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Testimony

Testimony on the National Popular Vote Plan for Council of the District of Columbia

Testimony by Amanda Rolat on the National Popular Vote Plan, submitted to the Committee on Government Operations and the Environment of the Council of the District of Columbia.

  • Amanda Rolat
Published: May 20, 2010

Testi­mony of
Amanda Rolat

Legal Fellow, Demo­cracy Program
Bren­nan
Center for Justice at NYU School of Law

 Before the
Commit­tee on Govern­ment Oper­a­tions and the Envir­on­ment
of the Coun­cil of the District of Columbia
Regard­ing
The National Popu­lar Vote Plan

May 19, 2010
 

Down­load Testi­mony as pdf

Intro­duc­tion

On behalf of the Bren­nan Center for Justice at NYU School of Law, I thank Coun­cil­mem­ber Cheh and the Commit­tee on Govern­ment Oper­a­tions and the Envir­on­ment for hold­ing this hear­ing on the National Popu­lar Vote proposal, and for extend­ing the invit­a­tion to speak with you today. 

My name is Amanda Rolat, and I am a legal fellow at the Bren­nan Center.  The Bren­nan Center is a non-partisan public policy and legal advocacy organ­iz­a­tion that focuses on funda­mental issues of demo­cracy and justice.  We unite schol­ars and advoc­ates in pursuit of a vision of inclus­ive and effect­ive demo­cracy.  The Center’s Demo­cracy Program researches and promotes reforms that elim­in­ate barri­ers to full and equal polit­ical parti­cip­a­tion and that foster respons­ive governance. 

The Demo­cracy Program has worked with many of the groups repres­en­ted at today’s hear­ing to support the National Popu­lar Vote proposal.  As several other speak­ers have explained today, the National Popu­lar Vote proposal — or “NPV” — would estab­lish a compact among states to guar­an­tee that the pres­id­ency would be awar­ded to the pres­id­en­tial candid­ate who receives the most popu­lar votes across the 50 states and District of Columbia.  NPV addresses a prob­lem­atic barrier to a more fully involved and coun­ted elect­or­ate — the winner-take-all system — under which all of a state’s elect­oral votes are awar­ded to the candid­ate who receives the most popu­lar votes in that state.  Because of winner-take-all, a candid­ate can receive fewer votes than his or her oppon­ent, and yet still win the pres­id­ency.  This has happened four times in our nation’s history.

I am delighted to testify before you on this subject, and hope today to briefly high­light our conclu­sions on the consti­tu­tion­al­ity of this proposal.  We have engaged in a compre­hens­ive review of legal critiques of the National Popu­lar Vote plan.  Most oppon­ents of NPV concede its consti­tu­tion­al­ity, but other crit­ics of NPV have sugges­ted that it runs afoul of vari­ous consti­tu­tional provi­sions — includ­ing the Compact and Guar­an­tee Clauses.  Crit­ics have sugges­ted that NPV encroaches on the sover­eignty of the non-compact­ing states, and that it applies uncon­sti­tu­tional pres­sure on non-compact­ing states to join.  Our analysis indic­ates that these criti­cisms are misguided.  We conclude that NPV is consti­tu­tional. 

I will first explain where states parti­cip­at­ing in the NPV compact derive their author­ity to do so:  Article II, Section 1 of the consti­tu­tion, which provides that the states have plen­ary author­ity to desig­nate their elect­oral college votes as they see fit (provid­ing, of course, that in doing so they do not viol­ate other consti­tu­tional commands, such as those guar­an­teed by the Equal Protec­tion Clause).  I will then discuss several other consti­tu­tional provi­sions which crit­ics of NPV have cited in suggest­ing the proposal raises consti­tu­tional concerns.  In partic­u­lar, I will address the Compact Clause of Article I, Section 10, which has been inter­preted to require Congres­sional approval only for so-called “polit­ical” compacts.  Though a pres­id­en­tial elec­tion certainly implic­ates “polit­ical” issues in the sense that the word is tradi­tion­ally under­stood, NPV is not a “polit­ical” compact as that term has been inter­preted under the exist­ing juris­pru­dence.  I will also address the Guar­an­tee Clause of Article IV, Section 4 and explain that concerns that the NPV proposal implic­ates the Guar­an­tee Clause are misguided. 

I.          States and the District of Columbia May Appoint Their Elect­ors Pursu­ant to the NPV Plan Because the Consti­tu­tion Grants Them Plen­ary Author­ity To Appoint Elect­ors As They Choose.

A.         States Have Plen­ary Power in Appoint­ing Elect­ors

Article II, Section 1 of the Consti­tu­tion spells out the proced­ure for elect­ing the Pres­id­ent.  Under Article II, we, the People, elect our Pres­id­ent indir­ectly through the elect­oral college.  Section 1 of Article II directs states to “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.”[1]  The candid­ate receiv­ing the major­ity of these elect­ors’ votes gains the pres­id­ency — although if no candid­ate wins a major­ity of votes, the House of Repres­ent­at­ives elects the Pres­id­ent (with each state receiv­ing one vote).  This indir­ect selec­tion of the Pres­id­ent is how the Framers inten­ded the pres­id­ent to be elec­ted. 

As the text of Article II makes clear, the legis­latures of the several states may appoint elect­ors “in such Manner” as they direct.  The Consti­tu­tion makes clear that Congress has no author­ity to prescribe how a state will appoint its elect­oral college votes.  The Supreme Court has made clear that the text of Article II, Section 1 is prop­erly under­stood accord­ing to its plain mean­ing.  Thus, in its import­ant 1892 decision in McPh­er­son v. Blacker, the Court announced that states have “plen­ary” power to choose the manner of appoint­ing their elect­oral votes.[2]  In that case, the Supreme Court rejec­ted a chal­lenge to a Michigan law which switched the state’s method of appoint­ing elect­ors from the winner-take-all method, which had become the national norm, to a district-by-district method.  The Court made clear that a state legis­lature had the power to change the method of appoint­ing elect­ors — even if a partic­u­lar method of appoint­ing elect­ors had prevailed for years, and even if all or nearly all the other states util­ized a differ­ent method of appoint­ing elect­ors. 

The Court has never retreated from the inter­pret­a­tion of Article II, Section 1 that gives the states full discre­tion in appoint­ing elect­ors.  Indeed, it more recently reaf­firmed that state legis­latures have plen­ary power to determ­ine how to appoint elect­ors in Willi­ams v. Virginia State Board of Elec­tions, in which it summar­ily affirmed a district court’s decision that rejec­ted a chal­lenge to Virgini­a’s decision to alloc­ate its elect­ors accord­ing to the winner-take-all system.[3]  Espe­cially in compar­ison to the signi­fic­ant consti­tu­tional limit­a­tions on state power contained in Article I for choos­ing the time, place and manner of hold­ing elec­tions for U.S. Senat­ors and Repres­ent­at­ives, the consti­tu­tion makes clear that the states’ discre­tion to appoint their pres­id­en­tial elect­ors is unusu­ally uncon­strained. 

Noth­ing in the consti­tu­tion mandates the winner-take-all system now used in most states.  Two states, Maine and Nebraska, currently use a system other than winner-take-all.  In those two states, the winner of each congres­sional district receives one elector and the winner of the state as a whole gets an addi­tional two elect­ors.  Histor­ic­ally, states have used a vari­ety of often-chan­ging meth­ods of select­ing elect­ors.  In the early repub­lic, more than half of the states chose elect­ors in their legis­latures, without any direct involve­ment by the public.  When states began moving toward popu­lar elec­tion of pres­id­en­tial elect­ors, they did not take a uniform path:  about half used a district system similar to that currently used in Maine and Nebraska, and the other half used a winner-take-all approach.[4]   Today, as has been the case through­out the nation’s history, states retain the right to alter the method they use to appoint elect­ors — and even to choose a method that does not involve direct popu­lar elec­tion.  Any state wish­ing to amend its system need only pass a state law to do so.

It is import­ant to note that states could not adopt a method of appoint­ing elect­ors that viol­ated the Equal Protec­tion Clause of the 14th Amend­ment — for example, by appoint­ing elect­ors based on a state popu­lar vote in which the votes of white and black voters were accor­ded differ­ent weight.  While Congress does not have the power to direct how states appoint their elect­oral college votes, it would of course have the power to act under its broad 14th Amend­ment remedial powers if a state’s policy — or the NPV compact — infringed on indi­vidual citizens’ voting rights.  The NPV compact does not.   

B.         Appoint­ing Elect­ors Accord­ing to the National Popu­lar Vote Winner Does Not Require a Consti­tu­tional Amend­ment

Oppon­ents of the NPV compact argue that only a consti­tu­tional amend­ment could alter the current winner-take-all scheme used in most states.[5]  This argu­ment goes too far: as demon­strated above, two states already reject that system, and the remain­ing states retain the power to embrace altern­at­ive systems.  Certainly, the consti­tu­tion could be amended to discard the elect­oral college as a whole.  But the way in which states choose to appoint their elect­ors to the elect­oral college can be changed without chan­ging the over­all infra­struc­ture of the elect­oral college itself.  The NPV compact would do just this, preserving the elect­oral college struc­ture while simply alter­ing the choice certain states have made about how to appoint their elect­ors. 

While oppon­ents argue that the NPV compact is simply an end-around the amend­ment process[6], this argu­ment is unavail­ing; the NPV compact expressly preserves the elect­oral college and the exist­ing consti­tu­tional struc­ture.  Amend­ing the consti­tu­tion is, of course, one way in which the coun­try could ensure that the pres­id­ency is awar­ded to the winner of the national popu­lar vote.  While it is an obvi­ous answer, however, it is not the only answer.  Nor is it required.  To be clear, we do not assert that the NPV compact is a good altern­at­ive to what is simply too hard to effect.[7]  Enter­ing into the NPV compact does noth­ing the states have not done before:  it simply changes the method of alloc­at­ing elect­oral votes, within an unchanged elect­oral college.  And under the NPV compact, unlike the case if a consti­tu­tional amend­ment mandated a national popu­lar vote, states would retain the right to with­draw from the NPV system, and to change their method of appoint­ing elect­ors — back to the winner-take-all system, to the district-based system, or to another altern­at­ive.

It is possible, of course, that if the NPV compact were put into effect, a consensus would emerge that it is desir­able to take the further step of amend­ing the consti­tu­tion to perman­ently enshrine a national popu­lar vote, and make it impossible for states to revert to a winner-take-all (or other) system.  However unlikely such a devel­op­ment might be, there is substan­tial preced­ent for state innov­a­tion to prompt consti­tu­tional amend­ment.  By the time Congress passed the 26th Amend­ment in 1971, which lowered the voting age to 18, for example, Geor­gia, Kentucky, Alaska and Hawaii already had a minimum voting age below 21.  By the end of the nine­teenth century, Idaho, Color­ado, Utah and Wyom­ing had enfran­chised women before rati­fic­a­tion of the 19th Amend­ment in 1920 gran­ted women the right to vote.  And by the time the 17th Amend­ment estab­lished direct elec­tion of U.S. senat­ors in 1913, seven states (Oregon, Nevada, Arizona, Color­ado, Kansas, Minnesota, and Oklahoma) already effect­ively chose senat­ors by popu­lar vote. 

II.        The Consti­tu­tional Objec­tions Raised by Crit­ics of NPV Are Unavail­ing.

            Crit­ics of the NPV compact who have argued that there are consti­tu­tional obstacles to putting it into effect offer two cent­ral objec­tions:  first, that the NPV compact could not be given effect without formal Congres­sional approval; and second, that it runs afoul of the Guar­an­tee Clause.  Both argu­ments are flawed. 

A.         The NPV Compact Does Not Require Congres­sional Consent

Under long-stand­ing preced­ent, states have the author­ity to enter into the NPV compact without Congres­sional approval.   The ques­tion of Congres­sional approval, of course, is of partic­u­lar sali­ence in the District of Columbia.  While Congres­sional endorse­ment of the NPV compact might be polit­ic­ally desir­able — and might strengthen the chances of judi­cial enforce­ment of the NPV compact — it is not a consti­tu­tional prerequis­ite. 

The Compact Clause provides that “No State shall, without the consent of Congress . . . enter into any Agree­ment or Compact with another State.”[8]  Although the text of the Compact Clause expli­citly refer­ences the need to secure Congres­sional consent, the clause has been consist­ently read only to require consent for so-called polit­ical compacts.[9]  The Supreme Court affirmed this prin­ciple, and artic­u­lated the current test for polit­ical compacts, in U.S. Steel Corp. v. Multistate Tax Commis­sion,[10]   in which the Court outlined a two-prong test for determ­in­ing which compacts are “polit­ical.”   First, a compact is polit­ical if it increases state power in a way that encroaches on federal suprem­acy.[11]  Second, a compact will be deemed polit­ical if, by join­ing it, the parti­cip­at­ing states encroach on the author­ity and power of non-compact­ing states.  If a compact satis­fies either one of these two prongs, it is considered to be polit­ical, and requires Congres­sional consent to take effect.

As demon­strated above, because Congress has no power to influ­ence states’ choices with regard to alloc­at­ing their elect­oral college votes, the NPV compact does not in any way encroach on federal power.  It, there­fore, does not trig­ger clas­si­fic­a­tion as a polit­ical compact under the first prong of the U.S. Steel test.

The NPV compact is also non-polit­ical under the second prong of the test, because it does not accom­plish any more than what the states could indi­vidu­ally do on their own.  Crit­ics of the NPV compact argue that if it were adop­ted, non-adopt­ing states would exper­i­ence undue pres­sure to join, and there­fore, that it encroaches on the power of non-compact­ing states.   But non-parti­cip­at­ing states would still retain plen­ary power to decide how to appoint their elect­ors, regard­less of the decisions of other states.[12]  In fact, each state is currently locked into the winner-take-all system because any state’s polit­ical influ­ence would be dimin­ished if it were to unilat­er­ally begin appoint­ing elect­ors differ­ently.  Any pres­sure to join the NPV compact, then, would be no differ­ent than the pres­sure states currently feel to remain entrenched in our current system.  Thus, adop­tion of the NPV compact would not encroach on the power of the non-compact­ing states.

Because the NPV compact would not encroach on the polit­ical power of the federal govern­ment or non-compact­ing states, it is not considered a polit­ical compact under the applic­able juris­pru­den­tial test.  Congres­sional approval is there­fore not required for states to agree to alloc­ate their elect­oral college votes to the winner of the national popu­lar vote. 

B.         The Guar­an­tee Clause Is No Obstacle to the NPV Compact

Oppon­ents have also argued that the Compact would viol­ate the Guar­an­tee Clause of Article IV, Section 4 of the Consti­tu­tion.  The Guar­an­tee Clause states that “the United States shall guar­an­tee to every State in this Union a Repub­lican Form of Govern­ment.”[13]  Accord­ing to NPV’s crit­ics, the clause guar­an­tees the federal elec­tion of the Pres­id­ent from the major­ity of the people within each state, not of the nation.  Further, crit­ics claim, employ­ing state stat­utes to accom­plish a national popu­lar vote would viol­ate struc­tural aspects of our federal system.[14]  These argu­ments are mistaken.

The sugges­tion that the NPV plan runs afoul of the Guar­an­tee Clause conflicts with the Supreme Court’s inter­pret­a­tion of the clause.  The Guar­an­tee Clause has been inter­preted to prevent federal power from encroach­ing on the states.  Never has it been construed to suggest that a state legis­lature cannot legis­late as to the manner of appoint­ing elect­ors — a power that the consti­tu­tion expli­citly commits to the state legis­latures.   Simply put, there is no preced­en­tial support for the propos­i­tion that the Guar­an­tee Clause applies to state legis­la­tion that neither encroaches on the suprem­acy of the federal govern­ment nor command­eers the legis­lat­ive autonomy of fellow states.   

The NPV compact does not funda­ment­ally alter the alloc­a­tion of power between the states and federal govern­ment within our feder­al­ist system.  It does not change the way the Pres­id­ent is elec­ted, but instead, only changes the method that parti­cip­at­ing states use to award their own elect­oral votes.  Further, the NPV compact does not alter the polit­ical char­ac­ter or autonomy of each state.  It main­tains the elect­oral college, and the system in which each state chooses its own method of assign­ing elect­oral votes (and reserves the right to change that method at any time).  Even though the alloc­a­tion of elect­oral college votes under the NPV compact is based on the national vote tally, it is still the prerog­at­ive of each state legis­lature to choose its own method.  Regard­less of what other states may choose to do, every state remains free to appoint its own pres­id­en­tial elect­ors however it sees fit, even if the NPV compact were adop­ted.  Noth­ing in the Guar­an­tee Clause prohib­its this arrange­ment.

Conclu­sion

Oppon­ents who critique the National Popu­lar Vote bill favor a system that, by its very design, excludes voters in some states from mean­ing­fully parti­cip­at­ing in the selec­tion of our Pres­id­ent.  There is noth­ing in the Consti­tu­tion, or its inter­pret­a­tion by the Supreme Court, that would prevent states and the District of Columbia from embra­cing a system in which the vote of every citizen in the nation is weighted equally in select­ing the Pres­id­ent.

The NPV compact would give voters in every state a real voice and a genu­ine oppor­tun­ity to parti­cip­ate in pres­id­en­tial elec­tions.  The proposal is a vitally import­ant solu­tion that will ensure every citizen’s vote will count equally in our pres­id­en­tial elec­tions.  The proposal is fair and non-partisan.  It would forces our pres­id­en­tial candid­ates to campaign before a much broader range of citizens than they do under the current system, in which a dispro­por­tion­ate share of campaign resources are focused on voters in a hand­ful of battle­ground swing states.  It will ensure that our pres­id­ents, in fact, repres­ent a much broader elect­or­ate.  It will encour­age voter turnout and civic engage­ment.
 


[1] U.S. Const. art. 2, §1, cl. 2 (emphasis added). 

[2] McPh­er­son v. Blacker, 146 U.S. 1, 35 (1892). 

[3] 393 U.S. 320 (1969) (per curiam), affirm­ing 288 F. Supp. 622 (E.D. Va. 1968).

[4] See Jennings “Jay” Wilson, Bloc Voting in the Elect­oral College:  How the Ignored States Can Become Relev­ant and Imple­ment Popu­lar Elec­tion Along the Way, 5 Elec­tion L. J. 384, 397 (2006).

[5] See e.g., Martin G. Evans, Pick­ing a Pres­id­ent – Through the Consti­tu­tion, Boston Globe, Janu­ary 22, 2008. 

[6] See e.g., Derek T. Muller, The Compact Clause and the National Popu­lar Vote Inter­state Compact, 6 Elec­tion L. J. 372, 373 (2007).

[7] The consti­tu­tion, of course, is designed to discour­age amend­ments. It requires both the House and Senate to pass an amend­ment by a super­ma­jor­ity, two-thirds vote, and then requires three-quar­ters of the states to ratify the amend­ment.

[8] U.S. Const. art. I, § 10, cl. 3. 

[9] See Virginia v. Tennessee, 148 U.S. 503 (1893). 

[10] 434 U.S. 452 (1978).

[11] U.S. Steel Corp., 434 U.S. at 479. 

[12] See U.S. Steel Corp., 434 U.S. at 478. 

[13] U.S. Const. art. 4, § 4, cl. 1.

[14] Kristin Feeney, Guar­an­tee­ing a Feder­ally Elec­ted Pres­id­ent, 103 Nw. U. L. Rev. 1427, 1443 (2009).