JURIST Guest Columnist William G. Ross of Cumberland School of Law says that the National Popular Vote Interstate Compact is bound to cause tremendous amounts of litigation and to be challenged as unconstitutional or in violation of the Voting Rights Act of 1965…

An under-publicized and constitutionally dubious movement to elect presidents by a national popular vote without formally abolishing the Electoral College is gathering considerable momentum. In order to circumvent the difficult constitutional amendment process, states that favor direct popular election would enter into an agreement with like-minded states to award their presidential electors to the candidate who received a plurality of the national popular vote. Seven states already have approved this so-called National Popular Vote Interstate Compact (NPVIC), 10 states have rejected it, and the measure is pending in the legislatures of 12 other states. The agreement would not take effect until states that have subscribed to the compact have a majority in the Electoral College, and states could not withdraw from it during the six month period between July 20 of a presidential election year and January 20 of the following year, the constitutionally mandated date of the president’s inauguration. At the present time, the seven states that have ratified the compact have 132 electoral votes, slightly less than half of the 270 votes that constitute a majority in the Electoral College.

The NPVIC movement emerged in the wake of the 2000 presidential election, which rekindled opposition to the Electoral College because Al Gore lost to George W. Bush by a vote of 271 to 266 in the Electoral College even though Gore won 543,000 more popular votes than Bush. Only three other times — in 1824, 1876 and 1888 — had the winner of the popular vote lost a presidential election. Those elections occurred in times when participation in the political process was much more limited — women, Native Americans and most African-Americans were disenfranchised, and state legislatures still elected US senators. With the huge advances in popular democracy since 1888, one might have expected that the 2000 election would have renewed the widespread demands for a constitutional amendment to abolish the Electoral College that were heard following the elections of 1968 and 1976, when small shifts of votes in a few states would have resulted in the election of candidates (Democratic nominee Hubert Humphrey in 1968 and Republican nominee Gerald Ford in 1976) who would have failed to receive pluralities of the popular vote. Congress conducted extensive hearings on the Electoral College after those elections, but it practically ignored electoral reform after the 2000 election. Meanwhile, many opponents of the Electoral College rallied around the compact as an alternative to a constitutional amendment to abolish the Electoral College.

Opponents of the Electoral College understandably prefer to avoid the constitutional amendment process, which the Framers of the Constitution deliberately made difficult and which has yielded only 17 amendments since the first 10 amendments (the Bill of Rights) were added to the Constitution 220 years ago. Abolition of the Electoral College by constitutional amendment would be difficult because both states with small populations and states with large populations have reasons to seek to retain the Electoral College. Approximately one third of the states clearly benefit from the inexorable arithmetic of the Electoral College, in which every state automatically has as many electoral votes as it has members in Congress (a minimum of two senators and one representative), because their percentage of the nation’s population is smaller than their share of the Electoral College. In the seven states that have three electoral votes, for example, a voter’s impact on the Electoral College is nearly four times greater than a voter’s impact in California, which has 55 electoral votes. Although the most populous states are under represented in the Electoral College, the Electoral College nevertheless favors these states to the extent that their hefty number of votes causes presidential candidates to invest substantial resources in the states (at least if the states are electorally competitive) and gives the states special clout in presidential administrations. Even if an amendment to abolish the Electoral College obtained the requisite two-thirds votes of both houses of Congress, it would have difficulty obtaining ratification by three-quarters of the state legislatures.

The idea of electing a president on the basis of popular vote, however, has powerful appeal, particularly because the Electoral College is a relic of a time when concepts of popular participation in government were much more limited — in many states until well into the nineteenth century electors were chosen by state legislators rather than by popular vote. It is therefore not impossible to suppose that a sustained movement to abolish the Electoral College in favor of some kind of direct popular vote (by plurality, majority vote after a run-off election, or some other method) would successfully surmount the gauntlets of the constitutional amendment process.

Critics of the Electoral College, moreover, do not need either the compact or a constitutional amendment to at least ameliorate the “winner take all” aspect of the Electoral College and to make the allocation of electoral votes correlate more closely with the popular vote. States, for example, are free to allocate a separate electoral vote to each congressional district. This procedure, which Maine and Nebraska have adopted, increases the importance of popular votes even though the states using this procedure must continue to award two electoral votes (those based on the state’s representation in the Senate) to the candidate who wins a plurality of the popular vote. States could make the allocation of electoral vote even more responsive to the popular vote by allocating their electoral votes in a manner that is proportionate to the candidates’ share of the popular vote. Neither of these options may be politically feasible, however, because both would tend to favor Republicans since Democratic candidates tend to carry the states with large blocs of electoral votes.

Although Democrats have provided the principal impetus for the compact while Republicans tend to oppose it, one cannot say whether the compact would favor one party over another in any particular election. Although the Electoral College favors Republicans insofar as it provides disproportionate weight to votes in states (such as North Dakota, South Dakota, Montana and Wyoming) that Republicans tend to carry, several states with small populations (Rhode Island, Hawaii and Vermont) as well as the District of Columbia, are heavily Democratic. During the 2000 election campaign, there were widespread predictions that Al Gore would win the electoral vote but lose the popular vote to George W. Bush, and various Democratic commentators fretted about whether Republicans would impugn the legitimacy of Gore’s election or even mount some kind of legal challenge if this happened. And in 2004, the shift of 60,000 votes in Ohio would have elected John Kerry even though Bush would have retained a comfortable majority of the popular vote.

The constitutional foundation of NPVIC is Article II, Section 1 of the Constitution, which provides that states shall appoint electors “in such Manner as the Legislature thereof may direct.” Advocates of the compact point out that the plain language of this text appears to provide legislators with plenary authority over the method of selecting electors, an interpretation endorsed by the US Supreme Court more than a century ago in McPherson v. Blacker in 1892 and again in 1969, Williams v. Virginia Board of Elections. Like all provisions of the Constitution, however, this section must be read in context and in conjunction with other provisions of the Constitution.

The principal constitutional impediment to NPVIC probably is the so-called “Compact Clause” in Article I, Section 10 of the Constitution, which provides that “No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State.” Although the US Supreme Court has concluded that the Compact Clause does not require Congress to consent to compacts that affect only the internal affairs of the compacting states, it has indicated in US Steel Corporation v. Multistate Tax Commission that the Compact Clause requires Congress to consent to an agreement that “would enhance the political power of the member States in a way that encroaches upon the supremacy of the United States,” or “impairs the sovereign rights of non-member states.”

Advocates of the compact contend that it would not need congressional authorization because it does not encroach upon national supremacy. But while the compact might not literally interfere with the supremacy of the federal government, the compact would powerfully affect the federal government since it could change the outcome of a presidential election. It also would involve more than merely the internal affairs of the states since it would interfere with the federalist structure of the US Constitution’s procedure for electing a president. The equal representation of every state in the Senate is an integral part of the fabric of the Electoral College insofar as it gives every state an electoral vote that is the total of the number of both its senators and its representatives. Although the compact would not violate the letter of the Constitution since it would retain the Electoral College and would not alter the method by which electoral votes are assigned or change the number of electoral votes that any state has, it would jettison the federalist structure of the Electoral College to the extent that the popular vote rather than the votes of individual states would determine the outcome. The compact’s reduction of the Electoral College to an empty shell would therefore thwart the intention of the Framers of the original Constitution and the framers of the Twelfth Amendment, which reformed the Electoral College in 1804, since the Constitution clearly contemplates that electoral votes will be cast by the states as states rather than by the states as collective or compacting entities. Although this procedure permits (but does not require) individual states to select their electors on the basis of popular vote, it does not authorize the election of the president by any kind of national popular vote.

The Supreme Court has made clear that states may not enact legislation that interferes with the federalist structure of the Constitution, even when the Constitution does not expressly prohibit such legislation and even when a literal interpretation of the Constitution could support such legislation. In US Term Limits, Inc. v. Thornton, the Court held that states could not limit the terms that US representatives could serve even though the Constitution does not prohibit such limitations, because representatives are officers of the federal government. The Court explained that term limits would permit states to circumvent the constitutional provisions that allow Congress to determine the qualifications of its members and that the Framers did not spend “significant time and energy in debating and crafting Clauses that could be easily evaded” and “manipulated out of existence.” Similarly, the Court might determine that the compact evades the Electoral College by trying to manipulate it out of existence.

The NPVIC is also vulnerable under the Compact Clause insofar as it would interfere with the interests of states that did not subscribe to the compact. Advocates of NPVIC deny that the compact would interfere with the rights of these states because an election’s outcome would be based upon the total of votes in all states, including non-participants. The compact, however, would deprive such states of their ability to help to determine (or even to determine, if the electoral vote of one state would tip the election) the outcome of a presidential election on the basis of electoral votes cast individually by the states rather than collectively based upon a national popular vote. Since this would constitute a virtual abolition of the Electoral College, non-compacting states would be denied their right to participate in a constitutional amendment process to determine whether the nation should make such an important change in its method of selecting the president.

Since Congress could consent to the compact by majority vote rather than by the two-thirds majorities required by the constitutional amendment process, it is more likely that Congress would consent to NPVIC than that it would consent to a constitutional amendment to abolish the Electoral College. Congressional consent for NPVIC is far from assured, however, particularly because Congress might not appreciate its exclusion from a process that would significantly alter the method of selecting the president. If Congress withheld its consent, the constitutionality of the compact would need to be tested in court.

Some critics of the compact also allege that it would violate the so-called Guarantee Clause of Article IV, Section 4 of the Constitution, which states that the “United States shall guarantee to every State in this Union a Republican Form of Government.” This contention is closely related to the argument that NPVIC would violate the Compact Clause, for it is based upon the theory that the virtual substitution of a national vote for a state-by-state vote would interfere with the federalist structure of the Constitution. Opponents of the compact contend that it would deprive voters in the non-compacting states of a republican form of government because the states that join the compact would determine the outcome of an election in a manner to which the non-compacting states had not consented. In contending that the Guarantee Clause does not prohibit NPVIC, proponents of the compact reiterate their Compact Clause argument, contending that it does not interfere with the federalist structure of elections because it does not actually replace the Electoral College. The applicability of the Guaranty Clause to the compact is a murky subject that would almost surely complicate the almost inevitable litigation that the compact would provoke.

Some opponents of NPVIC also have warned that the compact might violate sections 2 and 5 of the Voting Rights Act of 1965 by diluting the votes of racial minorities and impeding their exercise of the franchise. Since African-Americans and Latinos are concentrated in populous states that have large numbers of electoral votes, these opponents of the compact contend that the election of a president by virtual popular vote would diminish the electoral influence of these racial minorities. Since, for example, Latinos comprise eight percent of the voters in the nation but constitute 28 percent of the electorate in California, which has more electoral votes than any other state, the compact could make Latino vote less significant in presidential elections. This could violate the Voting Rights Act or at least trigger its provisions requiring the US Department of Justice to approve changes in voting procedures that may have a discriminatory purpose or effect. Although the applicability of the Voting Rights Act to the compact is far from clear, what is clear is that the compact could generate complex litigation under the act.

Critics of the compact also point out that the substantial variations among state election laws regarding issues such as whether ex-felons or mentally disabled persons may vote could raise significant problems under the Equal Protection Clause of the Fourteenth Amendment. In its opinion in Bush v. Gore, the Court held that disparities in election laws within the states could violate equal protection, and many opponents of the compact contend that the logic of that decision would extend to disparities among the states if the election were determined by a national vote.

Another objection to the compact is that it does not take account of how the compacting states would determine which candidate won the national popular vote. Since the national popular vote in many presidential elections has been very close, any election of the president by such a vote could require recounts in all 50 states and the District of Columbia. The specter of recounts on such a colossal scale has provided a perennial policy argument against the abolition of the Electoral College, since a close electoral vote typically would require recounts in only one or a small number of states. The compact’s failure to provide any procedure for recounts would generate obvious practical problems and it likewise could create equal protection problems under Bush v. Gore since the procedures for recounts vary substantially both within states and among states. Such recounts would virtually guarantee protracted and acrimonious litigation in all 50 states and the District of Columbia that would resemble the confusing and contentious recount litigation in Florida following the 2000 election.

The feature of the compact that seems most likely to encourage a nightmare of litigation, however, is the apparent lack of any certain means of ensuring that states would actually abide by the compact if this meant awarding their electoral votes to a candidate that a majority of legislators in a state opposed, a prospect that would almost inevitably occur in at least some states in at least some elections. Since the compact is an extra-constitutional arrangement even if it is not actually unconstitutional, there is a significant chance that states which subscribe to it would refuse to abide by it if it helped to elect a controversial candidate who was opposed by a large majority of the voters of their state, notwithstanding the compact’s prohibition on withdrawal within six months before the president’s inauguration. Suppose, for example, that a conservative Republican won a small plurality of the national popular vote but was resoundingly defeated in, say, Massachusetts, California and New York (states that already have ratified the compact) and would lose in the Electoral College but for the compact. Is it really realistic to suppose that the legislators in those and other states that the Democrat carried would be willing to invoke the compact to enable the Republican to become president? Indeed, is it realistic to suppose that any Republican or Democratic legislature ever would be willing to hand the presidency to the opposing party when the Electoral College, which would remain fully operative even with the compact in force, could thwart such an election? Any defection from the compact that changed the outcome of the election would likely provoke litigation as tortuous as that which produced Bush v. Gore.

Some critics of the compact, who do not necessarily oppose the concept of the compact, also have complained that it fails to provide for participation in presidential elections by the millions of US citizens who reside in the US territories of Puerto Rico, Guam, the Virgin Islands and the Northern Mariana Islands. They argue that the compact should enfranchise of those citizens in presidential elections by providing that the legislatures would include the presidential votes of those citizens (who presently do not vote at all for president) in the national total. Counting these votes in such a manner would not violate the letter of the Constitution since these territories would not themselves be casting electoral votes. To the extent that counting such votes would contravene the structure of the Constitution, the constitutional amendment process, by which District of Columbia residents in 1964 obtained the right to vote to in presidential elections, would be the appropriate method for enfranchising citizens of the territories.

Even if the compact is constitutional, it is so fraught with practical problems and constitutional objections that it would be almost certain to provoke complex and protracted litigation that would make Bush v. Gore seem simple and tame by comparison. The Supreme Court’s determination of yet another presidential election also could undermine public confidence in the Court’s impartiality, and the Court might not find a way to resolve the issues that would prevent their recurrence in later elections. The constitutional amendment process provides the only sound and durable way to ensure the popular election of the president. If opponents of the Electoral College could surmount the obstacles of the constitutional amendment process they could fully and forever achieve their goal of electing the president solely by popular vote.

William G. Ross is Professor of Law at the Cumberland School of Law at Samford University in Birmingham, Alabama. His courses include professional responsibility, civil procedure, constitutional law and American legal history. Ross has published numerous articles on federal separation of powers issues including many works on the appointment of US Supreme Court justices and other federal judges.

Suggested citation: William G. Ross, Popular Vote Compact: Fraught With Constitutional Perils, JURIST – Forum, Feb. 28, 2012, http://jurist.org/forum/2012/02/william-ross-vote-compact.php.