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National Popular Vote Interstate Compact

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National Popular Vote Interstate Compact
Status as of November 2020:
NPVIC cartogram base.svg
MD green.svg
NJ green.svg
IL green.svg
HI green.svg
WA green.svg
MA green.svg
DC green.svg
VT green.svg
CA green.svg
RI green.svg
NY green.svg
CT green.svg
CO green.svg
DE green.svg
NM green.svg
OR green.svg
OH yellow.svg
PA yellow.svg
SC yellow.svg
TX yellow.svg
VA yellow.svg
NPVIC top.svg
0
270
538

Each square in the cartogram represents one electoral vote.

  •   Enacted – 196 EVs (36.4% of Electoral College)
  •   Pending – 98 EVs (18.2%)
  •   Neither enacted nor pending – 244 EVs (45.4%)[1]
  • | Threshold for activation – 270 EVs (>50%)
DraftedJanuary 2006
EffectiveNot in effect
ConditionAdoption by states (including the District of Columbia) whose collective electoral votes represent a majority in the Electoral College. Note: The agreement would be in effect only among the assenting political entities.
Signatories
Agreement Among the States to Elect the President by National Popular Vote at Wikisource

The National Popular Vote Interstate Compact (NPVIC) is an agreement among a group of U.S. states and the District of Columbia to award all their electoral votes to whichever presidential candidate wins the overall popular vote in the 50 states and the District of Columbia. The compact is designed to ensure that the candidate who receives the most votes nationwide is elected president, and it would come into effect only when it would guarantee that outcome.[2][3] As of November 2020, it has been adopted by fifteen states and the District of Columbia. These states have 196 electoral votes, which is 36% of the Electoral College and 73% of the 270 votes needed to give the compact legal force.

Certain legal questions may affect implementation of the compact. Some legal observers believe states have plenary power to appoint electors as prescribed by the compact; others believe that the compact will require congressional consent under the Constitution's Compact Clause or that the presidential election process cannot be altered except by a constitutional amendment.

Mechanism

Taking the form of an interstate compact, the agreement would go into effect among participating states only after they collectively represent an absolute majority of votes (currently at least 270) in the Electoral College. Once in effect, in each presidential election the participating states would award all of their electoral votes to the candidate with the largest national popular vote total across the 50 states and the District of Columbia. As a result, that candidate would win the presidency by securing a majority of votes in the Electoral College. Until the compact's conditions are met, all states award electoral votes in their current manner.

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. The Constitution does not mandate any particular legislative scheme for selecting electors, and instead vests state legislatures with the exclusive power to choose how to allocate their states' electors (although systems that violate the 14th Amendment, which mandates equal protection of the law and prohibits racial discrimination, would be prohibited).[3][4] 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 single candidate with the most votes statewide (the so-called "winner-take-all" system). Maine and Nebraska currently award one electoral vote to the winner in each congressional district and their remaining two electoral votes to the statewide winner.

The compact would no longer be in effect should the total number of electoral votes held by the participating states fall below the threshold required, which could occur due to withdrawal of one or more states, changes due to the decennial congressional re-apportionment or an increase in the size of Congress, for example by admittance of a 51st state. The compact mandates a July 20 deadline in presidential election years, six months before Inauguration Day, to determine whether the agreement is in effect for that particular election. Any withdrawal by a participating state after that deadline will not become effective until the next President is confirmed.[5]

Motivation

Elections in which the popular vote winner lost
Election Election winner Popular winner Difference Turnout[6]
1824 Adams 30.9% 113,122 Jackson 41.4% 157,271 10.5% 44,149 26.9%
1876 Hayes 47.9% 4,034,311 Tilden 50.9% 4,288,546 3.0% 254,235 82.6%
1888 Harrison 47.8% 5,443,892 Cleveland 48.6% 5,534,488 0.8% 90,596 80.5%
2000 Bush 47.9% 50,456,002 Gore 48.4% 50,999,897 0.5% 543,895 54.2%
2016 Trump 46.1% 62,984,828 Clinton 48.2% 65,853,514 2.1% 2,868,686 60.1%

Reasons given for the compact include:

  • The current Electoral College system allows a candidate to win the Presidency while losing the popular vote, an outcome seen as counter to the one person, one vote principle of democracy.[7] This happened in the elections of 1824, 1876, 1888, 2000, and 2016.[8] (The 1960 election is also a disputed example.[9]) In the 2000 election, for instance, Al Gore won 543,895 more votes nationally than George W. Bush, but Bush secured five more electors than Gore, in part due to a narrow Bush victory in Florida; in the 2016 election, Hillary Clinton won 2,868,691 more votes nationally than Donald Trump, but Trump secured 77 more electors than Clinton, in part due to narrow Trump victories in Michigan, Pennsylvania, and Wisconsin (a cumulative 77,744 votes).
  • State winner-take-all laws encourage candidates to focus disproportionately on a limited set of swing states (and in the case of Maine and Nebraska, swing districts), as small changes in the popular vote in those areas produce large changes in the electoral college vote. For example, in the 2016 election, a shift of 2,736 votes (or less than 0.4% of all votes cast) toward Donald Trump in New Hampshire would have produced a four electoral vote gain for his campaign. A similar shift in any other state would have produced no change in the electoral vote, thus encouraging the campaign to focus on New Hampshire above other states. 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.[10] This means that swing state issues receive more attention, while issues important to other states are largely ignored.[11][12][13]
  • State winner-take-all laws tend 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.[11][13] 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 ten closest battleground states and only 47.6% in the rest of the country – a 17% gap.[14]

Debate

This section describes purported pros and cons of adopting the NPVIC; legal issues relating to its adoption are discussed in § Legality.

The project has been supported by editorials in newspapers, including The New York Times,[11] the Chicago Sun-Times, the Los Angeles Times,[15] The Boston Globe,[16] and the Minneapolis Star Tribune,[17] 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.[18] Pete du Pont, a former Governor of Delaware, in an opinion piece in The Wall Street Journal, 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.[19] A collection of readings pro and con has been assembled by the League of Women Voters.[20] Some of the most common points of debate are detailed below:

Protective function of Electoral College

Certain founders conceived of the Electoral College as a[failed verification] deliberative body which would weigh the inputs of the states, but not be bound by them, in selecting the president, and would therefore serve to protect the country from the election of a person who is unfit to be president.[21] However, the Electoral College has never served such a role in practice. From 1796 onward, presidential electors have acted as "rubber stamps" for their parties' nominees. As of 2016, no election outcome has been determined by an elector deviating from the will of their state.[22] Journalist and commentator Peter Beinart has cited the election of Donald Trump, who some, he notes, view as unfit, as evidence that the Electoral College does not perform a protective function.[23] Furthermore, thirty-two states and the District of Columbia have laws to prevent such "faithless electors",[24][25] and such laws were upheld as constitutional by the Supreme Court in 2020 in Chiafalo v. Washington.[26] The National Popular Vote Interstate Compact does not eliminate the Electoral College or affect faithless elector laws; it merely changes how electors are pledged by the participating states.

Campaign focus on swing states

Advertising and visits by major-party candidates during final stretch of the 2004 presidential campaign (Sept. 26 – Nov. 2, 2004)[27]
Spending on advertising per capita:
  •   < $0.50
  •   $0.50 – 1.00
  •   $1.00 – 2.00
  •   $2.00 – 4.00
  •   > $4.00

Campaign visits per 1 million residents:
  •   No visits
  •   0 – 1.0
  •   1.0 – 3.0
  •   3.0 – 9.0
  •   > 9.0
Spending-and-visits.svg

Under the current system, campaign focus – as measured by 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 adjacent maps 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.[28] 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 less motivated to address rural issues.[19][29]

Disputed results and electoral fraud

Opponents of the compact have raised concerns about the handling of close or disputed outcomes. National Popular Vote contends that an election being decided based on a disputed tally is far less likely under the NPVIC, which creates one large nationwide pool of voters, than under the current system, in which the national winner may be determined by an extremely small margin in any one of the fifty-one smaller statewide tallies.[29] However, the national popular vote can be closer than the vote tally within any one state. In the event of an exact tie in the nationwide tally, NPVIC member states will award their electors to the winner of the popular vote in their state.[5] Under the NPVIC, each state will continue to handle disputes and statewide recounts as governed by their own laws.[30] The NPVIC does not include any provision for a nationwide recount, though Congress has the authority to create such a provision.[31]

Pete du Pont argues that "Mr. Gore's 540,000-vote margin [in the 2000 election] 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...".[19] However, National Popular Vote contends that altering the outcome via electoral fraud would be more difficult under a national popular vote than under the current system, due to the greater number of total votes that would likely need to be changed: currently, a close election may be determined by the outcome in just one "tipping-point state", and the margin in that state is likely to be far smaller than the nationwide margin, due to the smaller pool of voters at the state level, and the fact that several states may have close results.[29]

Suggested partisan advantage

Historical partisan advantage relative to the popular vote: positive values indicate a Republican advantage and negative values indicate a Democratic advantage.[32]

Some supporters and opponents of the NPVIC believe it gives one party an advantage relative to the current Electoral College system. Former Delaware Governor Pete du Pont, a Republican, has argued that the compact would be an "urban power grab" and benefit Democrats.[19] However, Saul Anuzis, former chairman of the Michigan Republican Party, wrote that Republicans "need" the compact, citing what he believes to be the center-right nature of the American electorate.[33]

A statistical analysis by FiveThirtyEight's Nate Silver of all presidential elections from 1864 to 2016 (see adjacent chart) found that the Electoral College has not consistently favored one major party or the other, and that any advantage in the Electoral College does not tend to last long, noting that "there's almost no correlation between which party has the Electoral College advantage in one election and which has it four years later."[32] Although in all four elections since 1876 in which the winner lost the popular vote, the Republican became president, Silver's analysis shows that such splits are about equally likely to favor either major party.[32] A popular vote-Electoral College split favoring the Democrat John Kerry nearly occurred in 2004.[34]

New Yorker essayist Hendrik Hertzberg also concluded that the NPVIC would benefit neither party, noting that historically both Republicans and Democrats have been successful in winning the popular vote in presidential elections.[35]

State power relative to population

State population per electoral vote from the 2010 census

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.[note 1][18][36] In the least-populous states, with three electors, this results in voters having 143% greater voting power than they would under purely proportional allocation, while in the most populous state, California, voters' power is 16% smaller than under proportional allocation. The NPVIC 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 "unit rule"), the potential of populous states to shift greater numbers of electoral votes gives them more clout than would be expected from their electoral vote count alone.[37][38][39]

Opponents of a national popular vote contend that the Electoral College is a fundamental component of the federal system established by the Constitutional Convention. Specifically, the Connecticut Compromise established a bicameral legislature – with proportional representation of the states in the House of Representatives and equal representation of the states in the Senate – as a compromise between less populous states fearful of having their interests dominated and voices drowned out by larger states,[40] and larger states which viewed anything other than proportional representation as an affront to principles of democratic representation.[41] The ratio of the populations of the most and least populous states is far greater currently (66.10 as of the 2010 Census) than when the Connecticut Compromise was adopted (7.35 as of the 1790 Census), exaggerating the non-proportional aspect of the compromise allocation.

Negation of state-level majorities

Three governors who have vetoed NPVIC legislation––Arnold Schwarzenegger of California, Linda Lingle of Hawaii, and Steve Sisolak of Nevada––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. (California and Hawaii have since enacted laws joining the compact.) Supporters of the compact counter that under a national popular vote system, state-level majorities are irrelevant; in any state, votes 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 measure.[42][43][44]

Proliferation of candidates

Certain opponents of the compact contend that it would lead to a proliferation of third-party candidates, such that an election could be won with a plurality of as little as 15% of the vote.[45][46] However, evidence from U.S. gubernatorial and other races in which a plurality results in a win do not bear out this suggestion. In the 975 general elections for Governor in the U.S. between 1948 and 2011, 90% of winners received more than 50% of the vote, 99% received more than 40%, and all received more than 35%.[45] Duverger's law supports the contention that plurality elections do not generally create a proliferation of minor candidacies with significant vote shares.[45]

Legality

Constitutionality

Compact Clause

The Compact Clause of Article I, Section X of the United States Constitution states that "No State shall, without the Consent of Congress ... enter into any Agreement or Compact with another State".[47] In a report released in October 2019, the Congressional Research Service (CRS) cited the U.S. Supreme Court's ruling in Virginia v. Tennessee (1893) — reaffirmed in U.S. Steel Corp. v. Multistate Tax Commission (1978) and Cuyler v. Adams (1981) — as stating that the words "agreement" and "compact" are synonyms, and that explicit congressional consent of interstate compacts is not required for agreements "which the United States can have no possible objection or have any interest in interfering with".[48] However, the report asserted, the Court required explicit congressional consent for interstate compacts that are "directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States" — meaning where the vertical balance of power between the federal government and state governments is altered in favor of state governments.[49]

The CRS report states that "Whether the NPV initiative requires congressional consent under the Compact Clause first requires a determination as to whether NPV even constitutes an interstate compact."[50] Yale Law School professor Akhil Amar, one of the compact's framers, has argued that because the NPVIC does not create a "new interstate governmental apparatus" and because "cooperating states acting together would be exercising no more power than they are entitled to wield individually", the NPVIC probably does not constitute an interstate compact and cannot contravene the Compact Clause.[51] Conversely, the CRS report cites the Court's opinion in Northeast Bancorp v. Federal Reserve Board of Governors (1985) as suggesting that a requirement of a new interstate governmental entity is a sufficient but not a necessary condition to qualify an agreement as being an interstate compact under the Compact Clause.[48] Instead, the CRS report cites the Court's opinions in Virginia v. Tennessee and Northeast Bancorp as stating that any agreement between two or more states that "cover[s] all stipulations affecting the conduct or claims of the parties", prohibits members from "modify[ing] or repeal[ing] [the agreement] unilaterally", and requires "'reciprocation' of mutual obligations" constitutes an interstate compact. Noting that the NPVIC meets all of those requirements, the CRS report concludes that "the initiative can be described as an interstate compact."[50]

As part of concerns about whether the NPVIC would shift power from the federal government to state governments, at least two legal scholars have suggested that the NPVIC would require explicit congressional approval because it would remove the possibility of contingent elections for President being conducted by the U.S. House of Representatives under the 12th and 20th Amendments.[52][53] The CRS report notes that only two presidential elections (1800 and 1824) have been determined by a contingent election, and whether the loss of such elections would be a de minimis diminishment of federal power is unresolved by the relevant case law. The report does reference U.S. Steel Corp. v. Multistate Tax Commission as stating that the "pertinent inquiry [with respect to the Compact Clause] is one of potential, rather than actual, impact on federal supremacy" in that the potential erosion of an enumerated power of the U.S. House of Representatives could arguably require congressional approval.[49] Proponents of the compact counter that if removing the possibility of contingent elections is grounds for unconstitutionality, then Congress setting the size of the House at an odd number, as it did in 1911 (resulting in an odd number of electors until 1961), was also unconstitutional.[54][55]

The CRS report goes on to cite the Supreme Court's rulings in Florida v. Georgia (1855) and in Texas v. New Mexico and Colorado (2018) as recognizing that explicit congressional consent is also required for interstate compacts that alter the horizontal balance of power amongst state governments.[56] University of Colorado Law School professor Jennifer S. Hendricks has argued that the NPVIC would not alter the power of non-compacting state governments because all state governments would retain their right to select the electors of their choosing.[57] Other legal scholars have argued that the power of non-compacting states would be altered because, under the NPVIC, a state's power in determining the outcomes of presidential elections would be changed from the percentage of electors it has in the electoral college to the state's percentage of the popular vote, rendering the right of non-compacting state governments to appoint their own electors moot.[52][58][59][60]

Additionally, Ian J. Drake, an associate professor of political science and law at Montclair State University, has argued that because Cuyler v. Adams held that congressional approval of interstate compacts makes them federal laws,[61] Congress cannot consent to the NPVIC without violating the Supremacy Clause of Article VI, because under Article I, Section VIII, Congress has no enumerated or implied powers to alter the presidential election process and may only do so as part of the constitutional amendment process.[60][62] Labor lawyer Bradley T. Turflinger and the organizers of NPV Inc. dispute Drake's conclusion, and the NPV Inc. organizers have stated that they plan to seek congressional approval if the compact is approved by a sufficient number of states.[63][64] Citing Drake,[60] the CRS report concludes that if the NPVIC were to be enacted by the necessary number of states, it would likely become the source of considerable litigation, and it is likely that the Supreme Court will be involved in any resolution of the constitutional issues surrounding it.[65]

Plenary power doctrine

Proponents of the compact, such as law professors Akhil and Vikram Amar (the compact's original framers),[66] as well as U.S. Representative Jamie Raskin from Maryland's 8th congressional district (a former law professor),[67] have argued that state legislatures have the plenary power to appoint electors in accordance with the national popular vote under the Elections Clause of Article II, Section I,[68] which states that "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".[47] Vikram Amar and other legal scholars have also cited the Supreme Court's rulings in McPherson v. Blacker (1892) and Arizona State Legislature v. Arizona Independent Redistricting Commission (2015) as recognizing that states have wide discretion in selecting the method by which they appoint their electors.[69][70][71]

However, the CRS report cites the Supreme Court's opinion in McPherson v. Blacker as stating that state legislatures have "conceded plenary power ... in the matter of the appointment of electors," and citing the Court's opinions in Williams v. Rhodes (1968) and Oregon v. Mitchell (1970) that struck down state laws concerning the appointment of electors that violated the Equal Protection Clause of the 14th Amendment, the CRS report concludes that a state's power to select the method by which its electors are appointed is not absolute.[72] Robert Natelson, a senior fellow at the libertarian Independence Institute in constitutional jurisprudence and a member of the conservative American Legislative Exchange Council's board of scholars, has also argued that a state legislature's power to appoint its electors cannot be absolute because otherwise states would be permitted to appoint their electors in a manner that would violate public trust (e.g. by holding an auction to sell their electoral votes to the highest bidder).[53]

Natelson goes on to argue that a state legislature's power to select electors must also be compatible in a substantive sense with the Electoral College composition framework in the Elections Clause, and by extension, the Representatives Apportionment Clause in Article I, Section II and the 17th Amendment, that gives less populous states disproportionate weight relative to their population in selecting the President.[53] According to Natelson, the NPVIC would be incompatible with the Electoral College composition framework as stipulated by the Elections Clause as a substantive matter (as opposed to as a formal matter) because it would de facto eliminate the disproportionate weight that less populous states have relative to their population in selecting the President.[53] In 2009, Northwestern University Law Review published a comment written by Northwestern University School of Law student Kristin Feeley that argued that the principle of symmetric federalism in the Guarantee Clause of Article IV, Section IV that states "The United States shall guarantee to every State in this Union a Republican Form of Government" is violated by the NPVIC because "no state [may] legislate for any other state. Placing no constitutional limit on state power over electors … creates the ... potential for [compacting] states to form a superstate and render the [non-compacting] states irrelevant in the election of the President."[73]

Additionally, the CRS report notes that while the Court's opinion in McPherson v. Blacker emphasized that the variety of state laws that existed shortly after the ratification of the Constitution indicates that state legislatures have multiple alternative "modes of choosing the electors", the Court did not identify selecting electors based on the results of the national popular vote as one of them.[72] This is because, according to the CRS report, there appears to be no evidence contemporaneous with the ratification of the Constitution of a state selecting its electors in such a manner, and the CRS report cites the Court's opinion in U.S. Term Limits, Inc. v. Thornton (1995) as concluding that states cannot exercise their delegated authorities under Article I in a way that would "effect a fundamental change in the constitutional structure" and may only alter the presidential election process as outlined in Article V as part of the constitutional amendment process (a view at least five legal scholars have argued applies for the NPVIC).[list 1] However, the CRS report states that whether state legislatures' delegated authorities under Article II extends to allowing the state legislatures to require their electors to cast their ballots in accordance with the national popular vote is an open question due to a lack of a precise precedent and will likely remain unresolved until a future Court ruling in a case challenging the constitutionality of the NPVIC.[72]

Chiafalo v. Washington

In 2013, Bloomberg Law editor Michael Brody argued that "the role of electors has yet to be defined by a court," and cited the Supreme Court ruling in Ray v. Blair (1952) as suggesting that the 12th Amendment does not require that electors must vote for the candidate to whom they are pledged. Brody argued that because the NPVIC binds only state legislatures and not electors, those electors could retain independent withdrawal power as faithless electors at the request of the compacting states, unless the compacting states adopt penalties or other statutes that bind the electors — which 11 of the 15 current member states and the District of Columbia currently do, in addition to 21 other states.[77][78]

On July 6, 2020, the Supreme Court unanimously ruled in the case Chiafalo v. Washington and the related case Colorado Department of State v. Baca that it is within a state's power to enforce laws that penalize faithless electors or allow for their removal and replacement.[79][80] The decision reaffirmed the precedent from McPherson v. Blacker that the Elections Clause "'[conveys] the broadest power of determination' over who becomes an elector", as well as the precedent from Ray v. Blair that a state legislature's power to appoint electors includes conditioning an elector's appointment to a pledge to vote for the winner of the statewide popular vote. The ruling concludes that a state legislature's power to condition elector appointments extends to binding the electors to their pledges upon pain of penalty, stating "Nothing in the Constitution expressly prohibits States from taking away presidential electors' voting discretion as [the State of] Washington does."[81] While not a direct ruling on the NPVIC, the ruling that states may bind their electors to the state's popular vote has been interpreted as a precedent that states may choose to bind their electors to the national popular vote via plenary appointment power.[82][83][84]

However, the majority opinion written by Associate Justice Elena Kagan notes that while a state legislature's appointment power gives it far-reaching authority over its electors, "Checks on a State's power to appoint electors, or to impose conditions on an appointment, can theoretically come from anywhere in the Constitution", further noting that the states cannot select electors in a manner that would violate the Equal Protection Clause or adopt conditions for elector appointments that impose additional requirements for presidential candidates (as the latter could conflict with the Presidential Qualifications Clause in Article II, Section I).[85] Likewise, in his concurring opinion, Associate Justice Clarence Thomas states that the "powers related to electors reside with States to the extent that the Constitution does not remove or restrict that power"; Thomas cites Williams v. Rhodes as stating that the powers reserved to the states concerning electors cannot "be exercised in such a way as to violate express constitutional commands."[86] The majority opinion also states that "nothing in this opinion should be taken to permit the States to bind electors to a deceased candidate" after noting that more than one-third of the cumulative faithless elector votes in U.S. presidential elections history were cast during the 1872 election when Liberal Republican and Democratic Party nominee Horace Greeley died after the election was held but before the Electoral College cast its ballots.[87]

Voting Rights Act of 1965

A 2008 Columbia Law Review article by Columbia Law School student David Gringer suggested that the NPVIC could potentially violate Sections 2 and 5 of the Voting Rights Act of 1965 (VRA).[74] However, in 2012, the U.S. Justice Department Civil Rights Division declined to challenge California's entry into the NPVIC under Section 5 of the Act, and the October 2019 CRS report notes that the U.S. Supreme Court decision in Shelby County v. Holder (2013), which invalidated Section 4(b) of the VRA, has rendered Section 5 currently inoperable.[72] In response to Gringer's argument that the NPVIC would violate Section 2 of the VRA, FairVote's Rob Richie says that the NPVIC "treats all voters equally",[88] and NPV Inc. has stated "The National Popular Vote bill manifestly would make every person's vote for President equal throughout the United States in an election to fill a single office (the Presidency). It is entirely consistent with the goal of the Voting Rights Act."[89]

History

Public support for Electoral College reform

Public opinion surveys suggest that a majority or plurality of Americans support a popular vote for President. Gallup polls dating back to 1944 showed consistent majorities of the public supporting a direct vote.[90] A 2007 Washington Post and Kaiser Family Foundation 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.[91]

A November 2016 Gallup poll following the 2016 U.S. presidential election showed that Americans' support for amending the U.S. Constitution to replace the Electoral College with a national popular vote fell to 49%, with 47% opposed. Republican support for replacing the Electoral College with a national popular vote dropped significantly, from 54% in 2011 to 19% in 2016, which Gallup attributed to a partisan response to the 2016 result, where the Republican candidate won the Electoral College despite losing the popular vote.[92] In March 2018, a Pew Research Center poll showed that 55% of Americans supported replacing the Electoral College with a national popular vote, with 41% opposed, but that a partisan divide remained in that support, as 75% of self-identified Democrats supported replacing the Electoral College with a national popular vote, while only 32% of self-identified Republicans did.[93] A September 2020 Gallup poll showed support for amending the U.S. Constitution to replace the Electoral College with a national popular vote rose to 61% with 38% opposed, similar to levels prior to the 2016 election, although the partisan divide continued with support from 89% of Democrats and 68% of independents, but only 23% of Republicans.[94]

Proposals for constitutional amendment

The Electoral College system was established by Article II, Section 1 of the US Constitution, drafted in 1787.[95][96] It "has been a source of discontent for more than 200 years."[97] Over 700 proposals to reform or eliminate the system have been introduced in Congress,[98] making it one of the most popular topics of constitutional reform.[99][100] Electoral College reform and abolition has been advocated "by a long roster of mainstream political leaders with disparate political interests and ideologies."[101] Proponents of these proposals argued that the electoral college system does not provide for direct democratic election, affords less-populous states an advantage, and allows a candidate to win the presidency without winning the most votes.[98] Reform amendments were approved by two-thirds majorities in one branch of Congress six times in history.[100] However, other than the 12th Amendment in 1804, none of these proposals have received the approval of two-thirds of both branches of Congress and three-fourths of the states required to amend the Constitution.[102] The difficulty of amending the Constitution has always been the "most prominent structural obstacle" to reform efforts.[103]

Since the 1940s, when modern scientific polling on the subject began, a majority of Americans have preferred changing the electoral college system.[104] Between 1948 and 1979, Congress debated electoral college reform extensively, and hundreds of reform proposals were introduced in the House and Senate. During this period, Senate and House Judiciary Committees held hearings on 17 different occasions. Proposals were debated five times in the Senate and twice in the House, and approved by two-thirds majorities twice in the Senate and once in the House, but never at the same time.[105] In the late 1960s and 1970s, over 65% of voters supported amending the Constitution to replace the Electoral College with a national popular vote,[97] with support peaking at 80% in 1968, after Richard Nixon almost lost the popular vote while winning the Electoral College vote.[106] A similar situation occurred again with Jimmy Carter's election in 1976; a poll taken weeks after the election found 73% support for eliminating the Electoral College by amendment.[106] After a direct popular election amendment failed to pass the Senate in 1979 and prominent congressional advocates retired or were defeated in elections, electoral college reform subsided from public attention and the number of reform proposals in Congress dwindled.[107]

Interstate compact plan

Distribution of electoral votes following the 2010 Census

The 2000 US presidential election produced the first "wrong winner" since 1888, with Al Gore winning the popular vote but losing the Electoral College vote to George W. Bush.[108] This "electoral misfire" sparked new studies and proposals from scholars and activists on electoral college reform, ultimately leading to the National Popular Vote Interstate Compact (NPVIC).[109]

In 2001, "two provocative articles" were published by law professors suggesting paths to a national popular vote through state legislative action rather than constitutional amendment.[110] The first, a paper by Northwestern University law professor Robert W. Bennett, suggested states could pressure Congress to pass a constitutional amendment by acting together to pledge their electoral votes to the winner of the national popular vote.[111] Bennett noted that the 17th Amendment was passed only after states had enacted state-level reform measures unilaterally.[112]

A few months later, Yale Law School professor Akhil Amar and his brother, University of California Hastings School of Law professor Vikram Amar, wrote a paper suggesting states could coordinate their efforts by passing uniform legislation under the Presidential Electors Clause and Compact Clause of the Constitution.[113] The legislation could take effect only once enough states to control a majority of the Electoral College (270 votes) joined the compact, thereby guaranteeing that the national popular vote winner would also win the electoral college.[114] Bennett and the Amar brothers "are generally credited as the intellectual godparents" of NPVIC.[115]

Organization and advocacy

Building on the work of Bennett and the Amar brothers, in 2006, John Koza, a computer scientist, former elector, and "longtime critic of the Electoral College",[110] created the National Popular Vote Interstate Compact (NPVIC), a formal interstate compact that linked and unified individual states' pledges to commit their electoral votes to the winner of the national popular vote. NPVIC offered "a framework for building support one state at a time as well as a legal mechanism for enforcing states' commitments after the threshold of 270 had been reached."[112] Compacts of this type had long existed to regulate interstate issues such as water rights, ports, and nuclear waste.[112]

Koza, who had earned "substantial wealth" by co-inventing the scratchcard,[110] had worked on lottery compacts such as the Tri-State Lottery with an election lawyer, Barry Fadem.[112] To promote NPVIC, Koza, Fadem, and a group of former Democratic and Republican Senators and Representatives, formed a California 501(c)(4) non-profit, National Popular Vote Inc. (NPV, Inc.).[116] NPV, Inc. published Every Vote Equal, a detailed, "600-page tome"[110] that explains and advocates for NPVIC.[117] NPV, Inc. also commissioned statewide opinion polls, organized educational seminars for legislators and "opinion makers", and hired lobbyists in almost every state seriously considering NPVIC legislation.[118]

NPVIC was announced at a press conference in Washington, D.C. on February 23, 2006,[119] with the endorsement of former US Senator Birch Bayh; Chellie Pingree, president of Common Cause; Rob Richie, executive director of FairVote; and former US Representatives John Anderson and John Buchanan.[110] NPV, Inc. announced it planned to introduce legislation in all 50 states and had already done so in Illinois.[120] "To many observers, the NPVIC looked initially to be an implausible, long-shot approach to reform",[112] but within months of the campaign's launch, several major newspapers including the The New York Times and Los Angeles Times, published favorable editorials. NPVIC legislation was introduced in five additional state legislatures in the 2006 session, "most with bipartisan support".[112] It passed in the Colorado Senate, and in both houses of the California legislature before being vetoed by Governor Arnold Schwarzenegger.[112]

Adoption

In 2007, NPVIC legislation was introduced in 42 states. It was passed by at least one legislative chamber in Arkansas,[121] California,[42] Colorado,[122] Illinois,[123] New Jersey,[124] North Carolina,[125] Maryland, and Hawaii.[126] Maryland became the first state to join the compact when Governor Martin O'Malley signed it into law on April 10, 2007.[127]

NPVIC legislation has been introduced in all 50 states.[1] As of November 2020, the NPVIC has been adopted by fifteen states and the District of Columbia. Together, they have 196 electoral votes, which is 36.4% of the Electoral College and 72.6% of the 270 votes needed to give the compact legal force. As of July 2020, no Republican governor has signed the NPVIC into law.

In Nevada, the legislation passed both chambers in 2019, but was vetoed by Gov. Steve Sisolak on May 30, 2019.[128] In Maine, the legislation also passed both chambers in 2019, but failed the additional enactment vote in the House.[129] States where only one chamber has passed the legislation are Arizona, Arkansas, Michigan, Minnesota, North Carolina, Oklahoma, and Virginia. Bills seeking to repeal the compact in Connecticut, Maryland, New Jersey, and Washington have failed.[130]


Total
Electoral
Votes of
Adoptive
States
'06
'07
'08
'09
'10
'11
'12
'13
'14
'15
'16
'17
'18
'19
'20
0
30
60
90
120
150
180
210
240
270
MD
NJ
IL
HI
WA
MA
DC
VT
CA
RI
NY
CT
CO
DE
NM
OR
196 (72.6% of 270)
270 electoral votes
First
legislative
introduction



Reapportionment
based on
2010 Census
Desc-i.svg
History of state enactment of the NPVIC as of July 2020
Jurisdictions enacting law to join the National Popular Vote Interstate Compact
No. Jurisdiction Date adopted Method of adoption Current
electoral
votes (EV)
1  Maryland Apr 10, 2007 Signed by Gov. Martin O'Malley[127] 10
2  New Jersey Jan 13, 2008 Signed by Gov. Jon Corzine[131] 14
3  Illinois Apr 7, 2008 Signed by Gov. Rod Blagojevich[123] 20
4  Hawaii May 1, 2008 Legislature overrode veto of Gov. Linda Lingle[132] 4
5  Washington Apr 28, 2009 Signed by Gov. Christine Gregoire[133] 12
6  Massachusetts Aug 4, 2010 Signed by Gov. Deval Patrick[134] 11
7  D.C. Dec 7, 2010 Signed by Mayor Adrian Fenty[135][note 2] 3
8  Vermont Apr 22, 2011 Signed by Gov. Peter Shumlin[136] 3
9  California Aug 8, 2011 Signed by Gov. Jerry Brown[137] 55
10  Rhode Island Jul 12, 2013 Signed by Gov. Lincoln Chafee[138] 4
11  New York Apr 15, 2014 Signed by Gov. Andrew Cuomo[139] 29
12  Connecticut May 24, 2018 Signed by Gov. Dannel Malloy[140] 7
13  Colorado Mar 15, 2019 Signed by Gov. Jared Polis[141] 9
14  Delaware Mar 28, 2019 Signed by Gov. John Carney[142] 3
15  New Mexico Apr 3, 2019 Signed by Gov. Michelle Lujan Grisham[143] 5
16  Oregon Jun 12, 2019 Signed by Gov. Kate Brown[144] 7
Total 196
Percentage of the 270 EVs needed 72.6%

Initiatives and referendums

In Maine, an initiative to join the National Popular Vote Interstate Compact began collecting signatures on April 17, 2016. It failed to collect enough signatures to appear on the ballot.[145][146] In Arizona, a similar initiative began collecting signatures on December 19, 2016, but failed to collect the required 150,642 signatures by July 5, 2018.[147][148] In Missouri, an initiative did not collect the required number of signatures before the deadline of May 6, 2018.[149][150]

Colorado Proposition 113, a ballot measure seeking to overturn the Colorado's adoption of the compact, was on the November 3, 2020 ballot; Colorado's membership was affirmed by a vote of 52.3% to 47.7% in the referendum.[151]

Prospects

Psephologist Nate Silver noted in 2014 that all jurisdictions that had adopted the compact at that time were blue states (all of the states who have joined the compact then and since have given all of their electoral college votes to the Democratic candidate in every Presidential election since the compact's inception), and that there were not enough electoral votes from the remaining blue states to achieve the required majority. He concluded that, as swing states were unlikely to support a compact that reduces their influence, the compact could not succeed without adoption by some red states as well.[152] Republican-led chambers have adopted the measure in New York (2011),[153] Oklahoma (2014), and Arizona (2016), and the measure has been unanimously approved by Republican-led committees in Georgia and Missouri, prior to the 2016 election.[154]

On March 15, 2019, Colorado became the most "purple" state to join the compact, though no Republican legislators supported the bill and Colorado had a state government trifecta under Democrats.[155]

Based on population estimates, some states that have passed the compact are projected to lose one or two electoral votes due to congressional apportionment following the 2020 Census, which then might increase the number of additional states needed to adopt the measure.[156]

Bills

Bills in latest session

The table below lists all state bills to join the NPVIC introduced or otherwise filed in a state's current or most recent legislative session.[130] This includes all bills that are law, pending or have failed. The "EVs" column indicates the number of electoral votes each state has.

State EVs Session Bill Latest Action Lower house Upper house Executive Status
 Delaware 3 2019–20 SB 22[157] Mar 28, 2019 Passed 24–17 Passed 14–7 Signed Law
 Florida 29 2020 HB 335[158] Mar 14, 2020 Died in committee Failed
SB 908[159] Mar 14, 2020 Died in committee
 Georgia 16 2019–20 SB 42[160] Feb 5, 2019 Died in committee Failed
 Kansas 6 2019–20 SB 115[161] May 21, 2020 Died in committee Failed
 Maine 4 2019–20 LD 418[162] Mar 14, 2019 Died in committee Died in committee Failed
LD 816[129] Jun 19, 2019 Failed 66–76 Passed 19–16
Passed 77–69 Insisted 21–14
Enactment failed 68–79 Enacted 18–16
Enactment failed 69–74 Insisted on enactment
 Minnesota 10 2019–20 HF 1603[163] Apr 26, 2019 Died in committee Failed
HF 1941[164] Mar 27, 2019 Died in committee
HF 2117[165] Mar 18, 2019 Died in committee
HF 3237[166] Feb 13, 2020 Died in committee
SF 34[167] Jan 14, 2019 Died in committee
SF 189[168] Feb 11, 2019 Died in committee
SF 2227[169] May 1, 2019 Passed 73–58 Not voted[a]
SF 2984[170] Feb 11, 2020 Died in committee
 Mississippi 6 2020 HB 369[171] Apr 9, 2020 Died in committee Failed
 Missouri 10 2020 HB 1591[172] May 15, 2020 Died in committee Failed
HB 1949[173] May 15, 2020 Died in committee
HB 1988[174] May 15, 2020 Died in committee
 New Hampshire 4 2019–20 HB 541[175] Oct 8, 2020 Died in committee Failed
 North Carolina 15 2019–20 SB 104[176] Feb 25, 2019 Died in committee Failed
 Ohio 18 2019–20 HB 70[177] Feb 20, 2019 In committee Pending
 Pennsylvania 20 2019–20 SB 270[178] Jul 9, 2019 In committee Pending
 South Carolina 9 2019–20 H 3209[179] Jan 8, 2019 In committee Pending
H 4277[180] Mar 20, 2019 In committee
 Texas 38 2021 SB 130[181] Nov 9, 2020 Introduced Pending
 Virginia 13 2020–21 HB 177[182] Feb 25, 2020 Passed 51–46 Postponed until 2021 Pending
HB 199[183] Jan 31, 2020 Died in committee
SB 399[184] Jan 28, 2020 Died in committee
 West Virginia 5 2020 HB 4575[185] Jan 28, 2020 Died in committee Failed
 Wisconsin 10 2019–20 AB 185[186] Apr 9, 2020 Died in committee Failed
SB 197[187] Apr 9, 2020 Died in committee
  1. ^ This omnibus bill was passed by the Senate without the NPVIC, then amended by the House to include it and sent to conference committee. However, it was not further considered before the legislature adjourned.

Bills receiving floor votes in previous sessions

The table below lists past bills that received a floor vote (a vote by the full chamber) in at least one chamber of the state's legislature. Bills that failed without a floor vote are not listed. The "EVs" column indicates the number of electoral votes the state had at the time of the latest vote on the bill. This number may have changed since then due to reapportionment after the 2010 Census.

State EVs Session Bill Lower house Upper house Executive Outcome
 Arizona 11 2016 HB 2456[188] Passed 40–16 Died in committee Failed
 Arkansas 6 2007 HB 1703[189] Passed 52–41 Died in committee Failed
2009 HB 1339[190] Passed 56–43 Died in committee Failed
 California 55 2005–06 AB 2948[191] Passed 48–30 Passed 23–14 Vetoed Failed
2007–08 SB 37[42] Passed 45–30 Passed 21–16 Vetoed Failed
2011–12 AB 459[137] Passed 52–15 Passed 23–15 Signed Law
 Colorado 9 2006 SB 06-223[192] Indefinitely postponed Passed 20–15 Failed
2007 SB 07-046[122] Indefinitely postponed Passed 19–15 Failed
2009 HB 09-1299[193] Passed 34–29 Not voted Failed
2019 SB 19-042[194] Passed 34–29 Passed 19–16 Signed Law
 Connecticut 7 2009 HB 6437[195] Passed 76–69 Not voted Failed
2018 HB 5421[196] Passed 77–73 Passed 21–14 Signed Law
 District of Columbia 3 2009–10 B18-0769[197] Passed 11–0 Signed Law
 Delaware 3 2009–10 HB 198[198] Passed 23–11 Not voted Failed
2011–12 HB 55[199] Passed 21–19 Died in committee Failed
 Hawaii 4 2007 SB 1956[126] Passed 35–12 Passed 19–4 Vetoed Failed
Override not voted Overrode 20–5
2008 HB 3013[200] Passed 36–9 Died in committee Failed
SB 2898[132] Passed 39–8 Passed 20–4 Vetoed Law
Overrode 36–3 Overrode 20–4 Overridden
 Illinois 21 2007–08 HB 858[201] Passed 65–50 Died in committee Failed
HB 1685[123] Passed 64–50 Passed 37–22 Signed Law
 Louisiana 8 2012 HB 1095[202] Failed 29–64 Failed
 Maine 4 2007–08 LD 1744[203] Indefinitely postponed Passed 18–17 Failed
2013–14 LD 511[204] Failed 60–85 Failed 17–17 Failed
2017–18 LD 156[205] Failed 66–73 Failed 14–21 Failed
 Maryland 10 2007 HB 148[206] Passed 85–54 Passed 29–17 Signed Law
SB 634[207] Passed 84–54 Passed 29–17
 Massachusetts 12 2007–08 H 4952[208] Passed 116–37 Passed [209] Failed
Enacted Enactment not voted
2009–10 H 4156[210] Passed 114–35 Passed 28–10 Signed Law
Enacted 116–34 Enacted 28–9
 Michigan 17 2007–08 HB 6610[211] Passed 65–36 Died in committee Failed
 Minnesota 10 2013–14 HF 799[212] Failed 62–71 Failed
 Montana 3 2007 SB 290[213] Failed 20–30 Failed
 Nevada 5 2009 AB 413[214] Passed 27–14 Died in committee Failed
6 2019 AB 186[215] Passed 23–17 Passed 12–8 Vetoed Failed
 New Hampshire 4 2017–18 HB 447[216] Failed 132–234 Failed
 New Jersey 15 2006–07 A 4225[124] Passed 43–32 Passed 22–13 Signed Law
 New Mexico 5 2009 HB 383[217] Passed 41–27 Died in committee Failed
2017 SB 42[218] Died in committee Passed 26–16 Failed
2019 HB 55[219] Passed 41–27 Passed 25–16 Signed Law
 New York 31 2009–10 S02286[220] Not voted Passed Failed
29 2011–12 S04208[221] Not voted Passed Failed
2013–14 A04422[222] Passed 100–40 Died in committee Failed
S03149[223] Passed 102–33 Passed 57–4 Signed Law
 North Carolina 15 2007–08 S954[125] Died in committee Passed 30–18 Failed
 North Dakota 3 2007 HB 1336[224] Failed 31–60 Failed
 Oklahoma 7 2013–14 SB 906[225] Died in committee Passed 28–18 Failed
 Oregon 7 2009 HB 2588[226] Passed 39–19 Died in committee Failed
2013 HB 3077[227] Passed 38–21 Died in committee Failed
2015 HB 3475[228] Passed 37–21 Died in committee Failed
2017 HB 2927[229] Passed 34–23 Died in committee Failed
2019 SB 870[230] Passed 37–22 Passed 17–12 Signed Law
 Rhode Island 4 2008 H 7707[231][232] Passed 36–34 Passed Vetoed Failed
S 2112[231][233] Passed 34–28 Passed Vetoed Failed
2009 H 5569[234][235] Failed 28–45 Failed
S 161[234] Died in committee Passed Failed
2011 S 164[236] Died in committee Passed Failed
2013 H 5575[237][238] Passed 41–31 Passed 32–5 Signed Law
S 346[237][239] Passed 48–21 Passed 32–4
 Vermont 3 2007–08 S 270[240] Passed 77–35 Passed 22–6 Vetoed Failed
2009–10 S 34[241] Died in committee Passed 15–10 Failed
2011–12 S 31[242] Passed 85–44 Passed 20–10 Signed Law
 Washington 11 2007–08 SB 5628[243] Died in committee Passed 30–18 Failed
2009–10 SB 5599[244] Passed 52–42 Passed 28–21 Signed Law

See also

Notes

  1. ^ Each state's electoral votes are equal to the sum of its seats in both houses of Congress. The proportional allocation of House seats has been distorted by the fixed size of the House since 1929 and the requirement that each state have at least one representative, and Senate seats are not proportional to population. Both factors favor low-population states.[18]
  2. ^ Neither chamber of the U.S. Congress objected to the passage of DC's bill during the mandatory review period of 30 legislative days following passage, thus allowing the District's action to proceed.

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