During my service in the Senate, I introduced a proposed Amendment to the Constitution to abolish the Electoral College and provide for direct election of the President and Vice President of the United States. As Chairman of the Senate Subcommittee on Constitutional Amendments, I held five days of hearings on this and related proposals that year, receiving testimony from 38 witnesses and hundreds of pages of additional statements and academic studies. In fact, since the Subcommittee held its first hearing on this topic in 1966, we had amassed a record of over 3,000 pages of testimony on the problems fostered by the Electoral College and the benefits which would accrue from the direct election of the President and the Vice President.

At the end of this process, I was even more firmly convinced that the Electoral College had outlived whatever positive role it once played as a choice of convenience and compromise. Long overdue, the President and Vice President should be chosen by the same method every other elective office in this country is filled – by citizen voters of the United States in a system which counts each vote equally. In 1979 we came close to getting the Direct Election Amendment through the Senate but in the end we could not get enough votes to end the filibuster blocking the Resolution. Our effort, like many before it, was relegated to the Congressional history books.

Unfortunately, Congress has continued to block this basic reform that has long-standing, overwhelming public support. Gallup polls have shown strong public support for nationwide popular election of the President for over five decades. Numerous other polls have confirmed a high level of public support for this reform. Polls consistently show 60-80% of Americans believe they should be able to cast votes in the direct election of the President. That is why I was glad to assist in the efforts of the National Popular Vote organization to propose a new strategy for the direct election of the President and Vice President. This new approach is consistent with the Constitution, but does not rely on the arduous process of a Constitutional amendment.

Since Congress has not been able to garner sufficient votes to send a Direct Election Constitutional Amendment to the States for ratification, the National Popular Vote organization is proposing the Equal Vote Plan whereby the States would institute direct popular election under the Constitution without the need of the burdensome process of adopting a Constitutional Amendment.

Under Article II of the Constitution, each State is given the authority to determine how their electors are appointed in Presidential elections. Section 1 of Article II states, “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.” Article I Section 10 of the Constitution contains the “Compact Clause” which allows States to enter into binding agreements with other States.

The Equal Vote Plan is based on the authority of a State to determine the method for appointing electors under Article II and the power of a State to enter into agreements with other States under Article I. The Plan contemplates the following steps for implementation:

  1. Individual states would adopt Compacts, either through popular initiatives or by action of the state legislatures, requiring that after a Presidential election, the chief election official of each state in the Compact should obtain an official statement of the total number of popular votes nationwide.
  2. Pursuant to the terms of the Compact, the chief election official of each state in the Compact would be required to cast the state’s slate of electors for the Presidential candidate who receives the most popular votes nationwide.
  3. The Compact would not become effective until it is approved by states having a majority of the electoral votes; i.e. 270 electoral votes.

Traditionally, Congress has voted to consent to the Compact among the states as required by Article I, Section 10 of the Constitution. These Compacts are quite common. In fact, there are several hundred interstate Compacts in existence, covering a wide variety of subjects. Some have been agreed to by all of the states, while others involve only a few. The Congressional approval of the Compact requires a simple majority in each chamber and the signature of the President.

I am pleased to report that since National Popular Vote began its efforts to implement the Equal Vote Plan in February of last year, we are beginning to see some success in various state legislatures. In April of 2007, I was honored to attend the bill signing ceremony at Government House in Annapolis as Governor Martin O’Malley signed legislation to make Maryland the first state to enact the National Popular vote plan into law. To date the bill has passed 11 legislative chambers (one house in Arkansas, Colorado, and North Carolina and both houses in California, Hawaii, Illinois, and Maryland).

The New York Times endorsed National Popular Vote’s plan by calling it an “innovative new proposal” and “an ingenious solution.” The editorial urged that “Legislatures across the country should get behind it.” As stated in a March 14, 2006 editorial:

“The Electoral College distorts presidential campaigns. Candidates have no incentive to campaign in, or address the concerns of, states that reliably vote for a particular party…. According to estimates by National Popular Vote, the bipartisan coalition making the new proposal, … only 13 states, with 159 electoral votes, were… battleground states in 2004. As a result, campaigns and national priorities are stacked in favor of a few strategic states. Ethanol fuel, a pet issue of Iowa farmers, is discussed a lot. But issues of equal concern to states like Alabama, California, New York and Indiana are not.”

The Chicago Sun Times called National Popular Vote’s plan “thinking outside the box” and said “It’s time to make the change with this innovative plan” (March 1, 2006). The Minneapolis Star-Tribune said “It’s a lot to ask the Legislature to do the right thing and endorse the new compact. But it really should. So should other states – both red and blue – join, for the sake of a better democracy” (March 27, 2006). The Los Angeles Times endorsed the plan on June 5, 2006. The Sacramento Bee endorsed the bill, saying “[t]he governor and senators can get this process rolling in other states by acting this session” (June 3, 2006).

I believe that the more various state legislatures focus on how the current electoral college system actually affects our presidential election system, the more likely it is that they will come to understand the serious problems which have evolved as a result of the current system. The most significant shortcoming of the current state-by-state system for electing the President is that voters in two thirds of the states are effectively disenfranchised because they don’t live in the closely divided 16 or 17 “battleground” states. The reason that presidential candidates focus on states such as Wisconsin and Ohio, while ignoring states such as Illinois and Indiana is the winner-take-all rule. Under this rule (which is in effect in almost every state), the candidate who wins each particular state gets all of that state’s electoral votes. As a result, presidential candidates concentrate their organizational efforts, advertising, polling, public appearances, and policy attention on the closely divided battleground states. Candidates do not campaign in states in which they are far ahead – because they do not receive any additional electoral votes by winning such states by a larger margin. Similarly, they ignore states where they are far behind since any popular votes they would garner would do no good if they lost the statewide vote. All voters, independent of political affiliation, are reduced to being spectators in the states that are not competitive in presidential elections. The non-competitive states include six of the nation’s 10 most populous state (California, Texas, New York, Illinois, New Jersey, and North Carolina), 12 of the 13 least populous states; and the majority of medium-sized states.

Indeed, we can identify the battleground states by simply “following the money” in Presidential elections. An astounding 99% of the $237,000,000 in reported advertising expenditures in the last month of the 2004 Presidential campaign was spent in only 17 states. 92% of the 307 campaign events attended by Presidential or Vice Presidential candidates in the last month of the 2004 campaign were concentrated in just 16 states. Not only are voters ignored in non-competitive states but voter turnout is also diminished. Diminished voter turnout, in turn, weakens the candidates for state and local offices of the state’s minority party making the state even less competitive in the future.

A second shortcoming of the current system is that there are large disparities in the value of a person’s vote. For example, in the 2000 campaign Gore won five electoral votes by carrying New Mexico by 365 popular votes, whereas it took President Bush 312,000 popular votes in Utah to earn the same five electoral votes – an 855-to-1 disparity in the value of a vote.

In addition, under this system a candidate can win the Presidency without winning the most popular votes nationwide. This has occurred in one in 14 presidential elections, and a shift of a handful of votes in one or two states would have elected the second-place presidential candidate in five of the last 12 elections. This has the potential to penalize both Republicans and Democrats under different circumstances. A shift of 60,000 votes in Ohio in 2004 would have made Kerry President, despite President Bush’s lead of 3,500,000 votes nationwide. In 1976 Jimmy Carter won a nationwide popular vote victory of 1.7 million votes. However, a change of only 25,579 votes in Ohio and Mississippi would have reelected President Gerald Ford in the Electoral College.

The simplest way of resolving these problems and inequalities with our current system would be to institute a system of direct popular vote in which every citizen’s vote would be counted equally. The electoral advantage of people in certain states or particular parts of the country would be replaced with a system in which every voter is equally counted and equally weighed. In addition, it would improve the basic fairness of an election by guaranteeing that the candidate with the most votes wins the election.