BONUS: National Popular Vote On The Ballot, with Dr. John Koza

This podcast is part of the Democracy group. Welcome to Another Way, the podcast of Equal Citizens. I'm Jason Harrow, the executive director and chief counsel of Equal Citizens. Today we've got a great bonus episode for you. It's a conversation with Dr. John Koza. He's the founder and chairperson of National Popular Vote, which you may have heard of. Its name pretty much says it all. It's an organization that advocates for a national popular vote, in particular a national popular vote, by way of an interstate compact called the National Popular Vote Interstate Compact that has been passed in 15 states and the District of Columbia. Dr. Koza's organization is the first one to really start pushing this creative idea. And as you'll hear in our conversation, he did so beginning after the 2004 election. But interestingly, this interest that Dr. Koza has in the way we elect the president dates back way longer. As you'll hear, even though he's not a lawyer or a politician, he's been interested in the way that the Electoral College works since the 1960s and indeed created a board game when he was a PhD student. He was. He went into business, but came back to the issue in the mid 2000s. And now the issue has real momentum. 196 of the needed 270 electoral votes are accounted for. But as we discussed, this is a critical moment for the Interstate Compact. The reason it's critical is that for the first time, the compact will go directly to the voters rather than state legislatures. And that's because in Colorado, it will be on the ballot this fall in less than three weeks in the 2020 election. The Colorado legislature, as you'll hear, passed the law in 2019. But Colorado has a pretty easy way to get repeal efforts on the ballot by way of a citizen's repeal. That's what's happening in Colorado in 2020. So we discuss the problems with the current winner take all use of the Electoral College. We discuss the arguments for and against the compact that are being made in Colorado. And we discussed the past, present, and future of getting to a national popular vote in this country, which is something that an organization called Equal Citizens, where we believe that every vote should be treated equally, are definitely for. So here is my conversation with Dr. John Koza of National Popular Vote. Doctor Koza, for thank you so much for coming on so close to this important election. How are you today?

Great, Jason, and thanks for inviting me.

Of course. So we talk a lot about democracy reform on this podcast. We've talked specifically about the Electoral College, but we haven't Talked to you yet about this years long process that you've started with something called the National Popular Vote Compact. So before we go into the history, just, just tell listeners who aren't familiar, what is the National Popular Vote Compact?

Well, the National Popular Vote Interstate Compact, it's state legislation that says that the states that pass this legislation will award their electoral votes to the presidential candidate who gets the most popular votes in all 50 states in the District of Columbia.

So when you say interstate compact, just sort of walk through a little bit of the logistics of that. Who passes that? Is that a federal law? Is that a state by state law? How does that work?

Well, the Constitution gives each state the exclusive power to decide the method of awarding its electoral votes. And the states right now do that by passing state laws, which are almost all winner take all laws. That is, they award all of the state's electoral votes to the presidential candidate who gets the most popular votes inside that specific state. Now, states also have the power to pass laws that are conditional on what other states do. And those are called interstate compacts. They're, they're legally binding contracts between the states. So when a state passes the National Popular Vote Compact, they're saying they want the president elected by a national popular vote of the people in all 50 states. And the way they accomplish it is they pass a state law and this compact simultaneously that says when states having a majority of the electoral votes, which is 270of538, this law is going to take effect. And when it takes effect, it's going to give all of the electoral votes of all of the states that passed this compact to one presidential candidate, namely the candidate who gets the most popular votes in all 50 states in the District of Columbia. So when the compact takes effect, it will have created a nationwide national popular vote for president.

So tell us a little bit about this sort of snapping. In effect, I think some people have started to hear about the compact, that some states have passed it, but we can all see from this 2020 election, which I want to dig into with you a little bit later, that only six states right now are really mattering. We do not have a national popular vote. And yet you've said that some states have nonetheless signed onto this. So sort of rectify that for our listeners in terms of what, what the exact status is here and when National Popular Vote will actually come into effect.

So as of this moment, 15 states in the District of Columbia have passed this National Popular Vote Compact. They've enacted it into law, but it's just sitting there because those states have 196 electoral votes. So we're 74 electoral votes short of the 270 that we need to put it into effect now. We hope by 2024 we will have acquired those additional 74 electoral votes. And at some point before early in 2024, we'll be at 270 or more. The compact will then go into effect in all of the 25 or whatever number of states it is. And at that point there will be enough electoral votes that is a majority committed to go to the candidate who gets the most votes in all 50 states. So the action of these 25 or whatever the number of states is, will create a nationwide popular vote for president.

And one of those states that is a part of that 196 electoral votes is Colorado. And we wanted. Yeah, and we wanted to have you on because there is for the first time the national popular vote compact on the ballot for voters in Colorado this year. So before we get into the history of the national popular vote and the effect on the 2020 election, I want to give people the sense of what's going on there. We're less than three weeks away. Why is it on the ballot and yet you're still counting it in the 196 count.

First of all, the Colorado legislature passed the bill. It was signed by the governor, and the opponents, largely out of state, came in and put in about a million dollars. Colorado has what's called the veto referendum process, where if you get a petition of a certain size, you can put on the ballot a law that's already been signed by the governor and passed by the legislature. And Colorado has an unusually low number of signature requirement. So the question was put on the ballot by the opposition and as a result, on November 3, the voters are going to decide whether to ratify the action already taken by their state legislature and governor.

So that means if voters are ratifying, then in Colorado on the ballots and people are already voting, they are essentially an all male election in Colorado. Yes means ratify. We want to stay in. We want to pledge our electoral votes to get us over 270 and have a national popular vote. And no means no. That was a bad idea by the legislature. We want to pull out. Is that right? That's what's going on there?

Yes, that's correct. And a very substantial number of people have already voted in Colorado. I saw some numbers this morning. It's well over 10% and it's three weeks before the election. So of course there's many reasons why they're voting. It's not primarily this issue, of course.

Yeah. Though maybe it is. Maybe this issue motivates a substantial number of people. And that brings me to something that, you know, we haven't talked a lot about because we have talked in the abstract on this podcast and in our events about why the Electoral College deviates from one person, one vote. And I am, of course, one of the people that thinks that, along with our founder Larry Lessig. But what we haven't talked about is a campaign like the one that you're involved with. So what's first, like, what are the arguments that you're delivering to the Colorado voters? And then I want to hear, like, what's the argument against it? And I think many listeners will probably not buy it, but I think we need to know what these arguments for and against that voters are hearing are.

Well, the arguments for it are that the current system, which is the state by state winner take all method of awarding electoral votes creates several problems. The first One is that five of our 45 presidents have come into office without having won the most votes nationwide. A second one that affects every single election is that the presidential campaign is effectively narrowed to a dozen or so states and in practice to a half dozen states. Because under winner take all, if a state is more than about 53% in favor of one party, a 53, 47 break, presidential candidates aren't going to be bothered campaigning in those states because there's no realistic chance of winning the state's electoral votes. So the result is out of our 50 states, only about a dozen actually matter in presidential elections. And of that dozen, about six of them account for about well over 80% of the campaign activity in terms of both events and money and what's more important, public policy. Because when you're running for president and you're only interested in winning six particular states, you suddenly get very interested in the cruise ship industry in Florida and whether their ships should be allowed to go out during the COVID crisis. Or suddenly, after years after the hurricane in Puerto Rico, you're suddenly interested in aid to Puerto Rico because there's so many Puerto Ricans who have the right to vote in Florida. Or you have of great concern about fracking in Pennsylvania or dairy tariffs in Wisconsin. So public policy is formed when candidates have to address the issues specific to this half dozen states. And then when you're a sitting president and you're thinking of re electing yourself or your preferred choice of a successor, you are setting policies that are aimed at winning support in the states that you can identify as closely divided battleground states. And then, of course, there's a major philosophical problem is that every vote is not equal. For example, in the 2016 election, Trump won the White House by carrying three states by very small margins. 11,000 in Michigan, 23,000 in Wisconsin, 44,000 in Pennsylvania. The opposing candidate won the national popular vote by 2.8 million votes. So every one of those votes in Wisconsin, Pennsylvania and Michigan were 36 times more valuable than the 2.8 million votes that were cast in the other states. And there's numerous other ways in which votes are not equal. The value of a national popular vote is every person's vote would be equal and every person's vote would be politically relevant in every state in every presidential election year.

That I think will sound appealing to our audience. But what's the counter? As you mentioned, there's a well financed, mostly out of state opposition here. They're on the ground, they're running ads, they're trying to convince people to bubble in that no ballot on their, on their mail ballots in Colorado. What are they telling people to counter the arguments you're making?

Well, one of the things they make is a mechanical argument. They try to focus attention on Colorado's nine electors. These are the faceless, unknown people who show up in mid December in the state capitol building and actually cast the state's electoral votes. And they're saying, oh me, oh my. Theoretically, Colorado's popular vote could be different from the national popular vote. And the nine electors who would go to the Capitol in mid December for this formality process would not match Colorado's vote because they've matched the national popular vote. Of course, our answer is that we're electing a president to serve for four years. And the nine people who go to your state capitol in mid December and sit in a room for 15 minutes and vote are mere mechanical elements. But they put a great emphasis on the mechanics, and that's one of their big issues. And then they really inaccurately claim that the current try to dress up the current system as if it is in the Constitution and it was the choice of the founders. In fact, the winner take all method of awarding electoral votes was never debated at the Constitutional Convention. It's not in the Federalist papers. There were three states that used it in the first election in 1789, but all three repealed it by 1800. Which, just as a reminder, the states have the exclusive power to decide how to award their electoral votes. They can enact winner Take all in the state legislature. They can repeal it, just as Colorado did in 2019 when the legislature passed the National Popular Vote Bill. Or Massachusetts, for example, has actually changed their method of awarding electoral votes 12 different times over the years. So the states have this power. But they try to argue that the Founding Fathers have done this and we should therefore respect and bow down to this alleged decision that the founders made. In fact, the winner take all system didn't become prevalent until the 1830s. All the founders were dead, and in many cases, their children were dead by the time the current system became established.

Yeah. So, you know, in this complicated discussion that involves the founders and the incentives for campaigning for election, how does that sort of get boiled down that you're hearing from voters? I mean, does it. Does it become polarized like so much else in our election, where people just think, well, Trump won with, quote, unquote, the help of the electoral college in 2016. So if I like Trump, I like the Electoral College College. If I don't like Trump, I don't like the Electoral College. Or is it more nuanced? Is there a way to get people to sort of think about it as part of a system?

Well, the partisan flavor has changed considerably since we got started, which was late in George W. Bush's term. And when we first got started, generally we would only get a little Republican support on roll calls in state legislatures, maybe a half dozen legislators at best. Then after 2008, we suddenly started getting, almost immediately after a new president took office, we started routinely getting at least a third of the Republicans on the roll calls because they were looking more at the policy rather than thinking of this legislation as somehow reflecting on George W. Bush. And as we went into Obama's term, it was very interesting. It became very difficult to get Democratic legislatures to pass the bill. It would pass, for example, the Republican control chamber in New York and be blocked in the Democratic assembly in New York. And any number of Democratic states simply sort of lost interest because the Democrats fell into this blue wall theory, which is sort of an arrogant and triumphalist view, that the Democrats had a permanent lock on the White House based on the fact that a number of states had voted repeatedly. Democratic states like Wisconsin, Michigan and Pennsylvania. And this blue wall myth failed to recognize the fact that the those three states, although they had in fact voted Democratic on consecutive elections, often it was by very close margins. They were really battleground states. They were in no sense safely Democratic, safe. And this blue wall was a mirage, as Hillary Clinton discovered late in the evening in November in 2016, that the Blue wall simply was nonsense, nonsense from the beginning. But the point is, in that several year period before 16, for instance, the Republican controlled Oklahoma Senate passed the bill, the Republican controlled Arizona House passed the bill with two thirds of the Republicans sponsoring it. 47 of 56 senators in Georgia, a supermajority of both parties, sponsored the bill. So the support was growing on the Republican side. Again because of this blue wall theory the Republicans were buying. Some Republicans were buying this blue wall theory as well. Then of course, when Trump won, it sort of reverted back to where we were when George W. Bush was president. The Republicans said, oh, well, the system must be permanently biased in our favor. And of course, when we lobby state legislators, which is mainly what our organization does, and if we're talking to a Republican, we press them well, why do you think the current system favors Republicans? And invariably they can't come up with a reason other than basically they were lucky in Pennsylvania, Michigan and Wisconsin. There are a lot of bogus arguments out there. They'll say, for instance, the small states give an advantage to the Republican Party, but the reality is that a majority of the 13 smallest states actually vote Democratic in the Electoral College and almost the majority of even the 25 smallest states. And then they'll say, well, the rural areas get an advantage. Well, that's not true either. There aren't any battleground states among the most rural states. And more importantly, if you look at the 25 smallest states, the only one that changed their party affiliation between 12 and 16 was Iowa. And you could say that's a rural state that perhaps went Republican because it was a rural state. But the fact is, Iowa's six electoral votes are not what elected Trump. So if you listen to some of the arguments, there really aren't any other than it happened to have worked out well for the Republicans in 16. And they now have the equivalent of the blue wall theory. They have their red wall theory that the Electoral College is permanently biased in their favor. By the way, that's a theory they had back in 89 when Busby coined the phrase the Electoral College lock, which was the argument that the Republicans had a permanent lock on the White House because they had won a number of states several times in a row as of 1989. Of course, then 1992 came along and the so called Republican Electoral College lock went up in smoke.

So given this sort of give and take and the short memories that politicians have, what's the hope for this movement? I want to get to its origin, but I think it's worthwhile to sort of look to the future before we look to the past in this episode. What's the hope here? I mean, if the polling is right, Biden may well win in a landslide. And we may see states that Republicans never thought would be purple or even blue, like Texas or Georgia turning that quickly or Arizona. And will that once again shift? Will we always be in this area where all of a sudden Democrats don't want to change things and Republicans do because they feel like they're losing? You know, we talked before about, like, systems thinking versus self interest. How do you sort of orient it towards systems rather than self interest?

Well, the reason that it's possible to achieve success with National Popular Vote is that most of the arguments as to why the system is biased permanently in favor of the Republicans and simultaneously permanently biased in favor of the Democrats is the arguments don't stand up. If there was really strong evidence either way, it. It would be extremely difficult to pass any reform. But the arguments don't stand up. And of course, I can't tell you what's going to happen after this election. If Arizona goes Democratic, which seems to be extremely likely at this point, that would alone would be extremely alarming to Republicans because that would be yet another formerly solidly Republican state. And presidential elections that would be drifting into the Democratic column following Virginia, Colorado, New Mexico, and really Nevada. And in fact, the fact that Florida is even a battleground state is an example of the drift from red to purple to blue. So that's one possible outcome. On the other hand, if Trump wins solidly again in the Electoral College and loses the popular vote, then the sort of superstition that the system is really rigged for the Republicans is going to become very persuasive on the Republican side. So we'll know more about that in a month or so.

Yeah, no, we certainly will. And it seems like 2020 then is a real opportunity to be like a fulcrum. Right. It could really energize the movement, especially if there's a victory in Colorado, which I'll say I'm rooting for. And I think, as people know about it and think about the argument, I think they'll be in favor of National Popular Vote and then the possibility to juggle things around, I guess, Dr. Koza, to bring it around, one benefit, sort of seeing the pendulum switch would be, as you said, there's already 15 states that have signed on in the District of Columbia. So it's more difficult for them to sort of back off if the Democrats all of a sudden say that they don't want to. Is that right? Or is there something that sort of enables them to easily pull out if there is a consensus that, hey, NPV is bad?

Well, there's no easy way to pass legislation. You have to go through a House, a senate and a governor. So passing a law is a difficult and time consuming process. Repealing a law, particularly one that was just recently passed by the same people, is quite, quite difficult. On the other hand, what the opposition did discover in Colorado was that here's this one state with the very low petition requirement where they could possibly obtain a repeal not through the legislature and governor, but through the petition process.

I think I want to conclude by giving people a little sense of this remarkable story. We didn't talk about the origins of National Popular Vote and your involvement, Dr. Koza. I mean, I've been calling you Dr. Koza. I don't usually call lawyer as doctor. So you're not a lawyer or necessarily a politician. So you. How did this idea and this compact and this organization come about and how are you, Dr. Koza, involved in it without being a politician or a lawyer?

Well, the quirks of the winner take all system have been sort of a hobby of mine since the 1960s. So when I was a graduate student, I published a board game based on basically trying to to get to become president by taking advantage of the quirks of the electoral college and the winner take all law. It was not a commercial success, but it was something of interest at the time. And then when I went into business in the 70s and 80s, which was the state lottery business, we introduced the rub off instant lottery. And in order to expand our business, we, we did initiatives by petition in many states to get the state legislature to authorize a lottery. And we did lobbying of state legislatures. So after the 2004 election, I got together with the lawyer that used to work for the company that I used to work for, and we came up with the national popular vote idea. And we had both had experience in both initiative petitions and lobbying state legislatures. And so we were not only interested in the topic, but we thought we had the skills, the specific skills needed to go state by state and get a piece of legislation passed by a number of states, just as we did have been doing in the 80s 20 years earlier in the lottery business.

Got it. And so you sort of took that model, but substantively, I mean, how did you come up with the language in the bill and the scheme? Had you been thinking about this back in your board game days?

No, it was the 2004 election where the election at first looked like it was going to involve only three states. Florida, Pennsylvania and Ohio. Then there was a hurricane. Florida was clearly going to go Republican, and Kerry pulled ahead in Pennsylvania. So for about the last month, it was clear that the whole election came down to one state. And that was sort of the inflammatory event that got things going in 2004. And I started researching interstate compacts, which I had been familiar with from the state lottery business, and realized that the way to get states to change the law was an interstate compact. Because no one state is gonna ever change their law and give away their electoral votes to the national popular vote winner or even divide their electoral votes proportionately. It would just reduce their clout and accomplish absolutely nothing. It would be unsalable and unpassable. But we realized that the same thing that got the winner take all law in place, which is basically a stampede, because once a few states back in 1800 started passing winner take all, the other states felt they had to pass it because if they were dividing their electoral votes, they were losing clout. So the winner take all became the predominant force over about a 40 year period in the early 1800s, mainly because every state felt they had no choice, they had to pass it. Now, today, every state would reach the same conclusion. They have no choice. It would be ridiculous for them to not use winner take all when all the other states are using it. But the compact gives a way for you to add up states one by one, get to a certain critical threshold, which in this case is 270, and then the law only goes into effect when there's enough states in the compact to achieve the desired goal. The desired goal being to elect a president. And if you have states with 270 that are going to give all of their electoral votes to a particular candidate by law, by binding law and binding interstate compact, then you have the moment of transition where a state can safely give up the winner take all law and go to a different system. So the way to unravel what happened in the early 1800s is an interstate compact.

So it's kind of like a Kickstarter for legislatures. Basically, people who fund projects on Kickstarter, they know their credit card won't get charged unless there's actually enough money coming in to make the product happen. It's sort of like that legislatures won't charge their credit card.

That's an extremely good example. And there's other cases of people kick around ideas, for example, that individual states shouldn't subsidize for example, sports stadiums? Well, for one state to pass, that are unlikely. But if a group of states started passing laws against subsidizing private businesses, particularly adjacent states, then it would make sense.

So.

So that's precisely why interstate compacts are used. Really good example is the Colorado River Compact. There's no one state in that group of states that would give up their unfettered access to unlimited water unless they knew the other states were also agreeing to limitations.

Yeah, that makes sense. That certainly makes sense. So tell people who are interested in this issue, like, where can they find you? Where can they find your organization online, and what can they do if they are interested in supporting the effort in Colorado?

Well, in terms of Colorado, which we call the second most important election of 2020, there's yes on national popular vote.com and we would like to do more advertising and more campaigning in the last three weeks. It's a close race, and we would be grateful for support on an ongoing basis. The organization is nationalpopularvote.com and we do ongoing lobbying year round, year after year, visiting state legislators, the media, educators, the public, et cetera, building up support to pass national popular vote, state by state, in the state legislatures.

Yeah. So let me end here, because people's minds are, as you said, that's the second most important election. I agree with you. Transitioning away from the Electoral College somehow is critical and something we deeply believe in because everybody votes. Vote should be equal. But if that's the second most important election, the first most important election, I assume you're referring to Biden, Trump, unless you're referring, to, I don't know, my state, California district, which I don't think you are, Dr. Koza, but tell us how they sort of connect. Like, what are you seeing in 2020 and reactions of people that sort of affirm your belief that this unequal treatment of every voter is not only bad for the voters themselves, but it's bad for democracy, it's bad for the party, it's bad for the country. Like, are you seeing this play out right now in 2020?

Well, we circulated a map yesterday that showed that 90% of the TV ads, 90% of a billion dollars of TV ads, which is what Trump and Biden have spent so far, have been spent in six states. And every week we publish a map in conjunction with FairVote that shows where the candidates actually campaign. And again, almost virtually all the visits are in six states, and all the visits total is 13 states. So the vast majority of the voters of the country, to be blunt, are politically irrelevant in the political presidential election. Their votes have been either written off by one party or the other, or they're being taken for granted by one party or the other.

Well, let's hope that when we have this conversation before the 2024 election, we're having it in the context of a wonderful new system and explaining to people how it's going to work and why it's going to be so much better for everybody. Fingers crossed on that, Dr. Kozo.

Well, thank you very much, Jason, for inviting me here today.

Of course. It's been a pleasure.