The National Popular Vote Interstate Compact (NPVIC) is an agreement among a group of U.S. states and the District of Columbia to award all their electoral votes to whichever presidential ticket wins the overall popular vote in the 50 states and the District of Columbia. The compact is designed to ensure that the candidate who receives the most votes nationwide is elected president, and it would come into effect only when it would guarantee that outcome.
Introduced in 2006, as of August 2023 it has been adopted by sixteen states and the District of Columbia. These jurisdictions have 205 electoral votes, which is 38% of the Electoral College and 76% of the 270 votes needed to give the compact legal force. Certain legal questions may affect implementation of the compact.
Some legal observers believe states have plenary power to appoint electors as prescribed by the compact; others believe that the compact will require congressional consent under the Constitution’s Compact Clause or that the presidential election process cannot be altered except by a constitutional amendment.
The compact would no longer be in effect should the total number of electoral votes held by the participating states fall below the threshold required, which could occur due to withdrawal of one or more states, changes due to the decennial congressional re-apportionment or an increase in the size of Congress, for example by admittance of a 51st state. The compact mandates a July 20 deadline in presidential election years, six months before Inauguration Day, to determine whether the agreement is in effect for that particular election. Any withdrawal by a participating state after that deadline will not become effective until the next President is confirmed.
Reasons given for the compact include that state winner-take-all laws encourage candidates to focus disproportionately on a limited set of swing states (and in the case of Maine and Nebraska, swing districts), as small changes in the popular vote in those areas produce large changes in the electoral college vote. State winner-take-all laws also tend to decrease voter turnout in states without close races. Voters living outside the swing states have a greater certainty of which candidate is likely to win their state. This knowledge of the probable outcome decreases their incentive to vote. Furthermore, the current Electoral College system allows a candidate to win the Presidency while losing the popular vote, an outcome seen as counter to the one person, one vote principle of democracy.
Certain founders, notably Alexander Hamilton, conceived of the Electoral College as a deliberative body which would weigh the inputs of the states, but not be bound by them, in selecting the president, and would therefore serve to protect the country from the election of a person who is unfit to be president. However, the Electoral College has never served such a role in practice. From 1796 onward, presidential electors have acted as ‘rubber stamps’ for their parties’ nominees. As of 2020, no election outcome has been determined by an elector deviating from the will of their state. Furthermore, thirty-two states and the District of Columbia have laws to prevent such ‘faithless electors,’ and such laws were upheld as constitutional by the Supreme Court.
Opponents of the compact have raised concerns about the handling of close or disputed outcomes. National Popular Vote contends that an election being decided based on a disputed tally is far less likely under the NPVIC, which creates one large nationwide pool of voters, than under the current system, in which the national winner may be determined by an extremely small margin in any one of the fifty-one smaller statewide tallies. However, the national popular vote can be closer than the vote tally within any one state. In the event of an exact tie in the nationwide tally, NPVIC member states will award their electors to the winner of the popular vote in their state. Under the NPVIC, each state will continue to handle disputes and statewide recounts as governed by their own laws. The NPVIC does not include any provision for a nationwide recount, though Congress has the authority to create such a provision.
There is some debate over whether the Electoral College favors small- or large-population states. Those who argue that the College favors low-population states point out that such states have proportionally more electoral votes relative to their populations. In the least-populous states, with three electors, this results in voters having 143% greater voting power than they would under purely proportional allocation, while in the most populous state, California, voters’ power is 16% smaller than under proportional allocation. In contrast, the NPVIC would give equal weight to each voter’s ballot, regardless of what state they live in. Others, however, believe that since most states award electoral votes on a winner-takes-all system (the ‘unit rule’), the potential of populous states to shift greater numbers of electoral votes gives them more clout than would be expected from their electoral vote count alone.
Opponents of a national popular vote contend that the Electoral College is a fundamental component of the federal system established by the Constitutional Convention. Specifically, the Connecticut Compromise established a bicameral legislature – with proportional representation of the states in the House of Representatives and equal representation of the states in the Senate – as a compromise between less populous states fearful of having their interests dominated and voices drowned out by larger states, and larger states which viewed anything other than proportional representation as an affront to principles of democratic representation. The ratio of the populations of the most and least populous states is far greater currently (68.50 as of the 2020 census) than when the Connecticut Compromise was adopted (7.35 as of the 1790 census), exaggerating the non-proportional component of the compromise allocation.
Three governors who have vetoed NPVIC legislation—Arnold Schwarzenegger of California, Linda Lingle of Hawaii, and Steve Sisolak of Nevada—objected to the compact on the grounds that it could require their states’ electoral votes to be awarded to a candidate who did not win a majority in their state. (California and Hawaii have since enacted laws joining the compact.) Supporters of the compact counter that under a national popular vote system, state-level majorities are irrelevant; in all states, votes contribute to the nationwide tally, which determines the winner. Individual votes combine to directly determine the outcome, while the intermediary measure of state-level majorities is rendered obsolete.
Some opponents of the compact contend that it would lead to a proliferation of third-party candidates, such that an election could be won with a plurality of as little as 15% of the vote. However, evidence from U.S. gubernatorial and other races in which a plurality results in a win do not bear out this suggestion. In the 975 general elections for Governor in the U.S. between 1948 and 2011, 90% of winners received more than 50% of the vote, 99% received more than 40%, and all received more than 35%. Duverger’s law (single-ballot majoritarian elections with single-member districts tend to favor a two-party system) supports the contention that plurality elections do not generally create a proliferation of minor candidacies with significant vote shares.
Each state sets its own rules for voting, including registration deadlines, voter ID laws, poll closing times, conditions for early and absentee voting, and disenfranchisement of felons. Parties in power have an incentive to create state rules meant to skew the relative turnout for each party in their favor. Under NPVIC, this incentive may be less than in the current system, as the awarding of electoral votes will no longer be determined solely by the votes cast within a given state. Under the compact, however, there may be an incentive for states to create rules that increase their total turnout, and thus their impact on the nationwide vote totals. In either system, the voting rules of each state have the potential to affect the election outcome for the rest of the country.
There is ongoing legal debate about the constitutionality of the NPVIC. At issue are interpretations of the Compact Clause of Article I, Section X, and states’ plenary power under the Elections Clause of Article II, Section I. A 2019 report by the Congressional Research Service (CRS) examined whether the NPVIC should be considered an interstate compact, and as such, whether it would require congressional approval to take effect. At issue is whether the NPVIC would affect the vertical balance of power between the federal government and state governments, and the horizontal balance of power between the states. The CRS report stated that the NPVIC would likely become the source of considerable litigation, and it is likely that the Supreme Court will be involved in any resolution of the constitutional issues surrounding it. Due to a lack of a precedent and case law, the CRS report concludes that whether states are allowed to appoint their electors in accordance with the national popular vote is an open question.
Proponents of the compact have argued that states have the plenary power to appoint electors in accordance with the national popular vote under the Elections Clause of Article II, Section I. However, the Supreme Court has found limits on the manner in which states may appoint their electors, under several Constitutional amendments. The Supreme Court has held that states may bind their electors to the state’s popular vote, enforceable by penalty or removal and replacement. This has been interpreted by some legal observers as a precedent that states may likewise choose to bind their electors to the national popular vote, while other legal observers cautioned against reading the opinion too broadly.
The Electoral College system was established by Article II, Section 1 of the US Constitution, drafted in 1787. It ‘has been a source of discontent for more than 200 years.’ Over 700 proposals to reform or eliminate the system have been introduced in Congress, making it one of the most popular topics of constitutional reform. Electoral College reform and abolition has been advocated ‘by a long roster of mainstream political leaders with disparate political interests and ideologies.’ Proponents of these proposals argued that the electoral college system does not provide for direct democratic election, affords less-populous states an advantage, and allows a candidate to win the presidency without winning the most votes. Reform amendments were approved by two-thirds majorities in one branch of Congress six times in history. However, other than the 12th Amendment in 1804, none of these proposals have received the approval of two-thirds of both branches of Congress and three-fourths of the states required to amend the Constitution. The difficulty of amending the Constitution has always been the ‘most prominent structural obstacle’ to reform efforts.
The Daily Omnivore 
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