December 2019 Update — Focus: Direct Democracy
This Report covers advances in the movement for a national popular vote (NPV) for president that have occurred since the January 2019 report, Repairing Presidential Elections: 2018-2020. Developments previously reported in July are incorporated here.
The NPV movement centers on the NPV Interstate Compact (Compact), which is an agreement among signatory states. Under the Compact, states agree to cast their electoral votes for the winner of the national popular vote. The Compact comes into effect when states having 270 electoral votes (EVs)(a majority) have joined. Other steps that can contribute to the NPV movement’s success include the following: individual states or pairs of states immediately casting their EVs for the winner of the NPV; state constitutional amendments; and state initiative measures.
Much has happened since January 2019, but perhaps the most significant development is emergence of clarity about the role that direct democracy (initiative and referendum) will play in the NPV movement. Before addressing that topic, this Progress Report covers: (i) legislative progress of the Compact; (ii) majoritarian voting for electors; (iii) three events featuring policy professionals and academics; and (iv) a federal court decision on “faithless electors.”
Legislative Progress
In the five months from January to July, 2019, an additional four states with a total of 24 Electoral Votes (EVs) joined the Compact. These were: Colorado, 9EVs; Delaware, 3 EVs; New Mexico, 5 EVs; and Oregon, 7 EVs. As of July 1, 2019, sixteen jurisdictions (15 states and DC) with 196 EVs were in the Compact.
The Compact made significant progress in Nevada and Maine, but it ultimately fell short. In Nevada, the legislature passed a bill to join the Compact; however, on May 30, 2019, Nevada Gov. Steve Sisolak vetoed the bill. In Maine, the House of Representatives, after first agreeing with the Senate on June 12 to enact the Compact, reconsidered the measure on June 17 and June 19 and defeated it.
Colorado represents a temporary setback of sorts. Opponents of the Compact mounted a petition campaign for a referendum. On or about August 1 the opponents filed sufficient petition signatures to force a referendum election in November 2020. Pending that election, the law is on hold. Thus, as of today, 15 jurisdictions with 187 EVs are in the Compact; the voters of Colorado will decide on its 9 EVs in 2020.
In Minnesota, a bill to adopt the Compact passed in the House of Representatives. The bill did not receive a hearing in the Senate, however, and the Senate is unlikely to grant it a hearing in the 2020 session. The next opportunity for progress on the Compact in Minnesota is the 2020 legislative elections. Candidates may be held accountable on this issue.
Majoritarian Voting for Presidential Electors: Maine 2020
In his visit to Minnesota this past May, Pulitzer Prize winning journalist Hedrick Smith alerted Clean Elections Minnesota to newly developing thinking that emphasizes the importance of majoritarian voting for president. This summer, Maine acted on that thinking. In the 2020 presidential election, Maine’s electors will be selected by ranked choice voting. This is a first.
The topic of ranked choice voting is not mentioned in the standard reference on NPV, Every Vote Equal, John R. Koza, et al (2013). There is some ambiguity about how ranked choice voting and national popular vote elections work with one another.
Policy Professionals and Academics Stepping Up: Three Events
July 1, 2019, National Association of Secretaries of State. The true professionals on voting are the Secretaries of State of the states. On July 1, 2019, the National Association of Secretaries of State (NASS) heard a presentation on counting the national popular vote. The presenter was Matthew Shapanka, one of the pro bono counsel to Making Every Vote Count Foundation (MEVC). MEVC is a bi-partisan, 501(c)(3) organization dedicated to electing the president by the national popular vote. MEVC was co-founded by former senior officials from the administrations of George W. Bush (James Glassman) and Bill Clinton (Reed Hundt).
In his September 24, 2019 presentation to a Clean Elections Minnesota forum, Secretary of State Steve Simon described the July 1 session at NASS as highly spirited. Secretary Simon said he “put up his hand” to join a group that will explore the issues further.
Kudos to Secretary Simon for taking up the mantle of leadership on this issue!
October 7, 2019, MEVC’s National Summit on the National Popular Vote. On October 7, MEVC hosted a national summit attended by some of the leading experts on national popular vote, with a keynote address from Hon. Nellie M. Gorbea, Secretary of State of Rhode Island. The Summit was co-produced by The Hill magazine and broadcast on C-SPAN. Links to video re-broadcasts are on MEVC’s new YouTube channel and on C-SPAN (part 1 and part 2).
October 19, 2019, Harvard Law School all-day symposium, “The Electoral College: Open Questions, Paths Forward.” On October 19, Harvard Law School hosted a symposium on the Electoral College. The MEVC blog describes the participants as “a rock-star panel of lawyers, historians, and activists.” The agenda is here. The symposium video is here. A written version of MEVC co-founder Reed Hundt’s excellent address covering the Compact and related matters is here.
Federal Court Decision on Faithless Electors: An Intriguing Option
August 20, 2019. In a seminal decision regarding the rights of so-called “faithless electors,” Baca v. Colorado Department of State, the United States Court of Appeals for the Tenth Circuit held that once a state’s electors are appointed, the electors become free agents who exercise federal authority—not state authority. The Court explained that the scope of action for appointed electors is specified in the constitution itself. Under Baca, state laws cannot interfere with an elector’s decision-making. While the State of Colorado has appealed the decision to the United States Supreme Court, the opinion is firmly grounded in the text of the constitution and in documents from the founding.
If Baca is correctly decided, a new option opens up for national popular vote for president. Conventional wisdom is that the way to address Baca is for a political party or candidate to take extra care to assure the individuals it selects as electors will vote for the party’s or nominee’s choice. Nothing says a party or nominee cannot choose to stand for the democratic principle of national popular vote for president. A party or a candidate could select like-minded electors who are committed on principle to vote for the candidate who wins the national popular vote, even if that differs from the state vote or is inconsistent with state law.
Such a move might be dismissed as overly idealistic/unrealistic. One wonders, however, whether taking a stand on high democratic principle might be pragmatic as well—whether it might appeal to enough undecided voters (“I couldn’t decide, so I voted for the candidate who stands for democracy”) in enough swing states to carry the Electoral College vote as well as the national vote.
Clarity About the Path Forward: Initiative and Referendum
1. Direct Democracy (Initiative and Referendum): A Practical Necessity
Toward the end of his October 19 address at Harvard, MEVC co-founder Reed Hundt outlined several paths forward. The viable options are: (i) putting the Compact on the ballot, as can be done in 26 states (estimated cost of $65 million); (ii) “pairing” of a red and blue state (described below) that jointly commit to immediately cast their EVs for the winner of the NPV; (iii) adoption of immediate national popular vote in one or more key red states, such as Ohio; and (iv) waiting for a blue wave (the low cost alternative) to get the Compact over the 270 vote hurdle.
The first three options all require successful ballot initiative campaigns and approval of the people at the resulting election. (This would apply to only one of the two paired states in option two.) With all due respect, even the fourth option, “waiting for a blue wave,” can succeed only after NPV is voted on by the people in at least some states.
Colorado illustrates this point, and math proves it. The Compact will not go into effect in Colorado unless and until the voters approve it in November 2020. Similarly, even if the Compact had been adopted in Maine (4 EVs) and Nevada (6 EVs) this year, referendum petitions almost certainly would have been filed, blocking those laws and requiring approval of the voters in those states.
With initiative and referendum in place in 26 states, there simply are not enough states available to get to 270 Electoral Votes without going through a referendum election. Potential non-referendum candidates—Minnesota, Wisconsin, Pennsylvania, Virginia and North Carolina—have only 68 EVs among them. The math is straightforward: 68 EVs plus 187 EVs equals 255 EVs, which is less than 270 EVs. In contrast, if one adds to the mix key states that use initiative and referendum, such as Michigan (16 EVs), Ohio (18 EVs), Florida (29 EVs), Arizona (11 EVs), and Missouri (10), along with Nevada (6 EVs) and Maine (4 EVs), a path to 270 or even 300 EVs is wide open.
2. Making Every Vote Count: A Leading Advocate of Direct Democracy
In recent months, through presentations at national events and on its blog, MEVC has emerged as a leading voice urging both vigorous prosecution of the Colorado referendum election and action to put the Compact on the ballot via initiative where that is possible. On August 3, shortly after the referendum petition signatures were filed in Colorado, Reed Hundt posted the following on the MEVC blog:
It is time for the national vote reform to battle on a big stage.
To defeat the repeal effort, it will be necessary to contest the issue in three ways:
1. Get national and local attention to the issue, which is democracy versus autocracy. Let there be no mistake: the repeal cause in Colorado has its source in the battle for a permanent minority to choose the president.
2. Coordinate all grassroots activity in Colorado in an open, collaborative manner, with experienced personnel handling the many dimensions of the contest, as was done in the 2018 victories against gerrymandering in Michigan and elsewhere.
3. Use the legal resources of Making Every Vote Count and any other volunteers to take all appropriate issues to all appropriate courts, while endorsing the fundamental idea that a ballot measure to have the people pick the way to pick the president is precisely in line with the fundamental cause here: democracy should be expanded in America.
On September 10, Hundt expanded on the theme of direct democracy in an open letter to Howard Schultz, also posted on the MEVC blog. Hundt congratulated Schultz on his decision to devote $100 million to repairing American democracy rather than running for president. Hundt suggested how the funds be spent. This included: $10 million to defeat the Colorado referendum; $10 to $15 million to put NPV on the Michigan ballot in November 2020; $5 million per state for up to 20 states to put NPV on the ballot for 2022; and, please, no funds at all for the lawyers. Making Every Vote Count’s lawyers and other volunteer lawyers will be happy to do any necessary legal work at no charge.
At the October 7 MEVC National Summit on the Popular Vote, MEVC co-founder James Glassman discussed the concept of “pairing” (mentioned above). MEVC’s recent polling covers both (i) whether voters favor changing the rules to assure the president is elected on the basis of the national vote, and (ii) whether voters would favor changing the rules through a ballot initiative. In North Dakota, the polling showed that voters would support a ballot initiative under which North Dakota would “immediately” (emphasis in Glassman’s remarks) begin casting its votes for the national winner in 2020, provided a blue state would do the same. As Glassman said, “think about that.” North Dakota and Delaware or North Dakota and the District of Columbia could pair up and lead the nation; the voters of North Dakota could lead the nation. Consider other pairings: Minnesota and Missouri with 10 EVs each, or Arizona (11EVs) and Washington (12 EVs).
As noted, at the October 19 Harvard symposium, three of the four paths forward that Reed Hundt outlined require initiative—and on further review, the fourth is impossible without referendum. Initiatives can take at least two forms. The Compact itself can be proposed, and measures for a state to immediately begin casting its EVs for the national winner can be proposed.
Most recently, in a December 3, 2019 MEVC Blog entry, Reed Hundt pointed to another billionaire who, like Howard Schultz, could easily fund the initiative campaigns that can transform our presidential politics:
If Mayor Bloomberg had taken what’s he’s already spent on advertising his own presidential campaign and funded ballot measures to give voters a chance to choose the national winner, then such measures might already have succeeded in enough states to make it necessary for the president to win the national vote. Maybe political reporters could ask him why he didn’t do that, or even if he knows this was a possibility.
If I had a billion or two billion, not to mention 57 billion, dollars, I’d fund the ballot and legislative campaigns that would make America a real democracy. What a legacy that would be! But what am I talking about? It would take only about $50 million. Too rich for me but pretty cheap for those who have dined out on the big run-up in equity values over the last decade.
It is too late for initiative measures to affect the 2020 election directly, but it is still possible for some of the billionaires who are or were running for president to step up and commit to fund the initiative campaigns that are needed. They might begin that work now, in a few key states, in the midst of the 2020 election. One wonders what the indirect impact of initiative campaigns in Michigan, Ohio, Florida and Arizona would be on the 2020 election itself.
3. Direct Democracy: A Positive Good
At Harvard, Hundt made a subtle but crucially important strategic point. Putting the Compact to a vote of the people is not only a practical necessity, it is also a positive good. Endorsement by the voters demonstrates the fundamental political legitimacy of the Compact and will help assure its ultimate success in a judicial challenge, which partisan opponents are bound to mount. Hundt developed this point further in a November 4, 2019 blog post.
One implication of this insight is that the direct democracy initiative effort should aim to put NPV on the ballot in as many jurisdictions as reasonably possible. One should aim, not for a bare minimum of 270+ EVs, but for 300 or 330 EVs or more, with many of them the result of ballot measures. Even in a state that experiences a blue wave, or that has already adopted the Compact by statute, consideration might be given to putting the principle of NPV before the voters. In a state such as Minnesota that does not utilize traditional initiative and referendum, the voters can weigh in via an election that determines whether to adopt a state constitutional amendment. Indeed, former Rep. Paul Thissen drafted such a proposal in October 2017, and Minnesota Citizens for Clean Elections supported it in November 2017.
4. Direct Democracy: Creating a Grass-roots NPV Movement
In addition to financial support, effective direct democracy campaigns require intensive, grass-roots organizing. It is heartening to receive regular mailings from Common Cause, announcing that Common Cause has prioritized grass roots organizing around fixing the broken Electoral College. Common Cause, and the host of other pro-democracy advocacy groups that have helped run and supported anti-gerrymander and other voting rights efforts in recent years, will be vital to the ultimate success of the NPV movement.
An immediate priority is the referendum election in Colorado. That election presents an opportunity to form the coalitions that will be needed for the initiative elections to come. The effort should be undertaken with vigor and with care; it should be informed and led by those with deep experience and understanding of grass roots organizing for election reform.
Within the forefront of that group are the leaders and supporters of the Voters not Politicians (VNP) anti-gerrymandering campaign in Michigan. Two years ago, your correspondent had urged VNP to add a NPV initiative to its anti-gerrymander campaign, or to file a second NPV initiative campaign. Had VNP done so, there is every reason to believe that in the November 2018 election Michigan would have led the nation in proving that direct democracy is a viable path forward for the NPV movement.
Information from town hall meetings that VNP has been conducting in Michigan this year (including one attended by your correspondent’s sister) is that VNP did not intend to file another pro-democracy ballot initiative this year. In the event VNP is reconsidering that stance, there is nothing more important and more urgent that VNP could do than to include an initiative for NPV in its suite of pro-democracy initiatives.
Mark Bohnhorst
Former Leader, Presidential Elections Team
Clean Elections Minnesota
Note: Opinions expressed in this report are the author’s and not necessarily those of Clean Elections MN.