The National Popular Vote Initiative: Direct Election of the President by Interstate Compact (name redacted) Specialist in American National Government (name redacted) Legislative Attorney December 12, 2014 Congressional Research Service 7-.... www.crs.gov R43823 The National Popular Vote Initiative (NPV) Summary The National Popular Vote (NPV) initiative proposes an agreement among the states, an interstate compact that would effectively achieve direct popular election of the President and Vice President without a constitutional amendment. It relies on the Constitution’s grant of authority to the states in Article II, Section 1, to appoint presidential electors “in such Manner as the Legislature thereof may direct.... ” Any state that joins the NPV compact pledges to award all its electoral votes to the presidential ticket that wins the most popular votes nationwide, regardless of who wins in that particular state. The number of electoral votes won by the national popular vote winners would depend on the number of electoral votes controlled by NPV member states. The compact would, however, come into effect only if its success has been assured; that is, only if states controlling a majority of electoral votes (270 or more) join the compact. Recent action by the New York legislature to join the compact has generated renewed interest in the NPV initiative. At the time of this writing, 10 states and the District of Columbia, which jointly control 165 electoral votes, have joined the compact. The National Popular Vote initiative emerged following the presidential election of 2000, in which one ticket gained an electoral vote majority, winning the presidency, but received fewer popular votes than its opponents. NPV grew out of subsequent discussions among scholars and activists about how to avoid similar outcomes in the future and to achieve direct popular election. Proponents of NPV assert that it would guarantee the presidential candidates who win the most popular votes nationwide will always win the presidency; that it would end the inequities of the general ticket/winner-take-all system of awarding electoral votes; and that candidates would extend their focus beyond winning the “battleground states,” campaigning more widely and devoting greater attention to issues of concern to other parts of the country. They further assert that NPV would accomplish this while avoiding the exacting standards set for the proposal and ratification of constitutional amendments. Opponents argue that NPV would undermine the authority of states under the Constitution and the Founders’ intention that presidential elections should be both national and federal contests; that it is an admitted “end run” around the Constitution which would circumvent the amendment process; and that it might actually lead to more disputed presidential elections characterized by politically contentious state recounts. The NPV has also been debated on constitutional and legal grounds. Some observers maintain that it must be approved by Congress, because it is an interstate compact that would affect key provisions of constitutional presidential election procedures. NPV Inc., the organization managing the initiative’s advocacy campaign, responds that congressional approval is not necessary because NPV deals with the appointment of electors, a subject that falls within state constitutional authority, and that the Supreme Court has previously rejected arguments that similar compacts would impair the rights of nonmember states. Other critics claim that NPV might violate the Voting Rights Act by diluting minority voter influence and avoiding the recently invalidated preclearance requirement for election procedures changes in covered jurisdictions. In response, NPV, Inc. has asserted that the compact is “entirely consistent with the goal of the Voting Rights Act.” This report monitors the NPV’s progress in the states and will identify and provide analysis of further developments as warranted. Congressional Research Service The National Popular Vote Initiative (NPV) Contents Introduction ...................................................................................................................................... 1 The Electoral College in Brief ......................................................................................................... 2 The National Popular Vote Initiative: Background .......................................................................... 4 Electoral College Reform, 1948-1979: Three Decades of Unsuccessful Efforts to Propose a Constitutional Amendment .................................................................................... 4 Survey Research: Public Support for Direct Popular Election .................................................. 5 The Election of 2000 and Electoral College Reform................................................................. 5 Bypassing Constitutional Amendment Procedures to Attain Direct Popular Election: Emergence of the National Popular Vote Concept ................................................................. 6 The National Popular Vote Initiative (NPV) .................................................................................... 7 How the NPV Would Work ....................................................................................................... 7 Managing the NPV Campaign: National Popular Vote, Inc. ..................................................... 8 States Adopting the National Popular Vote Interstate Compact, 2008-2014 ............................. 9 The National Popular Vote Initiative: Pro and Con ....................................................................... 11 Arguments Favoring the NPV Compact .................................................................................. 11 Arguments Opposing the NPV Compact ................................................................................. 14 National Popular Vote: Constitutional and Legal Issues ................................................................ 17 The NPV Initiative as an Interstate Compact .......................................................................... 17 The NPV Initiative and Article II of the Constitution ............................................................. 23 The NPV Compact and the Voting Rights Act ........................................................................ 25 Concluding Observations ............................................................................................................... 27 Contacts Author Contact Information........................................................................................................... 28 Congressional Research Service The National Popular Vote Initiative (NPV) Introduction1 Since its founding in 2006, the National Popular Vote initiative has promoted an agreement among the states, an interstate compact that would effectively establish direct popular election of the President and Vice President without a constitutional amendment, while retaining the structure of the electoral college system. The United States is unique among “presidential” republics by providing an indirect election to choose its chief executive.2 The President and Vice President of the United States are selected not by registered voters, but by the electoral college, electors appointed in the states “in such Manner as the Legislature thereof may direct.... ” Alexander Hamilton, who was “present at the creation” of the Constitution in 1787, commented favorably on the electoral college system in The Federalist: The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents.... I venture somewhat further, and hesitate not to affirm that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages the union of which was to be wished for.3 Notwithstanding Hamilton’s endorsement, the first proposal to change the electoral college system by constitutional amendment was introduced as early as 1800, and since that time more than 700 proposals to reform or eliminate the college have been introduced in Congress.4 Reform advocates have long focused on the fact that it does not provide for direct democratic election, and that the winner-take-all system makes it possible for candidates to win an electoral college majority and the presidency, while gaining fewer votes than their principal opponents in the popular election. Between 1949 and 1979, Congress considered amendments to reform the electoral college, or replace it with direct popular election, in committee and on the floor of both chambers. Proposed amendments must, however, meet the requirements of the Constitution’s Article V, which calls for two-thirds approval by both houses of Congress, and ratification by three-fourths of the states;5 to date, no electoral college reform proposal has met these requirements. 1 (name redacted) is the author of this section. 2 In “presidential” republics, the President customarily serves as chief executive, exercises considerable authority, and is generally elected by popular vote. Mexico, Brazil, and France are examples of presidential republics, although France also provides for a prime minister who is responsible to the legislature. In “parliamentary” republics, the President customarily serves as ceremonial head