A movement to bypass the Electoral College in presidential elections is building momentum.

by Liz Larsen, MPP Candidate
May 24, 2023

Introduction

In two of the last six presidential elections, the candidate who won the popular vote lost the election. In 2000, Al Gore received over half a million more votes nationally than George W. Bush but lost the election. In 2016, Hillary Clinton received 2.9 million more votes than Donald Trump but lost. 

Many people now argue that the Electoral College should be replaced with a national popular vote. Since 1800, over 700 proposals to reform or eliminate the Electoral College have been introduced in Congress.¹ The most recent push—and arguably the most promising—comes in the form of the National Popular Vote Interstate Compact (the “Compact”).

A Plan for Defanging the Electoral College

Currently, the president of the United States is determined by the Electoral College. In this system, each state is allocated a number of presidential electors equal to how many representatives and senators the state has. In total, there are 538 members of the Electoral College. A candidate must receive at least 270 of the 538 electors votes to win the presidency. With few exceptions, states award all of their electoral votes to the winner of the popular vote within the state. 

The National Popular Vote Compact is an agreement among a set of U.S. states and the District of Columbia that they would allocate all of their electoral votes to whichever candidate wins the popular vote nationally.² The compact would come into effect only once states with at least 270 combined electoral votes, enough to control the outcome of the election, had joined. 

If the Compact were enacted, this would mean that at least 270 electoral votes will go to the candidate who won the popular vote nationally. As a result, the presidency would be awarded to the candidate who won the most votes nationally. In other words, the Compact would not abolish the Electoral College—but it would bypass it to assure that the winner of the Electoral College vote is the winner of the national popular vote. 

As of April 2023, 15 states (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Washington, and Vermont) and Washington, DC, have passed legislation to join the Compact.³ These states combined have 196 pledged electoral votes, 72% of the 270 votes needed.⁴

There are some questions about whether the Compact would be constitutional without Congressional approval. Some argue that state legislatures have the power to choose how they appoint electors. Others argue that the Compact would require congressional consent under the Constitution's Compact Clause, which states that “No State shall, without the Consent of Congress…enter into any Agreement or Compact with another State.”⁵ 

However, the larger hurdle facing advocates of the Compact is acquiring the remaining 74 Electoral College votes needed to put it into effect. The two most recent “wrong winner” scenarios benefited Republican presidential candidates. As a result, states that have joined the Compact so far have been mainly controlled by Democrats. It will be much more difficult for proponents of the Compact to persuade Republican state lawmakers in red or purple states to support the cause.⁶

The Research You Need to Know

Some advocating for the Compact argue that the Electoral College gives disproportionate voting power to people in smaller states. This is because each state is allocated a number of electors based on the total number of representatives it has in Congress, which includes both the House of Representatives and the Senate. Since each state has two senators, regardless of the population size, smaller states are given an advantage. In the most extreme case, Wyoming voters have more than three times as much influence as voters from California.⁷ 

Additionally, the Electoral College gives disproportionate voting power to swing states because candidates are incentivized to spend a majority of their attention on these states. In 2016, the majority of general election campaign events (273 out of 399, or two-thirds) were concentrated in only 6 states: Florida, North Carolina, Pennsylvania, Ohio, Virginia, and Michigan.⁸ Voters of the minority party in states that are considered "safe" due to their heavy partisan lean have a lower chance of affecting the outcome of the election in a winner-takes-all system. As such, the highly populated states of New York, Texas, and California, which were generally considered to be reliably Democratic or Republican, are largely ignored.⁹  The awareness of this feature of the Electoral College among the public could potentially lead to decreased voter turnout.¹⁰

As most states allocate their votes on a winner-takes-all basis, it is currently feasible for a candidate to secure the presidency with just about 23% of the national popular vote.¹¹ Although the chances of this happening are slim, the system has the potential to fail again in the future. 

According to election researcher Sam Wang, if the margin of popular vote is less than 3%, the likelihood of the popular-vote loser winning the Presidency is approximately one in three.¹² Due to the increase in partisan polarization across the country and narrow margins in three out of the last six presidential elections, it is likely that the system will once again result in the popular-vote loser winning the presidency.¹³

The Electoral College Disenfranchises Black Voters

The Electoral College was originally created with the principles of anti-majoritarianism and minority rights in mind.¹⁴ Specifically, it was established to safeguard the rights of slave states and small states. 

The system still operates in a way that favors smaller, rural states that tend be predominantly white. States with a smaller population, that have a disproportionately high number of electors, often also have a significantly lower percentage of people of color, particularly Black people. This has deprived voting power away from predominantly Black communities.

Around 87-93% of Black voters voted for the Democratic candidate in the last 3 presidential elections.¹⁵ However, five out of six states where Black people represent 25% or more of the total population have voted for Republican candidates in recent elections.¹⁶ Three of those states have not voted for a Democratic presidential candidate in more than forty years.¹⁷ 

Additionally, more than half of the Black population in the U.S., about 23 million people, lives in the South.¹⁸ In 2016, the Republican Party won 12 of the 15 Southern states—and their combined 162 electoral votes—through states’ winner-take-all approach in the Electoral College.¹⁹ The Democratic Party won three Southern states — Delaware, Maryland, and Virginia — as well as D.C., for a combined total of 29 electoral votes. This has led many to argue that a National Popular Vote would advance racial equity.

Key Takeaways

• 15 states and Washington, DC, have passed legislation to join the Compact, which would bypass the Electoral College to assure that the winner of the national popular vote wins the presidency.
• Although opponents argue that the compact is unconstitutional, the most significant obstacle facing the Compact is persuading states with the remaining 74 electoral votes needed to join the Compact.
• The origin of the Electoral College is rooted in slavery and racism, and it continues to dilute the power of Black voters today. Many have argued that a National Popular Vote would advance racial equity.

More Information

For more information, we recommend the following reports and articles: 

• The Electoral College’s Racist Origins
• The National Popular Vote, Explained
• Population vs. Electoral Votes

Citations

1. Neale, Thomas H., and Andrew Nolan. The National Popular Vote (NPV) Initiative: Direct Election of the President by Interstate Compact.
2. “National Popular Vote.” National Popular Vote, 17 Dec. 2015, https://www.nationalpopularvote.com/.
3. Cohen, Alex. The National Popular Vote, Explained | Brennan Center for Justice. https://www.brennancenter.org/our-work/research-reports/national-popular-vote-explained. Accessed 30 Apr. 2023.
4. Cohen, Alex. The National Popular Vote, Explained | Brennan Center for Justice. https://www.brennancenter.org/our-work/research-reports/national-popular-vote-explained. Accessed 30 Apr. 2023.
5. Orbuch, Alexandra. “National Popular Vote: Circumventing the United States Constitution.” Princeton Legal Journal, 7 Oct. 2021, https://legaljournal.princeton.edu/national-popular-vote-circumventing-the-united-states-constitution/.
6. Kotak, Parth. “More States Join Interstate Compact to Bypass Electoral College.” MultiState, 17 June 2019, https://www.multistate.us/insider/2019/6/27/more-states-join-interstate-compact-to-bypass-electoral-college.
7. “Population vs. Electoral Votes.” FairVote, https://fairvote.org/archives/the_electoral_college-population_vs_electoral_votes/. Accessed 30 Apr. 2023.
8. Cohen, Alex. The National Popular Vote, Explained | Brennan Center for Justice. https://www.brennancenter.org/our-work/research-reports/national-popular-vote-explained. Accessed 30 Apr. 2023.
9. Cohen, Alex. The National Popular Vote, Explained | Brennan Center for Justice. https://www.brennancenter.org/our-work/research-reports/national-popular-vote-explained. Accessed 30 Apr. 2023.
10. Kurtzleben, Danielle. “CHARTS: Is The Electoral College Dragging Down Voter Turnout In Your State?” NPR, 26 Nov. 2016. NPR, https://www.npr.org/2016/11/26/503170280/charts-is-the-electoral-college-dragging-down-voter-turnout-in-your-state.
11. Kurtzleben, Danielle. “How To Win The Presidency With 23 Percent Of The Popular Vote.” NPR, 2 Nov. 2016. NPR, https://www.npr.org/2016/11/02/500112248/how-to-win-the-presidency-with-27-percent-of-the-popular-vote.
12. Cohen, Alex. The National Popular Vote, Explained | Brennan Center for Justice. https://www.brennancenter.org/our-work/research-reports/national-popular-vote-explained. Accessed 30 Apr. 2023.
13. Cohen, Alex. The National Popular Vote, Explained | Brennan Center for Justice. https://www.brennancenter.org/our-work/research-reports/national-popular-vote-explained. Accessed 30 Apr. 2023.
14. Schultz, David. “Minority Rights and the Electoral College: What Minority, Whose Rights?” Georgia Law Review, vol. 55, no. 4, Jan. 2021, https://digitalcommons.law.uga.edu/glr/vol55/iss4/6.
15. Falling Black Support for Biden Has Democrats Worried | Time. https://time.com/6270949/biden-black-voters-tim-scott-2024/. Accessed 1 May 2023.
16. Codrington III, Wilfred. The Electoral College’s Racist Origins | Brennan Center for Justice. https://www.brennancenter.org/our-work/analysis-opinion/electoral-colleges-racist-origins. Accessed 1 May 2023.
17. Codrington III, Wilfred. The Electoral College’s Racist Origins | Brennan Center for Justice. https://www.brennancenter.org/our-work/analysis-opinion/electoral-colleges-racist-origins. Accessed 1 May 2023.
18. Kelkar, Kamala. “The Racial History of the Electoral College -- and Why Efforts to Change It Have Stalled.” PBS NewsHour, 21 Jan. 2018, https://www.pbs.org/newshour/nation/the-racial-history-of-the-electoral-college-and-why-efforts-to-change-it-have-stalled.
19. Kelkar, Kamala. “The Racial History of the Electoral College -- and Why Efforts to Change It Have Stalled.” PBS NewsHour, 21 Jan. 2018, https://www.pbs.org/newshour/nation/the-racial-history-of-the-electoral-college-and-why-efforts-to-change-it-have-stalled.