National Popular Vote Interstate Compact
The National Popular Vote Interstate Compact (NPVIC) is an agreement among several U.S. states plus the District of Columbia to allocate their presidential electors to the winner of the national popular vote, rather than to the winner of the popular vote of their particular state. Proposed in the form of an interstate compact, the agreement would go into effect among the assenting states once the states in the compact collectively represent an absolute majority of votes (at least 270) in the Electoral College. In the next presidential election, those states would award all their electoral votes to the national popular vote winner, who would become President by winning a majority of votes in the Electoral College. Until the compact's conditions are met, all states will award electoral votes in their current manner.
As of September 2014[update], the compact had been joined by ten states and the District of Columbia. Their 165 combined electoral votes amount to 30.7% of the total Electoral College vote, and 61.1% of the 270 votes needed for the compact to go into effect. In addition to these jurisdictions, NPVIC legislation is pending in two states.
The compact would modify the way participating states implement Article II, Section 1, Clause 2 of the U.S. Constitution, which requires each state legislature to define a method to appoint its electors to vote in the Electoral College. As the Constitution does not mandate any particular legislative scheme for selecting electors, state legislatures are vested with the exclusive power to choose how to allocate its own electors. States have chosen various methods of allocation over the years, with regular changes in the nation's early decades. Today, all but two states (Maine and Nebraska) award all their electoral votes to the candidate with the most votes statewide.
- 1 Text
- 2 Motivation behind the compact
- 3 Debate
- 4 History
- 5 Prospects
- 6 See also
- 7 References
- 8 External links
Agreement Among the States to Elect the President by National Popular Vote
—Any State of the United States and the District of Columbia may become a member of this agreement by enacting this agreement.
—Each member state shall conduct a statewide popular election for President and Vice President of the United States.
—Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a “national popular vote total” for each presidential slate.
—The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the “national popular vote winner.”
—The 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.
—At least six days before the day fixed by law for the meeting and voting by the presidential electors, each member state shall make a final determination of the number of popular votes cast in the state for each presidential slate and shall communicate an official statement of such determination within 24 hours to the chief election official of each other member state.
—The chief election official of each member state shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate made by the day established by federal law for making a state’s final determination conclusive as to the counting of electoral votes by Congress.
—In event of a tie for the national popular vote winner, the presidential elector certifying official of each member state shall certify the appointment of the elector slate nominated in association with the presidential slate receiving the largest number of popular votes within that official’s own state.
—If, for any reason, the number of presidential electors nominated in a member state in association with the national popular vote winner is less than or greater than that state’s number of electoral votes, the presidential candidate on the presidential slate that has been designated as the national popular vote winner shall have the power to nominate the presidential electors for that state and that state’s presidential elector certifying official shall certify the appointment of such nominees.
—The chief election official of each member state shall immediately release to the public all vote counts or statements of votes as they are determined or obtained.
—This article shall govern the appointment of presidential electors in each member state in any year in which this agreement is, on July 20, in effect in states cumulatively possessing a majority of the electoral votes.
—This agreement shall take effect when states cumulatively possessing a majority of the electoral votes have enacted this agreement in substantially the same form and the enactments by such states have taken effect in each state.
—Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.
—The chief executive of each member state shall promptly notify the chief executive of all other states of when this agreement has been enacted and has taken effect in that official’s state, when the state has withdrawn from this agreement, and when this agreement takes effect generally.
—This agreement shall terminate if the electoral college is abolished.
—If any provision of this agreement is held invalid, the remaining provisions shall not be affected.
—For purposes of this agreement, “chief executive” shall mean the Governor of a State of the United States or the Mayor of the District of Columbia;
—“elector slate” shall mean a slate of candidates who have been nominated in a state for the position of presidential elector in association with a presidential slate;
—“chief election official” shall mean the state official or body that is authorized to certify the total number of popular votes for each presidential slate;
—“presidential elector” shall mean an elector for President and Vice President of the United States;
—“presidential elector certifying official” shall mean the state official or body that is authorized to certify the appointment of the state’s presidential electors;
—“presidential slate” shall mean a slate of two persons, the first of whom has been nominated as a candidate for President of the United States and the second of whom has been nominated as a candidate for Vice President of the United States, or any legal successors to such persons, regardless of whether both names appear on the ballot presented to the voter in a particular state;
—“state” shall mean a State of the United States and the District of Columbia; and
—“statewide popular election” shall mean a general election in which votes are cast for presidential slates by individual voters and counted on a statewide basis.
Motivation behind the compact
Public opinion surveys suggest that a majority of Americans support the idea of a popular vote for President. A 2007 poll found that 72% favored replacing the Electoral College with a direct election, including 78% of Democrats, 60% of Republicans, and 73% of independent voters. Polls dating back to 1944 have shown a consistent majority of the public supporting a direct vote. Reasons behind the compact include:
- The Electoral College allows a candidate to win the Presidency while losing the popular vote, as happened in the elections of 1824, 1876, 1888 and 2000. In the 2000 election, the outcome was decided by 528 votes in Florida.
- The Electoral College system effectively forces candidates to focus disproportionately on a small percentage of pivotal swing states, while sidelining the rest. A study by FairVote reported that the 2004 candidates devoted three quarters of their peak season campaign resources to just five states, while the other 45 states received very little attention. The report also stated that 18 states received no candidate visits and no TV advertising. This means that swing state issues receive more attention, while issues important to other states are largely ignored.
- The Electoral College system tends to decrease voter turnout in states without close races. Voters living outside the swing states have a greater certainty of which candidate is likely to win their state. This knowledge of the probable outcome decreases their incentive to vote. A report by the Committee for the Study of the American Electorate found that 2004 voter turnout in competitive swing states grew by 6.3% from the previous presidential election, compared to an increase of only 3.8% in noncompetitive states. A report by The Center for Information and Research on Civic Learning and Engagement (CIRCLE) found that turnout among eligible voters under age 30 was 64.4% in the 10 closest battleground states and only 47.6% in the rest of the country—a 17% gap.
- See also: Criticism of the Electoral College
The project has been supported by editorials in many newspapers, including the New York Times, the Chicago Sun-Times, the Los Angeles Times, the Boston Globe, and the Minneapolis Star Tribune, arguing that the existing system discourages voter turnout and leaves emphasis on only a few states and a few issues, while a popular election would equalize voting power. Others have argued against it, including the Honolulu Star-Bulletin. An article by Pierre S. du Pont, IV, a former governor of Delaware, in the opinion section of the Wall Street Journal has called the project an urban power grab that would shift politics entirely to urban issues in high population states and allow lower caliber candidates to run. A collection of readings pro and con has been assembled by the League of Women Voters.
Some of the major points of debate are detailed below:
Supporters of the compact argue that under the current system, campaign focus – in terms of spending, visits, and attention paid to regional or state issues – is largely limited to the few swing states whose electoral outcomes are competitive, with politically "solid" states mostly ignored by the campaigns. The maps to the right illustrate the amount spent on advertising and the number of visits to each state, relative to population, by the two major-party candidates in the last stretch of the 2004 presidential campaign. Supporters of the compact contend that a national popular vote would encourage candidates to campaign with equal effort for votes in competitive and non-competitive states alike. Critics of the compact argue that candidates would have less incentive to focus on states with smaller populations or fewer urban areas, and would thus be unmotivated to address rural issues.
Close elections and election fraud
Opponents of the compact have raised concerns about election fraud. In his article, Pete du Pont argues that in 2000, "Mr. Gore's 540,000-vote margin amounted to 3.1 votes in each of the country's 175,000 precincts. 'Finding' three votes per precinct in urban areas is not a difficult thing...". However, National Popular Vote has argued that a direct election would in fact reduce the likelihood of a close election and decrease the feasibility of fraud. They contend that the large pool of 122 million votes spread across the country would make a close or fraudulent outcome much less likely than under the current system, in which the national winner may be determined by an extremely small vote margin in any one of the fifty-one statewide tallies.
The NPVIC does not include any provision for a nationwide recount in the event that the vote tally is in dispute. While each state has established rules governing recounts in the event of a close or disputed statewide tally, it is possible for the national vote to be close without there being a close result in any one state. Proponents of the compact argue that the need for a recount would be less likely under a national popular vote than under the current electoral system.
Populous states versus low-population states
There is some debate over whether the Electoral College favors small- or large-population states. Those who argue that the College favors low-population states point out that such states have proportionally more electoral votes relative to their populations, because each state's number of electors is greater by two than its (proportionally allocated) number of Congressional representatives. In the most populous state, California, this results in an electoral clout 16% smaller than a purely proportional allocation would produce, whereas the least-populous states, with three electors, hold a voting power 143% greater than they would under purely proportional allocation. The proposed compact would give equal weight to each voter's ballot, regardless of what state they live in. Others, however, believe that since most states award electoral votes on a winner-takes-all system, the potential of populous states to shift greater numbers of electoral votes gives them more actual clout.
Possible partisan advantage
Some supporters and opponents of the NPVIC have based their position at least in part on a perceived partisan advantage of the compact. Governor Du Pont, a Republican, has argued that the compact would be an "urban power grab" and benefit Democrats. However, Saul Anuzis of the Republican National Committee wrote that Republicans "need" the compact, citing what he believes to be the center-right nature of the American electorate. New Yorker essayist Hendrik Hertzberg maintains that the compact would benefit neither party, noting that historically both Republicans and Democrats have been successful in winning the popular vote in presidential elections. In the last four elections, Democrats enjoyed an advantage from the electoral vote system in three elections (2012, 2008, and 2004), whereas in 2000 the electoral system provided the Republicans with an advantage.
Irrelevance of state-level majorities
Two governors who have vetoed NPVIC legislation, Arnold Schwarzenegger of California and Linda Lingle of Hawaii, both in 2007, objected to the compact on the grounds that it could require their states' electoral votes to be awarded to a candidate who did not win a majority in their state. (Both states have since enacted laws joining the compact.) Supporters of the compact counter that under a national popular vote system, to consider state-level majorities is to miss the point of the compact; in any state, votes cast contribute to the nationwide tally, which determines the winner. The preferences of individual voters are thus paramount, while state-level majorities are an obsolete intermediary.
Supporters believe the compact is legal under Article II of the U.S. Constitution, which establishes the plenary power of the states to appoint their electors in any manner they see fit: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…" Proponents of this position include law professors Jamie Raskin, who co-sponsored the first NPVIC bill to be signed into law, and Akhil Reed Amar and Vikram Amar, who were the compact's original proponents. The Supreme Court affirmed this position as recently as 2000, in Bush v. Gore.[original research?]
A 2008 assessment by law school student David Gringer suggested that the NPVIC could potentially violate the Voting Rights Act of 1965, but the U.S. Department of Justice in 2012 precleared California's entry into the compact under Section 5 of the Act, concluding that the compact had no adverse impact on California's racial minority voters. The DOJ's decision is consistent with the argument of FairVote's Rob Richie that the NPVIC "treats all voters equally."
Gringer also assailed the NPVIC as "an end-run around the constitutional amendment process." Raskin has responded: "the term 'end run' has no known constitutional or legal meaning. More to the point, to the extent that we follow its meaning in real usage, the 'end run' is a perfectly lawful play." Raskin argues that the adoption of the term "end run" by the compact's opponents is a tacit acknowledgment of the plan's legality.
Ian Drake, an assistant professor of Political Science and another critic of the compact, has argued that the constitution both requires and prohibits Congressional approval of the compact. In Drake's view, only a constitutional amendment could make the compact valid. Authors Michael Brody, Jennifer Hendricks, and Bradley Turflinger have examined the compact and concluded that the NPVIC, if successfully enacted, would pass constitutional muster.
It is possible that Congress would have to approve the NPVIC before it could go into effect. Article I, Section 10 of the US Constitution states that: "No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State, or with a foreign Power." However, the U.S. Supreme Court has ruled in Virginia v. Tennessee, 148 U.S. 503 (1893), and in several more recent cases, that such consent is not necessary except where a compact encroaches on federal supremacy. Every Vote Equal argues that the compact could never encroach upon federal power since the Constitution explicitly gives the power of casting electoral votes to the states, not the federal government. Derek Muller argues that the NPVIC would nonetheless affect the federal system in such a way that it would require Congressional approval, while Ian Drake argues that Congress is actually prohibited under the Constitution from granting approval to the NPVIC. NPVIC supporters dispute this conclusion and state they plan to seek congressional approval if the compact is approved by a sufficient number of states.
The idea of abolishing the Electoral College by constitutional amendment has existed for some time (see Every Vote Counts Amendment). Though voting rights and electoral rules have been modified by constitutional amendment in the past, such amendments are difficult to pass because they require supermajorities in the House and Senate together with the support of three-fourths of the state legislatures.
In 2001 Northwestern University law professor Robert Bennett suggested a plan in an academic publication to implement a National Popular Vote through a mechanism that would embrace state legislatures’ power to appoint electors, rather than resist that power. By coordinating, states constituting a majority of the Electoral College could effectively implement a popular vote.
Law professors (and brothers) Akhil Reed Amar and Vikram Amar defended the constitutionality of such a plan. They proposed that a group of states, through legislation, form a compact wherein they agree to give all of their electoral votes to the national popular vote winner, regardless of the balance of votes in their own state. These state laws would only be triggered once the compact included enough states to control a majority of the electoral college (270 votes), thus guaranteeing that the national popular vote winner would also win the electoral college.
The academic plan uses two constitutional features:
- Presidential Electors Clause in Article 2, section 1, clause 2 which gives each state the power to determine the manner in which its electors are selected.
- Compact Clause, Article I, section 10, clause 3 under which it creates an enforceable compact.
The Amar brothers noted that such a plan could be enacted by the passage of laws in as few as eleven states and would probably not require Congressional approval, though this is not certain (see Debate above).
Organization and advocacy
|This section needs additional citations for verification. (January 2013)|
In 2006, John Koza, a computer science professor at Stanford, was the lead author of Every Vote Equal, a book that makes a detailed case for his plan for an interstate compact to establish National Popular Vote. (Koza had previously had exposure to interstate compacts from his work with state lottery commissions after inventing the scratch-off lottery ticket.) That year, Koza, Barry Fadem and others formed National Popular Vote, a non-profit group to promote the legislation. The group has a transpartisan advisory committee including former US Senators Jake Garn, Birch Bayh, and David Durenberger, and former Representatives John Anderson, John Buchanan, and Tom Campbell.
By the time of the group's opening news conference in February 2006, the proposed interstate compact had been introduced in the Illinois legislature. With backing from National Popular Vote, the NPVIC legislation was introduced in five additional state legislatures in the 2006 session. It passed in the Colorado Senate and in both houses of the California legislature before being vetoed by Governor Arnold Schwarzenegger.
In 2007, NPVIC legislation was introduced in 42 states. It was passed by legislative chambers in Arkansas, California, Colorado, Illinois, New Jersey North Carolina, Maryland, and Hawaii. In California and Hawaii, it was prevented from becoming law by the respective governors. Maryland became the first state to join the compact when Governor Martin O'Malley signed it into law on April 10, 2007.
New Jersey became the second state to enter the compact when Governor Jon S. Corzine signed the bill on January 13, 2008. Illinois became the third state to join when Governor Rod Blagojevich signed it into law on April 7, 2008 and Hawaii became the fourth on May 1, 2008, after the legislature overrode a second veto from the governor. Washington became the fifth state to join when Governor Christine Gregoire signed it into law on April 28, 2009. Massachusetts became the sixth state to join when Governor Deval Patrick signed it into law on August 4, 2010. The District of Columbia entered into the compact when the bill was signed by Mayor Adrian Fenty on October 12, 2010. (Neither chamber of Congress objected to the passage of the bill during the mandatory review period of 30 legislative days following that date, thus allowing the District's action to proceed.) Vermont joined the compact when Governor Peter Shumlin signed it into law on April 22, 2011. California entered the compact on August 8, 2011, with Governor Jerry Brown's signature. Rhode Island entered the compact on July 12, 2012, with Governor Lincoln Chafee's signature. On April 15, 2014, New York entered the compact with a bipartisan vote in the NY assembly and Governor Andrew Cuomo's signature.
NPVIC legislation has been introduced in all 50 states. States where only one chamber has adopted the legislation are Arkansas, Connecticut, Delaware, Maine, Michigan, Nevada, New Mexico, North Carolina, Oklahoma and Oregon. In Colorado the legislation has passed in both chambers (at different times). Bills seeking to repeal the compact in Maryland, Washington and New Jersey have failed.
|1||Maryland||10||April 10, 2007|
|2||New Jersey||14||January 13, 2008|
|3||Illinois||20||April 7, 2008|
|4||Hawaii||4||May 1, 2008|
|5||Washington||12||April 28, 2009|
|6||Massachusetts||11||August 4, 2010|
|7||District of Columbia||3||December 7, 2010|
|8||Vermont||3||April 22, 2011|
|9||California||55||August 8, 2011|
|10||Rhode Island||4||July 12, 2013|
|11||New York||29||April 15, 2014|
|Total||165 (61.1% of the 270 EV needed)|
Bills in previous sessions
The table below lists the status of past bills that received a floor vote in at least one chamber of the state's legislature. Bills which failed without a floor vote are not listed. The "EVs" column indicates the current number of electoral votes a state has. This number may have changed since a bill's introduction due to reapportionment following the 2010 Census.
|State||EVs||Session||Bill(s)||Lower house||Upper house||Executive||Status|
|Arkansas||6||2007||HB 1703||passed||died in committee||—||failed|
|6||2009||HB 1339||passed||died in committee||—||failed|
|Colorado||9||2006||SB 06-223||died in committee||passed||—||failed|
|9||2007||SB 07-046||died in committee||passed||—||failed|
|9||2009||HB 1299||passed||not voted on||—||failed|
|Connecticut||7||2009||HB 6437||passed||died in committee||—||failed|
|District of Columbia||3||2009–10||B18-0769||passed||signed||law|
|Delaware||3||2009–10||HB 198||passed||not voted on||—||failed|
|3||2011||HB 55||passed||died in committee||—||failed|
|Hawaii||4||2007||HB 234, SB 1956||did not override veto||overrode veto||vetoed||failed|
|4||2008||HB 3013, SB 2898||overrode veto||overrode veto||veto overridden||law|
|Illinois||20||2007–08||HB 858, HB 1685, SB 78||passed||passed||signed||law|
|Louisiana||8||2012||HB 1095, SB 705||failed||not voted on||—||failed|
|Maine||4||2007–08||LD 1744||indef. postponed||passed||—||failed|
|4||2013-14||LD 511, S 201||failed 60-85||failed 17-17||—||failed|
|Maryland||10||2007||HB 148, SB 634||passed||passed||signed||law|
|Massachusetts||11||2007–08||HB 4952, SB 445||passed||passed||not sent||failed|
|Michigan||16||2007–08||HB 6610||passed 65-36||died in committee||—||failed|
|Minnesota||10||2013–14||HF799, SF585||failed 62-71||died in committee||—||failed|
|Nebraska||5||2014||LB1058||passed committee, not voted on||—||failed|
|Nevada||6||2009||AB 413||passed||died in committee||—||failed|
|New Jersey||14||2006–07||A 4225, S 2695||passed||passed||signed||law|
|New Mexico||5||2009||HB 383||passed||not voted on||—||failed|
|New York||29||2010||A1580B, S2286A||not voted on||passed||—||failed|
|2011||A00489, S4208||not voted on||passed||—||failed|
|2013||A4422, S3149||passed||died in committee||—||failed|
|North Carolina||15||2007–08||H1645, S954||died in committee||passed||—||failed|
|North Dakota||3||2007||HB 1336||failed||—||—||failed|
|Oklahoma||7||2014||SB906||died in committee||passed||—||failed|
|Oregon||7||2013||HB 3077, SB 624||passed||died in committee||—||failed|
|Rhode Island||4||2008||H 7707, S 2112||passed||passed||vetoed||failed|
|4||2009||HB 5569, SB 161||failed||passed||—||failed|
|4||2011||HB 5659, SB 164||not voted on||passed||—||failed|
|4||2013||H 5575, S 346||passed||passed||signed||law|
|Vermont||3||2007–08||H 373, S 270||passed||passed||vetoed||failed|
|3||2009–10||S 34||died in committee||passed||—||failed|
|Washington||12||2007–08||HB 1750, SB 5628||died in committee||passed||—||failed|
|12||2009–10||HB 1598, SB 5599||passed||passed||signed||law|
Psephologist Nate Silver wrote that with swing states unlikely to support a compact that reduced their disproportionate influence, the apparent lack of Republican support is likely to prove fatal for the compact; as of 2014[update] all the states that have adopted the compact are "blue states", ranking within the 14 strongest vote shares for Barack Obama in the 2012 Presidential Election.
- National Popular Vote Inc.
- Electoral College (United States)
- Every Vote Counts Amendment
- Electoral reform in the United States
- National Popular Vote – Progress by State
- Brody, Michael (February 17, 2013). "Circumventing the Electoral College: Why the National Popular Vote Interstate Compact Survives Constitutional Scrutiny Under the Compact Clause". Legislation and Policy Brief (Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law) 5 (1): 33, 35. Retrieved September 11, 2014.
- McPherson v. Blacker 146 U.S. 1 (1892)
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- In 2012, the tipping point state - which put the winner over 270 electoral votes - was Colorado, which voted Democratic by 5.4% (opposed to a 3.7% national margin), a 1.7% Democratic advantage. In 2008, the tipping point state was also Colorado, which voted Democratic by 8.9%, compared to a 7.2% national margin - a 1.7% Democratic advantage. In 2004, the tipping point state was Ohio, which voted Republican by 2.1%, compared to a national margin of 2.4% - a 0.3% Democratic advantage. In 2000, the tipping point state was (famously) Florida, which was effectively tied, while the nation voted Democratic by a 0.5% margin - a 0.5% Republican advantage.
- SB-37, quoted on page 8
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The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U.S. Const., Art. II, §1. This is the source for the statement in McPherson v. Blacker, 146 U.S. 1, 35 (1892), that the State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. Id., at 28—33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.
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- Circumventing the Electoral College: Why the National Popular Vote Interstate Compact Survives Constitutional Scrutiny Under the Compact Clause
- Popular Election of the President: Using or Abusing the Electoral College? by Jennifer Hendricks :: SSRN
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- "Background on Interstate Compacts". Every Vote Equal (PDF). Retrieved June 15, 2008.
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