Ed Lopez

A Popular Electoral College

Air Date: September 2, 2019

Republican political strategist Ed Lopez discusses the federalist argument for the National Popular Vote.

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HEFFNER: I’m Alexander Heffner, your host on The Open Mind. Today we continue our discussion of the national popular vote movement with one of its important grassroots advocates on the eastern seaboard. Ed Lopez-Reyes, a Connecticut-based Republican strategist Lopez is chief consultant of Wolf and King Strategies and served on the Joint Intelligence Operations Center Europe Analytics Center in imagery and counterterrorism from 2002 through 2010. He also served on Utah Governor Jon Huntsman’s 2012 New Hampshire presidential primary campaign steering committee and was National Cochairman of Republicans for Johnson-Weld in 2016. A member of the National Guard in Connecticut, Lopez also returned from a month long training in Louisiana. Congratulations and thank you for your service.

LOPEZ: Thank you.

HEFFNER: We appreciate it and appreciate your time here to talk about the national popular vote.

LOPEZ: Thanks for inviting me.

HEFFNER: There are three states in which you’ve been intimately involved in the passage of the national popular vote. And you may remind our viewers what that is too.

LOPEZ: Sure.

HEFFNER: Connecticut, New Mexico, and Nevada,

LOPEZ: Correct.

HEFFNER: So as the representative of a small state, which theoretically in the Electoral College would benefit …

LOPEZ: From the compact,

HEFFNER: From the compact, but also a small state in a competitive election year that would not benefit.

LOPEZ: Right.

HEFFNER: We think of Connecticut now as homogeneously Democrat. It wasn’t always that way. It may not always be that way in the future. But what was your argument to these three states and their constituents about why we need the national popular vote?

LOPEZ: Well, a big part of it was my experience in Connecticut. It defined my perspective on this particular bill. The National Popular Vote Interstate Compact is basically a bill that state legislatures can choose to pass. It becomes a contract between a number of states. And when we reach the 270 Electoral College vote threshold, it activates a compact, which means that the election then would be, these states would take into account what the popular vote result is and put the weight of that result on the Electoral College votes so that they can allocate.

To me as a resident of Connecticut and as a Republican in Connecticut specifically, I felt that, the party as, as in other states in New England like Rhode Island, another state where I actually lived and was active in the party for a while, I used to work for Senator Chafee, he ran for office there. When you have one party that is dominating the electoral process year after year, election after election, it really, in a lot of ways it really creates an environment where you’re not having healthy debate. You’re not having healthy debate. You’re not really seeing both sides of an issue as often as you should. It creates a lot of policy incongruities in my opinion. And so in Connecticut when I noticed this flaw and I saw the presidential elections were being deployed in the state, for example, in 2012 I think we donated about 80 million dollars to both major parties and got about 300 dollars back.

You realize that there’s a potential for well, not a potential, there is a lack of infrastructure in one of the, one of the parties on one side of the political aisle. When you have this, you basically have a very little in the way of, in the form of outreach and effective constituent, work with constituents is not very efficient. You end up in a situation where people are exposed to one message only and it has a down-ballot effect. It’s not just about the presidential election. It has an impact on the statewide offices, even the local offices.

HEFFNER: So you think that the Republican Party would be more robust if the national popular vote was adopted.

LOPEZ: As a Republican?

HEFFNER: In Connecticut.

LOPEZ: I do as a Republican, but I should say that one of the things that I think this bill is afflicted by in most of the states that we’ve worked in is the fact that it’s a truly bipartisan bill.

It’s, the word compromise has become kind of a toxic word these days. But the reality is that you have a group of people that say the popular vote should carry more weight in the elections, probably the overall weight. And then you have conservatives like myself who say, ah, well we need to preserve the Electoral College for a number of reasons. And I think this is one of the things that happens in the debate over this bill. You have a lot of people who say, well, we want to pass the bill because you want to get rid of the Electoral College. But that’s not what it does. And the reason I mention this is one of the challenges that we face as Republicans is making the case that the Electoral College would be preserved under the compact and also making people understand that ultimately the, what the benefit is to the voters.

The disadvantage right now, it’s an issue of the, those that are in power versus the voters.

HEFFNER: When you say it would not erase the Electoral College, I’d used that terminology. You mean because each vote, each state is still voting with its electors according to how the state,

LOPEZ: Exactly.

HEFFNER: So in effect, it’s not an aberration from the constitution. It is erasing the idea that the Electoral College can accommodate a situation in which the popular vote winner is not elected.

LOPEZ: Correct. It’s an exercise in that constitutional right the state has to vote for president. In fact, we know the constitution has basically given states the right to decide how to elect a president, and taking that a step further the legislatures can decide how to allocate their Electoral College votes. So it doesn’t get rid of that system. It just basically says, let’s do it based on who wins the majority of the vote throughout the entire country.

HEFFNER: Right. And in effect, let’s say if Iowa passed this. If Iowa voted for Donald Trump again in 2020, or let’s say a future nominee in 2024, a Republican nominee, that nominee does not win the popular vote, but wins the state of Iowa. If legislation accordingly was passed, those votes would go to the national popular vote winner and not the winner in Iowa.

LOPEZ: Right.

HEFFNER: Right now you have under 200 electoral votes in agreement, 1…

LOPEZ: 180.

HEFFNER: Right. And potentially, 195 with the addition of Nevada. But in Nevada,

LOPEZ: Right:

HEFFNER: this summer the governor vetoed the legislation. There’s also the pending legislation that passed in one chamber in Maine and was voted down in another chamber and these states are saying, in effect, we are more valuable in the traditional Electoral College math,

LOPEZ: Right.

HEFFNER: which is the state voting according to how that state votes and not how the nation votes. What would you say now to Governor Sisolak and potentially to Governor Mills in Nevada and Maine respectively, who are afraid of negating the will of their voters in their respective states.

LOPEZ: Well, I think what’s important to consider is when the state is a swing state, when it’s one of the 12, 10 or 12 states where the presidential campaigns deploy, expend a lot of resources, and make a worthwhile investment, those states are going to have a smaller interest or not much of an interest in adopting a system like this. But those things change. You know, I mean you could probably argue that, you know, 20 years ago there were more swing states and you go back further back, you have even more, it’s just the way the culture, the political culture, adjusts to the current system.

And so in a state like Nevada, for example, they probably still feel like a very competitive state, but the reality is it’s becoming a much bluer state. You have a couple of counties basically that have become much bluer than they were before. I think that the holdout is in the Northwestern part of the state you have a pretty Republican stronghold, a pretty strong Republican county. And they might not see the value in the same way, but the reality is once a state begins to shift in a different direction, they’re going to start reconsidering. And this…

HEFFNER: Is your argument, Ed, that a national popular vote makes every vote competitive?

LOPEZ: Correct. Instead of having a winner take all system. So one thing I try to explain to people is …

HEFFNER: Every voter is a swing voter,

LOPEZ: Exactly. The compact does not, is not an attack, does not seek to purge the Electoral College. That’s the biggest mistake; the biggest misinterpretation people have of the bill. What it seeks to do is to get rid of the winner take all system that extinguishes votes in different states. You know, in California the Republican votes would now count. In Utah, the Democratic votes would now count, it makes those vote. It elevates those votes, make them valid. It gives them a voice in the entire system.

HEFFNER: Do you think based on your work that the Supreme Court would ultimately, if this was tested constitutionally, uphold this pact as legitimate?

LOPEZ: I feel they would because it is constitutional. We’re basically trying to get rid of something that’s been done at the state level, which is the winner take all system that we have in 48 of the 50 states.

HEFFNER: Basically, the court would be saying to these states, you don’t have autonomy. You can’t decide how to allocate your electors. And that would be a breach of federalism, in a major a major sense.

LOPEZ: Right, exactly.

HEFFNER: So there are conservatives who take a different view than you, in conservative in adhering to the conventional policy of the Electoral College. But that winner take all concept was never ratified into the constitution on a state-by state basis, except for the individual states’ constitutions.

LOPEZ: Right. It wasn’t until 1880 that all these states adopted the winner take all system.

HEFFNER: So are you making this argument in defense of federalism?

LOPEZ: It is. And in fact, I think the true conservative view would actually honor the perspective that there’s a pliability that the Founding Fathers instituted through the system that we have to be able to adapt to changing circumstances. Fred Thompson, Senator Fred Thompson used to make this case. That was one of the big reasons he supported the compact.

HEFFNER: So how do you see a realistic path to 270 at this point because there’ve been some major wins in this 2019 year. And as I said, you know there was a point at which you made half the delegates are half the electors. Now you have more than half the electors. And since Pam Wilmot of Common Cause Massachusetts joined us, there have been more gains.

LOPEZ: Right.

HEFFNER: How does your experience in Connecticut, where this passed – and they are part of the Compact now informed the way you envision a successful campaign so that by 2024 or 2028, this is actually implemented.

LOPEZ: So one of the things that I experienced was Connecticut was more difficult to work on because at that point the views on this issue had cemented. Legislators had kind of adopted a perspective on it. It was really tough to reach out to constituents who had not already heard from their legislators. And a lot of that came, a lot of their perspective is informed by their respective echo chambers.

You know, like their parties for example, think tanks that are orbiting around those parties. And I think that the key thing is to make clear this is a bipartisan bill, that this is a bill that’s in the interest of voters, not of particular parties, that it’s not a Democratic or Republican bill. It’s important to make a very strong case of this is not about getting rid of the Electoral College. It’s actually a way to exercise the College in a way that fits the states, but also the voters in particular. And I think when I look at the experiences, for example, in Nevada and New Mexico, the timing is a big thing. Going out and talking to the voters at an early stage and letting them know how the bill works, what it does is the most important thing.

So the most critical thing, the paramount piece in this effort that I see is talking to voters. This is not about the parties. It’s not about the elected officials. It’s about empowering voters, whether they’re Republican or Democrat. And even third party voters can find the value in this. You know, you had in 2016, having done the Johnson and Weld thing, they had I think it was three and a half million votes total, which is a more than the votes in each of 25 states. Now, that doesn’t mean through the system you’re going to elect the libertarian unless they did have that majority. But it does mean that those votes count and they have an impact on the party. I’m a libertarian Republican for the most part. So to me it’s important that the pendulum move in that direction in the Republican Party, for example.

HEFFNER: And those potential votes, act as a spoiler in effect but they are, they are determinative of an outcome because those tens of thousands, hundreds of thousands, you say millions of votes for Johnson and Weld if you take a share of them and apply them in those battlegrounds that were decisive, Pennsylvania, Michigan, Wisconsin, the election could have gone the other way. So they…

LOPEZ: Correct,

HEFFNER: So they had a spoiling, spoiling function,

LOPEZ: Right.

HEFFNER: But it’s a democratic idea that more than one or two parties should be competitive. So you are making the argument Ed, that it is a pro Federalism case

LOPEZ: Right. Exactly.

HEFFNER: for preserving the Electoral College that gives states autonomy. But a major argument among the progressive or liberals who do support this is that we have an anti-democratic system now so the will of the country writ large is neglected. And that that is problematic. And that to sustain a republic or a democracy, the opponents of your efforts, the National Popular Vote, they, they like to say we’re a republic, not a democracy. Right? If you go to the founding document, but do we want to have an anti democratic or undemocratic republic? Isn’t that a question we should be considering too?

LOPEZ: Well, I think the, the key thing to focus on is that this isn’t actually a partisan issue. And so the message that giving more voters a say, actually all voters a say and giving them more weight in the system is a democratic ideal – I think it betrays what the Founding Fathers actually wanted.

HEFFNER: And I think if Madison were to see the results in Bush v Gore,

LOPEZ: Sure.

HEFFNER: Trump v Clinton,

LOPEZ: Right.

HEFFNER: To see, you know, millions of votes denied relevance, wholesale.

LOPEZ: Sure. I think you make a valid point, but I think the thing to consider too is that in these cases, Democrats tend to be a bit more enamored with those historical incidents to make the case for this bill.

And they’re not incorrect in making the case; the only thing that you have to understand is that the campaigns would have been run very differently. And so you have campaigns that would have unfolded very differently, would have paid more attention of the 50 states. So we don’t know what that would’ve been the outcome in those two elections under the compact had it been active at that point.

HEFFNER: You have a candidate now Beto O’Rourke who is going to a lot of these non-traditional battleground states. He was just in Oklahoma. He’s making a play, partly I think because of his Texas roots and the idea that he wants his party, the Democratic Party to be competitive in the Lone Star State.

LOPEZ: Right.

HEFFNER: And I do wonder Ed, if you have candidates, it’s a chicken and egg question. If you have candidates who are not going to play by the rules of the Electoral College, maybe the folks in these states that have been neglected, will wake up just by virtue of the candidates operating as if we had a democratic system that treated everyone equal.

LOPEZL Well, I think the reason why people are taking the chance is 2016 was a very bizarre election. I certainly didn’t think Trump had a chance of being elected. I don’t even think he thought he had a chance of being elected. And when you look at the Blue Wall, which you’ve probably discussed, you know, the idea of there are certain states that tend to just vote Democratic. We know that Trump pierced the wall with Wisconsin, Michigan, and Pennsylvania. So I think when you have such a large pool of Democratic candidates, they have to figure out a creative way to make an appeal to a much broader base or a more diverse base if you may meaning geographically and another ways too. And so I think the math right now is a little bit a of a wildcard and people are trying to figure out how to make things work what’s going to make them more electable.

And I think that a lot of that might play into the things that will underscore the value of having a National Popular Vote Interstate Compact. I think they’ll underscore some of the things that would make that a more viable a system for us. But I think that much of what you’re talking about is a result of what happened in 2016, I think 2020 is going to be very similar. I mean with the amount of candidates running on the Democratic ticket alone, I think that’s going to shape the elections even though we’re talking about the primaries now. It will certainly have an impact on the overall discourse, how the campaigns unfold, how they function, and eventually that’s going to impact the general election too.

HEFFNER: The two candidates so far who are arguing most passionately for an end to the way the College has operated to date and new rules for the Electoral College in their mind are necessary, are Beto O’Rourke and Pete Buttigieg.

These are men who represent or did represent Texas and Indiana. I think that is further evidence of your idea

LOPEZ: Right.

HEFFNER: that these folks who are campaigning in nontraditional Republican territory are making that point and they’re still going to these states now.

LOPEZ: They understand what it feels like to be left out of the electoral process at the national level. But they also understand there’s potential for change. I mean, one of the cases that we make when we talk about the Blue Wall, the Republicans, so they understand, we make a case for Florida, which is likely to become a blue state. Some of us debate whether Texas will. I think it will, and you look at cities like Austin and people like O’Rourke, for example I think you see the potential for things to change in those states. And that means further realignment and less swing states.

It makes, it actually makes the system worse, but these candidates understand that and that’s why they’re making this effort to make a different kind of outreach.

HEFFNER: And you don’t think that candidates who agree with the National Popular Vote will be chastised or looked down upon if they do go out and campaign all over the country? It doesn’t matter their position on the National Popular Vote if they are showing that every vote really does matter to them, whether it’s in the traditional Electoral College system or not?

LOPEZ: I think it depends on how they articulate it. I see a lot of Democrats making the case that they want to get rid of the Electoral College. Republicans don’t want that. This bill in a sense, again, it’s become a toxic word, but there’s a compromise value to it, which is saying look, let’s preserve the state’s right to allocate the college votes as the state sees fit.

HEFFNER: Right.

LOPEZ: But let’s put the weight of the popular vote on that system. You know, it’s, it’s really the best compromise between both parties. But the sound bites that you are hearing out there are basically centered around that debate.

HEFFNER: Beto and Pete, I think sound more like you in making the argument, I mean state, but I know who you’re referring to, coastal liberal communities that may position it differently. Let me ask you this: Is there a viable path for National Popular Vote movement efforts in referenda and initiatives? Can it be sanctioned by individual states through that process or are you only contemplating legislative completion of this?

LOPEZ: Our effort is focused on legislators. And the reason why is because of the way it’s set up in the Constitution. Legislators have to make that choice. Certainly, I would imagine that state could consult with their voters through a referendums and things like that, but I’m not sure if that’s a something we would be involved in.

HEFFNER: But how are you going to get traction in some of these states where it’s dead on arrival.

LOPEZ: That’s what, well, that’s one of the things that I’ve been helping the movement with. I go out to the grassroots.

HEFFNER: So how are you doing?

LOPEZ: I speak with the Republican Party leaders. I speak with activists from think tanks. I speak with people who have run for office but haven’t been successful and they’re still opinion leaders in the community. So basically I’m going out there and helping the organization deliver this message and make it clear that what it is that we’re doing. So again, I think the biggest misunderstanding is that we get rid of the Electoral College.

That’s not what the bill is for.

HEFFNER: Understood. But what are some states that our viewers might not expect this to have traction in? Don’t, you don’t have to reveal names of legislators who have said to you privately, I’m in, but what are some states where this may get further traction?

LOPEZ: I personally feel there could be a lot of great success in states like Utah and Oklahoma, Republican states. I think that,

HEFFNER: How about any big-ticket items? Not to be crass, but you’ve got to get to 270, you’re not hitting hundred yet.

LOPEZ: Yeah, that’s a really good question. I think the reality is that we’d probably be more focused on the smaller states. The bigger states, you know, when I think of big states that are going to see a change, it depends on what happens in the upcoming elections. If Florida becomes a bluer state, they’re going to be considering this bill because they’re no longer going to be a viable state in the and within that swing state block that the presidential candidates could exploit right now.

HEFFNER: But you said it’s a nonpartisan issue.

LOPEZ: It is a nonpartisan…

HEFFNER: So it, Republican legislatures chambers that are in control by the GOP. But so far, it’s only chambers that are in control by the Democrats that have moved this forward,

LOPEZ: I mean, but we also had a lot of Democrats oppose it. Like the governor for example, in a, in Nevada, we just saw that happen.

HEFFNER: Right.

LOPEZ: So here in New York Democrats, a lot of them opposed the bill while Republicans and conservatives supported it. You know, so it depends on the state and what’s going on and their analysis of how things could unfold in a presidential election.

HEFFNER: But right now it’s up to state legislatures

LOPEZ: Absolutely.

HEFFNER: And, and you’re saying in effect that state legislatures that have been dominated by the Republican Party have to be more co-equal,

LOPEZ: Correct.

HEFFNER: Representatively

LOPEZ: Yup.

HEFFNER: In order for this to get to the floor there have to be more active Democratic Party operations in states and large, small, medium.

We know that so many, you know, a super majority at one point of state legislatures were controlled by the GOP. So,

LOPEZ: Right,

HEFFNER: The more movement you see in co-equal representation in state legislatures, I would think you would get more traction. The reason I mention, in the couple minutes we have left initiatives and referenda is because it seems to me that in, we’re not going to get immediate changes with respect to composition, partisan composition in South Carolina, Georgia, Tennessee. So maybe if you require folks to have the debate, maybe you need an initiative or a referendum, it would be a vote that requires the state constitution to consider this question. And that’s why I think that maybe those tools could help you legislate this because if the compact, I mean, in some states you might be able to get it on the ballot.

And so to close, maybe just answer these two questions,

LOPEZ: All right.

HEFFNER: Would it be acceptable if it was approved by the people in a referendum? Would that be acceptable according to the compact rules? And second, can you use those tools to help get the debate started in the state legislatures?

LOPEZ: I think that the answer to the second question is that that could be a catalyst to having the debate become more vigorous and robust piece, you know, in any given state. I think the first question; I think that our organization is really focused on letting the states decide how they’re going to get to that point. We just advocate for the compact, whether they choose to have referendums or anything that would elevate, escalate the debate within their state, that would be up to them completely. But our philosophy really is to preserve the state’s right to do something.

And so when we talk about constitutional changes and things like that, one thing that our compact states is if a state wants to pull out of this agreement, they’re welcome to do so. So there’s a certain amount of pliability and it’s a very conservative perspective in a lot of ways that we try to preserve.

HEFFNER: But if the state constitution allows for changes to the constitution via a vote among South Carolinians for instance, that would be acceptable to you, if the, if the state governing itself says you the people South Carolina can decide if we enter into this pact.

LOPEZ: It would certainly be acceptable. But our mission has been focused on ushering legislators to support the bill and to agree with the bill. So the mechanisms and the instruments that they use to get to that point is a different story.

HEFFNER: It’s up to them.

LOPEZ: Exactly.

HEFFNER: Thank you for your time today, Ed.

LOPEZ: Thanks for having me on here.

HEFFNER: And thanks to you in the audience. I hope you join us again next time for thoughtful excursion into the world of ideas. Until then, keep an open mind. Please visit The Open Mind website at Thirteen.org/OpenMind to view this program online or to access over 1,500 other interviews and do check us out on Twitter and Facebook @OpenMindTV for updates on future programming.