New Hampshire’s election law committees have a long history of floating national ideas, from various forms of automatic voter registration to an independent redistricting commission.
But one national idea is in no danger of gaining traction: the popular vote.
Last month, a committee effectively shelved an effort to tie New Hampshire’s four Electoral College votes to the national popular vote – not the state vote – with all 20 Democrats and Republicans voting to recommend it not be passed in January and be sent to study instead. And while the full House still gets to decide, it doesn’t look good.
“This is a bipartisan referendum against Senator Shaheen and Senator Hassan’s call to abolish the Electoral College,” said Gov. Chris Sununu in a statement.
For New Hampshire, it’s one of many holdover bills to receive the interim study treatment – an easy way to dispatch “death by dignity.” But the effort is part of a national movement to peacefully overthrow New Hampshire’s Electoral College through state solidarity. And last month’s vote is only the latest complication.
Started in 2000, the National Popular Vote Interstate Compact is an attempt to sideline the modern Electoral College process, which activists say distorts the will of the people by creating a mechanism to override the simple majority.
Presently, the Electoral College apportions 538 votes to states based on their population. Those states decide how to allocate their votes based on how their residents vote. Supporters of the compact say the system is antiquated and ill-suited to the present reality: where many states are sparsely populated and cities in certain coastal states continue to represent higher populations.
The goal is to effectively end the Electoral College without actually ending it, by tying a decisive quantity of those 538 Electoral College votes to the popular vote. If enough states agree to put aside their state’s individual vote and instead side with the country-wide majority, the disparities can be addressed, advocates argue.
The movement is propelled by two recent presidential elections, both of which resulted in a president elected by winning a majority of state electoral votes but losing the “popular vote” – the overall number of votes across the country.
President George W. Bush’s election in 2000, at the end of a cliff-hanger Supreme Court decision that delivered Florida’s 25 votes to hand him the presidency, kicked off the first wave of states joining the compact. President Donald Trump’s election – in which Hillary Clinton amassed 2.9 million more votes but failed to win sufficient Electoral College states – has prompted more to join.
But for all the recent attention, as Democrats including Shaheen and Hassan have called for the abolishment of the Electoral College, the committee’s decision last week underscored the limitations of the campaign, which at this point is unlikely to happen by the 2020 general election.
To Norman Williams, director at the Center for Constitutional Government at the Willamette University law school in Oregon, the popular vote compact is plagued by one fatal flaw: partisanship.
At this point, with the sides pushing for the compact largely Democratic and largely motivated by the results of the election, a person’s support for or against the Electoral College largely comes down to party affiliation. Democrats say the system allows rural minorities to overpower the will of the majority of U.S. voters; Republicans say abolishing it would dilute the perspectives of those who don’t live in major cities on the coast.
The partisanship is a problem, Williams says, because making the compact work requires building a coalition of not only blue states but swing states, too. Many of those swing states, even the ones that flipped from Obama to Trump – from Ohio to Wisconsin to Pennsylvania – have Republican legislatures.
“So long as the NPVC is viewed through this partisan lens, it’s highly unlikely for it to come into effect any time soon” he said. “It’s going to take some type of realignment of American politics in these states for it to change.”
Then there are the legal headaches that could appear if the compact is successful, according to Williams. There could be a constitutional challenge – the legal test of whether a state voluntarily ignoring the decision of its citizens in favor of the country-wide decision subverts the intention of the Electoral College. There could be logistical ones: How would a recount be carried out if the national popular vote were too close to call?
And in a situation where the popular vote went against a Democrat but they would win the Electoral College with blue state support, nothing in the U.S. Constitution could stop a Democratic governor from abruptly abandoning the system entirely, Williams said.
There are better ways to address the Electoral College, Williams argues. The Federal Election Commission could come in and nationalize presidential elections, setting up a standard process.
Or, less radically, lawmakers could choose to end the phenomenon of “winner take all” states, where regardless of how split the vote was, all electoral college votes go to the candidate that clears 50%. Awarding the votes proportionally could mean big states like California and Florida could split their votes, enticing candidates to compete more regionally.
Both of those avenues would require U.S. constitutional amendments, though, with the path to success even narrower.
Christopher Pearson, a Vermont state senator who works for the national organization, sees it differently. The proposed popular vote compact is not a means to overthrow the Electoral College, he said, but rather to work within it to let states design their own systems – even if those systems mean deferring to the popular vote.
And rather than dilute candidate time, establishing a popular-vote election would allow the states that aren’t battlegrounds in the Electoral College to finally get attention, Williams argued.
In the 2016 election, 94% of Republican and Democratic general election campaign events occurred in 12 states – one of which was New Hampshire – according to data from FairVote, an activist voting nonprofit. The other 38 were hardly visited.
“For most states, 35 to 40 states, every cycle the candidates don’t visit, they don’t campaign, there’s no grassroots organizing, there’s no polling, there’s no advertising,” Pearson said. “It is very dark or light.”
A change would give power to those states.
But that’s exactly the kind of change many in New Hampshire, a battleground state, fear.
“That type of politically driven sentiment would only serve to destroy the voice of New Hampshire voters in the election of our national leaders,” Sununu said in his statement.
Opponents of the measure have a simple argument: It would wipe New Hampshire off the political map. With its four electoral votes and its vaunted status as a swing state, the Granite State has more than earned its reputation for deciding elections; had Al Gore won in 2000, he would have won the election without Florida. Instead, Gore lost here by a mere 7,211 votes.
But connecting the state’s electoral votes to the national election results would erase that proud tradition, Sununu and other critics say. If New Hampshire’s votes were determined by the rest of the country, and not just New Hampshire voters, candidates would have little incentive to stop here, opponents argue.
And unlike New York and Massachusetts, both of which have joined the new compact, New Hampshire does not have any major population centers to entice the candidates to show up anyway.
“It would essentially eliminate state lines,” said Rep. Katherine Prudhomme O’Brien, a Derry Republican.
Sponsors of the bill insisted that they were not giving up on the concept. But they acknowledged that it needed more time to get public input.
“Obviously I would like to see New Hampshire get on board with this, but I want us to have the state better understand it first,” said Will Pearson, a Keene Democratic representative.
Pearson has dismissed the concerns. Even if the whole Electoral College were rendered defunct, he said, presidential candidates would still take pains to spread out to rural areas, he said. He pointed to gubernatorial elections in big states.
“We have executives running in statewide offices all the time,” he said. “Think about the governor for California or governor for Massachusetts. These are very populated states. And they don’t just go to Sacramento and L.A.”
He continued: “Governor for New Hampshire – Chris Sununu. Did he only campaign in Manchester and Portsmouth and Concord? No. He visited all of the towns and all of the cities. I think we’d see the same thing with presidential candidates.”
For now, it’s a hypothetical exercise. Barring major political upheaval in the coming months, New Hampshire is in no danger of giving up its Electoral College perch soon.
(Ethan DeWitt can be reached at 369-3307, edewitt@cmonitor.com or on Twitter at @edewittNH.)