State of Elections

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The constitutionality of the national popular vote: refuting challenges based on Article II, Section One

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by Rob Richie and Elise Helgesen of FairVote

The National Popular Vote (NPV) plan guarantees election of the presidential candidate who earns the greatest number of votes in all 50 states and the District of Columbia. NPV does not dispense with the Electoral College, and is not a constitutional amendment. Rather, the plan is based on two clear powers given to the states under the Constitution: the power under Article 2 Section 1 to choose how to allocate its presidential electors, and the power under Article 1 Section 10 to enter into interstate compacts.

States in early U.S. history often exercised the power to change rules for allocating electoral votes. While today, 48 states and the District of Columbia award their electoral votes to the winner of that state’s popular vote, the founders did not originally contemplate this type of system, as James Madison explained in 1823.

NPV is an interstate compact, a binding contract entered into by state law. Once the states that enact these NPV laws exceed the threshold of a majority of electoral votes (270 out of 538), the plan will take effect. Even where states choose not to participate in the NPV compact, the votes from those states will be incorporated on an equal basis into the total national popular vote, which in turn determine which candidate earns the electoral votes in NPV states.

Currently eight states and the District of Columbia have enacted laws to join the NPV interstate compact. The states are California, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, and Vermont. The NPV plan is now at its halfway point, meaning that states that have entered into the interstate compact make up 132 electoral votes, or 49% of the 270 electoral votes needed.

Even with this milestone in sight and polls consistently showing strong support in states across the U.S., the NPV plan faces individual opposition as well as specific legal challenges to its effectiveness. The concerns are answered effectively by the authors of Every Vote Equal, and supportive groups like National Popular Vote, Support Popular Vote, and FairVote.

This analysis addresses one particular challenge raised recently by NPV opponents such as Sean Parnell: that NPV is unconstitutional as based on Article II Section 1 of the Constitution. The second clause of this section states: “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 . . . .” [Read more…] about The constitutionality of the national popular vote: refuting challenges based on Article II, Section One

Two Wisconsin Voter ID Cases Demonstrate the Need for the Right to Vote in the U.S. Constitution

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by Guest Contributor Elise Helgesen of FairVote

On March 6th, the Wisconsin Circuit Court in Milwaukee Branch of the NAACP v. Walker, granted a temporary injunction preventing the state from enforcing a voter ID law in the upcoming primary election. Then, on March 13, a second Circuit Court judge struck down the same voter ID law in League of Women Voters v. Walker. The courts proceeded with similar, yet differentiated, analyses of the law in finding that Act 23, Wisconsin’s 2011 voter ID law, was unconstitutional based on the Wisconsin Constitution’s affirmative right to vote – a right unfortunately not found in the U.S. Constitution.

The holdings of these two cases are important in looking to other states’ voter ID laws. For courts to hold that the right to vote is fundamental, the right to vote must be stated unequivocally in each states’ constitution, and it must be explicitly protected from legislation trying to abridge that right. FairVote supports an amendment creating an affirmative right to vote in the U.S. Constitution. If the right to vote were incorporated not only into every state constitution, but also into the U.S. Constitution, governments would have to prove that such forms of voter ID laws are necessary to a compelling state interest. To justify restrictive voter ID laws that unduly burden qualified voters’ constitutional right to take cast their ballots the legislature would need to put forth a more narrowly tailored regulation – one which did not effectively disenfranchise eligible voters.

Both courts were clear that Act 23 was unlawful; however, both were also clear that voter ID laws could be upheld under different circumstances. The court in League of Women Voters v. Walker stated that, “this court does not hold that photo ID requirements under all circumstances and in all forms are unconstitutional per se. Rather, the holding is simply that the disqualification of qualified electors from casting votes in any election where they do not timely produce photo ID’s satisfying Act 23’s requirements violates Article III, Sections 1 and 2 the Wisconsin Constitution.” Likewise, NAACP v. Walker distinguished Act 23 from other voter ID laws because Act 23 was overly restrictive and did not allow for alternative means of proving identification or of casting a provisional ballot. [Read more…] about Two Wisconsin Voter ID Cases Demonstrate the Need for the Right to Vote in the U.S. Constitution

Open Up Elections With Proportional Voting

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guest blog by Elise Helgesen and Rob Richie of FairVote

The battle over legislative redistricting in states around the country this year provides strong evidence of the failure of winner-take-all elections in single-member districts in modern America. In these districts huge numbers of people will, by design, be left feeling that they are without meaningful political representation – and without a realistic chance to change it.

Although seen as the norm in the United States, winner-take-all elections invite computer-facilitated partisan gerrymandering. The power to gerrymander districts is grounded in the simple fact that, given most voters’ strong opinions about the two major parties, outcomes are predictable in any district that leans more than 55% for one party. That makes it easy to make seats “safe,” especially given natural differences in voter opinion in different areas [Read more…] about Open Up Elections With Proportional Voting

All states (IRV): The courts got it right: recognizing that instant runoff voting makes every vote count

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by: Guest Contributor Elise Helgesen


This November, Instant Runoff Voting (IRV), also called ranked choice voting, will be used for fiercely contested elections for mayor in San Francisco (CA), Portland (ME), and Telluride (CO) as well as for city council elections in St. Paul (MN) and Takoma Park (MD). IRV is also used abroad: Ireland will elect its president with IRV this month, and London will use IRV for mayoral elections in 2012. As recommended by Robert’s Rules of Order, more than 50 American colleges and universities now elect their student leaders with IRV.

With IRV, voters get one vote and one ballot, but get to rank candidates in order of preference. If no candidate wins with a first-choice majority, the candidate with the fewest votes is eliminated and their supporters’ second choices are added to the totals of the remaining candidates in an “instant runoff.” The process of elimination and redistribution continues until one candidate has a majority. [Read more…] about All states (IRV): The courts got it right: recognizing that instant runoff voting makes every vote count