By: Chelsy Lutz
It is past November 8th in the United States, which means a long awaited battle over who will be the next President of the country has all but come and passed. Now it is up to the members of the Electoral College to officially cast their votes next month, and to choose the candidate that won the majority of votes in their state. But certainly, this begs the question, do the votes of the individual citizens really matter in the outcome of the Presidential election? And do those votes really “count,” if a group of electors from the Electoral College are choosing the president in actuality? Further, could there be a way in which, for every election, the candidate who wins the national popular vote of the nation, wins the presidency? Enter the National Popular Vote Bill, which proponents say is the answer to U.S. citizens feeling like they don’t actually ‘choose’ the president.
The National Popular Vote Compact (“NPVC”) is an agreement between the states that choose to enact it that guarantees the candidate who wins the national popular vote in all fifty states wins the electors of the states within the compact.[1] The compact was designed to ensure that the candidate who wins the national popular vote on Election Day always wins the presidency.[2] It requires that the states within the compact have 270 electoral votes (the majority that is required of a candidate to win the presidency) between them to enact it.[3] Currently, there are ten states in addition to the District of Columbia that have joined the compact, and there are 165 electoral votes between them, which represents 61% of the votes needed for the compact to be fully enacted.[4]
A study done in 2008 by the Washington Post shows that more than 70% of the country would support inserting the national popular vote mechanism of electing the president over the current Electoral College System.[5] U.S. Congressman-Elect Jamin Raskin, a constitutional law professor and expert on the legislation proposes that it “offers America a way to reach true democracy in our presidential elections without eliminating the Electoral College but by reforming our use of it.”[6] This presidential election marks the fifth time in our nation’s history that the national popular vote went to a candidate who did not ultimately win the presidency.[7]Four other times the current Electoral College System has also allowed a candidate to win the presidency without winning the national popular vote in the elections of 1824, 1876, 1888 and 2000.[8] Traditionally, presidential campaigns only focus their resources in a handful of states.[9] Proponents of the NPVC argue that the compact will ensure that all states and all voters are treated equally during presidential campaign seasons.[10] The New York Times has supported the compact, stating that the current system is lacking, because “the Electoral College discourages turnout because voters in two-thirds of the nation know well before Election Day who will win their states.”[11] Opponents to the NPVC have the opposite reasoning, and argue that “the sole practical effect of [direct election] will be to eliminate the States from their share in the political process.[12] Even the Washington Post, admits that even with the high support nationally for changing the electoral college system, the polarization of our national politics will not allow it to happen any time soon.[13]
Is the NPVC constitutional? Article II, Section 4 Clause 1 of the U.S. Constitution lays out the exact framework for national elections, providing, “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…”[14] Interstate compacts, like the National Popular Vote Bill are also regulated by the Constitution, which provides in Article I section 10 “No State shall, without the Consent of Congress…enter into any Agreement or Compact with another State…”[15] Opponents argue that the NPVC should be unconstitutional based on the mere fact that the Compact has not received approval by Congress.[16] However, in McPherson v. Blacker, a case regarding the method of nomination of presidential electors in the state of Michigan, the Supreme Court held that “the power and jurisdiction of the state is exclusive” and thus, “the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States.”[17] The Court establishes in Virginia v. Tennessee that the mandate of the Compact Clause is truly concerned with the “formation of any [compact] tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.” [18] Finally, in U.S. Steel Corp. v. Multistate Tax Commission, a case regarding the validity of a multi-state tax compact, the Court held that “not all agreements between states are subject to the strictures of the Compact Clause.”[19]
The National Popular Vote Compact has national support, several states that support it with a solid amount of electoral college votes, and it is constitutional. Even with any discernible shortcomings, its merits outweigh the cost, and could finally allow voters to actually choose their president.
[1] Written Explanation, NationalPopularVote.com, https://www.nationalpopularvote.com/written-explanation (last visited Nov. 13, 2016).
[2] Id.
[3] Id.
[4] Id.
[5] Washington Post-Kaiser Family Foundation-Harvard University: Survey of Political Independents 12-13, The Washington Post, https://www.washingtonpost.com/wp-srv/politics/interactives/independents/post-kaiser-harvard-topline.pdf (last visited November 13, 2016).
[6] Jamin B. Raskin, Neither the Red States Nor the Blue States, but the United States: The National Popular Vote and American Democracy, 7 Election L.J. 188 (2008).
[7] Nationalpopularvote.com, supra, note 1.
[8] Id.
[9] Id.
[10] Id.
[11] Drop Out of the College, N.Y. Times, Mar. 14, 2006, https://www.nytimes.com/2006/03/14/opinion/drop-out-of-the-college.html (last visited November 10, 2016).
[12] John Samples, A Critique of the National Popular Vote Plan for Electing the President, 622 Policy Analysis, Oct. 2008 at 10, (quoting Martin Diamond and Birch Bayh, The Electoral College and the Idea of Federal Democracy, Publius 8, 68 (Winter 1978)).
[13] Aaron Blake, Getting Rid of the Electoral College? Dream on, Democrats, Wash. Post, Nov. 9, 2016, https://www.washingtonpost.com/news/the-fix/wp/2016/11/09/getting-rid-of-the-electoral-college-dream-on-democrats/.
[14] US Const. Article II, Section 1, Cl. 4
[15] US Const. Article 1 Section 10
[16] Supra note 11, (quoting E. J. Dionne Jr., “Bypassing the Electoral College,” Wash. Post,
April 2, 2007, p. A15 (stating that the NPVC is “an effort to circumvent the cumbersome process of amending the Constitution”)).
[17] McPherson v. Blacker, 146 U.S. 1, 11 (1892).
[18] Virginia v. Tennessee, 148 U.S. 503, 519 (1893).
[19] U.S. Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452, 469 (1978).