Take a step back from this year’s presidential campaign, and see what your role in it was. Of course you could vote, but unless you were voting in one of the seven swing states, you were basically a spectator. The candidates were vying to convince the voters of Pennsylvania, Michigan, Wisconsin, North Carolina, Georgia, Arizona and Nevada to vote for them. They spent all their time in those states and came to yours only for fund-raising. And as election day got closer and the polls showed tight races in these states, Harris and Trump doubled down on their emphasis on the swing states with Harris making stops all over Pennsylvania on November 4, while Trump hop-scotched his way from North Carolina to Pennsylvania, and to Michigan. On election night the residents of 43 non-swing states left waiting, while the votes of the swing states were counted. That Donald Trump swept those states does not change the basic fact that the presidential campaign left the voters in the remainder of the country out in the cold.
It is not as if it needs to be this way. The presidency is our one national election, and it deserves to be truly national with candidates working to gain the votes of farmers in Nebraska, and bodega owners in Brooklyn, just as much as they seek to gain the attention of Pittsburgh Steelers’ fans.
It is not simply because the founders created an Electoral College to pick the president and left it up to state legislatures to figure out how to pick the electors. From the beginning, the public thought it should play the key role. At first, many state legislatures picked the electors themselves, to the displeasure of the public when the choice made was not the one the public would have preferred. So, within a half-century that practice disappeared, and the present practice—picking electors based on the popular vote—came to dominate.
The other practice that came to dominate was the winner-take-all nature of all but two states. That practice appears to create an incentive for presidential candidates to work hard for the big prize that each state has to offer. Yet, because if one candidate looks like the clear winner in a given state, there is no incentive for either the leading candidate or the trailing candidate to try to work for extra votes in that state because neither would benefit by doing so. Thus, the present situation is one in which the candidates vie for votes in only a few states, and has long been the norm.
Is this what the public wants? The Pew Research Center, in polling since the beginning of this century, has consistently found that a majority of the public supports direct election of the president. The latest poll from September 2024 found that 63% of the public favored direct presidential election.1Jocelyn Kiley, Majority of Americans continue to favor moving away from Electoral College, The Pew Research Center (Sept. 25, 2024) https://www.pewresearch.org/short-reads/2024/09/25/majority-of-americans-continue-to-favor-moving-away-from-electoral-college/. This is consistent with polling on this issue that began in 1944.
If the public wants direct election of the president, why hasn’t the Constitution been amended to mandate it? The many, many failed efforts to do so are explored in exhaustive detail in John F. Kennedy School of Government professor, Alexander Keyssar’s, 2020 book, Why Do We Still Have the Electoral College? No bill to amend the Constitution to drop the Electoral College has ever made it out of Congress. The short answer is that there are always enough people who, for real or imagined reasons, see the Electoral College benefiting them more than direct election who stand in the way of reform. The chances of getting rid of the Electoral College are so unlikely that Jimmy Carter, who was the co-chair of a commission on federal election reform after the disputed election of 2000, in which Al Gore won the popular vote and George W. Bush won the electoral vote, stated, “It is a waste of time to talk about changing the Electoral College. I would predict that 200 years from now, we will still have the Electoral College.”
There is, however, a potentially viable alternative way to elect a president by popular vote, even with a rump Electoral College hanging around. Since 2006, the Campaign for the National Popular Vote has introduced bills in state legislatures to get them to agree that their state will vote for the winner of the popular vote if enough states sign on, so that the members of this compact control at least 270 electoral votes —the minimum needed to win the presidency. From the start, the effort has been deliberately non-partisan, emphasizing that whether a state votes Republican or Democratic, the states that are not swing states lose out on the attention they deserve from the presidential candidates. To date, it has made significant progress getting 17 states and the District of Columbia to sign on. With 209 electoral votes committed, this effort is only 61 electoral votes way from achieving election of the president by popular vote.
But here is where it gets tricky. Although over time, both the Republican and Democratic parties have figured out ways to win the popular vote, in this century the Democrats had the decided edge until this latest election. Prior to this year, there had been three elections in which a Republican won and three in which a Democrat won, but in two of those elections —George W, Bush in 2000 and Donald Trump in 2016 —the Republican candidate did not win the popular vote. Such a split hadn’t happened since 1888, but with two such splits in close succession, it looked like a trend. Thus, this 5-1 popular vote advantage in presidential elections has led to a split in how Democrats and Republicans view the Electoral College. Democrats favor replacing the Electoral College by 80%, while only 46% of Republicans and Republican-leaning voters feel the same way.
That is also reflected in the states that have signed on to the popular vote compact. They are three west coast states (California, Oregon, and Washington), most of the states on the East Coast (from Maryland north), along with a handful in the middle of the country (Illinois, Colorado, Minnesota, and New Mexico), plus Washington, D.C. and Hawaii. These states have tended to vote Democratic in recent presidential elections and none of them are currently swing states. Swing state legislatures aren’t likely to give up the attention and money that currently flow their way, although you would think some voters in such states would be utterly tired of being inundated with commercials and mailers. As a result, Pennsylvania, and sometimes swing state New Hampshire, stick out as sore thumbs among the northeast states because they have not signed on to the popular vote compact.
What that means is that the effort to lobby state legislatures to sign on to the popular vote compacts looks stuck. In this decade only three new states have signed on. Maybe Virginia with its 19 electoral votes might sign on next, but that will not nearly be enough. The very problem that has stalled reform all along —the belief that the current system favors certain groups —will prevent the adoption of the popular vote because more than half of the state legislatures see an advantage in the current system.
It is time those pushing for a national popular vote to go directly to the voters. With nearly two-thirds of voters favoring a national popular vote and 209 electoral votes already in the bag, gaining favorable votes in only a handful of states should be enough to bring this nearly two-decade long effort to fruition. There would likely be legal challenges to doing it this way, because the Constitution called for state legislatures to pick how to choose electors. But the Supreme Court in 2015 has already ruled that a citizen-adopted redistricting commission in Arizona could set congressional district boundaries, even though the Constitution vested this power in state legislatures, because Arizona had allowed legislation to be adopted by initiative.2Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015). The Court has changed since then, with all four dissenters still there, but surely the conservative super-majority will show some respect to its prior decision. It’s worth the effort now so that millions of voters need no longer be presidential election spectators.
