Electoral College protest movement: Colorado’s role, and how reform would change the way we pick presidents

Editor’s note: Gov. Jared Polis signed the National Popular Vote Interstate Compact into law on March 15.

Any day now, Democratic Gov. Jared Polis is slated to sign legislation that could one day upend the way the United States picks its president and Colorado’s role in that process. There are, however, some big ifs along the way.  

Late last month, majority Democrats in the state legislature passed the National Popular Vote Interstate Compact, a bill that would give all Colorado’s nine electoral votes to the presidential candidate who wins the national popular vote. That’s a major change from the current system, which awards all nine to the candidate who carries Colorado.

Proponents say the measure would better uphold the principle of one-person, one-vote, and would lessen the power of a handful of swing states to sway the presidential contest. Opponents say it would subvert the intent of the Founding Fathers, who wanted safeguards against the absolute power of the majority, and diminish the voting power of rural and less populated states — resulting in candidates catering to big states and ignoring small ones.

Polis, who has called the Electoral College a “relic of the past,” says he’ll sign the bill —  but that’s no guarantee it will ever go into effect. Several more states still need to pass National Popular Vote measures for it to become the law of the land.

Despite its longshot status before the November 2020 presidential election, the move at the Colorado Capitol is shaping up as a first major partisan bill to grace the new governor’s desk — one some conservatives are framing as an example of power-drunk progressive overreach. The move has left Republicans, none of whom voted for the polarizing piece of legislation, howling about going too far too fast and accusing their counterparts of a hard left turn at the state Capitol.

Floor debate over the law in Colorado has led to remarkable theatrics, including a supportive lawmaker performing his own Colorado version of a song from the “Hamilton” musical on the House floor and a GOP lawmaker officially trying to rename the bill the “WE REALLY, REALLY, REALLY, REALLY, REALLY HATE DONALD TRUMP ACT OF 2019.”

But the arguments cannot be so easily reduced to a red-blue tribal divide, and Colorado plays a unique role in this national multi-state compact, especially when it comes to the role of the Electoral College itself.

Electoral College basics

The Electoral College consists of 538 electors from all 50 states and the District of Columbia who select the president.

To win the White House, a candidate needs a simple majority of electors’ votes, 270. States are assigned a number of Electoral College votes based on the size of their congressional delegations, so Wyoming has three, and California has 55. In most states, including Colorado, electors come from state party ranks, chosen by fellow party members during party-building events.

In Colorado and most states, laws say Electoral College voters must cast their presidential vote for the candidate who wins their state. This winner-take-all rule is a major flaw in the system, say some National Popular Vote supporters, and in Colorado, it is, in a way, being challenged in federal court.

So what would the proposed law actually do?

The National Popular Vote bill adds Colorado to a list of states essentially trying to opt out of the Electoral College, making a compact that whoever wins the national popular vote wins the presidency, instead of a candidate being able to reach the White House by winning enough states with a combined 270 electoral votes.

Had the National Popular Vote been in effect in 2016, Hillary Clinton would have become president. Clinton earned nearly three million more votes than Republican Donald Trump — the widest margin ever for a candidate who lost the race despite winning more votes. But Trump earned more Electoral College votes because he won states with more of those votes. That marked the second time in five election cycles a president won the White House without winning the national popular vote.

But this only works if enough states join the compact, right?

Yep.

The law only takes effect when states with a combined total of 270 Electoral College votes — the threshold a presidential candidate needs to win — have passed the National Popular Vote, as Colorado did on Feb. 21.

So far, 11 states and the District of Columbia have embraced this change: California, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, Vermont, and Washington. No swing states. No southern states. No deep red states.

They have a combined 172 Electoral College votes, leaving 89 more to go before the law would be triggered.

Bringing Colorado into the mix bumps the total to 181, but that’s still a ways off, and even some of the bill’s supporters acknowledge they don’t expect this to happen before the 2020 election. States that don’t pass the NPV bill will keep their winner-takes-all systems. The Electoral College remains intact, but the critical 270-vote mark is arrived through the popular rather than the electoral vote.

Maryland and New Jersey were the first to pass such bills, followed by Hawaii and Illinois. Others passed the laws at different times during the past decade, the majority between 2009 and 2013. Connecticut was the latest to sign on, last year.
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What are some of the arguments in support?

Cheerleaders of the movement say it’s all about the idea of one person, one vote — that an Iowa farmer’s vote should count the same as a tech billionaire’s in California. That is not the case now, argue NPV supporters, for a few reasons. For example, in 2016, 2.8 million Pennsylvania voters cast ballots for Clinton, but, in the end, plenty felt their vote “really didn’t count.” That’s because Trump edged out Clinton, 2.9 million votes to her 2.8 million, so all 20 of Pennsylvania’s electoral votes went to Trump. When this pattern repeats in a few states, millions of voters can say their vote was effectively ignored, thanks to the winner-take-all state system.

Another argument is that state representation in the Electoral College is unfair. Wyoming has around 579,000 people and three electoral votes. California has around 40 million people and 55 electoral votes. NPV advocates would say Wyoming is way over-represented, given that each of its electoral votes represents around 193,000 people, while each of California’s electoral voters represents 727,000 people.

“I truly believe in the idea that every vote should count equally,” says freshman progressive Democrat Emily Sirota, who sponsored the NPV bill in the Colorado House, adding that she’s been thinking about the concept since she first learned about it around 2006. “And I think that we have seen that our current system does not provide for every vote counting equally.” She adds that the law would not “abolish” the Electoral College. “The National Popular Vote Interstate Compact is a constitutionally conservative approach to achieving this goal of ensuring that every vote counts equally,” she says, “…that the political power isn’t just resting in a handful of swing states.”

If the compact works out, Sirota says, a new system would change the way presidential candidates run campaigns. “They won’t be able to target funding toward swing states in the way that they currently do.”

The Denver Post’s editorial board has endorsed the measure, saying its support was not a knee-jerk reaction to Trump. “[A]fter all the president himself has said that had the election been a popular vote, he would have campaigned differently and still won,” the Post wrote. “Instead, our endorsement follows a thoughtful analysis that found joining this compact would eliminate a system that has created vast inequities when it comes to political sway over the executive branch.” The Denver Post editorial board “has historically opposed changing the Electoral College system. But the time has come to change our mind,” the editorial acknowledged. “Millions of voters aren’t counted in the most important election our country — the nation that has served as a symbol of democracy to the world — has to offer.”

Sen. Mike Foote of the Boulder area, who carried the NVP bill in the upper chamber, wrote in an editorial for his hometown paper: “Imagine a time when presidential candidates appeal to voters across the country and compete for votes from rural, suburban and urban areas alike,” he wrote. “Envision when a vote for a Democratic candidate in Mississippi, a Republican candidate in Oregon, and any candidate in Ohio is equally sought and equally matters.” 

John Koza, chairman of the National Popular Vote group, has said that because most states award all their electoral votes to the candidate who wins that state, “neither candidate has any reason to campaign in any state where he is safely ahead or hopelessly behind.” And he points out how much attention so few states get during the presidential election season.

Some even add that the current Electoral College system could make it easier for a foreign power to influence a U.S. presidential election. In Durango, the Indivisible group there circulated a prepared script for supporters to read to lawmakers that included this: “The Electoral College has proven vulnerable to 21st century election tampering. With it, national elections are swung with the micro-targeted persuasion of a small number of people, using polling data and social media  —  dangerous even without the involvement of foreign governments.”

In an in-depth column in The New York Times, packed with history about the Electoral College, Jamelle Bouie called for Democrats running for president now to make it a part of their messaging in the early nominating process. “A primary campaign is the perfect forum for raising the issue, giving it high-profile support and wide attention,” he wrote. “That, in turn, might move Americans from passive dissatisfaction with the status quo to action against it.”

What are arguments against it?

Opponents of the bill here in Colorado have framed it as an end-run around the Constitution, a Founding Father fear of the tyranny of the majority. At least one vocal opponent called it a form of voter suppression. Others have said it would snub rural ballot casters or diminish Colorado’s battleground status, turning the state into flyover country.

Another line of attack is that if several candidates wind up on a general election ballot with National Popular Vote Interstate Compact laws in effect, someone who won 30 percent of the vote could become president— even if 70 percent of voters who wanted someone else didn’t approve — just because the candidate won a plurality of ballots.

Like the National Popular Vote’s supporters, its opponents, too, say if the law goes into effect it would cede the election of a president to a small number of select states — just different ones — specifically those with large populations.

The Durango Herald’s editorial board pooh-poohed the NVP proposal, opining that apparently Democrats “believe a Republican will never win the popular vote again, just as no one expected the Spanish Inquisition.” And the board delved into history, writing how some Founders thought a direct national election “was on a par with measles.”

Denver election lawyer Mario Nicolais likes what Maine and Nebraska do: the winner in each congressional district “gets the corresponding elector; only the two electors representing the states’ Senate seats are winner-take-all.” He has said it creates an “even more representative” outcome.

Constitutional law scholar Rob Natelson has argued the U.S. Constitution says compacts among the states have to be approved by Congress. “The National Popular Vote people are citing a Supreme Court opinion for the proposition that they’ve got an exception, that they don’t have to follow it,” Natelson said on a recent edition of the Devil’s Advocate public affairs TV show in Denver. “I don’t think they’re right about that.”

“If the compact acquires enough votes, it means potential disenfranchisement for Colorado,” wrote the conservative editorial board of The Gazette in Colorado Springs. “Voters here could elect a Democrat. Yet, if a Republican wins the popular vote, all nine of Colorado’s electoral votes would go to the Republican. Or vice versa. It means Colorado capitulates to the weight of popular sentiment disproportionately controlled by large coastal cities.”

Speaking to that, as the bill wound around under the Gold Dome in Denver in recent weeks, one Republican even trolled his Democratic colleagues by introducing an amendment that would give Colorado’s electoral votes to whichever presidential candidate won California.

Is this all about 2020 and Donald Trump?

No and yes.

A movement to neuter the Electoral College sparked after the U.S. Supreme Court effectively gave the presidential election to Republican George W. Bush in 2000. Democrat Al Gore ended up winning the popular vote that year, but Bush won the Electoral College following the High Court’s order to halt a recount in Florida.

Four years later, a group of Coloradans put a measure on the statewide ballot that would have aligned our nine electoral votes with the percentage of the national vote for president, splitting them 5-4, say, if the vote came down 55 percent to 45 percent. “That ballot measure, however, was overwhelmingly defeated, with 66 percent of voters rejecting it,” reported The Grand Junction Daily Sentinel.

But the movement wasn’t just a liberal pipe dream; over the years it has counted bipartisan support — like in 2006 when the Colorado Senate passed a NPV bill with Republican help. (That was the first time any legislative chamber anywhere passed it.)

In 2011, here in Colorado, none other than former congressman and far-right folk hero Tom Tancredo supported the concept of a National Popular Vote. “Under the plan, an evangelical voter in rural Wyoming would count the same as the union steward in Cleveland or the welfare queen in New York,” he argued. (Currently, Tancredo says he does not support the Colorado bill.)

Following two years of President Trump and the 2018 Midterms, the popular vote movement came roaring back. And it follows a dramatic and ultimately symbolic attempt by a group of national electors in 2016 who tried to execute a nationwide plan to persuadeF enough of their colleagues to cast their official votes for someone other than Trump — what became known as the Hamilton Elector movement after Founding Father Alexander Hamilton, who viewed the Electoral College as a deliberative body that would act as a fail-safe against someone becoming president who is unfit for the job. Those who weren’t so much on board with the movement chose a different moniker for them: Faithless Electors.

Some of the NPV movement’s supporters say the real timetable isn’t 2020, but more likely 2024. Yet Trump is still the catalyst that thrust the current-day movement for Electoral College reform onto the legislative agenda in the states — and onto dockets in the federal courts.

Are all Democrats at the Colorado Capitol on board with the compact?

No.

Six lawmakers cast “No” votes, including Adams County attorney Adrienne Benavidez; Bit Buentello, a special education teacher who represents Pueblo; Denver Democrat Daneya Esgar; Donald Valdez, a farmer who represents the San Luis Valley; Marc Snyder, a lawyer and former mayor of Manitou Springs; and Barbara McLachlan from Durango.

Writing in a guest column for her hometown newspaper, The Durango Herald, McLachlan explained why she voted against what she called one of “the most difficult, but researched, votes” she has taken this year, and a bill that led one constituent to call her at 5:45 in the morning.

“I question what some say is tweaking the Constitution. I question if this new way of delegating electoral delegates will work,” she wrote. “I question if this will finally induce candidates to visit every state, not just those with the largest number of electoral votes, as promised. It feels like we should discuss the issue more.”

Snyder, who is in his first term at the Capitol, says he spent more time weighing his vote on the National Popular Vote Interstate Compact than any other bill save the ones he is personally helping draft. He felt like his colleagues rushed this one through, he says, and he would have liked to have seen more public input. He, too, would prefer to see it go to a vote of the people.

Snyder says he understands the intellectual ideas and the pros and cons about the NPV — and he doesn’t necessarily disagree with it conceptually —  but for him it was more about the process. As a new lawmaker, he attended all the caucus meetings and retreats, and he says the National Popular Vote never was something on the Democratic agenda in those meetings.

Back home in his district, which includes the urban core of Colorado Springs and Manitou Springs, Snyder says he found constituents split, with maybe a few more leaning against it. “I had several people who said, ‘I’m a lifelong unaffiliated or Republican and I voted for you, but if you do this I don’t think I’ll ever be able to vote for a Democrat again,’” he said.

Bottom line for Snyder: “If this is such a damn good idea, they should be proud to put this to the voters of Colorado.”

Is this thing even constitutional?

Scholars are split, and the courts would likely weigh in if and when enough states pass similar bills to trigger the compact, so that’s an argument and explainer for another day.

How hard would it be to just abolish the Electoral College?

Hard.

Congress could do it through a constitutional amendment or a constitutional convention, which would mean three-fourths of state legislatures would have to agree.

Why would swing states like Florida, Ohio, North Carolina or Virginia sign on to this? Or red states, for that matter?

They might not!

And, “they shouldn’t,” says Tara Ross, a lawyer and author of a book called The Indispensable Electoral College, the last three chapters of which are dedicated to the role of the states in the system and how over time they have slowly given away their rights and duties in the Electoral College system.

Lawmakers in states like California and New York aren’t exactly competing for presidential attention during election season; they’re both reliably blue. But swing states like those mentioned above get tons of attention every four years because of their swingy nature as candidates vie for their Electoral College votes. One could imagine those who make the laws there not wanting to change that. And given Democrats have won the popular vote in two out of the last five election cycles in which the popular vote-winner lost, it’s unlikely a state like Texas would would want to change the current system.

Colorado has a unique role in the Electoral College, doesn’t it?

It does — since Dec. 19, 2016, anyway.

That was the day Coloradan Micheal Baca made state history when, as a national elector, he went rogue during the typically mundane Electoral College vote ceremony at the state Capitol in Denver and refused to cast his ballot for Clinton, who carried the state. Instead, he cast his vote for Ohio Republican Gov. John Kasich. Then-Secretary of State Wayne Williams immediately stripped Baca of his post as an elector and had him replaced with someone who cast a vote for Clinton.

Baca was part of the Hamilton Elector, or Faithless Elector, movement — one in which electors in multiple states were hoping to thwart Trump’s presidential bid by denying him the 270 electoral votes he needed to win.

Related: The Hamilton Elector movement explained

Of Colorado’s nine national electors, four of them were self-described Hamilton Electors and became the face of a national movement for weeks. But only Micheal Baca went through with the plan in Colorado. He and two others, however, did end up suing the secretary of state, arguing they should be allowed  to vote their conscience.

One of the electors in the suit, Bob Nemanich, says his hope is the case goes to the U.S. Supreme Court to determine whether states have the right to control how electors vote through state laws.

That federal lawsuit is pending. The 10th Circuit Court of Appeals in Denver heard arguments on it in January in a Denver courtroom.

Not for nothing, but one Colorado reporter, Sam Brasch of Colorado Public Radio, even wrote a high school civics paper on the National Popular Vote Interstate Compact. At the time, his own teacher hadn’t heard of it. Brasch recently caught up with her to talk about the plan 12 years later.

This Colorado NPV law has drawn a lot of attention. How is the resistance to it looking in Colorado?

Some high-profile conservatives and the state GOP have latched onto Democratic support for the National Popular Vote bill and Polis’s intent to sign it as an example of the dangers of one-party rule and liberal overreach.

“ACTION ALERT: Call Governor Polis TODAY — tell him to VETO SB 42 and preserve Colorado’s voice in presidential elections,” read the subject line of a Feb. 21 blast email from Colorado Republican Party Chairman Jeff Hays. He also said “those arrogant idiots in the state legislature” think they’re smarter than the framers.

Meanwhile, Mesa County Commissioner Rose Pugliese, a rising star on the Colorado Republican bench, has teamed up with Monument Mayor Don Wilson in a plan to push a statewide ballot measure asking voters to decide the issue.

Mayor Wilson and I filed a petition with the Secretary of State to keep Colorado’s votes for President in Colorado. We do not support the National Popular Vote, which allows California and New York to decide Colorado’s votes for President. #mesacounty #politicomom #coloradansvote

— Rose Pugliese (@MesaCountyRose) February 21, 2019

“When the national popular vote bill was introduced, people were literally stopping me on the street, asking how they can get involved,” Pugliese told The Gazette. “They don’t want California and New York to be deciding where our Electoral College votes go.”

Wilson told the website Complete Colorado the issue “is about the independence of Colorado as a state in our Union. We look forward to our voters having our say in what goes on in Colorado.”

Conservative talk-radio host Ross Kaminsky called the National Popular Vote bill “the single worst piece of Dem legislation in Colorado in the 15 years I’ve been here,” and pledged to do everything he could to “support repeal of the law and defeat of politicians who support this anti-American travesty. … I hope to use the issue to defeat as many Democrats as possible in 2020.” He also used the R-word— meaning “recall”— saying he would support any such effort to remove a lawmaker “with a decent chance of success against any CO politician who voted for it.”

He’s not the only one talking about recalls, either.

“Recall petitions are being drafted against two Democratic legislators for their votes on a state bill that adds Colorado to the national popular vote compact,” The Gazette recently reported.

On a website where voters can sign up to “join the recall Colorado effort,” organizers put the National Popular Vote bill on the top of their list of legislation pushed by Dems this year.

On the religious right, Colorado Christian University’s Centennial Institute Director Jeff Hunt said he helped send more than 1,000 messages to Polis asking him not to sign the bill. “Stand for Colorado’s sovereignty!” the message read.

There’s also this: A potential  legislative backlash by states that don’t want to see the NPV  succeed. “If you think the nonparticipating NPV states are just going to … try to smooth a path for you, it’s not going to happen,” says Ross, the lawyer and book author. 

When will Polis sign it?

Probably soon, and his timing is significant.

When the national popular vote bill gets signed matters. Opponents want to put it to voters, but they can't collect signatures until it's law. They have an Aug. 1 deadline to submit signatures regardless of when the bill becomes law. #copolitics #coleg https://t.co/CCbzfmDTTL

— Anna Staver (@AnnaStaver) February 28, 2019

Each day that NPV critics stay in a holding pattern means one fewer day they have to collect the nearly 125,000 signatures for a ballot measure — a time-and-resource-intensive process. They can only start collecting signatures once Polis signs.

“I’ve long supported electing the president by who gets the most votes,” Polis told The Hill newspaper. “It’s a way to move towards direct election of the president.”

Elections for national electors are coming up in Colorado. How will these look this time?

Different? Maybe?

Colorado’s last nine national electors earned their slots at the local level, with little fanfare. The 2016 class counted two two math teachers and an Uber-driving college student, not exactly Big Names within the state Democratic Party. (On the Republican side, the state GOP chairman appoints electors.)

Indeed, “I’m just an average schmuck,” one of the 2016 electors, Bob Nemanich of Colorado Springs, said after gaining some broader notoriety during the Hamilton Elector movement.

Typically, these insider party elections are akin to popularity contests in neighborhood precincts. In 2016, the electors didn’t run professional campaigns, and a few of them probably won because of their hardcore early support for Bernie Sanders that year. Nemanich beat a well-known local political science professor for the post.

Following the media circus surrounding the Hamilton Electors and their ongoing federal lawsuit, it remains to be seen how this year’s selection process might look under a brighter spotlight.

Says Nemanich, who adds he is considering running again this year to become a national elector: “I think there will be some real competition.”  

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