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Colorado voters have backed the National Popular Vote Compact, a nationwide effort that would effectively neutralize the Electoral College and ensure that the presidential candidate who receives the most votes in the nation as a whole becomes president.
The issue was on the ballot as Proposition 113, which passed according to the Associated Press and New York Times. For the moment, Colorado’s decision to enter the compact will have no effect, but it could prove consequential if several more states join this agreement.
The Electoral College is the Rube Goldberg-like device that the United States uses to choose a president. Each state is assigned a certain number of electoral votes, equal to the number of lawmakers it sends to the Senate and House of Representatives. Constitutionally, the District of Columbia gets three electoral votes. To secure the presidency, a candidate must win a majority of these electors, or 270 in total.
Most states assign all of their electoral votes to the candidate who wins the state as a whole. But the Constitution permits states to assign electors “in such manner as the Legislature thereof may direct.” The core insight of the National Popular Vote Compact is that, if a bloc of states that controls 270 electoral votes all agree to assign their electors to whoever wins the national popular vote, rather than the candidate who wins their state, then whoever wins the national popular vote will become president in every election.
The compact does not take effect until enough states to add up to 270 electoral votes have joined it. Including Colorado, a group of 15 states plus the District of Columbia — totaling 196 electoral votes — are parties to the compact. So several more states will need to join the compact before it takes effect.
Colorado enacted legislation joining the compact in 2019, but opponents of the compact invoked a rarely used procedure that subjects a state law to a popular referendum if opponents of that law collect 150,000 signatures. As it turns out, however, a majority of Colorado voters do not wish to leave the compact.
Though Colorado’s vote is good news for the National Popular Vote Compact, the compact’s supporters still have a long road ahead of them if they hope to negate the Electoral College in the future. For one thing, they still need to convince several more states to join the compact before it can take effect. While some states with a large number of Electoral College votes — like California and Illinois — have joined, other consequential states — like Texas and Florida — have not done so thus far.
And the Constitution also provides that a compact among the states may not take effect “without the consent of Congress.” Though there is a plausible argument that the National Popular Vote Compact does not require such consent, it is uncertain how this argument will fare in court — especially if brought before a Supreme Court with a 6-3 Republican majority. So the compact would stand on much firmer ground if it receives congressional approval.
Some constitutional scholars have also argued that the compact itself is unconstitutional. Though their argument is difficult to square with the text of the Constitution — again, the Constitution provides that presidential electors shall be determined “in such manner as the Legislature thereof may direct” — Republicans tend to support the Electoral College because it allowed them to win two recent presidential elections where the Republican candidate lost the popular vote.
There is a real risk, in other words, that a Supreme Court dominated by Republicans would strike down the National Popular Vote Compact even if it receives congressional approval.
Nevertheless, if the Supreme Court follows the text of the Constitution, it will likely uphold the compact. And the vote in Colorado brings the compact one state closer to the threshold where it could take effect.
