Is National Popular Vote Interstate Compact Constitutional for electing POTUS?
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  Is National Popular Vote Interstate Compact Constitutional for electing POTUS?
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Author Topic: Is National Popular Vote Interstate Compact Constitutional for electing POTUS?  (Read 19090 times)
JRP1994
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« on: February 09, 2014, 04:11:38 PM »

A lot of people are talking about what is known as the National Popular Vote Interstate Compact. The NPVIC is a proposed state-driven method of rendering the electoral college obsolete. In a nutshell, this is how it works: when a state adopts the NPVIC, it agrees to award its electoral votes to the winner of the overall national popular vote. Once the total number of states having adopted the NPVIC equals or surpasses 270 Electoral Votes, the Compact would go into effect, thereby awarding 270+EVs  to the winner of the national popular vote. As it currently stands, 9 states + DC (136 electoral votes) have adopted the compact.

My question is this: is such a compact Constitutional?

1) Article 2, Section 1 of the Constitution states that "Each State shall 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". The pro-argument is that states are given the explicit right to determine how to choose electors, so long as other Constitutional clauses/amendments are not violated, and because the compact does not discriminate/infringe on voting rights, and because each state adopts it individually, it is Constitutional. 

2) Article 1, Section 10 of the Constitution states that "No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." The counterargument is that the NPVIC is, inherently, an agreement/compact, and unless it is approved by Congress, it is unconstitutional.

So, without rendering a judgement on the merits of the IDEA itself, my question is -- from a Constitutional standpoint -- the NPVIC constitutional?

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True Federalist (진정한 연방 주의자)
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« Reply #1 on: February 10, 2014, 12:10:58 AM »

It's constitutional, but I doubt it will ever get the necessary level of support to go into effect, and it would be vulnerable to collapse if states withdraw, which they may well do.
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Kristoffer
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« Reply #2 on: August 06, 2014, 01:04:02 AM »
« Edited: August 06, 2014, 01:08:01 AM by Kristoffer »

The Constitution give states the right to decide how to allocate their electoral votes. Though there has never* been a Supreme Court ruling on this, it would likely make it through the court.


EDIT:
* At least not to my knowledge.
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Figs
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« Reply #3 on: August 06, 2014, 07:00:56 AM »

I don't think it's implicitly a compact. There are provisions of the law that passively cause it to come into effect when enough other states have passed similar measures, but there aren't any actual agreements between state governments.
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andrew_c
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« Reply #4 on: August 06, 2014, 02:05:46 PM »

Yes, it is probably constitutional.  Each state can decide how its electoral votes are allocated.  If Maine and Nebraska can allocate electoral votes by congressional district, without any problems, then states should be able to allocate electoral votes based on popular vote, without incident.
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True Federalist (진정한 연방 주의자)
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« Reply #5 on: August 14, 2014, 03:21:08 AM »

I don't think it's implicitly a compact. There are provisions of the law that passively cause it to come into effect when enough other states have passed similar measures, but there aren't any actual agreements between state governments.

There's the July 20th lock-in date.  That's not enforceable unless it is a compact.
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Figs
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« Reply #6 on: August 14, 2014, 07:17:33 AM »

Yeah, actually, I'd forgotten about the lock-in date. That's potentially troubling, though how would that be remedied? Who would have standing to take it to court in what circumstance?
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muon2
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« Reply #7 on: August 14, 2014, 10:13:42 PM »

Yes, it is probably constitutional.  Each state can decide how its electoral votes are allocated.  If Maine and Nebraska can allocate electoral votes by congressional district, without any problems, then states should be able to allocate electoral votes based on popular vote, without incident.

I suspect there are limits on how a state might allocate its EVs. Could a state allocate its EVs based on the value of the Dow Jones average on election day? I doubt it. Sticking to elections, could a state allocate its EV to the results in its most populous county? That clearly violates one man one vote. Could a state allocate it based on another arbitrary state? That seems like a violation, too, since it is equivalent to letting that other state have its votes count twice.

So, let me assume that the states have a recognized compact. That could potentially allow the states to aggregate their votes and electors to act as a single state. However, if they use results from states not in the compact, isn't that akin to using votes from some arbitrary state to make their allocation? If so, that also becomes a potential violation of one man one vote, since again the states not in the compact effectively elect electors twice.

To me the only clearly constitutional compact is one that allocates the electors from the compact to winner of the vote within the compact. However, even if the compact has 270 EV, the result could be that the compact winner is not the national popular vote winner. That defeats the whole purpose of the NPVIC.
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True Federalist (진정한 연방 주의자)
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« Reply #8 on: August 28, 2014, 11:32:25 PM »

While I think the NPVIC is a kludge, I don't think OMOV concerns really apply.  Because the compact only applies if there are enough electoral votes to determine the winner, popular votes for president are effectively being counted only once.  The difficultly is when we get a really close result in the popular vote.  It effectively means that the brouha we had in Florida in 2000 would get repeated nationwide and if some states differ in whom they believe won the PV, we could end up with a massive CF.

(Note: OMOV would apply if the NPVIC kicked in before reaching a majority of the EV.)
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Mr. Morden
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« Reply #9 on: August 29, 2014, 12:57:09 AM »

To me the only clearly constitutional compact is one that allocates the electors from the compact to winner of the vote within the compact. However, even if the compact has 270 EV, the result could be that the compact winner is not the national popular vote winner. That defeats the whole purpose of the NPVIC.

I actually think it would be interesting if non-swing states made compacts amongst themselves to pool their electoral votes.  For example, if California, Texas, and Georgia all agreed to grant their electoral votes to whichever candidate gets the most total votes among all three states combined, then you'd have essentially a super-swing state with over 100 electoral votes, and it would be nearly impossible to win the election without winning those votes.  You'd thus create a huge incentive for the candidates to spend most of their time campaigning in just those three states.  Then other states would form their own compacts (or sign onto NPVIC) to retaliate.
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pbrower2a
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« Reply #10 on: September 05, 2014, 12:53:50 PM »

Any compact must represent something. There are methods of allocating the electoral votes of a State that would never pass Constitutional muster. "All and only votes by persons of the Caucasoid race" is the most obvious.  The choice of the sitting Governor is obviously despotic in nature. A vote by a state legislature gives powers to states that the Founders never thought appropriate (and that probably applies also to gerrymandering that gives one Party's nominees a built-in advantage). A coin flip would be unduly arbitrary.

Dividing states by Congressional districts is only as good as the geographic basis. Maine is now homogeneous enough that hardly any division of the popular vote by district would happen. Nebraska at the least seems to split neatly into well-defined regions. Gerrymandering to establish a large number of slightly-R-favoring districts and that few districts have huge pluralities of D voters as has happened in Pennsylvania, Ohio, Michigan, and Florida  can ensure the dilution of votes of what might otherwise be a majority.
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SteveRogers
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« Reply #11 on: September 06, 2014, 02:00:34 PM »

Any compact must represent something. There are methods of allocating the electoral votes of a State that would never pass Constitutional muster. "All and only votes by persons of the Caucasoid race" is the most obvious.  The choice of the sitting Governor is obviously despotic in nature. A vote by a state legislature gives powers to states that the Founders never thought appropriate (and that probably applies also to gerrymandering that gives one Party's nominees a built-in advantage). A coin flip would be unduly arbitrary.


Um, but that's actually exactly how many of the founders intended electors to be chosen, and it is indeed how most states chose electors early on in the country's history. The state legislature selected the electors.
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muon2
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« Reply #12 on: September 07, 2014, 04:39:56 PM »

Any compact must represent something. There are methods of allocating the electoral votes of a State that would never pass Constitutional muster. "All and only votes by persons of the Caucasoid race" is the most obvious.  The choice of the sitting Governor is obviously despotic in nature. A vote by a state legislature gives powers to states that the Founders never thought appropriate (and that probably applies also to gerrymandering that gives one Party's nominees a built-in advantage). A coin flip would be unduly arbitrary.


Um, but that's actually exactly how many of the founders intended electors to be chosen, and it is indeed how most states chose electors early on in the country's history. The state legislature selected the electors.

And in red, I would note that one of the Founders used partisan gerrymandering, and it is so named in his honor.
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Attorney General, LGC Speaker, and Former PPT Dwarven Dragon
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« Reply #13 on: September 08, 2014, 11:11:15 PM »

Yes, it is probably constitutional.  Each state can decide how its electoral votes are allocated.  If Maine and Nebraska can allocate electoral votes by congressional district, without any problems, then states should be able to allocate electoral votes based on popular vote, without incident.

I suspect there are limits on how a state might allocate its EVs. Could a state allocate its EVs based on the value of the Dow Jones average on election day? I doubt it. Sticking to elections, could a state allocate its EV to the results in its most populous county? That clearly violates one man one vote. Could a state allocate it based on another arbitrary state? That seems like a violation, too, since it is equivalent to letting that other state have its votes count twice.

So, let me assume that the states have a recognized compact. That could potentially allow the states to aggregate their votes and electors to act as a single state. However, if they use results from states not in the compact, isn't that akin to using votes from some arbitrary state to make their allocation? If so, that also becomes a potential violation of one man one vote, since again the states not in the compact effectively elect electors twice.

To me the only clearly constitutional compact is one that allocates the electors from the compact to winner of the vote within the compact. However, even if the compact has 270 EV, the result could be that the compact winner is not the national popular vote winner. That defeats the whole purpose of the NPVIC.

That's impossible. If the compact reaches 270 EV's, the states within the compact will not vote according to the popular vote of the states within the compact, but will instead vote according to the popular vote of the ENTIRE COUNTRY (including states not within the compact).
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muon2
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« Reply #14 on: September 11, 2014, 10:45:25 PM »

Yes, it is probably constitutional.  Each state can decide how its electoral votes are allocated.  If Maine and Nebraska can allocate electoral votes by congressional district, without any problems, then states should be able to allocate electoral votes based on popular vote, without incident.

I suspect there are limits on how a state might allocate its EVs. Could a state allocate its EVs based on the value of the Dow Jones average on election day? I doubt it. Sticking to elections, could a state allocate its EV to the results in its most populous county? That clearly violates one man one vote. Could a state allocate it based on another arbitrary state? That seems like a violation, too, since it is equivalent to letting that other state have its votes count twice.

So, let me assume that the states have a recognized compact. That could potentially allow the states to aggregate their votes and electors to act as a single state. However, if they use results from states not in the compact, isn't that akin to using votes from some arbitrary state to make their allocation? If so, that also becomes a potential violation of one man one vote, since again the states not in the compact effectively elect electors twice.

To me the only clearly constitutional compact is one that allocates the electors from the compact to winner of the vote within the compact. However, even if the compact has 270 EV, the result could be that the compact winner is not the national popular vote winner. That defeats the whole purpose of the NPVIC.

That's impossible. If the compact reaches 270 EV's, the states within the compact will not vote according to the popular vote of the states within the compact, but will instead vote according to the popular vote of the ENTIRE COUNTRY (including states not within the compact).

It's not impossible if you read my post. Suppose IL wanted to award its EVs to the winner of the MO presidential vote. Would that be constitutional? It's not clear to me that SCOTUS would permit that since it is an assignment of IL electors unrelated to the vote taken in IL. It's certainly the case that the IL winner may not be the MO winner.

Now consider a situation where NH and ME selects its electors based on the combined vote of NH, ME and MA. Suppose that NH and ME do this as a compact, but MA is not in the compact. MA has more than twice the population of NH+ME, so it wouldn't be hard for NH+ME to vote for one candidate, but the three states together vote for a different candidate. In that case the winner of the compact is not the same as the popular vote winner of the three states. Would SCOTUS allow that compact to cast such a vote?

I can extend this analogy by adding more states to the compact and using a wider set of states to select the winner, but have the same scenario as in the paragraph above. Eventually it could cover the whole country. For example if the compact included all the Romney states plus CA and MN, the total EVs would be 271 and in 2012 the compact winner would have been Romney, but they would cast their EVs for Obama who was the national popular vote winner. That's what my post said, so it's not impossible. More importantly to the thread is that constitutionally different from the two examples I gave above?
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True Federalist (진정한 연방 주의자)
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« Reply #15 on: September 12, 2014, 03:52:31 PM »

muon, your whole argument is based on hypotheticals that have no relation to reality.  The way the NPVIC is structured, so that it only goes into effect when it selects a majority of the EV, there are no OMOV concerns. Every individual's Presidential vote counts exactly once, even in States which are not part of the compact because their State's EVs are irrelevant to the selection of a President and a Vice-President.  Your concerns might have some validity if the Electoral College had any other function than electing a President, but it does not.
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zorkpolitics
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« Reply #16 on: November 16, 2014, 02:45:26 PM »

There is another argument that could be made National Popular Vote Interstate Compact is unconstitutional: it infringes on the political power of the small states.  Although we don't think often about the relative political power between the states, this was of extreme interest during the drafting of the Constitution.

The constitutional convention explicitly considered how to allocate power between the states in the Federal Government.  They decided to give unequal political power to the small states in two ways:
1) Each state has 2 Senators, regardless of population (Article I, section 3).
2) Small states have extra weight in the Electoral College, since each state is awarded a number of electors equal to the sum of Senators and Representatives, and not just the number of Representatives (Article II, section 1).

The extreme importance of giving small states extra political weight is confirmed in Article V. This article requires unanimous consent of all the states to change the allocation of Senators, rather than the regular amendment process to change any other part of the Constitution, which requires "only" 3/4 of the states to pass an amendment.

Currently citizens in the smallest states have more than twice the political power in the Electoral College as citizens from large states.  In the 2012 election, the eight smallest states (those with 3 Electoral Votes) averaged 115,000 votes per electoral vote.  In contrast, there was on average 255,000 votes per Electoral Vote in the 6 largest stated (those with 20 or more Electoral Votes).

Clearly any attempt to implement the National Popular Vote Interstate Compact will reduce the political influence of the small states in the Electoral College, it would be interesting to see if the Supreme Court would take such a case.....
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #17 on: November 16, 2014, 06:23:18 PM »



First off, the sole reason for the existence of the Electoral College was to have a duplicate Congress whose only purpose for existing was to elect a President while preserving an 18th century notion of separation of powers by having the President not be elected by the real Congress.  That it gives small states excess power in electing the President is an incidental effect and any effect that NPVIC might have diluting such power is not a reason to find it unconstitutional.

Second, small states don't have power under the current system.  Swing states do, and the larger the better.

Thirdly, states will still retain individual power, as unless the NPVIC gets a level of support that indicates passing an amendment to make the national PV winner be the overall winner would be doable, states will be able to threaten to pull out and wreck the NPVIC system.  So clout will be available with larger states having more chance of having such power, just as the current system does.
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SteveRogers
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« Reply #18 on: November 16, 2014, 11:46:41 PM »


Currently citizens in the smallest states have more than twice the political power in the Electoral College as citizens from large states.  In the 2012 election, the eight smallest states (those with 3 Electoral Votes) averaged 115,000 votes per electoral vote.  In contrast, there was on average 255,000 votes per Electoral Vote in the 6 largest stated (those with 20 or more Electoral Votes).


Ok, but go ask a person in Wyoming if they think their vote matters twice as much as the vote of someone in Florida.
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jimrtex
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« Reply #19 on: November 17, 2014, 09:45:30 PM »

I suspect there are limits on how a state might allocate its EVs. Could a state allocate its EVs
It's not impossible if you read my post. Suppose IL wanted to award its EVs to the winner of the MO presidential vote. Would that be constitutional? It's not clear to me that SCOTUS would permit that since it is an assignment of IL electors unrelated to the vote taken in IL. It's certainly the case that the IL winner may not be the MO winner.
I think this be a violation of the 14th Amendment.  There is not a right to a popular vote for presidential electors, but once a State decides to hold a popular election for presidential electors it becomes subject to the 14th Amendment.

Does at-large election of presidential electors violate both the 14th Amendment and the VRA?
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The_Doctor
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« Reply #20 on: November 18, 2014, 10:43:18 PM »

The Constitution is pretty cut and dry on this. Looking at the section you quote:

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The only unconstitutional part could be that a Governor could veto it. The Constitution is pretty clear that if Illinois wanted to award electoral votes to the Democratic nominee, even if the Republicans won it, they are constitutionally empowered to do so.

I am fairly sure that in the early years of the Republic, the legislature actually did allocate electoral votes, but the practice quickly died out.

Re: the original question, it is completely constitutional, per the Constitution, for the Legislature to award electoral votes based on the national popular vote. There is no requirement that the popular vote within the state be a criteria for electoral college vote allocation. The Electoral College, in fact, was constructed to empower small states and to help smaller regions to have an impact on the Presidency.

(I don't support this and believe the electoral college a work of genius. But there you have it).
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The_Doctor
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« Reply #21 on: November 18, 2014, 10:45:34 PM »

One more point. As others have noted, this is not a compact. This is merely "If x happens, y will happen." There is no negotiation.

That said, one last point. Electors are not bound by state law. They can send a certain delegation appointed by the parties. The electors' choices, however, are completely their own. The states can't mandate the electors vote for the popular vote winner. They can just choose who gets to go.

I assume it would be, if Republicans won the popular vote, that say, Maryland's Republican electors get to go instead of the Democrats, and cast votes.
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SteveRogers
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« Reply #22 on: January 01, 2015, 07:04:53 PM »

Any compact must represent something. There are methods of allocating the electoral votes of a State that would never pass Constitutional muster. "All and only votes by persons of the Caucasoid race" is the most obvious.  The choice of the sitting Governor is obviously despotic in nature. A vote by a state legislature gives powers to states that the Founders never thought appropriate (and that probably applies also to gerrymandering that gives one Party's nominees a built-in advantage). A coin flip would be unduly arbitrary.


Um, but that's actually exactly how many of the founders intended electors to be chosen, and it is indeed how most states chose electors early on in the country's history. The state legislature selected the electors.
In the first elections most states used a popular vote rather than direct selection.

Well, in the very first presidential election, you're correct that 6 out of 10 states cast their electoral votes based on the popular vote. But in the following election of 1792 only 6 out of 15 states used the popular vote while the majority of states had their electors chosen directly by the state legislature. Then over the next couple elections the balance tipped back and forth. Then of course more states gradually moved towards choosing electors based on the popular vote, though South Carolina held out until after the civil war.

Anyway, my point, which still stands, was just that the founders absolutely intended for states to have the option of casting their electoral votes based on a direct vote of the state legislature, and such was common practice for a rather long time. There's no real reason why such a practice would be ruled unconstitutional if some state decided to return to that practice today.
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