This is an introduction to an important new idea for Electoral College reform: the Voter Choice Ballot Proposal. Making Every Vote Count (MEVC) unveiled the Ballot Proposal in March of this year. Please see an April 10 Report on this blog for details.

 The Ballot Proposal is quite simple. In addition to casting a vote for president in the ordinary way, each voter is given the option of directing that her/his ballot be counted for the winner of the national vote, in the event the voter’s first choice does not win the national popular vote. Everything else stays the same.

The Ballot Proposal avoids partisan battles over whether states should change the rules for appointing electors from the state winner to the national popular vote winner. Instead, a state’s voters decide for themselves, individually, whether they support national popular vote for president by casting their votes for the national winner. If enough of them do, then the state’s electoral votes will go to the winner of the national popular vote. The Ballot Proposal is a profoundly democratic measure attuned to the will of the people in each election. 

As modest as this idea is, it could result in a fundamental change in the way presidential elections are conducted. For decades, substantial majorities of likely voters have been telling pollsters they believe the person who receives the most votes nationwide should be elected president. As for the Ballot Proposal, a national and Florida poll conducted in February of this year found that over 60% of likely voters—including majorities across the spectrum of party and demographics—favored having the option of voting for the winner of the national popular vote.

If only one or two battleground states with a significant number of electoral college votes adopted the Ballot, that could, as a practical matter, force candidates and parties to campaign for votes nationwide. The votes throughout the nation would count in determining the winner of the popular vote and thereby the outcome in the one or two key states that had adopted the Ballot.  Parties and primary voters, desiring to win the presidential election, would nominate candidates who would appeal to a broader pool of voters nationwide. Battleground state centered presidential politics would change to nation centered politics—which is what it should be.

The Ballot Proposal is completely aligned with the Interstate Compact. The April 10 Report spells out the points of fundamental agreement, the relevant differences and features which are mutually supportive.

The report also analyzes how the Ballot Proposal compares with the “two vote” system of the original Electoral College and with Ranked Choice Voting. The Ballot Proposal is intended to advance the national popular vote cause; currently, no other alternative voting system is designed for this purpose. The Ballot Proposal could be combined with Ranked Choice Voting, however, to reap the benefits of both systems. Importantly, a June 2020 analysis has shown that the Ballot Proposal allows Ranked Choice Voting results to be fully and easily integrated into a national popular vote election count in a way that does not give rise to the “discarded ballots” phenomenon that has been raised by some critics of Ranked Choice Voting.

Toward a Coordinated National Popular Vote Strategy

Over the past year, it has become clear that the national popular vote movement—and the Interstate Compact in particular—must be able to win referendum and/or initiative elections in order to succeed. Against that background, the following discussion examines the prospects for reform in 2021 and beyond. There are opportunities for a coordinated direct democracy strategy, and the Ballot Proposal could play a key role in building toward success.

1. Prospects for the Ballot and the Interstate Compact in 2021 and Beyond.—Legislation, Referendum and Initiative.

 The expensive and time-consuming efforts to move the national popular vote movement forward will be best devoted to battleground states, broadly defined. In the 2020 election, some of these states, such as Minnesota and Michigan, might change from divided government to Democratic Party trifectas. In these states the Interstate Compact, and the Ballot, which is fully aligned with the Compact, might be adopted through normal legislation—although in Michigan the reforms might need to be defended in a referendum election. In addition, the Ballot could be proposed in Democratic Party trifecta states that failed to adopt the Compact over the last two years: Virginia, Nevada and Maine. In Nevada and Maine these reforms might need to be defended in referendum elections. 

Thus, while there are various prospects for legislative wins, the national popular vote movement must prepare itself for referendum elections in many states. It is likely, moreover that many battleground states will remain under full or partial control of a Republican Party that currently is hostile to national popular vote. Some of those states, such as Florida, could be crucially important. The only way to advance either the Compact or the Ballot in such states will be through initiative campaigns.

2. The Relative Complexity of the Compact and Simplicity of the Ballot

 There is an obvious and inherent challenge in placing the Interstate Compact before the voters in a direct democracy election. The Compact is a complex idea that is not familiar to most voters. Indeed, in his wonderful new book, Let the People Pick the President: The Case for Abolishing the Electoral College (2020), Jesse Wegman quotes Dr. John Koza—founder of National Popular Vote organization—for the proposition that explaining the Interstate Compact requires 30 minutes of truly engaged conversation. To date, National Popular Vote has not been interested in launching initiative campaigns.

 The Ballot is far simpler than the Compact. Each voter is given the option of having her/his ballot counted for the winner of the national vote. Everything else stays the same. It is easy to describe, easy to understand. 

3. The Critical Colorado Referendum Election, and Implications for a Coordinated Direct Democracy Strategy Involving the Interstate Compact and the Ballot

The Colorado election this fall will be a serious test of how well the complex Interstate Compact fares in a popular election. Colorado legislatively adopted the Compact last year, and the referendum now seeks to overturn that law. One hopes the take-away from the election will be that the Compact fares extremely well and that previous skepticism about the viability of the Compact in direct democracy elections will be dispelled.. If the Compact is viable, the Ballot should be as well

 There could be important value in combining the two in an initiative campaign (or in a legislative effort), since each compensates for the other’s limitations. The Compact’s limitation is the fact that it may not take effect for many years. The Ballot’s limitation is that its results, although immediate, are indeterminate and undeterminable—it does not necessarily result in the winner of the national popular vote receiving the state’s electoral votes or being elected president. In tandem, however, the proposals (i) make the national popular vote as relevant as possible in the next presidential election and (ii) advance the time when the candidate who receives the most votes is assured of being elected president.

 Of course, joining the proposals in an initiative campaign would introduce its own element of complexity. One would want to poll carefully to evaluate whether that is a good idea.

What if the Compact does not fare well in the Colorado election? Because of the Ballot’s relative simplicity and direct appeal to grass roots democratic values, the Ballot might succeed in direct democracy elections even if the Compact does not.  And if the Compact does not succeed, the importance of the Ballot—a measure that will make the national popular vote as relevant as possible until the time when the Compact is in force—becomes self evident. Again, however, one would want to poll carefully before committing significant financial and human/volunteer resources to initiative campaigns. 

Even if the Compact does well in Colorado, and even if polling indicates joining the two proposals in an initiative campaign is viable, legal considerations might militate in favor of limiting initiative campaigns in the near term (prior to the 2024 election) to the Ballot Proposal.  Two criteria would support this limitation. First, following the example of law reform giants such as Thurgood Marshall and Ruth Bader Ginsberg, and taking the long view, one begins in the near term with seemingly small first steps that will build to the ultimate objective. Second, in the face of Chief Justice Roberts’ dissent in the Arizona Legislature case and the subsequent shift in the Supreme Court’s makeup, one should make sure those steps leave as much room as possible for legislative action.

The Ballot fits these criteria perfectly. Under the Ballot, the legislatively-determined “manner” of “appointing” electors—state winner-take-all—is not changed one iota. Only one detail concerning the choices available to individual voters changes. The legislature, exercising its law-making function, controls everything else.  The Ballot is an ideal “test case” for establishing precedent that the initiative process is available to achieve effective presidential election reform.