The vast majority of states get ignored in presidential elections because of state “winner-take-all” laws (i.e., awarding all of a state’s electoral votes to the candidate receiving the most popular votes inside each separate state). Candidates write off states where they are hopelessly behind, and they take for granted states where they safely ahead.
Meanwhile, the closely divided “battleground” states receive 7% more presidentially-controlled grants, twice as many disaster declarations, and numerous favorable actions from Presidents. Five recent books detail the policy effects of state winner-take-all laws:
- Presidential Pork
- Presidential Swing States: Why Only Ten Matter
- Going Red: The Two Million Voters Who Will Elect the Next President
- The Rise of the President’s Permanent Campaign
- The Particularistic President
State legislatures have built-in constitutional power to change the method of electing the President. The U.S. Constitution leaves it to each state to choose its method of selecting its presidential electors. Article II says, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
The “winner-take-all” method of awarding electoral votes is not in the U.S. Constitution. It was not debated by the Constitutional Convention. It was never mentioned in the Federalist Papers. Only 3 states used winner-take-all in our nation’s first presidential election in 1789, and all of them repealed it by 1800. It was not until 1880 that state-by-state winner-take-all became the predominant method of awarding electoral votes.
State winner-take-all laws may be repealed in the same way they were originally adopted — namely by passage of a new state law. The U.S. Supreme Court has ruled that deciding on the method of awarding electoral votes is an “exclusive” and “plenary” power of each state.
So far, the National Popular Vote bill has passed a total of 34 legislative chambers in 23 states, including recent bipartisan
- 40-16 vote in the Republican-controlled Arizona House
- 28-18 vote in the Republican-controlled Oklahoma Senate
- 57-4 vote in the Republican-controlled New York Senate
- 37-21 vote in the Democratic-controlled Oregon House
The bill was approved this year by unanimous bipartisan House committee votes in both Georgia and Missouri.
The National Popular Vote bill has been enacted into law in 11 states possessing 165 electoral votes. It will take effect when enacted by states possessing a majority of the electoral votes — that is, enough to elect a President (270 of 538). Thus, it will become effective when enacted by additional states having 105 electoral votes. The bill has previously passed one chamber in 12 states with 96 electoral votes.
Under the National Popular Vote bill, the winner will be the candidate receiving the most popular votes in all 50 states (and DC) on Election Day. When the Electoral College meets in mid-December, the national popular vote winner will receive all of the electoral votes of the enacting states. The national popular vote winner will become President because the enacting states represent at least 270 electoral votes. The Electoral College will thus represent the will of the voters in all 50 states (and DC).
The National Popular Vote bill retains the Electoral College and state control of elections.