Future American presidents should earn their seats through a national popular vote, Colorado Democrats say.

And the state’s Republican lawmakers can delay, but not prevent the movement, it seems.

The state legislature is on track to join 11 other states and the District of Columbia with the expected passage of Senate Bill 42, proposed by Sen. Mike Foote, D-Lafayette.

The bill would change how Colorado's electors -- the people who actually choose our presidents -- cast their votes each four years.

As things stand, Colorado electors cast their votes for whichever presidential candidate gets the most votes in the state. Under SB 42, the state's electoral votes instead would be cast for whichever presidential candidate wins the national popular vote, regardless of who wins Colorado's popular vote.

In 1996, for example, Colorado electors voted for Republican Bob Dole because he won the state's popular vote over Democrat Bill Clinton. But Clinton won the national vote that year. If SB 42 had been in effect back then, Colorado electors would have voted for Clinton instead.

The move to change how the nation elects presidents comes in the wake of the 2016 election, in which Democrat Hillary Clinton received nearly 2.9 million more votes nationwide than Republican Donald Trump. But the Electoral College -- the traditional name for the electors of all states -- made Trump because he won more state electoral votes.

While Clinton won large popular-vote majorities in big states like California, New York and Illinois, Trump won majorities in more states, giving him 306 electoral votes to Clinton's 232.

“If you change the system to a national popular vote election, candidates will campaign nationwide and not just focus on a few slivers of a few states,” Foote said. “Each voter will be recognized as important and it will lead to the winner actually governing with the entire country in mind.”

The Senate last week approved Foote’s bill, voting along party lines, passing the measure to the House, where the measure is sponsored by Reps. Jeni Arndt, D-Fort Collins, and Emily Sirota, D-Denver.

Gov. Jared Polis supports the bill, a spokeswoman said.

An identical bill failed in a Republican-controlled Senate committee two years ago. And yet another similar attempt fell flat about a decade ago.

Now that Democrats hold the majority in the statehouse and the governorship, they plan to use it, Arndt said.

“The Democrats are in charge because there was an election. We didn’t trick anybody,” Arndt said. “That’s not sneaky. That’s not underhanded. That’s responding to what the voters said.”

Many see the measure as a direct attack on Trump’s 2016 election. Likewise, in 2000, the Electoral College chose Republican George W. Bush as president despite Democrat's Al Gore narrow victory in the national popular vote.

If the bill isn’t revenge, it’s not far off, said Sen. Jerry Sonnenberg, R-Sterling, who voted against the measure in committee and again on the Senate floor, speaking strongly against it both times.

“It looks like there are ill feelings on the presidential election a couple years ago and a few years previous to that,” Sonnenberg said. “And this is the way for some folks to think they can rectify it.”

Sonnenberg and Sen. Bob Gardner, R-Colorado Springs, represented the two strongest voices opposing the bill, which, they say, would ultimately abdicate Colorado’s voting power to liberal urban centers like New York City, Chicago and Los Angeles.

Which is not to say the conversation isn’t legitimate, Gardner said. Or that he might not consider other proposals.

Gardner noted that the 5th Congressional District, which includes Colorado Springs, overwhelmingly voted for Trump in the 2016 election, but still the state’s electoral votes were all allocated to his Democratic challenger, Hillary Clinton.

But the idea far precedes Trump and Bush’s presidencies, stretching back to the 1960s, Foote said. And while the notion has had support from Republicans, it appears Trump’s election has only put the GOP on the defensive.

“The fact that Trump was elected the way that he was in 2016 has turned it into more of a partisan issue than it was before,” he said.

Sirota said the measure will likely be heard by a House committee sometime in February. Until then, Democrats will continue to try and drum up support from across the aisle, she said.

At least 3 electors

The current system of electors was established in Article II, section 1 of the U.S. Constitution, adopted in 1789, and revised by the 12th Amendment, ratified in 1804.

The system was tied to the debate over how states should be represented in Congress.

“The small states said they would not join the union unless they had equal representation in Congress," said Robert Hardaway, a law professor at the University of Denver, who has written several books on the topic. "The big states thought it should be based on population alone. The compromise between those two factions, known as The Grand Compromise, was to do both. Have a Senate and a House.

“The Electoral College, in turn, is based on the numbers of representatives in the House and the number of senators [states] have,” he said.

Forty-eight states and the District of Columbia employ a winner-take-all system for presidential elections. This means whichever candidate wins the popular vote within the state wins all of that state’s electoral votes.

Maine and Nebraska split their electoral votes by whichever candidate wins each respective district within the state. The Constitution leaves that choice up to the states.

In all, the Electoral College currently consists of 538 electors. A presidential candidate must win a majority of 270 votes to win the presidency.

California boasts the most electoral votes in the country at 55, while North Dakota, South Dakota, Wyoming, Montana, Vermont, Delaware and Alaska all have the least with three electoral votes.

Some claim the Electoral College was created to maintain the rights of slave owners, Hardaway said. But he refuted that as “urban legend.”

The Electoral College system's net effect is to give smaller states more of a say in who becomes president than would be the case otherwise. That's because each state has at least three electors no matter how small it is.

For example, California has 68.5 times more residents than Wyoming. But in the Electoral College, California has only 18.3 times more electors than Wyoming.

But for all its faults, the Electoral College facilitates a two-party system in the country’s elections, Hardaway said. It brings stability to presidential elections that have become the envy of the world, he said.

And sure, he said, on average about once a century a presidential candidate wins the Electoral College without also winning the national popular vote. But even so, the margins usually are relatively close and the winning candidate still has the support of a large percentage of the country.

Colorado Democratic lawmakers, on the other hand, say the majority should prevail in every election. Each vote should count equally and the majority should win.

So, in SB 42, they’re proposing to use the national popular vote by combining the electoral votes of all states that join the pact and commit them to the candidate that earns the most votes nationally.

“One person, one vote,” Foote said. “Let’s elect our president together.”

'It couldn't get any worse'

The pact only takes effect if enough states join to add up to the 270 electoral votes needed for a candidate to win the presidency. Eleven states have already joined the agreement, and Colorado is one of seven additional states expected to join this year.

To be sure, each of the states already in the pact -- among them are New York, California, Maryland, Vermont and Washington -- voted for Democratic candidates in the last five presidential elections.

Even so, Foote said about a third of the supporting legislators in those states were Republicans.

The measure still preserves the Electoral College itself, which would take a constitutional amendement to abolish. It just changes the way the votes are allocated, proponents have said.

And each state can still back out of the pact if the legislature wishes to do so, though there are restrictions on how close to an election that would be allowed.

Under the current system, presidential candidates typically only visit and focus their efforts on battleground states, Foote said. Meanwhile, states with reliable voting records -- those that typically vote either red or blue -- can fall by the wayside.

But if votes are combined on the national scale, candidates will have a greater incentive to travel across the country, appealing to more voters and better understanding their concerns, Foote said.

That might not mean a jump in presidential visits for sparsely-populated states like Wyoming, Foote acknowledged, but it would at least usher in a change in the way campaigns are run.

“[For Wyoming] it couldn’t get any worse than it is now. But if you are trying to win a majority of votes nationwide, you have to appeal to the entire country,” he said. “It may not be physical visits to Wyoming, but Wyoming voters would at least get more attention than they currently do.”

But Republicans like Sonnenberg fear that with the change rural areas will only be ignored further and candidates will instead gravitate towards major urban centers.

Hardaway agreed.

“Candidates would go where the votes are,” he said. “The votes are in the big cities.”

He also questioned whether physical visits by candidates provide any great benefit to rural states as well, lamenting the unfortunate influx of campaign ads and worsened traffic that inevitably accompanies a presidential hopeful's visit.

But Democrats say the populations of major urban centers and rural areas would likely even each other out, especially since their voting records tend to mirror each other in the same proportions.

“If [a candidate] were to focus on just a couple of states or urban areas, then that candidate would lose,” Foote said.

Potential for a challenge

The measure would also boost voter participation, Arndt said. Republicans in blue states like California and Democrats in red states like Texas would be more likely to cast their ballot if they knew they would be counted with fellow party members across the country.

The country uses the popular vote for every other election, like those electing governors, senators or representatives, Foote noted.

“I don’t see why that would be such a foreign idea (with presidential elections),” he said.

Arndt mused that there would be an outcry if presidential elections already depended on the national popular vote and politicians were trying to impose an Electoral College.

But Hardaway said the countries that already use the national popular vote, which he calls the “Russian-style” direct election, sometimes face problems.

France employs that system, Hardaway said. And in the country’s April 2017 election, there were so many candidates that the candidate with the most votes only garnered about 24 percent of the national vote.

Ultimately the election went to a runoff between Emmanuel Macron, who ran as the candidate of a newly formed party, and far-right candidate Marine Le Pen.

“They got two people that, in the country, 65 percent of the people didn’t want either,” Hardaway said.

Ultimately, Macron won the election, but voters were so dismayed at their choices that a record number -- about 600,000 people -- cast blank ballots in protest, Hardaway said.

The pact to have electors follow the national popular vote is, on its face, unconstitutional, Sonnenberg says.

“After doing a little more research and reading, it appears that states cannot make compacts among each other,” he said. “So there indeed is potential for a constitutional challenge.”

Foote disagreed, and said the Constitution allows each state to allocate its electoral votes however the legislature chooses.

But the measure is also likely to be challenged in court nationally because if just enough states join to amount to 270 electoral votes, the other states who haven’t yet joined or don’t want to join would be disenfranchised, Hardaway said.

Arndt sees the issue differently.

It’s not that those other states would be disenfranchised, it’s that the majority would have won the election, she said.

“It’s just beating them,” she said. “[A losing vote isn’t] squelched. It’s heard. It just didn’t prevail.”

Then there’s the matter of finding universal agreement on the national popular vote, Hardaway said. Currently there is no unified system -- the states each count votes individually -- and the popular vote instead is calculated not by the federal government, but by national news agencies like the New York Times, Fox News and MSNBC.

That’s not a huge hurdle, however, Arndt said.

“How hard is it?” she said. “Each state has their election returns and they’re all certified by the secretary of state [of each state]. If the New York Times can add it up, couldn’t the federal government?”

Perhaps the biggest sticking point, Gardner and Sonnenberg said, is that it’s entirely possible for the majority of Coloradans to vote for one candidate, but the state’s electoral votes could go to another.

“We’re essentially erasing state boundaries in a way,” Gardner said. “Making it less important to be a state.”

'Just the latest scheme'

Using the national popular vote could also further divide an already splintered country, Hardaway said, referring again to France’s recent election. And then the ultimate winner might only have a fraction of the nation’s majority instead of 51 percent of the vote.

But Sirota noted that Abraham Lincoln only received 39 percent of the vote in 1860 “and his presidency turned out pretty good.”

“Furthermore, the current two-party political system is so strongly established in all 50 states, it makes it difficult even for billionaires like [former New York mayor] Michael Bloomberg and [former Starbucks CEO and chairman] Howard Schultz to actively and seriously participate in a national election without going through the two-party system,” Sirota said.

Sirota said she trusts the voters to elect the strongest candidate who appeals to the greatest number of constituents.

Even Gardner acknowledged that it’s unlikely the current two-party system would fall, though he said it’s difficult to predict decades into the future.

“But that’s what they thought in France,” Hardaway said. “It happens in every country that doesn’t have an electoral college. Every country.”

Either way, the entire proposal is so riddled with flaws and holes that Hardaway said it can’t be a genuine effort. Instead it’s likely meant to cause enough of a stir to shift the national conversation towards amending the U.S. Constitution, he said.

“This is just the latest scheme. And there have been all kinds of schemes, but none have been worth anything, and this is the worst of them all,” he said. “Every time somebody does this, all they want to do is change the constitution so they can make sure their guy wins next time.”

But Foote said that sounds more like conspiracy than reality.

“If that’s the master plan, then I’m certainly not aware of it,” he said.

Sonnenberg and Gardner acknowledge that the bill is more than likely to be signed in to law, given that Polis has signaled his support.

Sirota and Arndt expressed confidence in Democratic support within the House. House Minority Leader Patrick Neville, R-Castle Rock, did not return a message seeking comment.

Even if the bill is signed into law, the pact doesn’t become effective until enough states join and that’s unlikely to happen this year, Foote said. It’s unlikely the measure would affect the 2020 presidential election.

If it does pass, Democrats will continue to press their agenda nationwide and support other states that might also enter the pact. Foote noted that Republican legislatures will eventually have to pass the measure as well for it to come into effect.

Gardner said those who oppose the notion can only try and dissuade additional states from joining or eventually file a lawsuit, which would likely -- and quickly -- make its way to the Supreme Court.

(1) comment

Branscomb Harvie

The compact for the national popular vote has (surprisingly) arranged for what to do with a tie, but not arranged for how to handle a close election ( within the margin of error for any -meaning the least accurate - of the states). In reality a tie is almost impossible because each state could recount and change the vote totals up until the deadline. The only way to avoid a chaos of competing last minute reports is to report nothing related to a state contribution to the national popular vote until all are required to report. Those official reports would have to be released simultaneously at the deadline for the decision about who wins.

The current system focuses attention onto one or two states that already have mechanisms for increasing accuracy by recounting (however these vary dramatically in quality by state). With the NPV compact, the state recount laws would have to be unified and it is hard to imagine what that would look like. Without such an improvement and unification of audit and recount, a close national popular vote count would be known to be inaccurate and inevitably trigger legal controversy that would involve evidence discovery in every state. That is a nightmare to contemplate.

We must hope that this obstacle will be overcome by federal law before the NPV compact comes into effect.

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