A Popular Electoral College?

Bill Clark/CQ Roll Call via AP Images

Senate pages lead the procession into the House chamber with the Electoral College ballot boxes, January 6, 2017. 

The Open Mind explores the world of ideas across politics, media, science, technology, and the arts. The American Prospect is re-publishing this conversation.

We discuss the National Popular Vote movement with one of its grassroots advocates on the eastern seaboard, Ed Lopez-Reyes. A Connecticut-based Republican strategist, Lopez is chief consultant of Wolf and King Strategies and, from 2002 through 2010, served on the Joint Intelligence Operations Center’s Europe Analytics Center in imagery and counterterrorism.

Heffner: What is your argument for the National Popular Vote?

Lopez: The National Popular Vote Interstate Compact is basically a bill that state legislatures can choose to pass. It becomes a contract between a number of states. And when we reach the 270 Electoral College vote threshold, it activates a compact, which means that these states would take into account what the popular vote result is and put the weight of that result on the Electoral College votes so that they can allocate.

Heffner: You argue it’s not an aberration from the Constitution. The Electoral College can support the popular vote winner.

Lopez: Correct. It’s an exercise in that constitutional right the state has to vote for president. In fact, we know the Constitution has basically given states the right to decide how to elect a president, and taking that a step further the legislatures can decide how to allocate their Electoral College votes. So it doesn’t get rid of that system. It just basically says, let’s do it based on who wins the majority of the vote throughout the entire country.

Heffner: What would you say now to Governor Sisolak, who recently vetoed the bill in Nevada, and to Maine legislators who are afraid of negating the will of their voters in their respective states?

Lopez: I think what’s important to consider is when the state is a swing state, when it’s one of the 10 or 12 states where the presidential campaigns deploy, expend a lot of resources, and make a worthwhile investment, those states are going to have a smaller interest or not much of an interest in adopting a system like this. But those things change. You could probably argue that 20 years ago there were more swing states and you go back further back, you have even more, it’s just the way the culture, the political culture, adjusts to the current system. So in a state like Nevada, for example, they probably still feel like a very competitive state, but the reality is it’s becoming a much bluer state. I think that the holdout is in the northwestern part of the state, you have a pretty Republican stronghold, and they might not see the value in the same way, but the reality is once a state begins to shift in a different direction, they’re going to start reconsidering.

Heffner: So you think the National Popular Vote makes every voter a swing voter.

Lopez:  Exactly. The compact does not seek to purge the Electoral College. The biggest misinterpretation people have of the bill. What it seeks to do is to get rid of the winner take all system that extinguishes votes in different states. In California the Republican votes would now count. In Utah the Democratic votes would now count. It make all votes valid. It gives them a voice in the entire system.

Heffner: If this was tested constitutionally, would the pact be upheld?

Lopez: I feel they would because it is constitutional. We’re basically trying to get rid of something that’s been done at the state level, which is the winner take all system that we have in 48 of the 50 states.

Heffner: Basically, the Court would be saying to these states, you don’t have autonomy. You can’t decide how to allocate your electors. And that would be a breach of federalism, in a major a major sense.

Lopez: Right, exactly.

Heffner: So there are conservatives who take a different view than you, in conservative in adhering to the conventional policy of the Electoral College. But that winner take all concept was never ratified into the constitution on a state-by state basis, except for the individual states’ constitutions.

Lopez: Right. It wasn’t until 1880 that all these states adopted the winner take all system.

Heffner: So are you making this argument in defense of federalism?

Lopez: It is. And in fact, I think the true conservative view would actually honor the perspective that there’s a pliability that the Founding Fathers instituted through the system that we have to be able to adapt to changing circumstances. Senator Fred Thompson used to make this case. That was one of the big reasons he supported the compact.

Heffner: A major argument among the progressive who do support this is that we have anti-democratic system now so the will of the country writ large is neglected. Opponents of your efforts like to say we’re a republic, not a democracy. But do we want to have an anti-democratic or undemocratic republic? Isn’t that a question we should be considering too?

Lopez: I think the key thing to focus on is that this isn’t actually a partisan issue. And so the message that giving all voters a say and giving them more weight in the system is a democratic ideal; I think it betrays what the Founding Fathers actually wanted.

Heffner: And I think if Madison were to see the results in Bush v. Gore and Trump v. Clinton ... millions of votes denied relevance.

Lopez: I think you make a valid point, but I think the thing to consider too is that in these cases, Democrats tend to be a bit more enamored with those historical incidents to make the case for this bill. They’re not incorrect in making the case; the only thing that you have to understand is that the campaigns would have been run very differently. And so you have campaigns that have paid attention to all 50 states. So we don’t know what that would’ve been the outcome in those two elections under the compact had it been active at that point.

Heffner: You have a candidate now Beto O’Rourke who is going to a lot of these non-traditional battleground states. He was just in Oklahoma. He’s making a play, partly because of his Texas roots and the idea that he wants his party, the Democratic Party, to be competitive in the Lone Star State. The two candidates so far who are arguing most passionately for a more representative Electoral College are Beto O’Rourke and Pete Buttigieg. These are men who represent or did represent Texas and Indiana. I think that is further evidence of your idea.

Lopez: They understand what it feels like to be left out of the electoral process at the national level. But they also understand there’s potential for change. One of the cases that we make when we talk about the Blue Wall is that Florida will likely become a blue state. Some of us debate whether Texas will. I think it will, and you look at cities like Austin and people like O’Rourke see the potential for things to change in those states. And that means further realignment and less swing states.

Heffner: Will their advocacy be effective?

Lopez: I think it depends on how they articulate it. I see a lot of Democrats making the case that they want to get rid of the Electoral College. Republicans don’t want that. This bill in a sense, again, it’s become a toxic word, but there’s a compromise value to it, which is saying look, let’s preserve the state’s right to allocate the college votes as the state sees fit.

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