in-depth article

by Jessica Heller of FairVote

The National Popular Vote Compact (NPVC) guarantees election of the presidential candidate who earns the greatest number of votes in all 50 states and the District of Columbia. The NPVC does not dispense with the Electoral College, and is not a constitutional amendment. Rather, it 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.

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

Currently eight states and the District of Columbia have enacted laws to join the NPVC. The NPVC 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. polls consistently showing strong support in states across the U.S., the NPVC faces individual opposition as well as specific legal challenges to its effectiveness.  This article seeks to address and respond to some of the major legal arguments that have been made against the NPVC, and reaffirm the constitutionality of the NPVC.  Of those arguments, we specifically address particularly compelling arguments put forward by:

David Gringer, Why the National Popular Vote Plan is the Wrong Way to Abolish the Electoral College, 108 COLUM L. REV. 182 (2008).

Derek T. Muller, The Compact Clause and the National Popular Vote Interstate Compact, 6 ELEC. L. J. 372, 391 (2007).

Norman Williams, Reforming the Electoral College: Federalism, Majoritarianism, and the Perils of Subconstitutional Change, 100 GEO. L.J. 173, 227 (2011).

I. The Compact Clause

Various scholars have challenged the constitutionality of the NPVC by asserting that it violates the Compact Clause of the Constitution. The relevant part of the Clause reads, “No State shall, without the consent of Congress…enter into any Agreement or Compact with another State.” U.S. CONST. art. I, § 10, cl. 3. Compact Clause arguments generally fall into one of two categories: (1) the NPVC is unconstitutional without consent from Congress, or (2) the NPVC’s adverse impact on non-compacting states violates the Clause under prevailing jurisprudence. Part I will address each of those arguments in turn.

A. The NPVC does not qualify as a compact that traditionally requires congressional consent

The lead advocates of NPVC are quite clear that they have every intent of seeking congressional consentat the time when congressional consent of compacts is typically sought: that is, after enough states have adopted it for it to go into effect.  But in the event that Congress were not to provide consent, there is an argument that the compact still could be enacted. .

On its face, the Compact Clause does ostensibly prohibit any compact between states lacking congressional consent. However, the Supreme Court has definitively stated that “not all agreements between States are subject to the strictures of the Compact clause.” U.S. Steel Corp. v. Multistate Tax Comm’n, 98 S.Ct. 799, 469 (1978). Rather, the prohibition is only 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.” Id at 468, quoting Virginia v. Tennessee, 148 U.S. 503, 519 (1893). Therefore, if the NPVC does not infringe upon federal supremacy, it does not require congressional consent. By that logic, the NPVC is certainly valid as it stands.

In forming the NPVC, states are exercising a power expressly granted to them by the Constitution. Article I provides state legislatures with enormous flexibility in deciding how to choose its electors. In fact, “literally any method within the scope of federal equal protection law can be chosen.” Bradley Tuflinger, Fifty Republics and the National Popular Vote: How the Guarantee Clause Should Protect States Striving for Equal Protection in Presidential Elections, 45 VAL. U. L. REV. 793, 824 (2011). Since the states have plenary power, the NPVC does not implicate any federal powers.

Additionally, Bradley Tuflinger has posited that another clause of the Constitution, the Guarantee Clause, would make it unconstitutional to require that Congress consent to the NPVC. Id. The Guarantee Clause provides that, “The United States shall guarantee to every state in this Union a Republican Form of Government.” U.S. CONST. art. IV, § 4. What exactly the Founders meant by “Republican” government has been lost to history, but the Supreme Court attempted to clarify the implications of the Guarantee Clause inNew York v. United States, in which the Court “set out two criteria by which the federal government may violate the Guarantee Clause: (1) if the state loses the ability to set their legislative agendas, and (2) if state government officials can no longer remain accountable to the local electorate.” Tuflinger, supra at 820. Thus a “claim based on a congressionally imposed limitation upon the power of the state should be actionable under the Guarantee Clause.” Id. Electors are chosen by the state, and are therefore state, rather than federal officials. The states’ plenary power to choose its electors goes to the heart of a republic government, a government whose leader is chosen by the people. Requiring congressional approval would directly infringe on that power, meaning that any claim that the Compact Clause would require such approval for the NPVC would put the Compact Clause and the Guarantee Clause in direct conflict with one another.

B. NPV does not threaten the sovereignty of non-compacting states

The second Compact Clause argument against the NPVC is that because the compact affects the interests of non-compacting states, it is unconstitutional. Derek T. Muller, The Compact Clause and the National Popular Vote Interstate Compact, 6 ELEC. L. J. 372, 391 (2007).  The governing case for Compact Clause litigation is U.S. Steel v. Multistate Tax Commission. In that case, the Supreme Court held that the compacting states may take any action they would have been entitled to take without the compact, as long as the compact does not infringe upon the sovereignty of non-compacting states. Because of the states’ constitutional right to determine the method by which it chooses its electors, no one argues that the NPVC involves any action that each state could not have taken independently. Rather, arguments against the NPVC have focused on the second element of the U.S. Steel test, asserting that the compact involves “one group of compacting states obtain[ing] political power at the expense of non-compacting states.” Muller, supra at 391.

However, that assertion misses the point of the NPVC. The NPVC “seizes principle rather than power, and it shares power with the non-participating states.” Jennifer Hendricks, Popular Election of the President: Using or Abusing the Electoral College? Univ. Tenn. College of Law Legal Studies Research Paper Series 83, 13 (2009). Each state’s votes would still be counted, and each state would have an equally important role in choosing the President. Nothing in the NPVC would alter non-compacting states’ sovereign right to choose its electors. Therefore, any Compact Clause challenge to the NPVC should fail.

II. Article II of the Constitution

National popular vote opponents such as Sean Parnell, Daniel Lowenstein, and Mark Scarberry have argued in public and private communications that the NPVC 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 . . . .”

The U.S. Supreme Court case of McPherson v. Blacker, 146 U.S. 1 (1892), is instructive for interpreting this aspect of Article II Section 1 of the U.S. Constitution. In McPherson, petitioners challenged Michigan’s law to allocate electoral votes by congressional district. The Court found that though a state is a collection of people, a state acts through its political agencies. The Court stated that “[i]t has never been doubted that the representatives in Congress thus chosen represented the entire people of the State acting in their sovereign capacity.” Thus, the phrase, “as the legislature thereof may direct” is not a limitation of the state’s power, but merely an expression of the state’s action.

The Court viewed the legislature and the State as interchangeable, unless the power or duty is expressly committed to another political agency of the state, or directly to the citizens of the state. Furthermore, the Court stated that “the appointment and mode of appointment of electors belong exclusively to the State under the Constitution of the United States.” 124 U.S. at 35. If the Court believed that the two powers belong to separate entities – that the power to appoint belongs to the State and power to direct belongs to the legislature – it could have said as much, but it never did. In fact, McPherson supports the argument that there is a presumption that the powers of a State reside with its legislature. So when the legislature acts, that in itself is an exercise of the sovereignty of the people, i.e., the State.

III. The Equal Protection Clause of the Fourteenth Amendment

Law professor Norman Williams has argued that because of disparities in voting laws laws among the states, the NPVC would violate the Equal Protection Clause of the Fourteenth Amendment.  Norman Williams, Reforming the Electoral College: Federalism, Majoritarianism, and the Perils of Subconstitutional Change, 100 GEO. L.J. 173, 227 (2011). For example, some states allow people convicted of certain crimes to vote in the presidential election, while people convicted of those same crimes in a different state would not be allowed to vote. NPVC detractors claim that “surely it would be unconstitutional for a state to agree to treat as valid the votes of individuals in other states who would not be entitled to vote in the original if they lived there.” Id at 227.

However, while that inconsistency is an argument that some backers of the goals of NPV make for congressional oversight of the NPVC, Vikram D. Amar, Response: The Case for Reforming Presidential Elections by Subconstitutional Means: The Electoral College, the National Popular Vote Compact, and Congressional Power, 100 GEO. L.J. 237 (2011), it does not qualify as a violation of the Equal Protection Clause. The Clause provides that, “No state shall…deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. The NPVC would not change anything about the way states treat their own citizens. “No single state is treating any people who reside in any state differently than the other folks who live in that state.” Id at 250.  Since the NPVC would not entail any change in the treatment of citizens within a given jurisdiction, it should easily survive any Equal Protection claim.

Furthermore, even when Congress came close to passage of a constitutional amendment for direct election in 1969,with  81% of House Members (including such future Republican presidents as Gerald Ford and George H.W Bush), that amendment did not require uniform eligibility or national administration of elections. That discussion can take place quite separately from supporting a national popular vote for president; we suspect that once NPV is enacted, those supporting such national standards will include current opponents of NPV and those opposing such standards will include some proponents of NPV.

IV. The Voting Rights Act

Section 2 of the Voting Rights Act prohibits any action that results in the “denial or abridgement of the right of any United States citizen to vote on the account of race or color.” Voting Rights Act, 42 U.S.C. § 1973 (1965), meaning voting changes cannot improperly dilute minorities’ voting power. Opponents of the NPVC claim that it diminishes minority power, and thereby violates Section 2.  They also have suggested that it could be denied preclearance under Section Five of the Voting Rights Act, but the Department of Justice has already pre-cleared California’s’ adoption of the National Popular Vote plan.

However, in determining whether the NPVC is in violation, it would first be necessary to establish as a threshold issue whether or not Section 2 would even apply to a national election. The purpose of Section 2 is to ensure that minorities have an equal opportunity to be represented by candidates of their choice. But as the court in Butts v. City of New York pointed out, “There can be no equal opportunity for representation within an office filled by one person.” Butts v. City of N.Y., 779 F.2d 141, 148 (2d Circ. 1985). The court went on to say that as long as “the winner of an election for a single member office is chosen directly by the votes of all eligible voters, it is unlikely that electoral arrangements for such an election can deny a class an equal opportunity for representation.” Id. at 149.  Given that the entire purpose of the NPVC is to give every voter an equal vote in choosing the President, it seems clear that the logic of the Butts court applies, and Section 2 would not apply to the NPVC.

Though Section 2 should therefore not apply to the NPVC, if it were applied, the NPVC would not be in violation. Section 2 seeks to guarantee that racial majorities and minorities have an equal chance to elect the candidates they prefer. In the seminal Section 2 case, Thornburg v. Gingles, the Court pointed out that “courts and commentators agree that racial bloc voting is a key element of a vote dilution claim.” Thornburg v. Gingles, 478 U.S. 30, 55 (1986). Minorities would be denied their right to an equal opportunity to elect their preferred candidates in a situation “where minority and majority voters consistently prefer different candidates, [and] the majority, by virtue of its numerical superiority, will regularly defeat the choices of minority voters.” Id at 48.

While the Gingles case was specifically addressing a dilution claim for a multimember district, its analysis can easily be applied to a national election. In most presidential elections, the vote is roughly split between the Democratic and Republican candidates, and there is no consistent winner, demonstrating that white voters do not vote in a bloc capable of consistently defeating the candidate preferred by minorities. On the contrary, given the growing number of minority communities, candidates will likely have to focus a great deal of attention on winning minority votes to win the national popular vote.  No one can make any legitimate argument that racial minorities protected by the Voting Rights Act would be unable to help elect a presidential election of their choice, even though of course there would be no guarantee that they would do so.

Others might argue that elections for president are not about electing presidents, but rather about electing a state’s group of electors. In California, for example, Latino voters protected under the Voting Rights Act strongly prefer the Democratic candidate who typically wins that state’s statewide vote and electors. That means in every election, they succeed in electing their “candidates of choice”: Democratic Party electors. Under a national popular vote, they might only help elect Democratic electors about half of the time.

But if this argument were true, then the many strongly Republican states with large racial minority populations would be liable to challenges under Section two of the Voting Rights Act. In 2008, for example, the African American vote for Barack Obama was likely more than 90% in several southern states that, due to statewide elections for electors and the strong preference of white voters for John McCain, only elected McCain electors. Anyone backing this critique of NPV would be elevating election of electors over elections of presidents – and should be ready to pursue Section 2 lawsuits in all the southern states now allocating their electoral votes on the basis of winner-take-all, statewide votes. Furthermore, those Latino voters helping to elect their candidate of choice must do so with a substantial share of white voters — that is, they would not be able to elect their presidential electors of choice on their own under California’s current statewide winner-take-all rule, and thus are not experiencing the kind of racially polarized voting that would deny them the ability to elect their candidate of choice.

Jessica Heller is a legal intern at FairVote and law student New York University School of Law.

Permalink: http://stateofelections.pages.wm.edu/?p=4370