FWD: National Popular Vote's plan for electing the President

From: Arthur Keller <voting_at_kellers_dot_org>
Date: Wed Sep 13 2006 - 07:50:00 CDT


It's Time to Make California Matter in Presidential Elections

The proposed "Agreement Among the States to Elect
the President by Nationwide Popular Vote" is a
constitutional and politically practical way to
implement nationwide popular election of the
President - a goal supported by an overwhelming
majority of Americans (over 70% in recent polls).
Since National Popular Vote's initial press
conference in February 2006, the National Popular
Vote's proposed interstate compact has been
passed by the Colorado Senate (April 17), the
California Assembly (May 30), and the California
Senate (August 22).
The New York Times endorsed National Popular
Vote's plan by calling it an "innovative new
proposal" and "an ingenious solution" and urging
that "Legislatures across the country should get
behind it." As the New York Times said (March 14):

"The Electoral College distorts presidential
campaigns. Candidates have no incentive to
campaign in, or address the concerns of, states
that reliably vote for a particular party. Š
According to estimates by National Popular Vote,
the bipartisan coalition making the new proposal,
Šonly 13 states, with 159 electoral votes, were
Šbattleground states in 2004. As a result,
campaigns and national priorities are stacked in
favor of a few strategic states. Ethanol fuel, a
pet issue of Iowa farmers, is discussed a lot.
But issues of equal concern to states like
Alabama, California, New York and Indiana are

The Los Angeles Times endorsed the plan on June
5. The Sacramento Bee endorsed the bill on June 3
saying "The governor and senators can get this
process rolling in other states by acting this
session" and published a second endorsement on
September 6 saying "Schwarzenegger should sign
this historic bill, as he did the greenhouse gas
emissions bill. Both bills put California at the
forefront of states providing 21st century
solutions to much older problems." The Chicago
Sun Times called National Popular Vote's plan
"thinking outside the box" and said "It's time to
make the change with this innovative plan" (March
1). The Minneapolis Star-Tribune said "It's a lot
to ask the Legislature to do the right thing and
endorse the new compact. But it really should."
Common Cause and Fair Vote (The Center for Voting
and Democracy) have also endorsed the plan.
The National Advisory Board of National Popular
Vote includes former congressmen Tom Campbell
(R-California), John Buchanan (R-Alabama-the
first Republican elected to represent
Birmingham), John Anderson (R-Illinois and later
independent presidential candidate) and former
Senators Birch Bayh (D-Indiana), David
Durenberger (R-MN), and Jake Garn (R-Utah).

The major shortcoming of the current system is
that voters in two thirds of the states are
effectively disenfranchised in presidential
elections because they do not live in closely
divided "battleground" states. Presidential
candidates concentrate over two-thirds of their
advertising money and campaign visits in just
five states, and over 99% of their advertising
money in just 16 states. The spectator states in
presidential elections include six of the
nation's 10 most populous states (California,
Texas, New York, Illinois, New Jersey, and North
Carolina), 12 of the 13 least populous states
(all but New Hampshire); and a majority of the
medium-sized states. As the Los Angeles Times
said in its June 5 editorial endorsing the
National Popular Vote plan:

"The Electoral College doesn't skew just election
results; it skews elections. Candidates know they
don't have to campaign in states that either
clearly favor them or clearly don't; they have to
focus only on swing states. In the 2004 campaign,
Bush and Kerry spent a great deal of time
brushing up on agricultural policy and other
issues of vital concern in Iowa, while ignoring
matters important to people in states such as
California, Texas and New York."

As Charlie Cook reported in 2004:

"Senior Bush campaign strategist Matthew Dowd
pointed out yesterday that the Bush campaign
hadn't taken a national poll in almost two years;
instead, it has been polling 18 battleground

Kerry similarly pursued an 18-state strategy in
2004. In other words, present-day presidential
campaigns simply do not even care about the
issues and concerns of voters in two-thirds of
the states. Thus, to name just a few examples,
issues such as immigration (significant for years
in Texas and California) and bio-technology
(significant in North Carolina, New Jersey,
Massachusetts, and California) simply do not
matter to presidential candidates.
A second shortcoming of the current system is a
candidate can win the Presidency without winning
the most popular votes nationwide. A shift of
60,000 votes in Ohio in 2004 would have elected
Kerry, despite President Bush's 3,500,000-vote
nationwide lead. A shift of a handful of votes in
one or two states would have elected the
second-place candidate in five of the last 12
presidential elections. The second-place
candidate was elected in 2000, 1888, 1876, and
A third shortcoming is that the current system
regularly manufactures artificial crises even
when the nationwide popular vote is not
particularly close. Even though President Bush
was 3.5 million votes ahead of Kerry in 2004 on
election night, the nation had to wait until
Wednesday to see if Kerry would dispute Ohio's
all-important 20 electoral votes. Similarly, the
disputed 2000 presidential election was an
artificial crisis created by one candidate's
537-vote lead in Florida in an election in which
the other candidate had a 537,179-vote lead
nationwide (1,000 times greater). In the nation's
most controversial presidential election,
Tilden's lead in 1876 of 3.1% was greater than,
for example, Bush's 2.8%-lead in 2004; however,
very small margins in five states (889, 922,
1,050, 1,075, and 2,798) created a constitutional
crisis. With a single large pool of 122,000,000
votes, there are fewer opportunities for close
outcomes, recounts, and disputes than with 51
separate smaller pools.
All three shortcomings have a single cause - the
states' use of the winner-take-all rule that
awards all of a state's electoral votes to the
candidate winning the state. The remedy to all
three of the above shortcomings is changing the
existing state laws that establish the
winner-take-all rule. The winner-take-all rule is
not mentioned in the U.S. Constitution. It is not
a federal law. It was not the choice of the
Founding Fathers. The winner-take-all rule exists
only in state law. States have the power to
change their own state laws.

The manner of conducting presidential elections
is covered in Article II, Section 1, Clause 2 of
the U.S. Constitution.

"Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of
ElectorsŠ." (emphasis added).

The constitutional wording "as the Legislature
thereof may direct" contains no restrictions. It
does not encourage, discourage, require, or
prohibit the use of any particular method for
awarding the state's electoral votes. In
particular, the U.S. Constitution does not
mention two of the most prominent present-day
features of American presidential elections -
citizen voting for President and the
winner-take-all rule (awarding all of a state's
electoral votes to the candidate winning the
state). These features were not part of the
original Constitution nor were they installed by
any subsequent federal constitutional amendment.
Instead, these features were established by state
laws that were enacted, over a period of decades,
on a state-by-state basis.
Only half the states participating in the
nation's first presidential election gave voters
a voice in presidential elections, whereas no
state legislature has chosen the state's
presidential electors since 1876. A federal
constitutional amendment was not required, nor
used, to confer the presidential vote on the
people. States simply enacted state laws
implementing this concept.
The winner-take-all rule was used by only three
states when the Founding Fathers went back to
their states to organize the nation's first
presidential election in 1789. Today, it is used
by 48 of the 50 states. A federal constitutional
amendment was not required, nor used, to enact
the winner-take-all rule in these 48 states. The
48 states simply used the power that the Founding
Fathers gave them to enact this particular method
for awarding of their electoral votes. The states
may change their decisions concerning the
winner-take-all rule, at any time, by enacting a
different state law.
The fact that Maine enacted a
congressional-district system in 1969 (and
Nebraska did the same for 1992) is a reminder
that the manner of awarding electoral votes is
entirely a matter of state law. A federal
constitutional amendment is not required to
modify the winner-take-all rule because the
winner-take-all rule was never part of the U.S.
Constitution in the first place. The legislatures
of Maine and Nebraska simply used the power that
the Founding Fathers gave them to change their
state laws concerning the awarding of electoral
The above statements are a matter of history and
settled constitutional law. The U.S. Supreme
Court has repeatedly characterized the authority
of the states over the manner of awarding their
electoral votes as "supreme" and "plenary" and
"exclusive." In the controlling 1892 case
(McPherson v. Blacker, 146 U.S. 1), the Court

"The appointment and mode of appointment of
electors belong exclusively to the states under
the constitution of the United States" (emphasis

In Bush v. Gore in 2000 (531 U.S. 98), the Court
called Article II, Section 1, Clause 2

"The source for the statement in McPherson v.
Blacker Š that the State legislature's power to
select the manner for appointing electors is
plenary" (emphasis added).

In short, there is nothing in the U.S.
Constitution that needs to be changed in order to
implement nationwide popular vote of the
President. This change can be accomplished in the
same manner as previous changes have been adopted
- namely the states using their exclusive and
plenary power to decide the manner of awarding
their electoral votes.

At the present time, the Electoral College
reflects the voters' state-by-state choices for
President in 48 states, while reflecting the
voters' district-by-district choices in Maine and
Nebraska. The United States can have nationwide
popular election of the President if the states
reform the Electoral College so that it reflects
the voters' nationwide choice. This means
changing the state laws that establish the
state-level winner-take-all rule (or the
district-level winner-take-all rule).
Under the state legislation proposed by National
Popular Vote, the popular vote counts from all 50
states and the District of Columbia would be
added together to obtain a national grand total
for each presidential candidate. That is, state
election officials would simply perform, in an
official manner, the adding-up of the nationwide
vote for President that is now performed by
almanacs and news media. Then, state elections
officials in all states participating in the plan
would award their electoral votes to the
presidential candidate who receives the largest
number of popular votes in all 50 states and the
District of Columbia. Under the proposal, no
state would act alone in offering to award its
electoral votes to the nationwide winner.
Instead, the National Popular Vote plan would
take effect only when the plan has been enacted
by states collectively possessing a majority of
the electoral votes - that is 270 of the 538
electoral votes. This threshold guarantees that
the presidential candidate receiving the most
popular votes nationwide would win enough
electoral votes in the Electoral College to
become President. The 270-vote threshold
corresponds essentially to states representing a
majority of the people of the United States. Note
that the popular votes from all 50 states and the
District of Columbia are included in the
nationwide count (not just the popular votes from
the states that enact the compact). That is,
every vote throughout the United States is
counted and treated equally.
Note that the National Popular Vote plan entails
no significant administrative burden or fiscal
cost to the state because the voting by the
people in the presidential election inside the
state would be conducted in the same manner as it
now is.
The National Popular Vote plan is an interstate
compact - a type of state law authorized by the
U.S. Constitution that enables states to enter
into a legally enforceable contractual obligation
to undertake agreed joint actions. There are
hundreds of interstate compacts, and each state
in the United States belongs to dozens of
compacts. Examples of interstate compacts include
the Colorado River Compact (allocating water
among seven western states), the Port Authority
(a two-state compact involving New York and New
Jersey), and the Multi-State Tax Compact. Some
compacts involve all 50 states and the District
of Columbia. Interstate compacts are generally
subject to congressional consent.
To prevent partisan mischief between the November
voting by the people and the mid-December meeting
of the Electoral College, the compact contains a
six-month blackout period if any state ever
wishes to withdraw from the compact. The blackout
period starts on July 20 of each presidential
election year and runs through the January 20
inauguration. Interstate compacts are contracts.
It is settled compact law and settled
constitutional law that withdrawal restrictions -
very common in interstate compacts - are
enforceable because the U.S. Constitution
prohibits a state from impairing any obligation
of contract.
Under existing law in 48 of the 50 states, the
state's electoral votes are cast by a group of
presidential electors who were nominated by the
political party whose presidential candidate
carried their particular states. People nominated
for this position are almost invariably long-time
party officials or activists. Under the proposed
compact, the 270 or more electoral votes
possessed by the states belonging to the compact
would be cast by a group of 270+ presidential
electors nominated by the political party whose
candidate won the nationwide vote in all 50
states and the District of Columbia. This group
of electors - sufficient to guarantee the
election of a President - would reflect the will
of the voters nationwide. None of these 270+
presidential electors would be voting contrary to
his or her political inclinations or conscience.
Instead, the electors associated with the
presidential candidate who won the nationwide
vote would simply vote for their own party's
presidential nominee and the nationwide choice of
the voters from all 50 states and the District of
Columbia. This approach implements the desire of
an overwhelming majority of Americans (over 70%
in recent polls), namely that the candidate who
gets the most votes nationwide should become
As a practical matter, National Popular Vote's
plan would eliminate the (unlikely) possibility
of faithless presidential electors. The
presidential candidate receiving the most popular
votes in all 50 states and the District of
Columbia would received a guaranteed majority of
at least 270 electoral votes coming from the
states enacting the compact and the nationwide
winner candidate would also receive additional
electoral votes from whatever remaining states
were carried by the nationwide winner.
As a secondary benefit, the National Popular
Vote's plan would eliminate the possibility of a
presidential election being thrown into the House
of Representatives (where each state would have
one vote) and the vice-presidential election
being thrown in the U.S. Senate because the
presidential candidate receiving the most popular
votes nationwide would win enough electoral votes
in the Electoral College to become President.
Some may argue that voters would be uncomfortable
with the electoral votes of their state being
cast for a candidate that won the national
popular vote - but not necessarily their state's
vote. A nationwide popular vote for President
inherently means that the winner would no longer
be determined on the basis of which candidate
carries individual states but, instead, on the
basis of which candidate receives the most
citizen votes in all 50 states and the District
of Columbia. All of the 270 (or more)
presidential electors from the states enacting
the compact will be from the political party
associated with the nationwide winner. When these
270+ electors cast their votes for the candidate
who received the most votes nationwide, they will
be implementing the method of electing the
President that has long been supported by an
overwhelming majority of Americans; the method
that the elected representatives in their state
legislature has enacted into law; and the method
under which the presidential campaign will have
been conducted. The public is not attached to the
current system. Indeed, less than 20% of the
public supports it.

It is sometimes asserted that the current system
helps the nation's least populous states. It is
also sometimes asserted that the small states
confer a partisan advantage on one political
party. In fact, neither statement is true.
Twelve of 13 smallest states are almost totally
ignored in presidential elections because they
are politically non-competitive. Idaho, Montana,
Wyoming, North Dakota, South Dakota, and Alaska
regularly go Republican, and Rhode Island,
Delaware, Hawaii, Vermont, Maine, and DC
regularly go Democratic. These 12 states together
contain 11 million people. Because of the two
electoral-vote bonus that each state receives,
the 12 non-competitive small states have 40
electoral votes. However, the two-vote bonus is
an entirely illusory advantage to the small
states. Ohio has 11 million people and has "only"
20 electoral votes. As we all know, the 11
million people in Ohio are the center of
attention in presidential campaigns, while the 11
million people in the 12 non-competitive small
states are utterly irrelevant. Nationwide
election of the President would make each of the
voters in the 12 smallest states as important as
an Ohio voter. In fact, the vote of every person
in the United States would become equally
important under the proposed compact.
The fact that the bonus of two electoral votes is
an illusory benefit to the small states has been
widely recognized by the small states for some
time. In 1966, Delaware led a group of 12
predominantly low-population states (North
Dakota, South Dakota, Wyoming, Utah, Arkansas,
Kansas, Oklahoma, Iowa, Kentucky, Florida,
Pennsylvania) in suing New York in the U.S.
Supreme Court, arguing that New York's use of the
winner-take-all effectively disenfranchised
voters in their states. The Court declined to
hear the case (presumably because of the
well-established constitutional provision that
the manner of awarding electoral votes is
exclusively a state decision). Ironically,
defendant New York is no longer an influential
battleground state (as it was in the 1960s).
Today, New York suffers the very same
disenfranchisement as the 12 non-competitive
low-population states because it too has become
politically non-competitive. A vote in New York
is, today, equal to a vote in any of these small
non-competitive states - all are equally
worthless and irrelevant in presidential
elections. In a 1979 Senate speech, Senator Henry
Bellmon (R-Oklahoma) described how his views on
the Electoral College had changed while he had
served as Governor, Senator, National Campaign
Director for Richard Nixon, and a member of the
American Bar Association's commission studying
electoral reform.

"While the consideration of the electoral college
began - and I am a little embarrassed to admit
this - I was convinced, as are many residents of
smaller States, that the present system is a
considerable advantage to less populous States
such as Oklahoma Š[A]s the deliberations of the
American Bar Association Commission proceeded and
as more facts became known, I came to the
realization that the present electoral system
does not give an advantage to the voters from the
less populous States. Rather, it works to the
disadvantage of small State voters who are
largely ignored in the general election for

A nationwide popular vote is the only way to make
every vote equal throughout the United States.
The current winner-take-all rule negates the
influence of every voter (of both the winning and
losing political party) in every non-competitive
state (small, medium, or large).

In a nationwide vote, presidential campaigns
would become 50-state campaigns. Democrats could
not afford to ignore the concerns and interests
of voters in states such as Utah, Kansas, Texas,
and Alabama, while Republicans could not afford
to ignore voters in states such as California,
Hawaii, Maryland, and Rhode Island. Every vote
would matter in every state.
Although it is sometimes conjectured that a
national popular election would focus only on big
cities, it is clear that this would not be the
case. Evidence as to how a nationwide
presidential campaign would be run can be found
by examining the way presidential candidates
currently campaign inside battleground states.
Inside Ohio, the state's big cities do not
receive all the attention, and they certainly do
not control the outcome. Because every vote is
equal inside Ohio, presidential candidates avidly
seek out voters in small, medium, and large
towns. The itineraries of presidential candidates
(and allocation of other campaign resources) in
Ohio show what all candidates for statewide
office in every state already know - namely that
every vote matters in every part of the state.
Further evidence of the way a nationwide
presidential campaign would be run comes from
national advertisers who seek out customers in
small, medium, and large towns of every small,
medium, and large state. Every sale is important
to them, regardless of where the customer is
Currently, two-thirds of the 450 campaign visits
made by each presidential slate during the
three-month campaign are concentrated in just
five states, and 92% are concentrated in just 16
states. Under a nationwide vote, each
presidential campaign would have to reallocate
its limited campaigning resources and spread them
over all the nation's 435 congressional
districts. A small state such as Idaho with two
congressional districts could reasonably expect
two visits from both the Democratic and
Republican candidates. Currently, of course,
Idaho receives no attention from either party.
Although Idaho would undoubtedly continue to
deliver a majority to the Republican presidential
candidate, every vote in Idaho would suddenly
matter to both the Democrat and the Republican
candidates. It would be folly for John Kerry to
write off Idaho because his campaign would care
if he lost by 227,000 or some smaller number.
Similarly, it would folly for George Bush to take
Idaho for granted because his campaign would care
if he won by 227,000 or some larger number. As
the Idaho State Journal editorialized in 2004,

"As we enter the home stretch of the quadrennial
horse race known as the presidential election,
it's time to remember that this is an election
for the president of the United States of America
- all 50 states, not an election for the
president of the Swing States of America."

PLANS FOR 2007-2008 AND 2009-2012
With 70%+ support from the American people,
National Popular Vote is hoping to see out bill
enacted by numerous states in 2007-2008. Then,
during the 2008 presidential campaign, the
alternative to the current system will be clearly
on the table for debate. The fact that
presidential candidates ignore two-thirds of the
states will be more widely appreciated than ever.
The fact that candidates will be concentrating
two-thirds of their visits, advertising,
organizing, polling, and attention on just six or
so states will become even more obvious to the
irrelevant spectators in the remainder of the
country. We expect that the 2008 presidential
campaign will provide the additional impetus
needed to obtain the support in the 2009-2010
legislative sessions of states representing a
majority of the American people, so that the 2012
presidential election can become the first
presidential election in American history in
which every vote is equal.

Additional information is available at <>www.NationalPopularVote.com.
The National Popular Vote proposal is described
in detail in our 620-page book
<http://www.every-vote-equal.com/>Every Vote
Equal: A State-Based Plan for Electing the
President by National Popular Vote.
Yours truly,

Dr. John R. Koza
Phone: 650-941-0336
Email: <mailto:koza@NationalPopularVote.com>koza@NationalPopularVote.com

Arthur M. Keller, Ph.D., 3881 Corina Way, Palo Alto, CA  94303-4507
tel +1(650)424-0202, fax +1(650)424-0424

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