Last week, the Colorado Senate took the next to last step toward changing how the state’s electoral votes are cast in a presidential election. Currently, Colorado’s 9 electoral votes are cast for the candidate who wins the popular vote in the state. HB19-042, the National Popular Vote bill, would change that process, committing those 9 electoral votes to the candidate who wins the national popular vote instead. The bill passed the Senate 34-29 with six Democrats voting against the bill and none of the Republicans voting in favor.
The bill is now headed to Governor Polis’ desk for signature, where it’s assumed he’ll sign later this week. However, there is an important caveat to this legislation.
States that have passed identical bills to Colorado’s are part of an effort called the National Popular Vote Interstate Compact. This legislation, in Colorado and elsewhere, would only go into effect when states totaling 270 electoral votes—the number needed to win a presidential election—all join the compact.
The NPV effort has existed since 2006. During that time, 11 states and the District of Columbia have joined the compact, representing a total of 172 electoral votes. Maryland and New Jersey joined first in 2007, and Connecticut joined most recently in 2018. Other states include Hawaii and Illinois (2008), Washington (2009), Massachusetts and D.C. (2010), California and Vermont (2011), Rhode Island (2013) and New York (2014). That leaves 98 votes remaining. Colorado’s 9 would reduce that number to 89.
There have been strong feelings on both sides of this issue, and, although it may not feel this way today, the NPV movement has not always been so partisan.
For years, the opposition to a national popular vote stemmed from both constitutional and practical concerns, with many citing the intention of the founding fathers to ensure there would no “tyranny of the majority” at the expense of smaller, less populated states. Others were opposed based on practical considerations, stating that going with a national popular vote would mean candidates have to campaign in more than just battleground states, making it almost impossible for a grassroots candidate—not backed by big money—to have a viable chance. One of those most vocal opponents was on the Democratic National Committee.
Supporters of the NPV state that, in today’s world, founding fathers would disagree with the Electoral College out of the belief that one vote should not carry more weight than another, and candidates should be forced to pay attention to all states, not just those whose electoral votes are in question. Likewise, the strong supporter making these arguments was on the Republican National Committee.
However, since the 2016 election, partisan lines have firmed up and are now much more clearly drawn as pollsters across the nation have seen a sharp drop in Republican support for national popular vote and a sharp increase in Democratic support.
Colorado state Sen. Mike Foote (D-Lafayette), who's sponsoring legislation, insisted that it's about upholding the democratic principle of one person, one vote. "It's about time that every vote in the country counts equally," he’s quoted as saying in a recent interview. "Right now, if you live in one of the 38 states that is not a battleground state, you’re completely ignored by presidential campaigns, and your vote doesn’t count nearly as much. Our president should be elected because the president appeals to the majority of the voters here in the United States, not just the majority of voters in those 12 battleground states.”
Republican state Sen. Jerry Sonnenberg, who represents the plains east of Denver, worries about the impact of a popular vote on rural America. In the same article, he’s quoted as saying it would lead candidates to only campaign in the largest media markets, like New York and Los Angeles. "You drop us from nine electoral votes to 5.5 million people, all of sudden Colorado is irrelevant," he said. "This is all about making sure presidential candidates realize Colorado is important to the rest of the country."
Although Colorado voters may feel like this issue came out of nowhere, this is not the first time it’s been voted on in the state. In fact, in 2006 and 2007, this bill passed the Colorado House of Representatives, and in 2009, it passed the Senate. However, in order to be presented to the governor to sign into law, the bill must pass both houses in the same year.
Furthermore, the NPV is not the first movement to try to change the electoral process. Starting in the 90s, there were a number of such efforts, sparked by both Republicans and Democrats. Even so, for years, the debate was essentially confined to scholars and understandably so. Prior to 2000, there had been only three elections in U.S. history where a presidential candidate lost the election despite winning the popular vote, and all three of those elections were in the 1800s. In presidential campaign years, that’s ancient history.
All that changed on Election Day in 2000.
Al Gore was running for president against George W. Bush, and on the day of the election, as polling places closed and results began to be made public, it became clear that both the popular vote and correlating electoral vote were very close.
A candidate must have 270 electoral votes to win. Late in the evening, it seemed Gore had a narrow lead of roughly 550,000 in the popular vote with a projected 250 electoral votes. Bush had a projected 246 electoral votes. Wisconsin and Oregon were still too close to call. However, Florida—with 25 electoral votes—garnered the nation’s attention.
The night turned into a real nail biter as major news outlets first projected Gore to be the winner only to retract that projection hours later as more vote tallies started to come in from Florida. At night’s end, the race was too close to call, and Americans went to bed without knowing who won. The next morning, the results hadn’t changed—Bush had 246 and Gore had 250. It took several days for Wisconsin and Oregon to be decided, both of which went for Gore. That brought the tally to Bush 246, Gore 266. All eyes remained on Florida where, at first count, Bush won by 2,000 votes. Such a narrow margin automatically triggered a machine recount, which was followed by demands for recounts by hand in certain counties, which led to the courts intervening.
After an intense recount of votes, various court rulings and more than a month had passed, it was finally ruled that, although Gore won the popular vote by 547,398, Bush won the popular vote in Florida by 537 votes out of a total 6 million votes that were cast. Those 537 votes gave Bush the electoral vote from Florida, resulting in a final count of Bush with 271 electoral votes and Gore with 266. (Note to people who say “my vote doesn’t count”: uh, you might want to reconsider that perspective.)
The 2000 election definitely stung Democrats, but the Electoral College didn’t really gain much national legislative attention until 2006 when a man named John Koza founded the non-profit organization National Popular Vote, Inc.. Koza, who taught computer science at Stanford University and invented the scratch off device on lottery tickets, was frustrated with the “winner-take-all” process and stated the purpose of the group was "to study, analyze and educate the public regarding a proposal to provide for the nationwide popular election of the President.”
In the months of launching his group, a few states—some Democratic strongholds and some smaller, more purple—expressed interest. Before long, all 50 state legislatures had at least considered the NPV. To date, only 11 plus D.C. have passed legislation.
There is still the broader issue of constitutionality as the Electoral College was written into the original founding documents. Against that background, some scholars say that Congressional approval will be required in order for the participating states to enact the legislation and states can’t bind their electors to voters outside of their states’ boundaries.
Koza, and others, contend that Article II of the constitution empowers state legislatures to decide for themselves how their electoral votes are cast. As proof of this, he offers up the two states of Maine and Nebraska, both of which have “proportional” or “district” vote allocation for their electoral votes.
Political analysts feel that the compact fulfilled is still a long ways off. Republicans oppose the NPV. Large swing states like Florida and Ohio have no reason to support it, which means support will have to come from deep red states where Republicans strongly oppose the NPV.
Even if the limit was reached, many are convinced that there will be a string of lawsuits filed contesting the constitutionality of the legislation, leaving this to be an issue mostly like decided by the Supreme Court.
There is one thing that can be said with a pretty strong degree of certainty. This issue ain’t over ‘til it’s over, and ain’t no way this is over by 2020.