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PolitiFact Florida On One Way To Change The Electoral College

The Electoral College vote for president
The Electoral College vote for president

A lot of criticism has been aired about the Electoral College since Donald Trump won the presidency - even though he got fewer votes than Hillary Clinton. There have been moves to abolish the College. WUSF's Steve Newborn talks with PolitiFact Florida's Katie Sanders about one way that could happen.

For the second time in the last five presidential elections, the candidate getting the most votes in the country was not elected president.  Blame or uphold the Electoral College, but there's no easy way to get rid of it - short of an amendment to the Constitution. But is there?

PolitiFact Florida clues us in on one possibility:

An article posted on the progressive website The Daily Kos described the effort this way:

"Eliminating the Electoral College does not even require a constitutional amendment. An effort known as The National Popular Vote Interstate Compactis an agreement among several U.S. states and the District of Columbia to award all their respective electoral votes to whichever presidential candidate wins the overall popular vote. Once states totaling 270 electoral votes join the compact -- which only requires passing state laws -- then the next presidential election will be determined (by) the popular vote, not the Electoral College."

Is it possible to eliminate the Electoral College without amending the Constitution?

Amending the Constitution to change the way we elect the president would be difficult. It requires a two-thirds vote by the House and Senate and support from three-fourths of state legislatures. Since that is a high threshold, advocates for electing the president based on the national popular vote have looked for other paths.

Under the current system, voters cast ballots for candidates, but it is electors from each state who elect the president when the Electoral College convenes. The Constitution assigns each state a number of electors based on the state’s population. The total number of electors is 538.

The most popular idea is for states to coordinate to assign their electors to the winner of the national popular vote. The concept gained steam in 2006 when John R. Koza, a computer scientist and former Stanford consulting professor, wrote a 620-page proposal to create the National Popular Vote Interstate Compact.

Here’s how the compact works: states legislatures pass laws agreeing to award their electoral votes to the candidate who wins the national popular vote, but it only kicks in when enough states sign on to add up to 270 electoral votes.

"It would be an end run around the Electoral College as opposed to abolishing it," Pepperdine University law professor Derek Muller told PolitiFact. "There are still 538 electors who are still going to meet late December -- the Electoral College still exists -- but it would be operating in a very different way."

Over a decade, 10 states and the District of Columbia -- which add up to 165 electoral votes -- have passed  laws to join the compact. So 105 more electoral votes are needed before it can go into effect.

The current states in the compact are Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, Vermont, California, Rhode Island and New York.

Advocates argue that it is a way to make every vote count and will take the campaigns’ emphasis off a small number of battleground states such as Ohio and Florida. Opponents of the compact argue that the states shouldn’t circumvent the electoral college without federal consent.

So far, this is a hypothetical debate. The compact has been passed by blue states, and some experts say it is unlikely that enough red or purple states will sign on to get to 270.  Battleground states such as Florida might be the most disinclined to join something because they are heavily courted under the current system.

Congressional consent

But that still leaves a key question: If the compact ever got to that 270-threshold, could states award their electoral votes to the national popular vote winner, or would Congress need to sign off?

If the compact ever meets that benchmark, it’s likely that someone would file a challenge. It’s likely the U.S. Supreme Court would have to rule on whether the system is permissible.

The question is how consent would be applied to a compact about electing the president.

Koza argues that this process is legal because Article 2of the Constitution spells out that states can award their electors in the way they see fit. All but two -- Maine and Nebraska -- have laws that award all their electors to one candidate.

But some lawyers have disagreed with Koza’s conclusion and argue that Congress would have to approve, or that it would be best practice to do so.

Copyright 2020 WUSF Public Media - WUSF 89.7. To see more, visit WUSF Public Media - WUSF 89.7.

Steve Newborn is WUSF's assistant news director as well as a reporter and producer at WUSF covering environmental issues and politics in the Tampa Bay area.
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