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National Popular Vote Compact Study

No Consensus Reached

On May 1 the LWVUS Board approved the following statement of position:

"The LWVUS affirms its support of the direct election of the president and abolition of the Electoral College, but the LWVUS has no position on the National Popular Vote Compact as studied in 2008-2009."

Over 51% of Local Leagues participated in the study and consensus process, but the NPV Compact did not win the support of the two thirds required to achieve consensus. More details and the Committee’s report on the consensus process is available on the LWVUS website.

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The League has a long-standing position supporting direct election of the President by popular vote. The National Popular Vote Compact proposal offers a method of achieving the result of election of the President by popular vote without amending the Constitution to eliminate the Electoral College. Instead, this method uses the mechanism of the Electoral College to ensure that the candidate who receives the most popular votes is elected President of the United States. Delegates at LWVUS Convention 2008 voted to study the advisability of using the National Popular Vote (NPV) Compact among the states as a method for electing the U.S. President. There are pros and cons to this plan. League members can learn more about the plan from these and other sources and consider its ramifications at consensus meetings across the country.

The Okaloosa League consensus meeting was held on Monday, April 6th, with nine members in attendance. After lively discussion, the group reached consensus on all the consensus questions. We submitted our consensus results to LWVUS electronically after the meeting minutes were approved by our Board. League members may request a copy of the consensus meeting minutes by contacting us. These minutes are not for publication or distribution outside the Okaloosa League. After LWVUS compiles all the consensus information submitted by Local Leagues, they will publish the official national position and we will make that available here on our site.

The National Popular Vote Compact Proposal

Under the proposed legislation to enact the National Popular Vote Compact, all of the state’s electoral votes would be awarded to the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia. The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes—that is, enough electoral votes to elect a President (270 of 538)

The NPV Compact proposal is predicated upon the portion of the United States Constitution which states:

"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…" (Article II, Section 1, Clause 2) (emphasis added)

The constitutional wording, "as the Legislature thereof may direct," contains no restriction on the states’ exercise of their power with respect to their electors. The U.S. Supreme Court has repeatedly characterized the authority of the states over the manner of awarding their electoral votes as "plenary" and "exclusive." Therefore, the states have the right to decide how to select their electors and award their electoral votes. Thus, proponents of the NPV Compact claim that the U.S. Constitution need not be changed in order to implement nationwide NPV. Rather, they maintain, this change can be accomplished in the same way that the current system evolved—namely, the states will use their exclusive and plenary power to decide the manner of awarding their electoral votes.

An additional constitutional underpinning of the NPV is the Compact Clause (Article I, Section 10, Clause 3), which permits states to enter into legally enforceable contractual obligations to undertake agreed joint action with other states. Interstate compacts are typically used to address problems that concern more than one state—the states which are affected enter into a compact (contract) which regulates their actions, ensuring uniform response by the states to address their mutual concerns. These contracts are typically enacted through the passage of identical legislation by the compacting states.

Under the state legislation proposed to establish the NPV, the popular vote counts from all 50 states and the District of Columbia would be added together to obtain a national grand total for each presidential candidate. Then, state elections officials in all states participating in the plan would award their electoral votes to the presidential candidate who receives the largest number of popular votes in all 50 states and the District of Columbia. The NPV Compact plan would take effect only when it has been enacted by states collectively possessing a majority of the electoral votes. The 270-vote threshold also corresponds essentially to states representing a majority of the people of the United States. As a result, every vote in all 50 states and the District of Columbia would be equally important in presidential elections.

The compact contains a six-month blackout period during which no state can withdraw from the compact. The blackout period starts on July 20 of each presidential election year and runs through the January 20 inauguration. Interstate compacts are contracts. It is settled compact law and settled constitutional law that withdrawal restrictions—very common in interstate compacts—are enforceable because the U.S. Constitution prohibits a state from impairing any obligation of contract.

The legislation contains other procedural provisions that would ensure the smooth functioning of the agreement. For example, one clause addresses the possibility of a tie in the national popular vote. If there is no national popular vote winner, each state chooses the electors for the candidate who has won that state.

Another clause addresses circumstances in which the winner of the national popular vote might be prevented from receiving the electoral votes from a member state. For example, it is possible that the winner of the national popular vote fails to appear as a candidate in a particular state and, therefore, there are no appropriate electors for the state to certify. To address that situation and five other situations identified by the drafters of the legislation as possible anomalies in the process they have developed, a mechanism is provided whereby the desired result is obtained by allowing the presidential candidate who has received the largest number of votes in the national election to select the electors in the state in which no electors associated with the winning slate have been elected. The full text of the compact is available at www.lwv.org.

Current Status of the National Popular Vote Compact

Since passage of the National Popular Vote Compact is accomplished on a state-by-state basis, its status is fluid. As of September 1, 2008, the legislation necessary to activate the compact has been signed into law in four states: Maryland, New Jersey, Hawaii and Illinois, for a total of 50 of the 270 electoral votes required to activate the NPV Compact. NPV Compact bills have been introduced in 15 other states, where some have passed committee and others have passed one house.

To prepare for the consensus meeting, review the Leader's Guide and the full text of the NPV Compact.

*Portions of this background paper are from the LWVUS Impact on Issues, 2006-2008