On Monday, members of the Electoral College are meeting in their respective states to cast their votes to make Joe Biden the 46th president of the United States.
Normally a formality, this year’s meetings take on added significance. President Donald Trump has refused to concede, and his effort to overturn just enough votes to claim a false victory in the Electoral College exposed how the flaws of that body threaten the very foundation of American democracy. That peril, though, is opening up new opportunities—and challenges—for those seeking to move this country to a national popular vote.
There have been hundreds of attempts to reform or abolish the Electoral College since the nation’s founding, but the urgency has picked up in recent years. Twice in the past six elections has the winner of the Electoral College lost the popular vote and twice has such a “wrong winner” only been narrowly averted.
Even though Biden won the popular vote by more than 7 million votes, his margin in three decisive Electoral College states—Georgia, Arizona, and Wisconsin—was just a little more than 40,000 votes combined. That means that Biden’s victory essentially rested on 22,000 voters in those three states. And while Trump’s many attempts to overturn the results of the 2020 election have failed, had the outcome been fractionally closer in a few key states, Trump’s schemes to remain in power despite losing may well have worked.
“If you want to run a coup in the United States, this is the way to do it,” John Koza, the chairman of the group National Popular Vote, told more than 1,600 attendees to his organization’s 270-by-2024 Virtual Conference shortly after the election. “Democracy is literally at stake at this point, because the road map has been painted now … everyone in politics can see what [the president] was doing.”
Koza, a former Al Gore elector, has been working for 15 years to encourage states to join an interstate compact committing to give their electors to the national popular vote winner if states with enough electors to command the presidency—270—agree to join. Hundreds of past efforts to reform or abolish the Electoral College and replace it with a popular vote have failed. The institution itself was designed as a last-ditch, anti-majoritarian “Frankenstein compromise” to win over slave-holding interests during the Constitutional Convention, as Jesse Wegman writes in his book, Let the People Pick the President: The Case for Abolishing the Electoral College. The fact that it was written into the Constitution is what has made it so hard to change.
The plan Koza helped devise and put into action is a simple and elegant solution to this problem. The Constitution allows state legislatures to set the “manner” of choosing representatives to the Electoral College. It also allows states to enter into compacts with other states. In order to win the Electoral College, a candidate needs 270 votes. The National Popular Vote compact says that once states with 270 or more Electoral College votes have joined, then every member of the compact will automatically give its electors—and the presidency—to the national popular vote winner. His group primarily lobbies state legislatures around the country to pass the same 888-word bill, which binds each state to agree to certify its electors for the winner of the national popular vote, much the same way state officials now certify their electors for the winner of their respective states.
After George W. Bush defeated Gore in 2000 despite losing the popular vote, the issue began to pick up interest in the academic community. But Electoral College reform garnered little popular momentum. “If you look at journalism written in the 20 years before 2000, it was the conventional wisdom that if we ever had a ‘wrong winner’ the Electoral College would be abolished,” said Harvard professor Alexander Keyssar, the author of the book, Why Do We Still Have the Electoral College? “Then we had a ‘wrong winner’ in 2000 and there was deafening silence.”
At the time he launched his group, Koza notes, there was “a lot of resistance among Republicans because they thought this was sort of an implied insult to the way Bush had gotten elected.” After Barack Obama’s election, it became easier to convince at least some Republican legislative bodies to join his cause, but Democrats cooled on the idea. After Trump won in 2016 despite losing the popular vote by more than 2 percentage points, however, the dynamic flipped again.
Koza believes the chaotic aftermath of the 2020 election opens up a new opportunity to carry the compact over the crucial threshold. In fact, the name of the organization’s conference this year was taken from Koza’s belief that his interstate compact can pass in enough states to secure a 270-vote majority in the Electoral College and take effect by 2024.
“This election is the poster boy of what’s wrong with the system and far more than even the 2016 election,” Koza told me. “By dragging it out for five days to figure out who got 12,000 more votes than somebody else in Georgia and Arizona … [it] obviously captured the public’s attention.
“This really hammers home to people how shaky the current system is,” he continued. “I think that in some way will make it possible to finish this off.”
Koza’s interest in the Electoral College goes back more than five decades, when—as a 22-year-old graduate student in computer science—he created a board game called Consensus. Players compete as presidential candidates trying to win enough different constituencies in the right states to win the Electoral College.
The game sold 3,200 copies—a commercial flop—but Koza would earn a fortune in the 1970s and ’80s as the inventor of the scratch-off lottery ticket. After convincing Massachusetts to become the first state to use his ticket design in 1974, he traveled around the country successfully lobbying dozens of other states to legalize instant lotto.
In 2005, Koza and his old lobbying partner, Barry Fadem, realized that their work on the lottery—navigating bill passages in state legislatures, popular voter initiatives, and interstate compacts—actually applied perfectly to reforming American democracy. “We actually looked at each other” over lunch one day, Koza recalled, “and said … ‘We are the exact right people to do this.’ ”
Koza, whose group now has just a handful of states left to reach 270 electoral votes, says he has only recently begun to grasp the urgency of his project. For 14 years, he thought of the popular vote compact as a sort of technocratic fix that would significantly improve the American system of self-governance but maybe was not essential for the survival of the republic. Now he considers it a matter of life and death for American democracy.
“At this point I think changing the system to something better is going to determine whether there’s a dictator in this country,” he said. Given the tens of millions of Americans who would like to see Trump reinstalled as president despite clearly losing the election, Koza has a point.
Trump’s efforts to overturn the election also create new challenges for the National Popular Vote movement. Koza and his organization have taken a strongly nonpartisan stance toward Electoral College reform, working particularly hard to try to convince Republicans that the current system harms the interests of every voter who doesn’t live in one of a small group of battleground states. That has become a harder sell for Republicans in recent years, as GOP presidential candidates have lost the popular vote in seven of the past eight elections. The fight over the legitimacy of the 2020 election and the dangers of an American autogolpe only make that work harder.
At least one member of Koza’s own team supported Trump’s effort to overturn the Electoral College outcome this year.
“It’s not a coup if you follow the law. If you follow the Constitution that’s just following the law,” Ray Haynes, a Republican lobbyist for National Popular Vote, told me last month in response to Koza’s characterization of Trump’s efforts as a coup attempt. Even with his legal options narrowing, Trump has continued his efforts to pressure leaders in the Pennsylvania state legislature to vote to send a second slate of pro-Trump electors to Congress. He has also started pressuring Republican members of Congress to simply overturn the election when they meet on Jan. 6 to count the Electoral College votes. Haynes—who is himself a former member of the California Legislature and national chairman for the conservative American Legislative Exchange Council—told me that if he were in a contested legislature, he would vote to give Trump the state’s electors.
“The winner of the election has a lot of power for a short period of time so there’s a lot at stake,” Haynes argued, endorsing Trump’s push to have state legislatures overturn the election. “Dr. Koza agrees that state legislators can do this if they wanted. I would argue that they’re just following the Constitution.”
If the compact is to succeed, they’ll need to get red states on board—meaning they will need to win over people who share Haynes’ perspective. The compact has passed in 15 states and the District of Columbia—“an average of one state per year,” Koza notes—and its participants total 196 electoral votes, just 74 short of adoption. But all of the states that have signed on are states Biden carried by at least 10.8 points. The latest success was in Colorado, where Koza’s organization fended off a GOP-backed effort to overturn last year’s passage of the compact via a rarely used direct initiative. Koza’s team and local allies won the statewide vote last month 52–48.
Koza’s success in Colorado marks a particularly significant juncture for the organization. In 2006, when Koza and Fadem were “forming the organization on the fly,” Colorado’s Senate was the first legislative body to try to pass National Popular Vote’s bill. It failed four times, but organizers like Sylvia Bernstein decided to try again when Democrats took over control of the Colorado Senate from Republicans in 2018.
“The No. 1 best message is that every vote should count equally,” Bernstein, who worked as the coalition coordinator for Colorado’s Yes on National Popular Vote campaign, told me of her group’s grassroots messaging strategy. “There are a couple of reasons why every vote doesn’t count equally. Right now, one of them especially resonates with Coloradans, and that is what we call ‘the Wyoming Issue,’ ” she explained.
The principal bias of the Electoral College is that it gives a small number of battleground states more weight than every other state, large and small. But another bias is that one person’s vote in a less populous state is worth more than in larger states. “If I moved just two and a half hours north, I would have over three times the representation in a presidential election and that’s kind of mind-blowing,” Bernstein said of “the Wyoming Issue.” By localizing that issue around a friendly border state rivalry, Bernstein and her group were able to boost support for the compact.
Bernstein only became involved in popular vote reform after the 2016 election, when she was taken aback by the disconnect between the popular vote, which Hillary Clinton won by nearly 3 million votes, and the Electoral College, which Trump won 306 to 232. “The fact that somebody won the popular vote by so much and yet still failed to win the presidency was something that I just didn’t really think could happen,” she said.
After attending a local meeting, Bernstein became a leader of the campaign effort, helping to organize 50-plus volunteers. The bill finally passed and was signed into law in 2019. Republican Party officials, though, backed a signature-gathering campaign to use a special type of voter initiative that hadn’t been utilized since the 1930s to force the issue onto the 2020 ballot. The question was finally decided by the state’s voters last month.
The intellectual underpinnings for Koza’s plan were actually formed following the 2000 election, when law professors and brothers Akhil and Vikram Amar wrote a series of articles outlining how the formation of an interstate compact could create a national popular vote.
The remaining major “hurdles,” Vikram Amar argues, are twofold: First, he believes the compact would need some sort of formal congressional approval to standardize nationwide presidential elections in order to pass muster in the courts. Second, in order to have any political chance of success, the compact will need more Republican buy-in, and so far it has almost exclusively been successful in states dominated by Democrats.
“It has to break through in a red state both to get over the top to 270 and also to give the plan any real credibility,” Amar said. “It can’t be a plan that’s favored only by blue states but not by red states, that’s not the way to do election reform.” He argues that putting the issue to voters in a direct initiative in a state like Arkansas, Arizona, or Oklahoma might be the easiest way to get that red-state buy-in (though that might come with its own separate legal challenges).
“Republican leaders are much less open to this idea than Republican rank-and-file voters,” Amar says. “I think the hardest thing to overcome is opposition by people who really do fear the partisan consequences of this but they just don’t really want to say that.”
That is one reason Koza’s group has long argued that this is not a partisan issue. The Electoral College has historically benefited different parties at different times. In 2004, George W. Bush nearly lost Ohio and the Electoral College despite decisively winning the popular vote. In 2012, Democrats were thought to have a major advantage in the Electoral College thanks to the “Blue Wall” in Pennsylvania, Wisconsin, and Michigan. Ever since the “Blue Wall” crumbled in 2016 after 24 years of going for Democrats, political commentators take it as a given that Republican candidates other than Donald Trump might be able to replicate that feat. Haynes thinks it’s a mistake to assume that. “You can’t rely on Trump to be there all the time,” he said.
If large and midsize states with changing demographics such as Texas, Arizona, and Georgia flip or stay blue, then Republicans will have a significant disadvantage in the Electoral College. For nearly a decade, Haynes and other Republican members of Koza’s team have been traveling around the country to try to convince GOP state legislators that a popular vote would be good for the country, for their party, and for the conservative movement. Haynes appears to be a true believer on these three points. He argues that in past elections, candidates have sidelined conservative issues in general elections to woo swing voters in battleground states, while the Republican Party is also leaving millions of votes on the table across the country. “Energizing conservatives in the Midwest and the South and parts of California would change the entire dynamic of the election,” Haynes said.
None of these arguments work without the right messenger, however. “If you sent a Democrat into a roomful of Kansas Republicans, they’d be like, ‘Get the hell out of here,’ ” said Wegman. “But when you send in some kind of dyed-in-the-wool conservative, some of whom are Trump supporters, you can have a real conversation.”
Haynes is that dyed-in-the-wool conservative. Indeed, as a California legislator, he spoke against the very first passage of the compact on the floor of the California Assembly in 2006. At the time, he doubted its constitutionality and thought it might burden rural parts of the state. After hearing both sides of the argument at an ALEC convention in San Diego in 2010, he became convinced those were myths—rural areas across the country are ignored now if they’re not in a battleground state, and the compact has a strong constitutional grounding. Not long after attending that conference, he was convinced to join Koza’s team and started touring the country selling the national popular vote to Republicans. Haynes’ strategy has been to visit Republican legislators for hourlong meetings in their home districts rather than for 15-minute chats in the state capital. It has had some not insignificant successes—the bill passed Republican-led chambers in Oklahoma in 2014 and Arizona in 2016 and was approved in Republican-led committees in Georgia and Missouri. That was all before the 2016 election, though, and since Trump won that election based solely on the Electoral College, it has been more challenging to convince Republicans to support the idea. He has had to revisit states where he had past success and “go back and replant some seeds.”
Virginia is the next target for Koza’s team. The state Senate is scheduled to hold committee hearings in January, Koza says, after the bill passed in February in the House of Delegates 51–46. Earlier this year, the bill initially failed in committee in both chambers. Passage would put the compact at 209 electoral votes, or 61 away from enactment.*
Koza firmly believes time is running out. “If the system isn’t changed in 2024, there will be a dozen battleground states again,” he warned, “And when the election smoke clears, there’ll be three or four or five that are within 10,000 or 12,000 votes and then you can find some flaw in the election process in those states.”
The mutual suspicion among Republicans and Democrats points to the biggest defect of National Popular Vote and, for that matter, of our broader political system right now: Republicans increasingly view the voting system as illegitimate when their opponents win. That trend is likely to persist no matter what that system is.
The fact that Koza and his team are on both sides of this divide could very well be an untold asset. When he speaks with state legislators, Haynes said, “The joke I tell them is ‘I don’t speak very good Democrat.’ ”
“Democrats and Republicans speak a different language. I know when I’m talking to a Democrat and when I’m talking to a Republican by the words that they use to describe certain things,” he said. “I always use the comparison of ‘voter fraud’ versus ‘voter suppression.’ When Republicans talk about trying to prevent voter fraud, Democrats hear ‘voter suppression.’ And when Republicans hear ‘voter suppression,’ they think, ‘Aha they just want voter fraud.’ ”
That language barrier could doom the National Popular Vote, along with any pro-democracy reforms the country might enact going forward. Or maybe translators like Haynes can push through where so many others have failed.
Correction, Dec. 16, 2020: This article originally misstated that the National Popular Vote Compact bill passed in the Virginia House of Delegates in Dec. 2020.