Popular vote change looks to grass-roots spark

By Lou Fancher

If people at a League of Women Voters Diablo Valley meeting are representative, citizens emerged from the 2016 Presidential election more eager than ever before to make their votes count.

The monthly gathering at the Lafayette Community Center earlier this month had members and guests of the nonpartisan political organization peppering guest speaker Barry F. Fadem with questions.

Fadem is a partner in the law firm Fadem & Associates in Lafayette, co-author of “Every Vote Equal,” and president of National Popular Vote. The nonprofit corporation educates and advocates for implementation of a nationwide popular election of the President of the United States.

As many people learned or were reminded last year, the presidential candidate receiving the majority of votes from legally registered voters does not automatically become the president. Instead, the system allows states to determine how popular votes are attached to electoral votes. Some states allocate by congressional district, some have the governor assigning allocation, others are winner-take-all.

President Donald Trump lost in the popular vote to Hillary Clinton, but won the majority of the electoral votes required and was elected.

Proponents of direct election like Fadem suggest the current system artificially skews to favor 12 “battleground states” in which 98 percent of campaign money is spent.

“That shouldn’t be true,” said Fadem. “Every vote in every state should be equal. It’s the sizzle, it’s the biggest and most important election every four years. Why should a vote cast in Walnut Creek, Calif., not count as much as in Miami, Florida?”

NPV seeks legislative change to enable states to grant all of their electoral votes to the candidate who earns the most national votes in all 50 states and the District of Columbia. Opponents claim change in the current method would be “an end-run around the Constitution,” according to Fadem.

“The most important factoid is that the Founding Fathers in the U.S. Constitution gave the state legislators the exclusive rights to how they want to award electoral votes. You do not need a federal constitutional amendment to achieve the national popular vote. It’s a state ball game,” he said.

The other most prevalent “myth,” he said, is that changing the system would result in protracted “recount hell” and increased costs.

“Every state already has a recount law in the current system. There’s a federal safe harbor date that has all states submitting to national archives their vote count six days before electoral votes are cast. The possibility of dragged out re-calculations is not possible.”

But to pivot the country to the national popular vote, Fadem said will require more state legislatures to bring the measure to the floor for a vote. He said that with an interstate agreement that creates a compact that totals 270 electoral votes, the 2020 election could shift to a national popular vote.

“How close are we? We are 61 percent, that’s 165 of 270 electoral votes. We call it the road to 105.”

Ten states and the District of Columbia have enacted the law. In 14 states, either the senate, house or a house committee have approved it. Among the remaining 26 holdouts, he said are “red (Republican) states we were poised to get this year.”

But that changed on election night.

“The environment now is toxic because they’ve been told that if the popular vote had been active, their electoral votes would have gone to Hillary Clinton.”

Fadem finds hope in “spontaneous citizen combustion” in “on the fence” states like Oregon, Arizona and New Mexico. He said grassroots initiatives are spreading the word that the Founding Fathers gave voting power to states, not to the federal government, to prevent a strong Congress or candidates from running presidential elections.

“They wanted voters to have flexibility as things change over time.”

The most effective action is for constituents to contact their state legislatures and register a preference, he said. Because California has already enacted the law and support is widespread, he suggested influencing legislators in other states by writing letters.

“Everyone’s got relatives in those non-battleground states. Write letters.”

In the meantime, NPV will hold public forums, debates, visit law school campuses, seek media appearances and partner with local and national organizations like LWV, NAACP, ACLU and others.
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“The only thing voters care about is that on election night, their votes count. They want whichever number is bigger, that’s the winner. Under that system, every vote in every state is equal.”