Colorado has become the latest state — and the first swing state — to join a group pledging to elect presidents based on who wins the national popular vote.
Eleven other states and the District of Columbia have signed onto the National Popular Vote Interstate Compact, an agreement that requires those states to select their presidential electors based on who wins the most individual votes nationwide, regardless of which candidate wins in the state.
Colorado Gov. Jared Polis signed a bill Friday bringing the state into the compact.
The compact only goes into effect once states with at least 270 electoral votes — the number needed to win a presidential election — have signed on. While the addition of Colorado brings the electoral count of states in the compact to 181, reaching the 270 point before the 2020 election appears unlikely.
Supporters say the concept would create a fairer basis for presidential elections by essentially going around the Electoral College and creating a system where each individual vote counts the same. It would also motivate potential voters in non-swing states to come out to polls, supporters say.
Although Colorado has trended more solidly Democratic in recent elections, the state represents the first traditional swing state to join the effort. Every other state in the compact has voted for the Democratic presidential candidates in every election since at least 1992.
“Getting a battleground state like Colorado is really important for us,” said Barry Fadem, the president of the nonprofit National Popular Vote Inc.
The other states that have signed on since 2007 are California, Connecticut, Hawaii, Illinois, Massachusetts, Maryland, New Jersey, New York, Rhode Island, Vermont, Washington and the District of Columbia.
Legislatures in Delaware and New Mexico have also passed bills in those states, though their governors haven’t yet signed them.
Fadem said he’s also “bullish” on passage in Oregon this year and the group has started efforts in Maine and Nevada. He added the group will “probably not” reach 270 electoral votes in time to be effective for the 2020 election but said he’s optimistic the movement could cross that threshold by 2024.
Whenever the group does reach 270 electoral votes, legal challenges are almost certain.
Norman Williams, a law professor at Willamette University in Salem, Ore., said he supports the idea of a national popular vote but is doubtful the national popular vote compact would be found constitutional. The Constitution lays out a state-by-state approach for presidential elections. Adhering to the national popular vote contradicts that.
Fadem rejected that view, saying the Constitution leaves to the states the absolute right to dictate how it chooses electors, including through a national popular vote.
But, Williams said, the state-by-state approach of the compact would present operational challenges. Each state sets its own rules for who is eligible to vote and, importantly, when a recount is triggered.
Any one state refusing to conduct a recount would undermine confidence in the entire election’s legitimacy, he said.
The compact also includes a clause prohibiting states from pulling out. Williams said that would be unenforceable and would likely be one of the issues leading to a court challenge.
Hypothetically, if the compact were in place in 2020 and President Donald Trump won the popular vote nationwide, California legislators would be under immense political pressure to pull out of the compact and award the state’s electoral votes to the Democratic challenger, he said.
“It’s going to be very difficult to explain to Californians — to your California constituents as a California representative or senator — why you’re casting California’s electoral votes against the wishes of a supermajority of Californians in favor of Donald Trump,” he said. “And that will be true in all of the states that are having to cast their electoral votes against the wishes of how the state voted.”
After the 2016 election, the second in the last five when the Republican candidate won the presidency while losing the popular vote, the issue has become more partisan. No Republican lawmakers voted for the bill in Colorado or New Mexico. In Delaware, two Republican senators joined Democrats to vote in favor but no House Republicans did.
Overall support for a national popular vote dipped after the 2016 presidential election, especially among Republicans, according to a Gallup poll.
The poll — which asked about a constitutional amendment, not the national popular vote compact — conducted within weeks of Election Day found 47 percent of voters said they favored keeping the current system, up from 35 percent in 2011. Among Republicans and Republican-leaning independents, only 19 percent supported changing the system, down from 54 percent in 2011.
Democrats were a mirror image, with 81 percent supporting an amendment to switch to a national popular vote, up from 69 percent five years earlier.
Advocates say the idea is nonpartisan and isn’t meant to favor either party. But some Republicans don’t buy that.
Paul Lundeen, a Republican state senator in Colorado who voted against the compact, said it would hurt smaller and more rural states and empower urban areas, where Democrats are stronger.
It also undermines the principle of federalism by removing power from individual states and “cedes power” to larger states like California and New York, Lundeen said. He added he thought some want to change the system because they oppose Trump, but he said that’s a short-sighted view.
“If there’s a partisan element it’s the knee-jerk reaction: ‘I hate this current president and he didn’t win the popular vote,’” he said. “And I think that hurts us in the long run.”
Still, the 2016 election also won new advocates for the concept. Fadem’s group has seen “spontaneous grassroots combustion” from activists on the ground, which was particularly helpful in getting the Colorado effort over the finish line, he said.
Sylvia Bernstein, an activist in Colorado, said she became aware of the effort after the 2016 election. She connected with the national group, which helped her organize a grassroots campaign while professional lobbyists worked with lawmakers to write and pass the bill.
Bernstein said she joined up because she was frustrated with the 2016 election, but said that had more to do with the idea of any popular-vote winner losing the presidency.
States are well-enough represented in Congress and don’t need the power to elect presidents as well, she said. Instead, that power should rest with individual voters.
“The president is the only national office that we have,” she said. “It sure seems to me it should be elected by Americans — not Coloradans, not Californians, not Wyomans — Americans.”
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