the past year to let the voters decide the NPV question.) And once a red state or two joins the NPV agreement, the non-partisan nature of the plan will become clearer, and attainment of the 270-vote goal will be much more realistic.

But is the use of direct democracy to adopt something like NPV permissible under the federal Constitution? The answer is yes, and the Supreme Court effectively made that clear four years ago in its important ruling in Arizona Legislature v. Arizona Independent Redistricting Commission (AIRC). In deciding that the initiative device was a permissible way for a state to adopt congressional time, place, and manner regulations under Article I of the Constitution, the Court adopted reasoning that makes clear that the initiative device is a similarly permissible way for states to undertake presidential election regulations under Article II as well. In both settings, the word “Legislature” as used in the Constitution refers not just to ordinary elected legislatures, but also to the people acting under direct democracy. (For a full explanation of why the AIRC ruling means direct democracy is permissible in electoral college reform, see my Justia essay written in the wake of the ruling.)