SACRAMENTO, Calif. (CN) – An attorney-proposed initiative would authorize California’s elected leaders to spearhead a movement to elect the president based on the national popular vote rather than through the Electoral College.
San Francisco attorney Rodrigo J. Howard with CapKey Advisors submitted initiative 16-0012 to the California attorney general on Friday.
The initiative asks whether California’s elected officials should use their authority, either by supporting a federal constitutional amendment or securing the passage of the National Popular Vote Compact, to change the presidential election process to reflect the outcome of the popular vote.
Under the National Popular Vote Compact, each state would pledge all of its electoral votes to the candidate who won the popular vote nationwide. California, the District of Columbia, and several states joined the compact in 2011. It has not taken effect because the number of electoral votes nationwide must exceed 270, but has reached only 165, according to a fiscal impact report submitted with the initiative.
The initiative includes suggestions to change the election process, such as a constitutional amendment to modify or abolish the Electoral College, and interstate agreements on how to distribute state electors.
Constitutional amendments can be proposed by Congress with a two-thirds vote in both houses, or by two-thirds of state legislatures. To succeed, an amendment must be approved by three-fourths , or 38, of the states.
Given the past failures of proposed constitutional amendments seeking to eliminate the Electoral College, a compact between states seems like the best approach, Howard told Courthouse News in an email.
“It’s an ingenious idea,” he wrote.
“But the compact has not been adopted by enough states and it seems to be stalled. So my initiative calls on California public officials to do more – and be prepared to take partial steps toward the goal if it can’t be reached in a single step. California is a big, influential state with vast human and financial resources. We can do more to drive the debate and influence the outcome.”
In the end, the approach matters less than the goal of reforming the current system, he said.
“The initiative does not advocate for any one particular approach. In fact, my initiative is deliberately worded to be ‘agnostic’ and flexible as to means – as long as there is progress toward the goal. As long as we get to the goal, as long as we get closer to the goal, what road we take is less important,” Howard wrote.
He was inspired in part to file the initiative because twice in the past 16 years, the winner of the popular vote lost the election: Al Gore in 2000, and Hillary Clinton in 2016. Both are Democrats.
“That, to me, is a profoundly undemocratic outcome,” Howard wrote. “The current system undermines faith in government. It breeds cynicism and anger when the loser wins and the winner loses. That should concern everyone, across the political spectrum.”
He decried the Electoral College as an archaic throwback “deliberately designed to be undemocratic, with dark roots in 18th century distrust of democracy and the outdated concerns of small states and slave states.”
The Electoral College was the brainchild of the Constitutional Convention, which rejected direct election by popular vote out of fear that people would vote for a candidate from their own state, resulting in no candidate gaining a majority and allowing larger states to run roughshod over smaller ones.
The Framers chose a method of indirect election through a College of Electors, based on ancient Rome’s Centurial Assembly. In that system, male citizens were divided into groups of 100 based on wealth and given one vote in favor of or against proposals submitted by the Roman Senate. States thus act like the centurial groups, though the number of electoral votes per state is determined by the size of its congressional delegation.
The Electoral College consists of 538 electors. California has 55. A candidate must get at least 270 electoral votes to be elected president. Though states can choose how to divvy up their votes, most states award them all to the candidate who captured the popular vote in that state. Thus, a candidate who does not win the popular vote nationwide can still receive the majority of electoral votes.
This initiative is necessary not only because past efforts to reform the election system have failed, but to “keep attention on the issue of our broken and undemocratic system for electing presidents,” Howard wrote.
“It’s too fundamental to allow the issue to go to sleep for four more years – or 40 more years,” he said.
“If we can get to a system that more closely and more consistently reflects the national popular vote, it will be better than what we have now. If we can have a train wreck once every hundred years, that’s better than a train wreck twice in 16 years, with the prospect of more and more frequent train wrecks in the future.”
Though changing the system will mean pushing back against entrenched special interests and convincing people who live in states that benefit from the current system to join the movement, our nation’s history shows that change happens when enough people want it, Howard said. But beyond that, he hopes his initiative prompts people to vote and highlights other issues that hinder a truly democratic process, like voter suppression and gerrymandering.
“Wanting a more genuinely democratic electoral system shouldn’t be a partisan issue. We should all want an electoral system that recognizes the popular will and make it easier for the country to rally around the winner,” Howard wrote.
“Democracy may not be perfect, and electing the president by national popular vote will not guarantee that the ‘best’ candidate will win, but the alternatives are worse, and continuing the current system seems unsustainable.”
Howard got his law degree from the University of Chicago Law School. He has lived in various places around Europe and the United States, but has called the Bay Area home for over 20 years. In addition to practicing law, he is the publisher of a commentary website called The Common~Conversation, www.common-conversation.com.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.