The National Popular Vote Compact Via Direct Democracy

by Katherine Oh, Political Researcher & Strategist, American Civil Liberties Union

The surprising highs of voter participation in recent state and local elections, record numbers of women running for office, and even "not usually a sign guy" protestors marching in the streets are promising signs not just for American democracy and civil society in the new era under President Trump. They're signaling the moment may be ripe for leveraging activist and grassroots energy to bring the National Popular Vote Compact into effect.

In the current Electoral College system, most states award their electoral votes on a "winner-take-all" basis to the presidential candidate who wins the most votes within the state. As a result, a candidate can still become the country's president after ignoring all but the battleground states and losing the national popular vote as five men have in U.S. history.

Under the National Popular Vote Compact, participating states would instead allocate their electoral votes to the candidate who wins the most number of popular votes nationally. Once states that represent at least 270 electoral votes join the Compact, the Electoral College would thus be guaranteed to produce a victor who won the nationwide popular vote. Furthermore, the nature of the campaigns would change in a more democratic direction because every voter in every state would matter. In other words, the Compact would place the same Electoral College "under new management – the American people's," as ACLU President Susan Herman wrote.

In states that allow citizen-led ballot initiatives, Herman also suggested voters could directly propose and vote to approve a new statute or a state constitutional amendment to bring their state into the Compact. At the state level, as the comprehensive tome Every Vote Equal notes, "there is no provision of any state constitution that specifically singles out interstate compacts as being ineligible for enactment by the voters by means of the citizen-initiative process." Questions have been raised about the Compact's constitutionality at the federal level, including the two issues discussed here, but answers by supporters are persuasive.

First, not all interstate compacts require approval by Congress under the Constitution's Compact Clause. In Virginia v. Tennessee and United States Steel Corp. v. Multistate Tax Comm'n, the Supreme Court specified that congressional approval is unnecessary for compacts among states that do not encroach on the supremacy of the federal government. The Compact cannot infringe on federal supremacy in this context because there is no federal power over the allocation of Electoral College votes in the first place.

That power belongs instead to the states under Article II, Section 1: "Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors. . . ." Moreover, this power is exclusive and plenary to the states, provided that restrictions elsewhere in the Constitution aren't violated. The Supreme Court held so in McPherson v. Blacker, a ruling cited by the Court later in Bush v. Gore to refer to this supreme power of the states.

Another potential complication is whether Article II's literal reference to "the Legislature" necessarily excludes citizen-led ballot initiatives. As Every Vote Equal carefully explains, however, "history, practice, and law" show us the word "legislature" in the Constitution can also refer to the lawmaking process involving voters. McPherson v. Blacker further acknowledges that a state's legislative power may be "reposed" elsewhere rather than necessarily contained in its legislature, which itself is an instrument of "the sovereignty of the people."

More recently, as featured in this essay, Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n upheld the ballot initiative process for changing congressional district regulations using reasoning that's also favorable to the citizen-led initiative process for changing presidential election rules. Indeed, the AIRC Court declared it "perverse to interpret 'Legislature' in the Elections Clause to exclude lawmaking by the people," a statement especially meaningful in light of U.S. Term Limits v. Thornton. In that 1995 case, the Court highlighted the parallel between "legislature" in Article I with respect to electing members of Congress and "legislature" in Article II with respect to each state's system for electing presidential electors.

If joining the Compact via ballot initiative is on the table for more states, the overall calculus changes. The states that are currently part of the Compact represent 165 electoral votes. Based on their recent electoral history and past interest in the Compact, these states may be receptive to joining via the standard legislative route in the near future, bringing the hypothetical tally to 197: Connecticut (7 electoral votes); Delaware (3); Minnesota (10); New Mexico (5); and Oregon (7).

In about half the states, citizens can bypass the legislature to propose a new state statute or state constitutional amendment themselves. It's plausible that the everyday voters of Colorado (9), Florida (29), Michigan (16), Nevada (6), and Ohio (18), for example, would agree the President of the United States should be the candidate who won the most popular votes across the country after having had to care about every voter regardless of geography. Those states' electoral votes would raise our hypothetical total to 275—more than the 270 required to activate the Compact and deliver the Electoral College victory to the national popular vote winner.

Thus new stars may be aligning for the National Popular Vote Compact. Just look to the states that already empower voters to take matters into their own hands via direct democracy.

Democracy and Elections