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How to work around the Electoral College — without amending the Constitution

States could pass laws pledging that they will award all of their electoral votes to whichever candidate wins the national popular vote.

MinnPost illustration by Jaime Anderson

One in a series of articles. You can read the whole series here.

Imperfect Union: The Constitutional roots of the mess we're inI’m almost done beating up on the great and glorious Electoral College system. A couple of final thoughts:

Notwithstanding the worshipful attitude that most Americans have toward the Constitution in general and willingness to believe in the near-perfection of the Framers and their vision, most Americans, by a stable and very wide margin, would prefer a simple national popular vote system.

Here is the result of the last four times Gallup has asked the question (as well as the question wording). In general, Democrats seem to like the popular vote idea more than Republicans. In the aftermath of 2000, when George W. Bush became president despite finishing second in the popular vote to Al Gore, a majority of Republicans used to tell Gallup they favored the Electoral College over a straightforward popular vote. But in most recent running of this question, a majority of Democrats and Republicans and independents favored switching to the popular vote system.


Preferred system for electing presidents

Thinking for a moment about the way in which the president is elected in this country, which would you prefer — [to amend the Constitution so the candidate who receives the most total votes nationwide wins the election, (or) to keep the current system, in which the candidate who wins the most votes in the Electoral College wins the election]?

Preferred system for electing presidents
Gallup


Of course, just because the majority of us — by 62-35 (and in Minnesota, it’s 75-25) — favor something, doesn’t necessarily mean it’s going to happen. Since the Electoral College system (as revised by the 12th Amendment) is embedded in the Constitution, it would take a super-super-supermajority consisting of two-thirds in both houses of Congress and ratification by three-fourths of the states to change it by amendment.

But there is a clever work-around in existence that, without a constitutional amendment, would turn U.S. presidential elections into national popular votes. In fact, the organizers of this movement call themselves “National Popular Vote.” I’ve written about it before. Here’s how it would work:

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States would pass laws pledging that they will award all of their electoral votes to whichever candidate wins the national popular vote. (This should be constitutionally kosher. The Constitution leaves it pretty much entirely up to each state to decide how to choose electors.) But under this proposed law, the requirement doesn’t take effect until enough states have passed a similar law to guarantee that the winner of the national popular vote would get an Electoral College majority.

Sound crazy? Well nine states have already passed it. And since California (55 electoral votes) is one of those nine and Illinois (20 EV) is another, those nine combined control about 132 electoral votes, almost half of the 270 that is necessary to create an Electoral College majority.

The law is in play in many states, including Minnesota, where it has significant bipartisan support that includes Republican Speaker of the House Kurt Zellers. Last year, it passed in the House Committee on Government Operations and Elections.

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