After significant public controversy, a Maine law has taken the country closer to having the popular vote decide the victor of national presidential elections, but this is unlikely to happen before November, if at all.
Earlier this week, Maine Gov. Janet Mills signed a bill into law that will take effect after the National Popular Vote Interstate Compact collects commitments for at least 270 electoral votes—the number of delegate votes required to elect a president.
The initiative has now received pledges from 17 states and Washington, D.C., accounting for a total of 209 electoral votes.
Experts say it’s unclear what happens once enough states sign on to the movement, which aims to change presidential elections without a constitutional amendment. It is unlikely that this will happen before the 2024 election.
The National Popular Vote Interstate Compact aims to ensure that the candidate with the most popular votes in all 50 states plus the District of Columbia wins the presidency.
A national tally will determine the election winner when enough states pledge their popular votes to meet the 270 Electoral College vote threshold. The National Popular Vote Interstate Compact guarantees equal weight to every vote, irrespective of the voter’s residence.
Five of the 46 presidents who took office have lost the popular vote, the most recent being Donald Trump in 2016. The compact contends that the current system does not ensure equal voting rights.
“A small number of votes cast in a limited number of states determine the Presidency under the existing system. “All-or-nothing payoffs fuel doubt, controversy over real or perceived irregularities, hair-splitting post-election litigation, and unrest,” the accord states on its website.
“In 2020, if 21,461 voters had changed their minds, Joe Biden would have lost while leading by more than 7 million votes nationwide. Each of the 21,461 voters (5,229 in Arizona, 5,890 in Georgia, and 10,342 in Wisconsin) was 329 times more important than the 7 million voters elsewhere, according to the agreement.
According to one analyst, everything about the Electoral College is problematic these days, with a partisan division on the topic. Many Democrats want to get rid of it, but more Republicans back it.
“From 1992 to 2020, Republicans have only won the presidential popular vote once: in 2004, when [George W.] Bush defeated John Kerry. In every other election over the last 30 years, Democrats have won the popular vote, but due to the Electoral College, Republicans have won the presidency a couple of times despite losing the popular vote,” Darrell West, a Douglas Dillon chair in governmental studies at the Brookings Institute, told ABC News.
“Republicans feel the Electoral College advantages them now, and so they don’t want to get rid of it,” West told the crowd.
Because of the Electoral College, the country only has a few swing states, according to West, so candidates focus the majority of their campaign funds on those few states.
“If we abolished the Electoral College, candidates would actually campaign more broadly. “They would travel to more states because a vote in Illinois is the same as a vote in California,” West stated.
Could this work?
According to experts, amending the U.S. Constitution is considered the most direct approach to altering the way presidents are elected. However, at present, there appears to be no viable pathway to achieve this without a consensus between both political parties.
According to West, the current political climate makes it highly unlikely for a constitutional amendment to be passed in order to eliminate the Electoral College. This would require a significant majority in both Congress and the states, which is currently not feasible. As a result, states are now exploring alternative methods to enhance the Electoral College system.
The outcome becomes uncertain when a sufficient number of states commit their delegates.
Derek Muller, a law professor at Notre Dame Law School, expressed his opinion on the ongoing legal dispute, highlighting the importance of congressional consent. “There’s a lot of deep legal contestation over what happens next,” Muller stated during an interview with ABC News.
Muller expressed confidence that if Congress fails to take action, there will likely be legal disputes arising from the situation.
According to Muller, there are additional legal concerns surrounding the issue. One such concern is whether having varying election rules in different states would violate equal protections. Another question that arises is whether a state has the authority to implement such rules.
According to Muller, there are numerous unresolved questions surrounding the national popular vote. If it does reach the required 270 votes, he predicts that it will face a barrage of legal challenges.
West concurred that the legal situation remains ambiguous.
“It is unclear what the status of these laws would be,” explained West. “States have the authority to establish their own election laws. However, according to the Constitution, the electors in the Electoral College have the freedom to vote as they see fit.”
According to West, although states have the authority to enact laws, there have been limited instances where these provisions have been put to the test. Consequently, the Supreme Court’s stance on this matter remains uncertain.
Has something like this happened before?
Around a century ago, prior to the enactment of the 17th Amendment, which permitted the direct election of senators, states started transitioning from the method of state legislatures selecting individuals for the U.S. Senate to conducting “preference polls” for the general public. These polls served as a means for citizens to indicate their preferred choice to represent their state.
According to Muller, certain states, including Oregon, were pioneers in implementing preference polls for the selection of senators. These polls were non-binding elections that sought the opinion of the public on whom they preferred as their representatives. While the legislature had the choice to adhere to the sentiments expressed in these polls, they were not obligated to do so.
According to Muller, the states, including Oregon, later started to align themselves with the outcomes of the preference polls. He used this as an analogy to illustrate how the states were attempting to transform legislative elections into a popular vote, even though there was no formal process in place to do so.
In due course, the Constitution underwent amendments that resulted in the election of Senate seats through popular vote.
According to West, the implementation of the direct election of senators did necessitate a constitutional amendment.
According to West, the political landscape of 100 years ago was less polarized compared to the current times.
About 20 or 30 years ago, some states made an unsuccessful attempt to implement term limits for members of Congress, as Muller stated. However, in 1995, the Supreme Court ruled this to be unconstitutional.
Missouri took a unique approach by asking all candidates to make a term-limits pledge. If any candidate violated the pledge or refused to support it, that information would be printed on the ballot, according to Muller.
According to Muller, the intention behind the action was to make it clear that they were not preventing individuals from being included on the ballot, but rather informing voters about their adherence to term limits. However, the Supreme Court ruled that this approach was also not permissible.
