National Popular Vote Interstate Compact

U.S. interstate compact to allocate presidential electors to the winner of the national popular vote

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 February 2020, it has been adopted by fifteen states and the District of Columbia. Together, they 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, however, may affect implementation of the compact.

Proposed in the form of an interstate compact, the agreement would go into effect among the participating states in the compact only after they collectively represent an absolute majority of votes (currently at least 270) in the Electoral College. In the next presidential election after adoption by the requisite number of states, 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 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 state-wide winner.

The project has been supported by editorials in newspapers, including The New York Times,[9] the Chicago Sun-Times, the Los Angeles Times,[14] The Boston Globe,[15] and the Minneapolis Star Tribune,[16] 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.[17] An article by Pete du Pont, a former Governor of Delaware, in the opinion section of The Wall Street Journal[18] 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.[19]

Opponents of a national popular vote contend that the Electoral College serves to protect the country from the election of a person who is unfit to be president. Certain founders conceived of the Electoral College as a deliberative body which would weigh the inputs of the states, but not be bound by them, in selecting the president.[20] 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, and twenty-nine states and the District of Columbia have laws punishing such "faithless electors".[21] Moreover, the National Popular Interstate Compact does not eliminate the Electoral College or affect faithless elector laws; it merely changes the way in which electors are pledged by the participating states.

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 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.[23] 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.[18][24]

Opponents of the compact have raised concerns about the handling of close or disputed outcomes. National Popular Vote contends that the election being decided on the basis of 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.[24] However, it is possible for the national popular vote to 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.[25] Under the NPVIC, each state will continue to handle disputes and statewide recounts as governed by their own laws.[26] The NPVIC does not include any provision for a nationwide recount, though Congress has the authority to create such a provision.[27]

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...".[18] However, National Popular Vote contends that electoral fraud affecting the outcome would be more difficult to achieve under a national popular vote than under the current system, because of the greater number of votes that would likely need to be shifted – under the current system, a close election may be determined by the outcome in just one "tipping point" state, the margin of which is likely to be far smaller than the nationwide margin. This is due to the smaller pool of voters at the state level, and the fact that several states may have close results.[24]

Historical partisan advantage relative to the popular vote, demonstrating that neither major party holds a consistent advantage. (Positive values indicate a Republican advantage and negative values indicate a Democratic advantage.)

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.[18] 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.[29]

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." 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. A popular vote-Electoral College split favoring the Democrat John Kerry nearly occurred in 2004.[30]

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.[31]

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][17][32] 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 otherwise be expected.[33][34][35]

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,[36] and larger states which viewed anything other than proportional representation as an affront to principles of democratic representation.[37] The Electoral College extends the Connecticut Compromise from the Legislative Branch to the Executive Branch by assigning each state a number of electoral votes equal to their representation in both the House of Representatives and the Senate. A national popular vote, opponents argue, would create an imbalance in the federal system by keeping the Connecticut Compromise for the Legislative Branch and removing it from the Executive Branch.

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, 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.[38][39][40]

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".[41] 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),[42] as stating that the words "agreement" and "compact" are synonyms, 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", while explicit congressional consent of interstate compacts is required when the underlying compact is "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.[43]

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."[44] 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.[45] Conversely, the CRS report cites the Court's opinion in (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.[44] 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."[44]

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 required for interstate compacts that alter the horizontal balance of power amongst state governments.[44] 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.[46] Bloomberg Law editor Michael Brody has argued that "the role of electors has yet to be defined by a court," and cites 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 whom they are pledged to, and that because the NPVIC only binds state legislatures and not electors, those electors would retain independent withdrawal power as faithless electors at the request of the compacting states unless the compacting states adopt criminal penalties or other statutes that bind the electors – which 10 of the 15 states that have enacted the NPVIC (as well as the District of Columbia) currently do in addition to 19 other states.[47][48] On January 17, 2020, the Supreme Court agreed to hear the case Chiafalo v. Washington, which will determine whether criminal penalties for faithless electors violate the electors' 1st Amendment rights.

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.[49][50][51][52] 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,[53] Congress cannot consent to the NPVIC without violating the Supremacy Clause, because under Article I, Section VIII, Congress has no enumerated or implied powers to alter the presidential election process except as part of the constitutional amendment process.[52][54] 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.[55][56] Citing Drake,[52] 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.[44]

As part of concerns about whether the NPVIC would alter the vertical balance of power between the federal government and state governments in favor of state governments, at least two legal scholars have suggested that the NPVIC would require explicit congressional approval because the NPVIC would remove the possibility of contingent elections for President being conducted by the U.S. House of Representatives under the 12th Amendment.[49][57] 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.[43] 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.[58][59]

Proponents of the compact, such as law professors Akhil and Vikram Amar (the compact's original framers),[60] as well as U.S. Representative Jamie Raskin from Maryland's 8th congressional district (a former law professor),[61] 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,[62] 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".[41] Vikram Amar, along with other legal scholars, have also cited the Supreme Court's rulings in McPherson v. Blacker (1892) and (2015) as recognizing that states have wide discretion in selecting the method by which they appoint their electors.[63][64][65]

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.[66] 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).[57]

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 in accordance with the results of the national popular vote as one of them 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 enumerated powers under Article I or Article II in a way that would "effect a fundamental change in the constitutional structure" except as outlined in Article V as part of the constitutional amendment process,[66] a view at least three legal scholars have argued applies for the NPVIC.[54][67][57]

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).[67] 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.[66] 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",[68] 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."[69]

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.[70] 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.[71]

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.[72] 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.[73]

Several proposals to abolish the Electoral College by constitutional amendment have been introduced in Congress over the decades. These efforts have, however, been hampered because a two-thirds vote in both the House and Senate are required to send an amendment to the states where ratification by three-fourths of the State legislatures or by conventions in three fourths of the states is required for it to become operative.

In 2001, Northwestern University law professor Robert W. 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.[74] 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.[75] 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 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 § Constitutionality above).

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.[76] (Koza had previously had exposure to interstate compacts from his work with state lottery commissions after inventing the scratch-off lottery ticket.)[76] 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.[77]

By the time of the group's opening news conference in February 2006, the proposed interstate compact had been introduced in the Illinois legislature.[78] With backing from National Popular Vote, the NPVIC legislation was introduced in five additional state legislatures in the 2006 session.[79][80][81] It passed in the Colorado Senate[82] and in both houses of the California legislature before being vetoed by Governor Arnold Schwarzenegger.[83][84]

In 2007, NPVIC legislation was introduced in 42 states. It was passed by at least one legislative chamber in Arkansas,[85] California,[38] Colorado,[86] Illinois,[87] New Jersey,[88] North Carolina,[89] Maryland, and Hawaii.[90] Maryland became the first state to join the compact when Governor Martin O'Malley signed it into law on April 10, 2007.[91]

NPVIC legislation has been introduced in all 50 states.[1] As of February 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 2019, 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.[92] In Maine, the legislation also passed both chambers in 2019, but failed the additional enactment vote in the House.[93] 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.[94]

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.[109][110] 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.[111][112] In Missouri, an initiative did not collect the required number of signatures before the deadline of May 6, 2018.[113][114]

Psephologist Nate Silver noted in 2014 that all jurisdictions that had adopted the compact at that time were blue states, 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. Republican-led chambers have adopted the measure in New York (2011),[116] 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.[117]

On March 15, 2019, Colorado became the first "purple" state to join the compact, though no Republican legislators supported the bill and Colorado had a state government trifecta under Democrats.[118]

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.[94] This includes all bills that are law, pending or have failed. The "EVs" column indicates the number of electoral votes each state has.

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.