by Bob Lackner
During every presidential election, millions of Americans cast a ballot for a presidential candidate. Those votes, however, are actually cast not for the presidential candidates themselves, but for a slate of presidential electors: Members of the Electoral College, who actually select the President of the United States. From the first days of the Republic, the Electoral College has been a controversial mechanism for electing the president. The fact that in the past 20 years, there have been two elections (in 2000 and 2016) in which the winner of the national popular vote did not obtain a majority of votes in the Electoral College has helped fuel the controversy. This continuing debate over the continued utility of the Electoral College has led people to consider alternatives. One alternative that is before the voters of Colorado this year is the National Popular Vote Compact (Compact). Voters have the opportunity to support or oppose the Compact by voting on Proposition 113.
The issue of determining how to select the nation’s chief executive was described as the most difficult of all the issues the Constitutional Convention had to decide. The Electoral College emerged as an 11th hour compromise. The United States Constitution specifies that each state has a number of presidential electors (or members of the Electoral College) equal to the whole number of its senators and representatives in Congress. Colorado has two senators and currently seven representatives, which means our state has a total of nine electoral votes. The full membership of the Electoral College is 538 electors, representing 100 senators, 435 members of the House, and three electors from the District of Columbia.
Currently, individual voters in all the states and the District of Columbia vote for a ticket consisting of a presidential and vice presidential candidate. The tally of individual votes is known as the popular vote. With the exception of Maine and Nebraska, every state appoints a slate of presidential electors selected by the political party whose candidate wins the state’s popular vote in the general election. In this manner, for all but those two states, the Electoral College operates as a winner-take-all system in which the winner of the statewide popular vote receives all of that state’s Electoral College votes.
Each December, after a presidential election, the presidential electors meet (typically in their state capitols) to cast their votes to elect the president and vice president. A candidate must receive at least 270 Electoral College votes to be elected president. If no candidate receives enough votes, the House of Representatives chooses the president and the Senate selects the vice president, although this scenario has not occurred since 1824. There have been five elections in the United States in which the winner of the national popular vote was not the winner of the Electoral College vote.
The idea of the Compact came from those supporting direct election of the president or who otherwise object to the Electoral College. Essentially, the Compact is an agreement among participating states to ensure that the presidential candidate who receives the most votes nationwide is elected president. Under the Compact, each member state designates the presidential slate with the largest national popular vote total as the “national popular vote winner” for that state. Once the Compact goes into effect, a participating state commits to awarding all of its electoral votes to the national popular vote winner. This would mean, for example, that if the voters of Colorado give a majority of their votes to Candidate A but Candidate B is the winner of the national popular vote, all of Colorado’s electoral votes would be awarded to Candidate B, the national popular vote winner, notwithstanding the fact that Candidate B did not win the statewide popular vote in Colorado. Under the current system, by comparison, the candidate who wins a majority of Colorado’s votes gets all of Colorado’s votes in the Electoral College – regardless of how well that candidate performs nationally.
The Compact ensures that the candidate who wins the most nationwide votes also wins a majority of the votes in the Electoral College, since a majority of electoral votes will be automatically awarded to the winner of the national popular vote. In this way, the Compact will preclude future controversies in which the winner of the national popular vote is not the candidate who wins a majority of the votes in the Electoral College.
By its terms, the Compact takes effect on July 20 of any presidential election year in which states representing 270 or more electoral votes have enacted the Compact. If Proposition 113 passes, the Compact will include 15 states and the District of Columbia, representing 196 electoral votes. This is 74 votes short of the 270 electoral votes necessary for the agreement to take effect. Because the Compact was not in effect as of July 20, 2020, it will not apply to the 2020 presidential election, which means that it can take effect no earlier than the 2024 presidential election. Until the Compact becomes law, Colorado will continue to award its Electoral College votes to the winner of the state’s popular vote.
The Compact is designed to implement what amounts to direct election of the president without having to formally amend the U.S. Constitution to eliminate the Electoral College. Getting states representing 270 electoral votes to enact the Compact is arguably much easier than undertaking the arduous and time-consuming process of amending the Constitution.
In 2019, during the regular legislative session of the General Assembly, the General Assembly passed, and the Governor signed into law, Senate Bill 19-042. The bill makes Colorado a party to the Compact. After the bill was passed, opponents initiated a referendum petition as allowed in article V, section 3 of the Colorado Constitution. The text of Proposition 113 consists of the full text of Senate Bill 19-042.
A “yes” vote on Proposition 113 is a vote to approve Senate Bill 19-042 and award all of Colorado’s electoral votes in presidential elections to the winner of the national popular vote once the Compact takes effect. A “no” vote on Proposition 113 is a vote to reject Senate Bill 19-042 and retain the current system of awarding the state’s Electoral College votes to the candidate who wins the Colorado popular vote.
 Chiafalo v. Washington, No. 19-465, slip. op. at 2 (U.S. July 6, 2020)
 Article II, §1, Cl. 1. The number of members of the U.S. House of Representatives that is allocated to a state is based on the total population of the state as adjusted after the last census.
 In Maine and Nebraska, the candidate who wins the popular vote in each congressional district get the electoral vote for that district and the remaining two electoral votes go to the candidate who wins the statewide popular vote.
 As noted above, this has happened twice in the past 20 years (2000 and 2016) while the other three instances occurred in the 1800s. Such an event did not happen between the 1888 and 2000 presidential elections.
 Most of the substantive provisions of the Compact are contained in Article III. That article specifies in relevant part that “[t]he presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.” Most of the other provisions contained in the Compact address requirements that are more of a procedural and administrative nature.
 The author wishes to acknowledge reliance on the 2020 State Ballot Information Book, Legislative Council of the Colorado General Assembly, Research Publication No. 748-1A (“Blue Book”) for general background relating to the Electoral College and the Compact as part of the Blue Book’s discussion of Proposition 113 on the 2020 general election ballot.