There is an agreement by which the eleven most populous states, in theory, could use the Electoral College to decide a Presidential election by national popular vote without the others having a say, sort of.
In April of 2001, Northwestern University professor Robert Bennett published an article entitled Popular Election of the President Without a Constitutional Amendment. His idea has gained traction, but it hasn’t yet broken through and changed the game.
The relevant language of Article II Section 1 Clause 2 of the U.S. Constitution is as follows: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”
This establishes each state’s power to choose how they assign electoral votes. Since they get to do it however they want, one option is to award all of their electoral votes to the candidate who receives the most individual votes nationwide. The “magic number” of electoral votes needed to win the election is 270. If so many states agree to award their electoral votes to the candidate who gets the most votes (each state’s prerogative) that the total number of electoral votes from those states gets to 270, then the compact activates.
What I mean by “activates” is the states in the compact do not assign their votes that way now, but when their membership hits 270 votes, they will switch to that method.
The idea is that support for a popular vote election system is so strong in the United States that certain states would theoretically ignore their own election results in favor of the collective voice of America.
It’s my pleasure to introduce the National Popular Vote Interstate Compact, a coalition of states that have pledged to honor the popular vote, and are close to acquiring the power to do so.
Professor Bennett’s article pointed out a potential back door to the selection of a President of the United States. As of now, ten states have signed an agreement, and they make up a little less than one third of the electoral vote count (thank you, California). There are six other states that have legislation for joining the compact pending. If those six go through with it, either Texas or Florida could finalize it; the compact would need 22 more electoral votes, which either of those two states could provide. This does not apply to primaries, only the general election, and here’s how it works:
The states that have already joined have agreed that if all of the compact member states’ votes become enough to decide the election (270), they are all bound to assign their votes to the popular vote winner.
So if the six states with pending legislation ratify it, and then Florida, Texas, or any other states with a combined 22 electoral votes join the compact, the popular vote is in effect.
What does this mean? It means that considering current members, 17 states, in theory, could all agree to honor the national popular vote, and with their majority of electors, elect a President while ignoring the rest of the election process.
Even more simply, every state is in charge of assigning electoral votes. 270 wins. If states with 270 or more votes combined decide that whichever candidate gets the most individual votes nationally gets their electoral votes, that candidate immediately has 270 or more votes, and immediately wins the election. There would be no point in counting electoral votes or monitoring state races, you would only have to look at the total national vote count.
The funny thing is that the electoral votes of states not in the compact would be an afterthought in the election, but the individual votes of the people in those states would be more important, especially those in non-swing states. Each American’s vote would be a point for their candidate in a most-points-wins patch of the American election system, thanks to a collection of states taking matters into their own hands.
Here are the states that have passed legislation to join the compact:
District of Columbia