Below is the testimony of Jonathan Blake on behalf of Making Every Vote Count before the Maryland Senate Education, Health, and Environmental Affairs Committee in support of SB 582. SB 582 will assign Maryland’s electoral votes to the winner of the national popular vote if a state that voted for the Republican candidate in the last election also agrees to pledge as many or more electoral votes to the winner of the national popular vote.

Testimony of Jonathan Blake

In Support of SB 582

Presidential Election–Voting by Electors

Senate Education, Health, and Environmental Affairs Committee

February 28, 2019

My name is Jon Blake and, on a pro bono basis, I am testifying on behalf of Making Every Vote Count, a non-profit, bipartisan organization dedicated to reforming the country’s deeply defective and increasingly destructive presidential election system which falls far short of the country’s guiding principles like one-person-one vote and “government of the people, by the people and for the people.”

Blair Levin, a director of MEVC, is submitting written testimony explaining why MEVC strongly supports SB 582.  My testimony addresses the opposition to the bill led by Dr. John Koza, who as head of the National Popular Vote, spearheaded the successful effort in 2007 for Maryland, as the trailblazer among all states, to adopt the National Popular Vote Interstate Compact legislation.

I admire Dr. Koza for his championing presidential reform and the Compact concept that would achieve this reform.  MEVC also ardently supports and will continue to support the Compact.  MEVC has the same ultimate goals as Dr. Koza and the other groups he has marshalled to oppose SB 582--Common Cause, the League of Women Voters and Fair Vote. 

Their opposition is a terrible shame, unnecessary and based on a near total misunderstanding of SB 582 and MEVC’s support of it. 

• Their opposition assumes that SB 582 and the Compact are rival proposals, whereas they are complementary and each would be effective for wholly different time stages in the reform process.

• Their opposition assumes that the short-term objectives of SB 582 are the same as the Compact’s longer term objectives, and, therefore, it does not evaluate SB 582 against the desirable objectives it is trying to achieve.  The Compact’s objective is to guarantee, after the Compact becomes effective, that the winner of the national popular vote become president, whereas SB 582 seeks to improve the chances that the winner of the national popular vote becomes president during the period until the Compact becomes effective.  Toward that end, SB 582 would automatically become null and void when that occurs.

• The opponents denigrate the new remedial ideas made possible by SB 582 even though the new Compact ideas and their supporters are in a situation similar to NPV’s when it launched its new ideas in Maryland in 2007.  We urge the opponents of SB 582 to understand it accurately, withdraw their opposition to it, and affirmatively support it. 

• We can think of no significant movement in this country’s history that has not been advocated for, benefited from and succeeded without the support of different groups with different perspectives, different ideas and different strategies.  Addressing a serious, destructive, undemocratic, unfair and inequitable system for electing the entire nation’s leaders is and should be regarded as a major movement.  As in the case of other major movements, a multiplicity of voices should be similarly accommodated in its support. 

In sum, Making Every Vote Count strongly supports SB 582, and it also strongly supports the Compact.  It fully believes that, short of a Constitutional amendment, the Compact is the best, most reliable, legally binding way to remedy the damage-inflicting defect in the country’s current presidential election system.  But what is also needed are immediately-attainable measures to improve the system until the Compact becomes effective.  That is what SB 582 and MEVC are attempting to do in a novel and imaginative manner that invites support across political divisions. 

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There follows MEVC’s responses to Dr. Koza’s 12 page letter and attachment to Senator Ferguson of February 12, 2019, on a point by point basis. 

1. SB 582 could inadvertently create a politically one-sided situation and Republican partisan advantage.

Point 1 of Dr. Koza’s memo mistakenly concludes “a Missouri-Maryland pairing under SB 582 would equally give both political parties 10 electoral votes worth of protection against being denied the Presidency after winning the national popular vote” (emphasis added)  It is difficult to understand this assertion other than that Dr. Koza intends the Democratic Party candidate to win if its candidate earns the most votes nationwide, but perhaps not when the Republican candidate earns the most votes.  But I do not believe Dr. Koza intends that meaning.  Instead, when either party wins the national popular vote, its candidate should win the presidency.  That’s the goal of the compact, Dr. Koza, SB 582, Senator Ferguson, and MEVC.  It is also the goal of Common Cause, League of Women Voters, and Fair Vote.  The primacy of the popular vote is the goal of all of us. 

Similarly the hypothetical Wisconsin-Maryland Trump example cited in Dr. Koza’s memo fails to show any defect in SB 582, because the example’s central premise is that President Trump has won the popular vote.  In fact, the example, shows that the proposed reform could achieve our common goal.

Note that in offering an invitation to red states to transcend narrow, political self-interest in order to reform the country’s current presidential election system that has destructive consequences for all states and almost all voters, SB 582 would encourage any combination of red states, with electoral college totaling 10 or more to pass similar contingent legislation (i.e., 7+3, 6+4, 5+5).  The offer is not limited to red states with 10 electoral votes.  Dr. Koza’s footnote 2 recognizes this point.  But it doesn’t appreciate that Maryland’s paired-state proposal could be triggered if a red state with more than Maryland’s 10 electoral votes allocated 10 of its electoral votes to the winner of the national popular vote.  If desired, an amendment to SB 582 could clarify this point.

2. SB 582 would not guarantee the Presidency to the national popular vote winner – and, in fact, wouldn’t even come close to accomplishing that goal.

The premise of Dr. Koza’s argument is that red state Missouri’s and blue state Maryland’s 20 electors are not by themselves enough to guarantee that the candidate who earns the most popular votes across the country will become president.  True, but that is not the objective of SB 582.  It is also true that the Compact does not yet provide any guarantee because it is not yet effective.  In contrast, as soon as a red state(s) with 10 or more electoral votes allocates its electoral votes to trigger Maryland’s paired-state law, that law will become effective.  It won’t guarantee the election of the popular vote winner but it will increase the chances that the popular vote winner will become president. 

In addition, MEVC intends to pursue various strategies for red states to adopt reforms that would result in additional electoral votes being allocated to the national popular vote winner. 

3. SB 582 does not create any reason for presidential candidates to be bothered campaigning beyond the dozen or so closely divided battleground states – and, in fact, increases the already-excessive importance of the battleground states. 

The paired-state concept was first proposed this month.  It had to start somewhere, one state at a time, just as NPV started in 2007.  Maryland was that state for NPV then, and Senator Ferguson’s bill would mean that Maryland would take a different and important next step along the same path -- a step that is compatible with the Compact.

Dr. Koza’s comparison of what the Compact would achieve once and if it becomes effective with what the paired state proposal hopes to achieve now is like predicting the ultimate height of a month-old infant compared to the ultimate height of a 12 year-old.  (In this case, the month-old infant is the product of a two-year gestation period as MEVC criss-crossed the country and consulted with all manner of experts to craft a reform proposal that could partially ameliorate the problem right away until the Compact becomes effective.

Also, the paired-state strategy, whether it succeeds or fails, poses no threat to Dr. Koza’s efforts to persuade states to adopt the Compact legislation.  In fact, the paired-state effort will help address perhaps the most pressing challenge facing efforts to enact Presidential election reform – which is a combination of indifference and lack of awareness of (a) the damaging and steeply escalating consequences of the present system and (b) the fact that reform can come only from the states, as clearly mandated by Article II Section 1 of the U.S. Constitution. 

4. SB 582 would not make every vote equal throughout the United States, but would, even under the most optimistic assumptions, make a voter in Maryland worth only a small fraction (about 1/24) of a voter in a battleground state. 

The analysis above under points 2 and 3 applies with similar force to point 4.  The only standard Dr. Koza recognizes is whether a reform proposal achieves the ideal.  He ignores the value of a proposal that can achieve improvement for an interim period of uncertain duration.

5. SB 582 is based on an assumption that an unidentified Republican state with 10 electoral votes is ready and willing to join Maryland in this deal. 

There is no basis for this assertion.  Neither SB 582 nor MEVC assumes that a particular Republican state is “ready and willing” to enact legislation parallel with Maryland’s.  Moreover, it is not a “deal.”  It is based on Maryland’s and other states’ authority to enact legislation whose effectiveness depends on another state’s passing similar legislation.  Such “contingent legislation” is commonly and successfully used in a wide range of circumstances.  Maryland should use it here.

Dr. Koza’s use of the word “unidentified” in the context of the rest of this point 5 implies a secret, surreptitious, hidden arrangement.  MEVC knows of no such arrangement. If there were one, MEVC would hail it as an accomplishment and an additional reason to support paired-state legislation.  But it is also true that in its two-year long effort to develop a viable interim solution, MEVC has spoken to many experts, thought leaders and citizens in various parts of the country in a variety of demographic categories who expressed views that the paired strategy would be responsive to.  Taken at face value, as it should be, SB 582 offers an opportunity for red states to adopt similar legislation.  The circumstances are little different from those when Maryland adopted the Compact legislation in 2007.

If NPV could convince legislatures in states with enough electoral college votes to satisfy the trigger point for the Compact so as to become effective for the 2020 election, that would achieve the goal that MEVC, like its critics, strives for, and would lead to a happy resolution of today’s differences.  But the shared-state strategy was intended, and has been crafted, to respond to the questions:  what if the Compact doesn’t become effective for the 2020 or even the 2024 presidential election; what measures can be adopted in the next 15 to 18 months that could advance the likelihood that the candidate who earns the most votes nationwide will become president in 2020, 2024 or beyond.  SB 582 answers those questions. Dr. Koza’s criticisms, boil down to actively opposing any proposal that would improve the chances that the winner of the national popular vote will become president, but not guarantee it, until the Compact takes effect. 

MEVC asks the opponents of SB 582 to join it in supporting SB 582.  It is the right thing to do.