Why Equal Votes And The National Popular Vote Work Well Together

by Jason Harrow, attorney and Equal Votes campaign advisor

On September 22, Equal Citizens founder Lawrence Lessig went on Reddit “Ask Me Anything” to answer questions about our Equal Votes project. He received several questions about how the Equal Votes lawsuits can coexist with the National Popular Vote Initiative, which is a state-level legislative effort to try and create a system where the winner of the popular vote always prevails in the Electoral College. As Lessig said in the AMA, he supports both this ongoing legislative effort and the Equal Votes Project because both efforts are “pressing the same value, and helping to build the movement to bring it about.” In this post, I want to explain in more detail why the National Popular Vote project and Equal Votes go particularly well together.

It’s helpful to start with a bit of background. The National Popular Vote bill is a model law that any state can adopt that awards all of a state’s electors to the winner of the national popular vote, instead of the state popular vote. But instead of oddly skewing the results right now, the law only takes effect when enough states pass this law to ensure that the winner of the national popular vote is also the winner in the Electoral College. In other words, the bill creates a bloc of states that promise to vote together for the national popular vote winner, but they will only do this once this bloc is strong enough to guarantee the correct outcome. It’s a very clever and creative way to implement a national popular vote while maintaining the framework of the Electoral College.

Right now, 11 states with 165 electoral votes have passed the bill into law. In order to become effective, though, it will need to be passed in states with 105 more electoral votes. Without those additional electoral votes, the bill changes nothing about the way electors are allocated, because the bloc of national popular vote states is too small to guarantee that the popular vote winner will be elected president.

Equal Votes takes a different approach. As explained in more detail elsewhere on our website, we think the current, winner-take-all method of allocating all of a state’s electors to whatever candidate wins more votes in that particular state is unconstitutional, and so the system requires change right now. Equal Votes will first file lawsuits in two states to challenge the current allocation of electors, so the first set of court decisions would come from judges in those two states in particular. But a potential decision by the U.S. Supreme Court would apply nationwide, so the constitutional principle we are fighting for would ultimately be applied to the whole nation to create what becomes a national popular vote.

Below is a breakdown explaining the basic differences between these two approaches. As you can see, the two approaches don’t overlap. Rather, they coexist nicely, because Equal Votes is using the courts and the National Popular Vote is going to state legislatures:

What’s the basic approach?

National Popular Vote: Have legislatures pass state laws so that the winner of the popular vote is guaranteed to prevail in the electoral college.

Equal Votes: Ask courts to declare winner-take-all allocation of electors unconstitutional and replace it with the national popular vote or, at minimum, a system of proportional allocation of electors.

When would a change take effect?

National Popular Vote: In the first presidential election after states with 270 combined electoral votes have passed the identical law, we would have a true national popular vote. Before then, no change.

Equal Votes: A decision in our favor would likely apply in the presidential election following any favorable ruling by the U.S. Supreme Court — hopefully the 2020 election — though the Supreme Court has occasionally given governments additional time to comply with certain particularly important rulings.

Who needs to agree with the argument to have it become law?

National Popular Vote: State representatives and state senators need to pass the bill in states with at least 270 electoral votes, and state governors need to sign the bills.

Equal Votes: Federal judges need to agree with our legal arguments. We could see a wave of legislative change if federal court judges in lower courts agree with our arguments, but only a ruling from a majority of the Supreme Court would apply to the whole country.

What would happen if the effort succeeds?

National Popular Vote: The winner of the national popular vote would always receive more than 270 votes in the electoral college, and we would effectively have election by national popular vote.

Equal Votes: States would be required to adopt the national popular vote, or Congress and the States could amend the Constitution to abolish or modify the electoral college and implement a national popular vote via a different means. At minimum, a court ruling in our favor would require states to allocate electors proportionally, which would more closely mimic national popular vote than the current system.

As you can see, although the methods differ, they do not conflict, and the end goal of each approach is the same: to elect our president via a national popular vote.

In fact, there is a nice synergy between the two approaches. For instance, if a lower court judge in one of our cases hints that winner-take-all is unconstitutional, that might prompt the legislature in that state — or even in another state — to take a serious look at changing to national popular vote to get ahead of the legal problem. Likewise, the success so far of the National Popular Vote bill in eleven states shows that there is popular support for improving the way we elect our president. We can thus be confident that we’re not asking the courts to take a thunderous step into the unknown. Instead, we’re asking them to accelerate a process already in motion.

In sum, you don’t need to choose. If you believe we need better, fairer, more equal presidential elections, then push your legislator to adopt National Popular Vote and support our campaign at Equal Votes. It’ll be a hard fight, but one we can win only by banding together and using all the tools at our disposal.

Our crowdfunding campaign to get this legal challenge off the ground ends October 13th. Please donate to help fund this fight.