Growing numbers of Americans are deciding that the way we elect the president of the United States needs to change to guarantee that the winner of the popular vote nationwide wins the presidency — and not who secures the most votes in the Electoral College.
That’s the impetus behind a legislative effort filed by Central Florida Democratic state Sen. Victor Torres (SB 236) that would add Florida to the National Popular Vote Interstate Compact, essentially a contract between the states that would go into effect once states representing a majority of electors — 270 — approve it.
“The National Popular Vote means that every vote counts,” Torres told the Phoenix in an interview. “It means every constituent out there knows that their vote counts towards who he or she wants to represent them for president.”
The legislation calls for the state’s chief election official — Secretary of State Cord Byrd for now — “shall designate” the presidential slate with the largest national popular vote total as the “national popular winner.”
Had the compact been in effect during the 2020 presidential election in Florida, Byrd would have had to award Florida’s electoral votes not to Donald Trump, who won the state by more than 3 percentage points, but to Joe Biden, since nationally the Democrat collected the most votes in the country.
Since the compact launched in 2006, 16 states and the District of Columbia have signed on. They comprise 205 electoral votes, according to the National Popular Vote website.
It’s a way to bypass the Electoral College without removing it via constitutional amendment. But the organizers behind the movement don’t talk a lot about the Electoral College, “because the power exists within the Constitution for the states to change the way they use their electors,” said Patrick Rosenstiel, a senior consultant with National Popular Vote.
Once the states in the compact reach 270 electoral votes, the measure would automatically take effect and would not need to be implemented by Congress, Rosenstiel said.
“The states have the power to award electors in any way that they deem is in the best interests of their state,” he said, citing Article II, Section 1 of the U.S. Constitution. “So, this is state action and no federal law is required other than Congress can control the schedule. You still have a federal power around the schedule which sets the safe harbor date that ensures that the totals will be available to the compacting states, but that law exists and is in place.”
The popular vote
Not everyone agrees that would work.
“There is a clause in the Constitution that does say that, generally interstate compacts are subject to congressional approval,” said Andy Craig, director of election policy at the Rainey Center, a public policy organization. “The courts have interpreted that pretty narrowly over the years, and there’s an argument to be had about whether this is actually a compact. So that is undoubtedly one of the things that would get litigated if we ever crossed that threshold.”
The compact has been approved in mostly Democratic Party-controlled states, no surprise considering that twice in the past five presidential elections it was Democrats — Al Gore in 2000 and Hillary Clinton in 2016 — who won the popular vote but lost in the Electoral College. All told, that has happened five times in American history, according to the National Archives.
But Republicans have warmed to the idea in recent years. That’s according to a Pew Research Center survey released in September that showed that nearly two-thirds of Americans — 65% — would support a change to the way that presidents in America are elected.
While 82% of Democrats or Democratic-leaning independents support the proposal, Republicans are more divided, with 52% supporting the existing Electoral College system and 47% supporting the idea of moving to a popular vote system. Pew notes that GOP support for the popular vote is the highest it’s been in recent years — from 37% in 2021 and just 27% following the 2016 election. And Rosenstiel notes that in New York the measure was overwhelmingly approved in the GOP-controlled state Senate in 2014.
This will be the fifth time in as many years that Torres has filed the legislation, he said, and acknowledges that the chances of passage aren’t strong in Florida’s GOP-controlled Legislature.
“We’re going to see what the temperature is up in Tallahassee when we get up there next year,” he said. “I say, give me a chance to present it in committee. At least that way they can vote up or down on it. That would be great. But like everything else, they [Florida Republicans] have the supermajority. They control what bills are going to be heard and what’s going to pass.”
Advocates also say that, if implemented, the bill would compel presidential candidates to compete for votes nationwide, instead of the approximately seven or eight “battleground states” with competitive presidential contests.
During the Pinellas County legislative delegation meeting last month, one supporter of the National Popular Vote Interstate Compact noted that Florida is no longer considered a swing state, meaning it will likely receive less national attention in 2024.
“The other states are considered spectator states, and we will be among them,” said Sarah Peacock with Floridians for the National Popular Vote. “Under the winner-take-all model, 20% of the U.S. population will get to choose our president while 80%, including Floridians, sit and watch. The National Popular Vote Interstate Compact is an elegant solution to an unjust problem.”
The House equivalent is being sponsored by South Florida Democrat Mike Gottlieb.
This article originally appeared in florida phoenix