States Seeking to Change Electoral Laws

photo from The New York Times

photo from The New York Times

On February 21, 2019, the Colorado state legislature passed a partisan bill that would allow Colorado to join a pact of eleven other states (including the District of Columbia) that plans to rewrite electoral law in order to protect their national electoral votes. A few of these states include Hawaii, Maryland, and New Jersey.  In total, the pact itself consists of 172 votes, which is 98 short of an electoral victory, according to The Hill. The Hill also reports that the pact would only go into effect if “there are enough… votes to to influence the final Electoral College vote tally.”

The bill will allow Colorado to only distribute their electoral votes to the candidate who wins the popular vote. According to the Denver Post, the bill passed the state senate in January “without a single Republican voting for it.”

During the floor debate, the issue of legality within the constraints of the constitution was brought up. Constitutional lawyer Jenna Ellis cited three specific problems with the bill: (1) it would violate the “compact clause” found within Article I, Section 10 of the constitution that states that no state shall enter a pact without congressional consent. (2) Electoral law will be dramatically altered without a constitutional amendment. (3) The bill could interfere with the 12th Amendment, which gives power to the Congress if neither candidate reaches 270 electoral votes.

According to The Washington Post, the bill was introduced by Colorado Democrats after Donald Trump’s victory in the 2016 election, citing Trump’s loss in the popular vote. After the election, many pundits also indicated Hillary Clinton’s larger popular vote numbers, sparking conversation on the Electoral College’s role in American politics. State Representative Jeni Arndt makes this case by claiming that the bill will “[enfranchise] every single American.”

According to the Washington Post, the GOP argues that smaller states will receive the brunt of the bill. The Electoral College was designed to keep the smaller states from getting “trampled when it comes to choosing a president,” as stated in The Washington Post. In defense of the Electoral College, Republican State Representative Lori Saine told the legislature before the votes that “our founders feared tyranny of the majority. In our electoral college, our smaller states still have a say.” One of the Democratic arguments for the bill, according to the Denver Post, is to force candidates to campaign for votes in other solidly red/blue states such as Texas or even California.  

The Washington Post states that Ray Haynes, a former state legislature for California and former chairman for “the conservative American Legislative Exchange Council,” lobbied for the bill. This would be the only sign of bipartisanship from the right for the bill. Also according to The Post, Haynes was welcomed with a “cold response” from other Colorado Republicans concerning the bill. Haynes explains that other conservatives understand “the basic concept of the bill,” and that “[conservatives] think that every vote in every state in every election matters.”  According to CBS News, State Rep. Lori Sane predicts that “intra-state lawsuits would be filed calling into question the state’s rules on how they conduct elections.”

This is not the first time the issue of the popular vote was brought to the conversation.  After the 2000 election between Democratic Presidential Nominee and former Vice President Al Gore and President George Bush, the National Popular Vote campaign was launched, sparking a national conversation on the legitimacy and role of the electoral college, which continues to this day through the type of bill Colorado has just passed.