National Popular Vote Interstate Compact
|Status as of 17 April 2013[update]|
Enacted into law
Each square in the lower cartogram
The National Popular Vote Interstate Compact (NPVIC) is an agreement among various states and the District of Columbia to replace their current rules regarding the apportionment of presidential electors with rules guaranteeing the election of the candidate with the most popular votes in all fifty states and the District of Columbia. Coming in the form of an interstate compact, the agreement goes into effect once law in states that together have 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 May 2013, the compact has been joined by eight states and the District of Columbia (see map). Their 132 combined electoral votes amount to 24.5% of the Electoral College, and 49% of the 270 votes needed for the compact to go into effect.
The compact is based on Article II, Section 1 of the U.S. Constitution, which gives each state legislature the right to decide how to appoint 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 popular votes statewide.
Details of the compact law
- The member state shall hold presidential elections by statewide popular vote.
- After the election, the state's chief election official (usually the state Secretary of State) shall certify the number of popular votes cast in the state for each candidate and report those results to the other states by a specific deadline.
- The chief election official shall then determine "national popular vote totals" for each candidate by adding up the vote totals reported by every state (including states that have not adopted the compact) and the District of Columbia. (Under current federal law, each state is required to make official reports of vote totals to the federal government in the form of Certificates of Ascertainment.)
- The state's electoral votes shall be awarded to the candidate with the greatest "national popular vote total" (a plurality).
The compact specifies that it shall take effect only if it is law in states controlling a majority of electoral votes on July 20 of a presidential election year. States wishing to join or withdraw from the compact after that date would not be able to do so until after January 20 of the following year.
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. The fundamental democratic principle of "One man, one vote" was violated in those cases. In the 2000 election, the outcome was decided by fewer than 500 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:
Focus of campaigning
Supporters of the compact argue that under the current system, campaign focus – in terms of advertising spending, visits, and addressing of regional or state issues – is largely limited to the few swing states whose electoral outcomes are competitive, with politically "solid" states mostly ignored. 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 reduce the likelihood of a close election and decrease the feasibility of fraud. They contend that the large nationwide pool of 122 million votes would make a close outcome much less likely than it is under the current system, in which the national winner may be determined by an extremely small vote margin in any one of the numerous statewide tallies.
Large states versus small states
There is debate over whether the Electoral College favors small or large population states. Those who argue that it favors small states point out that such states have more electoral votes relative to their populations (since the number of electors equals the number of representatives, based on population, plus two, because there are two senators). Others, however, believe that since most states award electoral votes on a winner-takes-all system, the potential of large states to shift greater numbers of electoral votes gives them more actual clout. The proposed compact would treat all voters equally, regardless of what state they live in.
Third-party candidates and polarization
|This section does not cite any references or sources. (January 2013)|
NPV opponents such as Pierre Du Pont have argued that a national popular vote could lead to change in the two-party system because the difficulty of winning electoral votes under current rules may discourage third party and independent candidates from running. Supporters of the compact point out that third party candidates and independents run under the current rules and that popular vote elections are the method by which Americans elect their governors, members of Congress and other partisan offices that are nearly always won by the major parties.
Possible partisan advantage
Some supporters and opponents of the NPVIC have based their position at least in part on the 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 by noting that historically both Republicans and Democrats have been successful in winning the popular vote in past presidential elections. In the last four elections, Democrats enjoyed an advantage from the electoral vote system in 2012, 2008, and 2004, whereas in 2000 Republicans had an advantage.
Electoral votes not necessarily awarded to statewide winner
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 statewide. Both states have since enacted laws joining the compact. Supporters of the compact have countered that under the popular vote system, the awarding of electoral votes would be effectively irrelevant; that giving the state's electoral votes to the national winner would be a mere symbolic formality with no political meaning, because the popular vote would have already determined the outcome.
Supporters believe the compact is legal because Article II of the US Constitution 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….||”|
These supporters include Jamie Raskin, who co-sponsored the first NPVIC bill to be signed into law, and Akhil Reed Amar and Vikram Amar, who are among the nation's more visible scholars in constitutional law and who were the compact's original proponents.
A law review note by a law school student, David Gringer suggested that the NPVIC could potentially violate the Voting Rights Act, but the Department of Justice in 2012 precleared California's entry into the compact under Section Five of the Voting Rights Act, concluding that the compact had no adverse impact on California's racial minority voters. Its decision underscores the argument of Robert Richie, executive director of FairVote, who said he was "confident in the legality of a rule change that 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.
Possible need for congressional approval
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.
The U.S. Supreme Court has ruled in Virginia v. Tennessee, 148 U.S. 503 (1893), and 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, an opponent of the compact, argues that the NPVIC would nonetheless affect the federal system in such a way that it requires Congressional approval. Regardless, supporters of the NPVIC plan to seek congressional approval if the compact is approved by a sufficient number of states.
As demonstrated by the 2000 presidential election in which the disputed outcome in Florida tipped the balance of who would be the next president, a recount is difficult to do in presidential elections. State rules regarding recounts vary widely, and many states would have difficulty conducting a litigated recount in the time allotted to states before they must choose their presidential electors.
The compact does not have a provision for a national recount if the national popular vote outcome is disputed. Although many individual states have provisions for an automatic recount if the popular vote in the state is disputed and other states allow for candidates to pay for recounts even when the outcome is not close, this may not be sufficient for conducting a national recount under current law. It is possible for the national popular vote to be close even when none of the individual states' popular votes are close.
Proponents of the national popular vote plan argue that the need for a recount is less likely under a national popular vote than under current rules and that federal legislation could establish national guidelines for presidential election recounts.
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 Gov. 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.
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, New York, North Carolina and Oregon. In Colorado and Rhode Island, the legislation has passed in both chambers. Bills to repeal the compact have been introduced in Maryland and New Jersey, but both failed.
Two measures titled "Presidential Electors. Allocation by National Popular Vote. Interstate Agreement. Statute" were filed as California ballot propositions, but failed to get on the ballot. These attempted ballot propositions were obviated by the legislative passage of the NPVIC in California in August 2011.
|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|
|Total||132 (48.9% of the 270 EV needed)|
State-by-state legislative history
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|
|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||died in committee||—||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|
|29||2011||A00489, S4208||not voted on||passed||—||failed|
|North Carolina||15||2007–08||H1645, S954||died in committee||passed||—||failed|
|North Dakota||3||2007||HB 1336||failed||—||—||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|
|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|
Currently active bills
|State||EVs||Session||Bill(s)||Lower house||Upper house||Executive||Status|
|Minnesota||10||2013–14||HF799, SF585||failed 62-71, back in committee||in committee||—||pending|
|New York||29||2013||A4422, S3149||passed||in committee||—||pending|
|Oregon||7||2013||HB 3077, SB 624||passed||in committee||—||pending|
|Rhode Island||4||2013||H 5575, S 346||passed||passed||pending||pending|
- National Popular Vote Inc.
- United States Electoral College
- Every Vote Counts Amendment
- Electoral reform in the United States
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- Election Law Journal Symposium on National Popular Vote
- National Popular Vote
- Agreement Among the States to Elect the President by Nationwide Popular Vote – text of the interstate compact
- Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote – read or download book for free
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- Electoral College legislation at the National Conference of State Legislatures