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These two Californians think they’re close to changing the electoral college

Protesters demonstrate ahead of the electoral college vote at the Pennsylvania State Capitol in 2016.
(Dan Gleiter / Associated Press)

If a California-based group succeeds in reworking the rules of the electoral college before the next presidential election, the achievement will come almost six decades after its architect unveiled his first, more trifling approach to the subject.

A board game.

For the record:

11:24 p.m. Nov. 1, 2020A previous version of this story misspelled the last name of University of Iowa law professor Derek Muller as Mueller.

As a Michigan graduate student in the 1960s, computer scientist John Koza designed a game in which players sprint across the country to win support from clusters of voters. The object, the instructions say, is to “use the limited supply of campaigning hours to maximum advantage” in collecting the 270 electoral college votes needed to win.

Koza called the game “Consensus,” even though he knew that when players and presidents rely on a state-by-state strategy, there is no guarantee of a harmonious result.

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“The essence of the game was the winner-take-all system is so quirky that even when two candidates have the exact same resources, you can play over and over again and end up with different results,” he said. “The moral of the game is the system is so crazy that anything can happen.”

Fifteen years ago, Koza stopped playing and got serious, joining forces with a Bay Area political campaign attorney to upend electoral college rules that have been in place for almost two centuries by persuading states to join a formal compact awarding their electors to the presidential candidate who wins the national popular vote.

“Voters get it,” said Barry Fadem, the campaign attorney who runs the organization created to make Koza’s plan a reality. “They truly do understand that under the current system, their vote doesn’t count in a number of states.”

The presidential reform odyssey of the two men is rooted in California politics. Koza, who sold 3,200 copies of the “Consensus” board game, hit the jackpot a few years later when his work with lottery games led to the invention of the instant-win scratch-off ticket. The company he helped create, Scientific Games, championed the creation of state lotteries, including the 1984 ballot measure that created the California Lottery.

Fadem helped run the California campaign and the two men kept in touch through the years. During a lunch meeting in 2004, Koza sketched out the idea for the electoral college compact, which he likens to a “workaround” of the system enshrined in the U.S. Constitution.

“What we’re doing is changing the method of choosing the electors,” he said.

Since 2005, their political nonprofit has lobbied legislators and governors across the nation to adopt a law requiring their state to award all of its electoral college votes to the national top vote-getter, regardless of which candidate wins the most votes in that state.

Fifteen states and the District of Columbia have signed on, representing 196 of the 270 electoral college votes needed to elect a president. The effort needs states representing 74 more votes, at which point the statutes will have the full force of the law.

“It’s been a marathon, but we absolutely see the light at the end of the tunnel,” Fadem said. The organization’s goal is to force the change in time for the presidential election of 2024.

Every state but two awards all of its electoral votes in a single action. Maine and Nebraska divvy them up by congressional district. The U.S. Constitution is silent on the issue, leaving the decision to each state’s legislature.

“In hindsight, it was the most brilliant decision by the Founding Fathers,” Fadem said of the flexibility. “We have met with legislators in various states to say, ‘You have the power of how electoral votes are awarded.’”

California joined the compact in 2011, with only two Republican legislators in support. The result has been more bipartisan in other states, though the effort is frequently dismissed by skeptics who insist it would give an unfair advantage to one major political party or the other. Elected officials in smaller states have also expressed concern.

“In cases like this, where Nevada’s interests could diverge from the interests of large states, I will always stand up for Nevada,” Gov. Steve Sisolak wrote in his 2019 veto message rejecting the state Legislature’s approval of the electoral college agreement.

Koza dismisses those concerns as “mythology” in regard to how the electoral college works, noting that President Trump’s 2016 victory was sealed by winning relatively large states — Wisconsin, Michigan and Pennsylvania — and that even then, there’s no justification for elevating any one state above the national interest.

“Why do we care who carries Florida?” Koza asked. “Why should that be relevant in an election with 150 million people voting?”

The effort faces a major test on Tuesday in Colorado, where voters will consider a statewide referendum on whether to keep or reject the electoral compact law signed by Gov. Jared Polis in 2019. Should Proposition 113 be defeated, Colorado’s nine electoral college votes will be removed from the ledger kept by Koza and Fadem’s organization, National Popular Vote Inc.

And even if they ultimately succeed in signing up enough states, legal challenges are all but certain.

Derek Muller, a University of Iowa law professor, believes new rules for choosing a president can be created only by a constitutional amendment — involving an arduous process that requires supermajority support in Congress and ratification by three-fourths of the states. An effort in Congress to adopt the change failed in 1969.

Even then, Muller said, attempting to bind the states together ignores that distinct — sometimes conflicting — rules govern elections from one location to another.

“States have different voter eligibility rules, different candidates appear on the ballot, different timing rules,” Muller said. “The compact aggregates all these votes that aren’t really meant to be aggregated.”

He notes that challenges will also arise based on existing limits to formal interstate compacts made without the consent of Congress.

“While states can do what they want with their electors, there’s a separate concern about entering an agreement with other states,” Muller said.

Fadem said he believes the legality of a state-to-state agreement like the electoral college compact is “strong” and that a clear national winner would defuse the controversy that currently erupts over recounts, as it did in Florida in 2000.

“We’re very confident that when challenged, it will pass muster,” he said.

For now, the challenge remains in the court of popular opinion.

Koza said he can see the frenzy at the heart of his 1966 board game playing out in the current presidential race, a sprint focused on winning states, not on winning total votes. And he admits the contest between President Trump and Democratic nominee Joe Biden is a double-edged sword, drawing attention to the issue but also likely to leave supporters of the winner resistant to change.

“We’re hoping to get back to a policy discussion,” he said. “And there’s a compelling case for it.”


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