9.1 Myths about the U.S. Constitution

It is important to recognize what the U.S. Constitution says—and does not say—about electing the President.

Article II, section 1, clause 2 of the U.S. Constitution provides:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[1] [Emphasis added]

These 17 words are the Constitution’s delegation of power to the states concerning how they may award their electoral votes.

In 1787, the delegates to the Constitutional Convention debated the method of electing the President on 22 separate days and held 30 separate votes on the topic.

One of the major points of contention at the Convention was whether the people should be allowed to vote for President.

On four separate occasions, the Convention voted (and then reversed its decision) that Congress should choose the President—that is, the people would not be allowed to vote for President. On another occasion, the delegates voted that the state legislatures would choose the President. At one point, the delegates considered empowering state Governors to choose the President.[2]

Even when the delegates eventually decided—toward the end of the Constitutional Convention—that the President would be elected by presidential electors (collectively called the “Electoral College”), the Founders were still unable to agree on how the presidential electors would be chosen. They left several politically significant questions undecided, including:

• Should the presidential electors be chosen directly by the people—analogous to the method of electing members of the U.S. House of Representatives?
• Should the presidential electors be chosen by the state legislatures—analogous to the method of appointment of U.S. Senators by state legislatures that was specified in the original Constitution?[3]
• Should the presidential electors be chosen by some other method (perhaps by Governors)?

In the end—unable to agree upon any particular method for selecting presidential electors—the Founding Fathers adopted the language contained in section 1 of Article II, leaving the decision to the states.

The eventual wording in section 1 of Article II (“as the Legislature … may direct”) is unqualified. It does not encourage, discourage, require, or prohibit the use of any particular method for awarding a state’s electoral votes.

• If the legislature decides to give the people a vote for President, the Constitution does not specify whether the presidential electors should be elected statewide, in single-member presidential elector districts, in single-member congressional districts, or in multi-member districts.
• If the legislature decides against giving the people a vote for President, the Constitution does not specify whether the presidential electors should be appointed by the Governor, the Governor and his cabinet, by the Governor and the lower house of the state legislature, by both houses of the legislature sitting together in a joint convention, or by both houses of the legislature using a concurrent resolution.[4]

Indeed, all of the above methods have been used in our country’s history.

The most salient feature of our nation’s current method of electing the President—the state-by-state winner-take-all method of awarding electoral votes—was never debated at the Constitutional Convention. It was never voted upon at the Constitutional Convention. It appears nowhere in the U.S. Constitution. It was never mentioned in the Federalist Papers. It was not until the 11^th presidential election (1828) that the winner-take-all rule was used by a majority of the states. Indeed, the Founders were long dead before the winner-take-all rule became the predominant method of awarding electoral votes.

Under the winner-take-all rule (also known as the “unit rule” or “general ticket”), a plurality[5] of a state’s voters are empowered to choose all of a state’s presidential electors.

When the Founding Fathers returned from the Constitutional Convention in Philadelphia to organize the nation’s first presidential election in 1789, only three states chose to employ the winner-take-all method for awarding their electoral votes.[6]

Today, the winner-take-all method of awarding electoral votes is used in 48 of the 50 states and the District of Columbia.[7]

Maine and Nebraska currently elect presidential electors by congressional district (with two electors at-large).

The U.S. Supreme Court has repeatedly characterized the authority of the states over the manner of awarding their electoral votes as “exclusive” and “plenary.”

The leading case on the awarding of electoral votes is the 1892 case of McPherson v. Blacker. The U.S. Supreme Court ruled:

“The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket [the winner-take-all rule] nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object. The framers of the constitution employed words in their natural sense; and, where they are plain and clear, resort to collateral aids to interpretation is unnecessary, and cannot be indulged in to narrow or enlarge the text.…

“In short, the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States.”[8] [Emphasis added]

In Bush v. Gore in 2000, the Court approvingly referred to the characterization in McPherson v. Blacker of the state’s power under section 1 of Article II of the Constitution.

“The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U.S. Const., Art. II, §1. This is the source for the statement in McPherson v. Blacker, 146 U.S. 1, 35 (1892), that the State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. Id., at 28-33.…

“There is no difference between the two sides of the present controversy on these basic propositions.”[9] [Emphasis added]

In short, states may exercise their power to choose the manner of appointing their presidential electors in any way they see fit (provided, of course, that they do not violate any restriction contained elsewhere in the U.S. Constitution).[10],[11]

There is good reason to give the states the power to control the conduct of presidential elections. State control over presidential elections thwarts the possibility of an over-reaching President, in conjunction with a compliant Congress, manipulating the rules governing his own re-election. This delegation of control over presidential elections was intended to guard against the establishment of a self-perpetuating President and, in particular, the establishment of a monarchy in the United States. For these good reasons, control over presidential elections is an exclusive state power.

The existing winner-take-all system is entirely a matter of state law. The winner-take-all method of awarding electoral votes was adopted piecemeal on a state-by-state basis. The winner-take-all rule was never the prevailing method of awarding electoral votes during the lifetimes of the Founding Fathers. Instead, winner-take-all statutes became prevalent decades later, in the period prior to the Civil War, with the emergence of strong political parties aiming to maximize their own political power by stifling the state’s minority party.

More important, existing winner-take-all statutes did not come into use by means of an amendment to the U.S. Constitution. The winner-take-all rule does not have constitutional status. Accordingly, repealing state winner-take-all statutes does not require an amendment to the U.S. Constitution. Winner-take-all statutes may be repealed in the same way they were enacted, namely through each state’s process for enacting and repealing state laws.

Indeed, the winner-take-all method of awarding electoral votes has been adopted, and repealed, by various states on numerous occasions over the years.

All three of the states that used the winner-take-all rule in the first presidential election in 1789 abandoned it by 1800.

Massachusetts has used 11 different methods of awarding its electoral votes.

• In 1789, Massachusetts had a two-step system in which the voters cast ballots indicating their preference for presidential elector by district, and the legislature chose from the top two vote-getters in each district (with the legislature choosing the state’s remaining two electors).
• In 1792, the voters were allowed to choose presidential electors in four multi-member regional districts (with the legislature choosing the state’s remaining two electors).
• In 1796, the voters elected presidential electors by congressional districts (with the legislature choosing only the state’s remaining two electors).
• In 1800, the legislature took back the power to pick all of the state’s presidential electors (excluding the voters entirely).
• In 1804, the voters were allowed to elect 17 presidential electors by district and two on a statewide basis.
• In 1808, the legislature decided to pick the electors itself.
• In 1812, the voters elected six presidential electors from one district, five electors from another district, four electors from another, three electors from each of two districts, and one elector from a sixth district.
• In 1816, Massachusetts again returned to state legislative choice.
• In 1820, the voters were allowed to elect 13 presidential electors by district and two on a statewide basis.
• Then, in 1824, Massachusetts adopted its 10^th method of awarding electoral votes, namely the statewide winner-take-all rule that is in effect today.
• Finally, in 2010, Massachusetts changed its method of appointing its presidential electors by enacting the National Popular Vote interstate compact. This change will go into effect when states possessing a majority of the electoral votes (270 out of 538) enact the same compact.

None of these 11 changes involved an amendment to the U.S. Constitution. These changes were accomplished using the Constitution’s built-in method for changing the method of electing the President, namely section 1 of Article II. That constitutional provision gives Massachusetts (and all the other states) exclusive and plenary power to choose the manner of awarding their electoral votes.

In the nation’s first presidential election in 1789, the New Jersey legislature passed a law empowering the Governor and his Council to appoint the state’s presidential electors.[12] In 1804, the legislature permitted the people to vote for presidential electors under the winner-take-all rule.

Delaware has used three different methods. In 1789, one presidential elector was elected from each of the state’s three counties. Then, between 1792 and 1828, the Delaware legislature decided to exclude the voters and appointed all of the state’s presidential electors itself. Starting in 1832, Delaware allowed the people to vote for presidential electors under the winner-take-all rule.

The North Carolina legislature has exercised its power to change the method of awarding the state’s electoral votes on four occasions. In 1792, the legislature chose the presidential electors. Between 1796 and 1808, the people then voted for electors from presidential-elector districts. Then, the legislature chose the electors in 1812. In 1816, the legislature changed to the statewide winner-take-all rule.[13]

As recently as 1992, Nebraska replaced its winner-take-all statute with a congressional-district system of awarding electoral votes. Maine did so in 1969. After the 2008 presidential election (when Barack Obama won one district-level electoral vote in Nebraska), the Nebraska legislature conducted hearings on the possibility of repealing the congressional-district system and returning to the statewide winner-take-all approach. Within the past decade, a Republican-controlled New York Senate and a Democratic-controlled North Carolina House and Senate passed bills, at various times, switching to the congressional-district system (although none of these bills became law).

In summary, there is nothing in the U.S. Constitution that needs to be amended in order to repeal existing state winner-take-all statutes for awarding a state’s electoral votes. The states already have the power to make this change.

For additional information, see section 1.1 and chapter 2.

Footnotes

John Samples has written the following about the National Popular Vote compact:

“NPV brings about this change without amending the Constitution, thereby undermining the legitimacy of presidential elections.”[14]

In fact, nearly all the major reforms in the method of conducting U.S. presidential elections have been initiated at the state level—not by means of an amendment to the U.S. Constitution. State-level action is the traditional, appropriate, and most commonly used way of changing the method of electing the President.

Major changes in the method of electing the President that were implemented entirely at the state level—without a federal constitutional amendment—include:

• permitting the people to vote for President,
• abolition of property qualifications for voting, and
• the winner-take-all rule—the target of the National Popular Vote compact.

Examples of changes that were initiated at the state level and then later adopted at the national level include:

• women’s suffrage,
• direct election of U.S. Senators,
• the 18-year-old vote, and
• black suffrage.

Permitting the People to Vote for President

The most significant change that has ever been made in the way the President of the United States is elected was to allow the people to vote for President. This change was implemented by means of state statutes—not a federal constitutional amendment.

There is nothing in the original U.S. Constitution that gave the people the right to vote for President or presidential electors.

As the U.S. Supreme Court stated in the 1892 case of McPherson v. Blacker:

“The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object.”[15] [Emphasis added]

As the U.S. Supreme Court wrote in 2000:

“The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”[16] [Emphasis added]

The Founding Fathers were divided as to whether the people should be allowed to vote for President.

The people were permitted to vote for presidential electors in the nation’s first presidential election in 1789 in only six states. In some states, the state legislature appointed the presidential electors. In New Jersey, the Governor and his 13-member Legislative Council (Privy Council) appointed the state’s presidential electors.[17]

The Federalist Papers made it clear that the choice of method for appointing presidential electors is a state power, but skirted the question of exactly what method the states would likely chose.

Federalist No. 45 (presumably written by James Madison) says:

“Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it.” [Emphasis added]

Federalist No. 44 (said to be written by James Madison) says:

“The members and officers of the State governments … will have an essential agency in giving effect to the federal Constitution. The election of the President and Senate will depend, in all cases, on the legislatures of the several States.” [Emphasis added]

Section 1 of Article II of the U.S. Constitution gives the states flexibility in the manner of appointing their presidential electors. In the nation’s first presidential election, only six states—New Hampshire, Pennsylvania, Maryland, Delaware, Virginia, and Massachusetts[18]—permitted the people to vote for presidential electors.[19]

In permitting the people to vote for President, the states exercised their role, under the U.S. Constitution, as the “laboratories of democracy.”[20]

With the passage of time, more and more states observed that the practice of permitting the people to vote for President did not produce disastrous consequences. Indeed, popular elections became popular.

By 1824, three-quarters of the states had embraced the idea of permitting the people to vote for the state’s presidential electors. However, the state-by-state process of empowering the people to vote for President was not completed until the 1880 election—almost a century after the Constitutional Convention.[21]

This fundamental change in the manner of electing the President was not accomplished by means of a federal constitutional amendment. It was instituted through state-by-state changes in state laws.

Today, this feature of presidential elections is so widely regarded as a fixed feature of American politics that virtually no one suggests that the people should not be permitted to vote for President.

Permitting the people to vote for President was not an “end run” around the U.S. Constitution but instead, an exercise of a power that the Founding Fathers explicitly assigned to state legislatures in the Constitution.

We have not encountered a single person who argues that state legislatures did anything improper, inappropriate, or unconstitutional when they made this fundamental change in the way the President is elected.

Does John Samples think that permitting the people to vote for President without a federal constitutional amendment “undermine[d] the legitimacy of presidential elections?”

Abolition of Property Qualifications for Voting

When the U.S. Constitution came into effect in 1789, 10 of the 13 states had property qualifications for voting. The requirements varied from state to state. The requirements typically included factors such as ownership of a specific number of acres of land, ownership of assets with a specific value, or specific amounts of income.[22]

In 1789, there were only about 100,000 eligible voters in a nation of over 3,000,000 people.

By 1855, only three of the then-31 states had property qualifications for voting.[23]

Today, there are no property qualifications for voting in any state.

The elimination of property qualifications was not accomplished by means of a federal constitutional amendment. The elimination of property qualifications for voting by the states was not improper, inappropriate, or unconstitutional. It was not an “end run” around the U.S. Constitution. This substantial expansion of the electorate occurred because state legislatures used a power that rightfully belonged to them to change the method of conducting elections.

Women’s Suffrage

In several instances, a major reform initiated at the state level led to a subsequent federal constitutional amendment after the reform had become established in a substantial number of states.

For example, women did not have the right to vote when the U.S. Constitution came into effect in 1789 (except in New Jersey, where that right was withdrawn in 1807).

Wyoming gave women the right to vote in 1869.

By the time the 19^th Amendment was passed by Congress (50 years later), women already had the vote in 30 of the then-48 states. The main effect of the 19^th Amendment was to impose women’s suffrage on the minority of states (18) that had not already adopted it at the state level.[24]

The decision by 30 separate states to permit women to vote in the 50-year period between 1869 and 1919 was not an “end run” around the U.S. Constitution. We have not encountered a single person who argues that state legislatures did anything improper, inappropriate, or unconstitutional when they made this very substantial expansion of their electorates. Women’s suffrage is another example of state legislatures using the authority granted to them by the U.S. Constitution to institute a major change concerning the conduct of elections.

Women’s suffrage was achieved because 30 states exercised their power as the “laboratories of democracy” to change the manner of conducting their own elections.[25] The federal constitutional amendment followed.

Direct Election of U.S. Senators

The direct election of U.S. Senators is another example of a major change initiated at the state level (and later enshrined in the Constitution by means of a constitutional amendment).

The original U.S. Constitution was explicit in specifying that U.S. Senators were to be elected by state legislatures.

Support for the direct election of Senators grew throughout the 19^th century—particularly after popular voting for presidential electors became the norm during the Jacksonian “era of the common man.” The 1858 Lincoln-Douglas debates were public events aimed at influencing the choice for U.S. Senator that was ultimately made by the Illinois state legislature.

Starting with the “Oregon Plan” in 1907, states passed laws establishing “advisory” elections for U.S. Senator. Under the Oregon Plan, the people cast their votes for U.S. Senator in a statewide “advisory” election, and the state legislature then dutifully rubber-stamped the people’s choice by formally electing the winner of the “advisory” election. By the time the 17^th Amendment passed the U.S. Senate in 1912, the voters in 29 states were, for all practical purposes, electing U.S. Senators.

18-Year-Old Vote

States took the lead in granting suffrage to 18-year-olds. Citizens under the age of 21 first acquired the right to vote in various states (e.g., Georgia, Kentucky, Alaska, Hawaii, and New Hampshire). In 1971, the 26^th Amendment extended the 18-year-old vote to all states.

Black Suffrage

States also took the lead in granting suffrage to African Americans. African Americans were given the right to vote in New York in the 1820s and in five states by the 1850s. Black suffrage was later extended to all states by the 15^th Amendment (ratified in 1870).

The Winner-Take-All Rule

Finally, it should be noted that one of the politically most important characteristics of our nation’s current system of electing the President—the winner-take-all rule—was established by state statute—not a federal constitutional amendment.

Why does John Samples say that repealing the winner-take-all rule without a federal constitutional amendment would “undermin[e] the legitimacy of presidential elections,” while not criticizing the original adoption of the winner-take-all rule by the states as illegitimate?

The fact is that state-level action is the traditional, appropriate, and most commonly used way of changing the method of electing the President.

In terms of electing the President, state control is precisely what the Founding Fathers intended, and it is precisely what the U.S. Constitution specifies. The Founding Fathers created an open-ended system with built-in flexibility concerning the manner of electing the President.

Indeed, the 12^th Amendment (ratified in 1804) was the only time when a federal constitutional amendment was used to initiate a change in the manner of voting for the President.

In this instance, a constitutional amendment was necessary. The original Constitution specifically provided that each presidential elector would vote for two persons (with the candidate receiving the most votes becoming President and the second-place candidate becoming Vice President). The 12^th Amendment changed that procedure and specified that each presidential elector would cast a separate vote for President and a separate vote for Vice President.[26]

In referring to the National Popular Vote plan, Professor Joseph Pika (author of The Politics of the Presidency) pointed out:

“This effort would represent amendment-free constitutional reform, the way that most other changes have been made in the selection process since 1804.”[27] [Emphasis added]

It is worth noting that while the states have exclusive control over the awarding of their electoral votes, the Constitution treats state power over congressional elections differently. Article I, section 4, clause 1 of the U.S. Constitution states:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” [Emphasis added]

Thus, the U.S. Constitution gives primary—but not exclusive—control over the manner of electing Congress to the states. In the case of congressional elections, the U.S. Constitution gave Congress the power to review and override state decisions. This override power has been used sparingly over the years.

In contrast, state power to choose the manner of electing the President is “exclusive” and “plenary” (i.e., complete). In particular, Congress does not have the power to override a state’s decision concerning the manner of awarding its electoral votes.

Footnotes

The National Popular Vote bill is state legislation—not a federal constitutional amendment. As such, it would not (and indeed could not) change the structure of the Electoral College as specified in the U.S. Constitution.

Instead, the National Popular Vote bill would change the method by which the states award their electoral votes in the Electoral College.

The National Popular Vote bill uses the Constitution’s built-in state-based power for changing the method of awarding electoral votes namely, section 1 of Article II of the U.S. Constitution:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[28] [Emphasis added]

The “manner” of appointment of presidential electors is specified by clause 3 of Article III of the National Popular Vote compact.

“The presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.”

Because the compact only takes effect when enacted by states possessing a majority of the electoral votes (i.e., 270 of 538), the compact guarantees that presidential electors supporting the “national popular vote winner” will have enough votes to choose the President.

The National Popular Vote compact would not abolish the Electoral College. Instead, it would reform the Electoral College so that it reflects the choice of the voters in all 50 states and the District of Columbia.

Under the National Popular Vote plan, the states would retain their exclusive and plenary power to choose the method of awarding their electoral votes, including the option to make other changes in the future.

Footnotes

The Founding Fathers did not design nor anticipate—much less favor—the most salient feature of our nation’s present-day system of electing the President, namely state winner-take-all statutes (i.e., awarding all of a state’s electoral votes to the presidential candidate who receives the most popular votes within each separate state).

The Founding Fathers never intended that all of a state’s presidential electors would mindlessly vote, in lockstep, for the candidate nominated by an extra-constitutional meeting (a political party’s nominating caucus or convention).

In the debates of the Constitutional Convention and in the Federalist Papers, there is no mention of the winner-take-all method of awarding electoral votes. When the Founding Fathers went back to their states in 1789 to organize the nation’s first presidential election, only three state legislatures chose to employ the winner-take-all method. Each of these three states repealed it by 1800.

Instead, the Founding Fathers envisioned an Electoral College composed of “wise men” who would act as a deliberative body and exercise independent and detached judgment as to the best person to serve as President.

As John Jay (the presumed author of Federalist No. 64) wrote in 1788:

“As the select assemblies for choosing the President … will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtues.” [Emphasis added]

As Alexander Hamilton (the presumed author of Federalist No. 68) wrote in 1788:

“[T]he immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.” [Emphasis added]

In this regard, the Electoral College was patterned after ecclesiastical and royal elections. For example, the College of Cardinals in the Roman Catholic Church constitutes the world’s oldest and longest-running electoral college. Cardinals (with lifetime appointments) deliberate to choose the Pope. The Holy Roman Emperor was elected by a similar small and distinguished group of “electors.” In many kingdoms in Europe, a small group of “electors” would, upon the death of the king, choose the person best suited to be king from a pool consisting of certain members of the royal family or nobility.

The Founding Fathers’ expectations that the Electoral College would be a deliberative and contemplative body were dashed by the political realities of the nation’s first competitive presidential election in 1796 and the emergence of political parties.

After George Washington declined to run for a third term in 1796, the Federalist and Republican parties nominated candidates for President and Vice President. These nominations were made by each party’s congressional caucus. In other words, the nominations were made by extra-constitutional political organizations.

The necessary consequence of national nominees was that each party nominated candidates for the position of presidential elector who made it known that they would serve as willing “rubber-stamps” for their party’s nominee in the Electoral College.

As the Supreme Court observed in its opinion in the 1892 case of McPherson v. Blacker:

“Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the chief executive, but experience soon demonstrated that, whether chosen by the legislatures or by popular suffrage on general ticket or in districts, they were so chosen simply to register the will of the appointing power in respect of a particular candidate. In relation, then, to the independence of the electors, the original expectation may be said to have been frustrated.”[29] [Emphasis added]

The centralized nomination by the political parties for President and Vice President in 1796 extinguished the notion that the Electoral College would operate as a deliberative body.

All but one of the 138 electoral votes cast in the 1796 election were synchronized with “the will of the appointing power.”

In the eight states where the state legislature appointed presidential electors in 1796, there was no hint of independent judgment by any of the presidential electors. The votes in the Electoral College coincided with “the will of the appointing power” (whether a Federalist or Jeffersonian state legislature):

• Connecticut—100% for Adams
• Delaware—100% for Adams
• New Jersey—100% for Adams
• New York—100% for Adams
• Rhode Island—100% for Adams
• South Carolina—100% for Jefferson
• Tennessee—100% for Jefferson[30]
• Vermont—100% for Adams

In the eight states where the voters chose the presidential electors in 1796, the votes cast by the presidential electors mirrored (with one exception discussed below) the sentiment of the voters that elected them—whether at the statewide level or the district level.[31]

The one exception was the unexpected vote cast in 1796 by Samuel Miles (a Federalist presidential elector) for Thomas Jefferson.

Public reaction to Miles’ unexpected vote cemented the presumption that presidential electors should vote for their party’s nominees. As a Federalist supporter notably complained in the December 15, 1796, issue of the United States Gazette:

“What, do I chufe Samuel Miles to determine for me whether John Adams or Thomas Jefferfon is the fittest man to be President of the United States? No, I chufe him to act, not to think.” [Emphasis added] [Spelling per original]

Of the 22,991 electoral votes cast for President in the nation’s 57 presidential elections between 1789 and 2012, the vote of Samuel Miles for Thomas Jefferson in 1796 remains the only instance when the elector may have believed, at the time he cast his vote, that his vote might possibly affect the national outcome.[32]

The expectation that presidential electors should faithfully support the candidates nominated by their party has persisted to this day.[33]

In the 1952 case of Ray v. Blair, U.S. Supreme Court Justice Robert H. Jackson summarized the history of presidential electors as follows:

“No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices.…

“This arrangement miscarried. Electors, although often personally eminent, independent, and respectable, officially become voluntary party lackeys and intellectual nonentities to whose memory we might justly paraphrase a tuneful satire:

‘They always voted at their party’s call

‘And never thought of thinking for themselves at all’”[34]

In short, the Electoral College that we have today was not designed, anticipated, or favored by the Founding Fathers. It is, instead, the product of decades of evolutionary change precipitated by the emergence of political parties and the enactment of winner-take-all statutes by most states. The actions taken by the Founding Fathers in organizing the nation’s first presidential election in 1789 (in particular, the fact that only three states used the winner-take-all method in 1789) make it clear that the Founding Fathers never gave their imprimatur to the winner-take-all method.

Footnotes

Tara Ross, an opponent of the National Popular Vote plan, has asserted:

“[The National Popular Vote compact] … tears apart a well-established institution that was admired by the Founding generation and that has served America successfully for centuries. Alexander Hamilton described its reception by the Founding generation, noting that

‘the mode of appointment of the Chief Magistrate of the United States is almost the only part of the system…which has escaped without severe censure.… I venture somewhat further, and hesitate not to affirm that if the manner of it be not perfect, it is at least excellent.’” [Emphasis added]

Trent England (a lobbyist opposing the National Popular Vote compact and Vice-President of the Evergreen Freedom Foundation of Olympia, Washington) has written:

“An ‘excellent’ system Alexander Hamilton wrote in The Federalist (No. 68) that, if the Electoral College is not perfect, ‘it is at least excellent.’ The system probably works even better than the American Founders expected, considering the addition of 37 states … since Hamilton’s original judgment.”[35] [Emphasis added]

These out-of-context quotations about the excellence of the Electoral College do not refer to the way that the Electoral College has actually operated “for centuries” or how it operates today.

Instead, as Hamilton made clear a few sentences later in Federalist No. 68, he was referring to the Founders’ never-achieved vision of a “deliberative” Electoral College:

“[The] election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.” [Emphasis added]

The practice of presidential electors acting as rubber-stamps started at the time of the nation’s first competitive election in 1796 (as discussed in greater detail in section 9.1.4). In 1796, political parties started making national nominations for President and Vice President. The obvious and necessary way to ensure the election of a party’s national nominees was to nominate presidential electors who could be relied upon to vote in lockstep in the Electoral College for the party’s nominees.

Both parties were immediately successful in converting presidential electors into rubber-stamps in 1796. All but one presidential elector in 1796 voted for his own party’s nominee for President (that is, either John Adams or Thomas Jefferson). The one exception was Samuel Miles (the deviant Federalist elector from Pennsylvania), who unexpectedly cast his vote in the Electoral College for Jefferson—instead of Adams. A Federalist supporter famously complained in the December 15, 1796, issue of the United States Gazette that Samuel Miles had voted for Thomas Jefferson, instead of John Adams, by saying,

“What, do I chufe Samuel Miles to determine for me whether John Adams or Thomas Jefferfon is the fittest man to be President of the United States? No, I chufe him to act, not to think.” [Emphasis added] [Spelling per original]

Of the 22,991 electoral votes cast for President in the nation’s 57 presidential elections (between 1789 and 2012), only 17 were cast in a deviant way.[36] Moreover, the unexpected vote of Samuel Miles in 1796 remains the only instance (among these 17 cases) when the elector might have thought, at the time he voted, that his vote could possibly affect the national outcome.[37]

It should be noted that Hamilton’s statement in Federalist No. 68 that the Electoral College is “excellent” was made during the debate on ratification of the U.S. Constitution—that is, before Hamilton or anyone else could see how the Electoral College would operate in practice.

The fact that “the mode of appointment of the [President] is almost the only part of the system…which has escaped without severe censure” during the debate on ratification of the U.S. Constitution reflected the fact that George Washington was universally expected to become President and the fact that designating a deliberative body to choose the President seemed, at the time, to be a reasonable way to fill the office.

Hamilton’s only known statement on the method by which a state should award its electoral votes is contained in an 1800 letter in which he advocated that New York switch from legislative appointment of presidential electors to popular election using districts.

The Federalists unexpectedly lost control of the New York legislature in the April 1800 legislative elections. Under an existing New York statute, the legislature appointed all of the state’s presidential electors. The loss of the legislature meant that the Federalists would lose all of New York’s electoral votes when the legislature would meet later in the year to choose the state’s presidential electors.[38]

“Jarred by the specter of defeat in the autumn [Federalist Alexander] Hamilton importuned Governor John Jay to call a special session of the Federalist-dominated New York legislature so that it might act before the newly elected assemblymen took their seats [on July 1]. Hamilton’s plan was for the outgoing assembly to enact legislation providing for the popular election—in districts—of the state’s presidential electors, a ploy virtually guaranteed to ensure that the Federalists would capture nine or ten of the twelve electoral college slots.”[39]

As Alexander Hamilton put it in his letter to Governor John Jay on May 7, 1800:

“The moral certainty therefore is, that there will be an anti-federal majority in the ensuing legislature; and the very high probability is, that this will bring Jefferson into the chief magistracy, unless it be prevented by the measure which I now submit to your consideration, namely, the immediate calling together of the existing legislature.

“I am aware that there are weighty objections to the measure; but the reasons for it appear to me to outweigh the objections. And in times like these in which we live, it will not do to be over-scrupulous. It is easy to sacrifice the substantial interests of society by a strict adherence to ordinary rules.

“In observing this, I shall not be supposed to mean that anything ought to be done which integrity will forbid; but merely that the scruples of delicacy and propriety, as relative to a common course of things, ought to yield to the extraordinary nature of the crisis. They ought not to hinder the taking of a legal and constitutional step to prevent an atheist in religion, and a fanatic in politics, from getting possession of the helm of State.”[40] [Emphasis added]

Governor Jay (a former Chief Justice of the United States) rejected Hamilton’s proposal and wrote on the letter:

“Proposing a measure for party purposes which it would not become me to adopt.”[41]

There is no record of Hamilton ever endorsing the currently prevailing system in which states conduct popular elections to award 100% of their electoral votes to the candidate who receives the most popular votes in the state.

Alexander Hamilton died in 1804. Hamilton’s home state of New York did not adopt the winner-take-all rule until 1832. It was not until 1832 that the winner-take-all rule became predominant throughout the country.

In short, Alexander Hamilton, the other Founding Fathers, and the rest of the Founding Generation were dead for decades before the state-by-state winner-take-all rule became the predominant method for awarding electoral votes.[42]

Footnotes

In referring to supporters of the National Popular Vote plan, John Samples of the Cato Institute wrote:

“They suggest that the power to appoint electors is unconstrained by the Constitution. It is accurate that the Constitution does not explicitly constrain the power of state legislatures in allocating electors. But a brief consideration of the history of the drafting of this part of the Constitution suggests some implicit constraints on state choices.

“The Framers considered several ways of electing a president. … On July 17, 1787, the delegates from nine states voted against direct election of the president; the representatives of one state, Pennsylvania, voted for it.”[43] …

“NPV offers a way to institute a means of electing the president that was rejected by the Framers of the Constitution.”[44] [Emphasis added]

Professor Norman Williams of Willamette University has stated:

“The Framers expressly and overwhelmingly rejected vesting the selection of the President directly in the people. Despite their republican instincts, the delegates believed that the people would be unable to identify worthy candidates, most of whom (in the framers’ expectations) would be unknown to the people at large. In a predominantly rural nation lacking a developed system of public education and a nationwide system of transportation or communication, theirs was not a trifling concern.”[45]

Prior to arriving at the eventual wording of section 1 of Article II, the 1787 Constitutional Convention debated the method of choosing the President on 22 separate days and took 30 (mostly contradictory) votes on the matter.[46]

The methods that were rejected included:

• electing presidential electors by districts,
• having state legislatures choose the President,
• having Governors choose the President,
• nationwide direct election, and
• having Congress choose the President.

If John Samples and Norman Williams were correct in asserting that it is unconstitutional for a state to use a method of choosing presidential electors that was rejected by the Constitutional Convention, then George Washington, John Adams, Thomas Jefferson, James Madison, and James Monroe were all elected unconstitutionally. Indeed, a majority of the presidential electors in the nation’s first nine presidential elections (1789–1820) were chosen using methods rejected by the Constitutional Convention.

On June 2, 1787, the Convention voted against a motion by James Wilson of Pennsylvania specifying that the voters would elect presidential electors by district.[47] Madison reported:

“Mr. Wilson made the following motion, to be substituted for the mode proposed by Mr. Randolph’s resolution,

‘that the Executive Magistracy shall be elected in the following manner: That the States be divided into ___ districts: & that the persons qualified to vote in each district for members of the first branch of the national Legislature elect ___ members for their respective districts to be electors of the Executive magistracy, that the said Electors of the Executive magistracy meet at ___ and they or any ___ of them so met shall proceed to elect by ballot, but not out of their own body [the] person in whom the Executive authority of the national Government shall be vested.’” [Emphasis added]

Despite the Constitutional Convention’s rejection of the district system, Virginia and Delaware implemented Wilson’s rejected plan and authorized their voters to elect their state’s presidential electors by district in the nation’s first presidential election in 1789. Moreover, in the nine presidential elections between 1789 and 1820 (when James Monroe was elected), the voters in a total of eight states (including Massachusetts, Maryland, North Carolina, Kentucky, Illinois, and Maine) elected presidential electors by district on one or more occasions.

Moreover, if John Samples and Norman Williams were correct in asserting that section 1 of Article II precludes states from using a method of choosing presidential electors that was rejected by the Constitutional Convention, Maine and Nebraska’s current district method would be unconstitutional.

Of course, the U.S. Supreme Court upheld Michigan’s 1892 law specifying that the voters elect the state’s presidential electors by congressional district in McPherson v. Blacker.[48]

On July 24, 1787, the Constitutional Convention rejected selection of the President by state legislatures. Nonetheless, in 1789, Connecticut, South Carolina, and Georgia chose to appoint their presidential electors in the state legislature. In the nine presidential elections between 1789 and 1820, the legislatures of a total of 15 states (including New Hampshire, Massachusetts, Rhode Island, New York, New Jersey, Pennsylvania, Delaware, South Carolina, Kentucky, Louisiana, Indiana, Alabama, and Missouri) appointed their state’s presidential electors on one or more occasions.[49]

On June 15, 1787, the Constitutional Convention voted against selection of the President by state Governors. Nonetheless, New Jersey’s presidential electors were appointed by the Governor and his Council in the nation’s first presidential election in 1789.[50] In 1792, Vermont combined two methods that were rejected by the Constitutional Convention. Its presidential electors were appointed by a “Grand Committee” consisting of the Governor and his Council along with the state House of Representatives (the only house Vermont had at the time).[51]

In summary, the course of conduct of the Founding Generation immediately after ratification of the Constitution indicates that no one interpreted section 1 of Article II as precluding the states from using methods of choosing presidential electors that were rejected at some point during the Constitutional Convention.

Footnotes

In referring to supporters of the National Popular Vote plan, John Samples of the Cato Institute wrote:

“They suggest that the power to appoint electors is unconstrained by the Constitution. It is accurate that the Constitution does not explicitly constrain the power of state legislatures in allocating electors. But a brief consideration of the history of the drafting of this part of the Constitution suggests some implicit constraints on state choices.”[52] [Emphasis added]

Throughout her book Enlightened Democracy: The Case for the Electoral College, Tara Ross, an opponent of the National Popular Vote compact, generally describes the Founding Fathers in glowing terms.

“The Electoral College is … a carefully considered and thought-out solution.”[53] [Emphasis added]

Ross repeatedly refers to the

“finely wrought procedures found in the Constitution.” [Emphasis added]

Ross reminds us that:

“The Founders spent months debating the appropriate presidential election process for the new American nation.”[54]

Then, after extolling the Founders’ work product and wisdom, Ross writes:

“The [U.S. Supreme] Court has held that ‘the State legislature’s power to select the manner for appointing electors is plenary.’ …

“Is this power of state legislators completely unrestricted? If it is, then Rhode Island could decide to allocate its electors to the winner of the Vermont election. In a more extreme move, New York could allocate its electors to the United Nations. Florida could decide that Fidel Castro always appoints its electors.…

“NPV is the opposite of what the Founders wanted, but failure of imagination prevented the Founders from explicitly prohibiting this particular manner of allocating electors.”[55] [Emphasis added]

A glance at the U.S. Constitution shows that the Founders displayed no shortage of legal talent and certainly did not suffer from any “failure of imagination” in crafting restrictions on the exercise of power when they thought that restrictions were advisable.

Section 8 of Article I provides:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises … but all Duties, Imposts and Excises shall be uniform throughout the United States.” [Emphasis added]

Section 10 of Article I provides:

“No State shall … make any Thing but gold and silver Coin a Tender in Payment of Debts.” [Emphasis added]

The Founders even limited the scope of future constitutional amendments in Article V with two specific restrictions:

“No Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first[56] and fourth[57] Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” [Emphasis added]

There are numerous additional examples of carefully crafted restrictions placed on grants of power throughout the Constitution.

Even section 1 of Article II itself contains a restriction on the power of the states to appoint their presidential electors.

“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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” [Emphasis added]

Tellingly, section 1 of Article II contains no other restriction on the manner by which the states exercise their power.

Ross’ “failure of imagination” argument echoes the argument made in 1892 before the U.S. Supreme Court by the losing attorney in McPherson v. Blacker.

Referring to Great Britain (the villainous 1890’s analog of Fidel Castro in present-day American politics), attorney F.A. Baker argued:

“The crown in England is hereditary, the succession being regulated by act of parliament.

“Would it be competent for a State legislature to pass a similar act, and provide that A. B. and his heirs at law forever, or some one or more of them, should appoint the presidential electors of that State?”[58]

In its unanimous ruling in McPherson v. Blacker, the U.S. Supreme Court answered Baker’s argument about unstated constitutional restrictions on the power of the states to award their electoral votes:

“The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object. The framers of the constitution employed words in their natural sense; and, where they are plain and clear, resort to collateral aids to interpretation is unnecessary, and cannot be indulged in to narrow or enlarge the text.”[59] [Emphasis added]

The U.S. Supreme Court recognized in McPherson v. Blacker that there are limitations on a state’s power under section 1 of Article II. For example, a state’s constitution may constrain a state’s power to choose the method of appointing presidential electors.

“The state does not act by its people in their collective capacity, but through such political agencies as are duly constituted and established. The legislative power is the supreme authority, except as limited by the constitution of the state, and the sovereignty of the people is exercised through their representatives in the legislature, unless by the fundamental law power is elsewhere reposed. The constitution of the United States frequently refers to the state as a political community, and also in terms to the people of the several states and the citizens of each state. What is forbidden or required to be done by a state is forbidden or required of the legislative power under state constitutions as they exist. The clause under consideration does not read that the people or the citizens shall appoint, but that “each state shall;” and if the words, ‘in such manner as the legislature thereof may direct,’ had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion of those words, while operating as a limitation upon the state in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself.”[60] [Emphasis added]

The Court continued:

“In short, the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States”[61] [Emphasis added]

The losing attorney in McPherson v. Blacker (F.A. Baker) urged the Court to judicially manufacture restrictions that do not actually appear in the Constitution and to adopt a “more elastic system of government.”

“There is no rule of constitutional interpretation, or of judicial duty, which requires the court … to adhere to the obsolete design of the constitution.”[62]

In his plea to the U.S. Supreme Court to engage in judicial activism, Baker bemoaned his client’s earlier loss at the Michigan Supreme Court:

“There can be no such thing as an absolutely rigid constitution. It is an impossibility, although the supreme court in Michigan in its wisdom most solemnly declares, that it will recognize no other.[63]”

Baker also argued that the widespread use of state winner-take-all statutes, over an extended period of time, extinguished the power of the states to adopt different methods of appointing their presidential electors (that is, the non-use argument).

“There is no rule of constitutional interpretation, or of judicial duty, which requires the court … to disregard the plan of the electoral college as it actually exists, after a century of practical experience and development.”[64] [Emphasis added]

In 2012, Professor Norman Williams of Willamette University echoed the non-use argument made by (losing) attorney Baker in the 1892 case of McPherson v. Blacker by saying that the states are limited today to choices of methods for appointing presidential electors that have been used in the past. Tellingly, while remaking Baker’s non-use argument, Williams concedes that the Constitution does not actually “express” the limitation for which he is arguing.

“The framers had created a presidential election system … [in which] the choice of President would be made not by an undifferentiated mass of people nationwide, but by electors accountable to the people of their individual states. To be sure, the framers did not make these expectations express. The notion that any state would appoint its electors in accordance with the wishes, even in part, of voters in other states was beyond the imagination of any at the time. Nevertheless, if any doubt about this expectation exists, it is negated by actual experience. As Part III will show, the actual practice of the states in the wake of the Constitutional Convention—a practice that has continued to this day—demonstrates the universal understanding among the states, both then and now, that presidential electors from each state are to be selected in accordance with the will of the voters in each state, not the entire national populace.[65] …

“History illuminates and informs the scope of state power under Article II. Throughout the nation’s history, states have used one of four processes for selecting their presidential electors: (1) legislative appointment, (2) popular election in which all electors are selected on the basis of the statewide vote (an at-large or winner-take-all system), (3) popular election by district, or (4) a combination of the latter two electoral systems—a hybrid process in which some electors are elected on the basis of the statewide vote and some on the basis of a district vote. Critically, under all four systems, each state’s electors are selected in accordance with the wishes of the people of the state, not the nation generally.

“Not once between 1880 and today, a period in which every state in the union has conducted a statewide popular election for its electors, has any state selected its electors based on the votes of individuals in other states. Rather, as the framers expected, states have selected their electors based on the will of state voters, not the nation at large.”[66] [Emphasis added]

The U.S. Supreme Court rejected the non-use argument in its ruling in McPherson v. Blacker:

“The question before us is not one of policy, but of power …. The prescription of the written law cannot be overthrown because the states have laterally exercised, in a particular way, a power which they might have exercised in some other way.”[67] [Emphasis added]

If it were the case that the states were precluded from using any method of awarding electoral votes that was not specifically “imagined” by the Founders, then the winner-take-all method would itself be unconstitutional. No historian, or anyone else of whom we are aware, has ever argued that the Founders expected, or wanted, 100% of a state’s presidential electors to vote slavishly, in lockstep, for a choice for President made by an extra-constitutional meeting (namely, a political party’s national nominating caucus or convention).

The winner-take-all rule was never debated or voted upon by the 1787 Constitutional Convention.

It is not mentioned in the Federalist Papers.

It was used by only three states in the nation’s first presidential election in 1789 (and was abandoned by all three by 1800).

The Founders were dead for decades by the time the winner-take-all rule came into widespread use.

It was not until the 11^th presidential election (1828) that the winner-take-all rule was used by a majority of the states.

There is virtually unanimous agreement among historians that the Founding Fathers intended that the Electoral College would operate as a deliberative body and did not anticipate the emergence of political parties.

The Constitutional Convention never agreed on any particular method for choosing the President. On August 31, 1787, the Convention assigned the question of electing the President to a special Committee of Eleven. On September 4, the Committee of Eleven returned with a recommendation that the President be chosen by presidential electors (an element of Wilson’s rejected motion of June 2, 1787); however, the Committee could not agree on any particular method for choosing the presidential electors. The result was that section 1 of Article II empowered the states to decide how to choose their presidential electors.

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[68] [Emphasis added]

Section 1 of Article II of the U.S. Constitution does not prohibit, require, encourage, or discourage the use of any particular method for awarding a state’s electoral votes. The wording “as the Legislature … may direct” permits the states to exercise their power to choose the manner of appointing their presidential electors in any way they see fit—subject only to the implicit limitation on all grants of power in the Constitution, namely that the states not violate any specific restriction on state action contained elsewhere in the Constitution.[69]

The report of the U.S. Senate Committee on Privileges and Elections in 1876 reviewed the history of the appointment of presidential electors by state legislatures and Governors:

“The appointment of these electors is thus placed absolutely and wholly with the Legislatures of the several states. They may be chosen by the Legislature, or the Legislature may provide that they shall be elected by the people of the State at large, or in districts, as are members of Congress, which was the case formerly in many States, and it is no doubt competent for the Legislature to authorize the governor, or the Supreme Court of the State, or any other agent of its will, to appoint these electors.”[70] [Emphasis added]

The 10^th Amendment independently addresses the question of whether the states are prohibited from exercising a particular power when the Constitution contains no specific prohibition against it and, therefore, the question of whether there are implicit restrictions on the allowable methods for appointing presidential electors.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” [Emphasis added]

Section 1 of Article II contains only one restriction on state choices on the manner of appointing their presidential electors, namely that no state may appoint a member of Congress or federal appointees as presidential elector.[71]

The 10^th Amendment was ratified in 1791 (that is, after ratification of the original 1787 Constitution) and thus takes precedence over the original Constitution. Even if there were enforceable implicit restrictions in the original Constitution on state choices on the manner of appointing their presidential electors (perhaps in the form of penumbral emanations from section 1 of Article II), such implicit restrictions were extinguished in 1791 by the 10^th Amendment.

Footnotes

Federalism concerns the distribution of power between state governments and the national government.

Avid supporters of federalism are typically ardent about preserving and enhancing the power of state government in relation to the power of the national government.

John Samples of the Cato Institute argues that a national popular vote would “weaken federalism.”

“Anti-federalists feared the new Constitution would centralize power and threaten liberty.…

“The founders sought to fashion institutional compromises that responded to the concerns of the states and yet created a more workable government than had existed under the Articles of Confederation.…

“The national government would [be] part of a larger design of checks and balances that would temper and restrain political power.”…

“The realization of the NPV plan would continue [the] trend toward nationalization and centralized power.”[72] [Emphasis added]

UCLA Professor Daniel H. Lowenstein has argued:

“Against all the pressures of nationalization, it is important to maintain the states as strong and vital elements of our system.”[73] [Emphasis added]

The power of state governments relative to the federal government is not increased or decreased based on whether presidential electors are elected along state boundary lines (as is the case under the current state-by-state winner-take-all system), along congressional district boundary lines (as is currently the case in Nebraska and Maine), or along national lines (as would be the case under the National Popular Vote plan).

The balance of power between the state and federal levels of government is controlled by the U.S. Constitution, state constitutions, and various federal and state laws.

The National Popular Vote plan does not affect the amount of power that state governments possess relative to the federal government.

When the Founding Fathers from Virginia, Delaware, and Massachusetts returned from the 1787 Constitutional Convention and organized the first presidential election in their respective states in 1789, they certainly did not reduce the powers of their state governments relative to the federal government when they chose to elect their state’s presidential electors by district (rather than the statewide winner-take-all method).

Similarly, the powers of the state governments of Virginia, Massachusetts, and North Carolina were not enhanced relative to the federal government when those states subsequently decided to change (in the early 1800s) to the winner-take-all rule.

Surely, no one would argue that Nebraska and Maine undermined federalism when they decided (in 1992 and 1969, respectively) to award their electoral votes by congressional district (instead of using the statewide winner-take-all method).

The National Popular Vote compact preserves the power of the states to conduct elections—an important element of federalism. It also preserves the power of the states to make future changes in the method of electing the President.

Adoption of the National Popular Vote compact is an exercise of federalism. It constitutes action by state governments to solve a recognized problem. It is an exercise of a power explicitly granted to the states by the U.S. Constitution.

As then-Congressman George H.W. Bush said on September 18, 1969, in support of direct popular election of the President:

“This legislation has a great deal to commend it. It will correct the wrongs of the present mechanism … by calling for direct election of the President and Vice President.… Yet, in spite of these drastic reforms, the bill is not … detrimental to our federal system or one that will change the departmentalized and local nature of voting in this country.

“In electing the President and Vice President, the Constitution establishes the principle that votes are cast by States. This legislation does not tamper with that principle. It only changes the manner in which the States vote. Instead of voting by intermediaries, the States will certify their popular vote count to the Congress. The states will maintain primary responsibility for the ballot and for the qualifications of voters. In other words, they will still designate the time, place, and manner in which elections will be held. Thus, there is a very good argument to be made that the basic nature of our federal system has not been disturbed.[74] [Emphasis added]

In short, there is no connection between the way power is—or should be—distributed between the state and federal governments and the boundary lines used to tally votes for presidential electors.

Footnotes

Writing in the Patriot Action Network, Brad Zinn refers to former U.S. Senator Fred Thompson (R–Tennessee) and 2008 presidential candidate as follows:

“Sen. Fred Thompson supports the National Popular Vote Compact, which effectively guts the Electoral College, and ends the Republic as we know it.”

“With this National Popular Vote method, we will no longer be a Republic, but a democracy. A democracy is the one thing that the Founding Fathers feared more than anything else. Every democracy in the history of the world has devolved into tyranny. Democracy is two wolves and a sheep voting on what's for dinner. The Founding Fathers knew this and made every effort to prevent the U.S. from slipping into the abyss. As Franklin said, ‘This is a Republic, if you can keep it.’ The National Popular Vote Compact will end the Republic.”[75] [Emphasis added]

In Federalist No. 10, James Madison—frequently called the “Father of the Constitution”—said that the

“difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.”[76] [Emphasis added]

In Federalist No. 14, Madison distinguished between a republic and a democracy by saying:

“The true distinction between these forms was also adverted to on a former occasion. It is, that in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region.”[77] [Emphasis added]

In a republic, the citizens do not rule directly, but instead elect officeholders to represent them and to conduct the business of government in the period between elections.

In the United States, legislation is approved by officeholders who serve for a term of two years (in the U.S. House of Representatives), six years (in the U.S. Senate), and four years (the President). Laws are executed and administered by an officeholder (the President) who serves for a term of four years.

The United States has a “republican form of government” because of this existing division of power between the citizenry and the elected officials who act on behalf of the citizenry between elections. Therefore, the United States is, at the present time, a republic—not a democracy.

Today, examples of direct democracy in the United States are—to use Madison’s wording in Federalist No. 14—limited to “small spots,” such as town meetings in New Hampshire

Popular election of the chief executive does not determine whether a government is a republic or democracy. The division of power between the citizenry and elected officeholders to whom governmental power is delegated is not affected by the boundaries of the regions used to tally popular votes in choosing presidential electors. The United States is neither less nor more a “republic” if its chief executive is elected under the state-by-state winner-take-all method (i.e., awarding all of a state’s electoral votes to the candidate who receives the most popular votes in each separate state), under a district system (such as used by Maine and Nebraska), or under the proposed national popular vote system (in which the winner would be the candidate receiving the most popular votes in all 50 states and the District of Columbia).

The United States is currently a republic under current state winner-take-all statutes, and it would remain so under the National Popular Vote compact.

The meaning of the phrase “republican form of government” can be ascertained by examining the single place in the U.S. Constitution where these words appear, namely the Guarantee Clause:

“The United States shall guarantee to every State in this Union a Republican Form of Government.”[78] [Emphasis added]

At the time of the Constitutional Convention in 1787, Connecticut, Massachusetts, New Hampshire, and Rhode Island conducted popular elections for Governor.[79]

If popular election of a state’s chief executive were a violation of the Guarantee Clause, then these four states would have been in violation of the Guarantee Clause starting from the moment that the writing of the Constitution was finished in 1787.[80]

It seems unlikely that the delegates from these four states would have voted for the Constitution at the 1787 Constitutional Convention if they believed that their own states lacked a “republican form of government” at the time.

It would seem even more unlikely that these four states would have ratified the Constitution if they believed that they were in violation of the Guarantee Clause.

Moreover, in the first few decades after ratification of the Constitution, the remaining original states (as well as additional states that were admitted to the Union) adopted the practice of directly electing their chief executive. No one has ever argued that these states denied their citizens a “republican form of government” because they directly elected their chief executives. No one has ever argued that the federal government should have invoked the Guarantee Clause and intervened (militarily or otherwise) to prevent these states from electing their chief executives by popular vote.

In short, popular election of the chief executive has nothing to do with the question of whether a particular government is a republic or democracy. Direct popular election of the chief executive is not incompatible with a “republican form of government.”

As Senator Fred Thompson said (quoted by Zinn):

“The National Popular Vote approach offers the states a way to deal with this issue in a way that is totally consistent with our constitutional principles.” [Emphasis added]

Footnotes

The Guarantee Clause of the U.S. Constitution states:

“The United States shall guarantee to every State in this Union a Republican Form of Government.”[81] [Emphasis added]

Kristin Feeley has argued that the National Popular Vote compact would violate the Guarantee Clause.[82]

Feeley’s thesis requires:

1. extending the interpretation of the words “every State in this Union” to include the national government, and
2. arguing that direct popular election of the President is incompatible with the concept of a “republican form of government” and incompatible with the concept of a “compound republic.”

In her review of Guarantee Clause jurisprudence, Feeley found no judicial precedent (or even a dissenting opinion) that has ever applied the guarantee of the Guarantee Clause to the national government. In other words, the Guarantee Clause has never been interpreted to say:

“The United States shall guarantee the United States a Republican Form of Government.” [Emphasis added]

Assume, for the sake of argument, that the Guarantee Clause were interpreted to apply to the national government. Based on that assumption, Feeley then argues:

“The Guarantee Clause provides for a compound republican government at the national level.… NPV legislation violates the Guarantee Clause by blurring important state lines in our compound republic.” [Emphasis added]

There is nothing about direct popular election of the President that is incompatible with the concept of a “republican form of government” or a “compound republic.”

As to the definition of a “republic,” James Madison—frequently called the “Father of the Constitution”—wrote in Federalist No. 10 that the

“difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest…”[83] [Emphasis added]

In Federalist No. 14, Madison wrote:

“The true distinction between these forms was also adverted to on a former occasion. It is, that in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents.”[84] [Emphasis added]

In short, the definition of a “republic” is based on whether elected officeholders exercise governmental power (as opposed to the people directly exercising governmental power). The National Popular Vote compact would do nothing to change the fact that the people delegate power to elected officeholders who, in turn, run the government.

The term “compound republic” appears twice in the Federalist Papers.[85]

James Madison’s Federalist No. 51 is entitled “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.” It distinguishes between a simple “republic” (where the separation of powers among different departments of government works to protect the rights of the people) and a “compound republic” (where there are two distinct levels of government).

“In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”[86] [Emphasis added]

In Federalist No. 62, Madison refers to:

“a compound republic, partaking both of the national and federal character”[87]

In short, the definition of a “compound republic” is based on there being two distinct layers of government (state and federal), each of which is a republic. The definition of a “compound republic” is not based on the boundaries of the regions used to count popular votes in electing the head of one of the three “departments” (branches) of government (i.e., the executive branch) of one of the two distinct layers of government (i.e., the federal government).

The National Popular Vote compact would do nothing to affect the existence of the two distinct layers of government implied by the term “compound republic.”

In short, even if a court were to apply the Guarantee Clause to the national government, there is nothing in the National Popular Vote compact that would affect the fact that the United States has a “republican form of government” and that the United States is a “compound republic.”[88]

Footnotes

The Meeting Clause of the 12^th Amendment (ratified in 1804) specifies that the meeting of the presidential electors must be physically conducted in each state.

The 12^th Amendment states:

“The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President….”[89] [Emphasis added]

Congress has implemented the Meeting Clause of the 12^th Amendment by enacting section 7 of chapter 1 of Title 3 of the United States Code:

“The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.” [Emphasis added]

Individual states, in turn, have further implemented the Meeting Clause of the 12^th Amendment and section 7 of the United States Code.

For example, current Alaska law provides that Alaska’s presidential electors shall meet at the offices of the Director of the Division of Elections located in Juneau:

“The electors shall meet at the office of the director or other place designated by the director at 11:00 o’clock in the morning on the first Monday after the second Wednesday in December following their election. If Congress fixes a different day for the meeting, the electors shall meet on the day designated by the Act of Congress.”[90]

The 12^th Amendment does not address the method of choosing presidential electors.

The National Popular Vote compact would not affect the meeting place for presidential electors.

The National Popular Vote compact does not violate the Meetings Clause of the 12^th Amendment.

Footnotes

Hans Von Spakovsky has stated:

“Without question, the NPV deprives non-participating states of their right under Article V to participate in deciding whether the Twelfth Amendment, which governs the Electoral College, should be changed.”[91] [Emphasis added]

The full text of the 12^th Amendment to the U.S. Constitution is as follows:

“The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

What part of the 12^th Amendment does Hans Von Spakovsky believe “without question” is changed by the National Popular Vote compact? As can be seen from the above quotation of the full text of the 12^th Amendment, there is nothing in it that addresses the manner by which states choose their presidential electors.

Footnotes

Tara Ross, an opponent of the National Popular Vote plan, has asserted:

“If ever a compact encroached on federal … sovereignty, this is it.”[92]

In fact, the U.S. Constitution gives the federal government no role in choosing the manner by which states award their electoral votes:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[93] [Emphasis added]

As the U.S. Supreme Court ruled in the 1892 case of McPherson v. Blacker:

“The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket [the winner-take-all rule] nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object.…

“In short, the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States.”[94] [Emphasis added]

In Bush v. Gore in 2000, the Court approvingly referred to McPherson v. Blacker and called section 1 of Article II of the Constitution:

“The source for the statement in McPherson v. Blacker … that the State legislature’s power to select the manner for appointing electors is plenary.”[95] [Emphasis added]

As a point of comparison, the U.S. Constitution gives the states considerably more discretion in choosing the manner of appointing their presidential electors than it does in choosing the manner of electing members of Congress. The states’ power to choose the manner of conducting congressional elections is subject to congressional review and veto. Article I, section 4, clause 1 of the U.S. Constitution provides:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” [Emphasis added]

The National Popular Vote compact would not encroach on federal sovereignty because it involves an exercise of the “exclusive” power of the states to choose the method for appointing their presidential electors.

Footnotes

Tara Ross, an opponent of the National Popular Vote plan, has asserted:

“If ever a compact encroached on … state sovereignty, this is it.”[96]

The U.S. Supreme Court ruled in the 1892 case of McPherson v. Blacker that the choice of method for appointing a state’s presidential electors is an “exclusive” and “plenary” state power (quoted in section 9.1.13). Moreover, the U.S. Supreme Court approvingly referred to McPherson v. Blacker as recently as the 2000 case of Bush v. Gore.

How is it possible for a state to “encroach” on state sovereignty when the state is exercising one of its own “exclusive” and “plenary” powers?

The 10^th Amendment independently addresses the question of whether the states are prohibited from exercising a particular power when the Constitution contains no specific prohibition against it and, therefore, the question of whether there are unstated, implicit restrictions on the allowable methods for appointing presidential electors.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” [Emphasis added]

Section 1 of Article II contains only one restriction on state choices on the manner of appointing their presidential electors, namely that no state may appoint a member of Congress or federal appointees as presidential elector.[97]

The 10^th Amendment was ratified in 1791 (that is, after ratification of the original 1787 Constitution) and thus takes precedence over the original Constitution. Even if there were enforceable implicit restrictions in the original Constitution on state choices on the manner of appointing their presidential electors (perhaps in the form of penumbral emanations from section 1 of Article II), such implicit restrictions were extinguished in 1791 by the 10^th Amendment.

Moreover, states that choose to enter the National Popular Vote compact retain the power to review their decision and withdraw from the compact at future times. Like virtually every other interstate compact (except for boundary-settlement contracts, which are intended to be permanent), the National Popular Vote compact permits a state to withdraw.[98]

In short, the National Popular Vote compact would be an exercise of state sovereignty—not an encroachment on it.

Footnotes

Section 2 of the 14^th Amendment reads:

“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. [Emphasis added]

Section 2 of the 14^th Amendment does not mandate the states to use any particular method for choosing their presidential electors. Instead, it provides a remedy if a state denies or abridges any person’s right to vote. The remedy is in the form of reduced congressional representation.

The National Popular Vote compact would not deny or abridge any person’s right to vote for presidential electors. Under the National Popular Vote compact, the opportunity of voters to vote for their “choice of electors for President and Vice President of the United States” would neither be denied nor abridged. Therefore, the criterion of section 2 would not be satisfied, and the remedy (namely, reduced congressional representation) would not apply.

Section 2 of the 14^th Amendment does not give the voters the right to vote for President, nor does it require that the state-by-state winner-take-all rule be used to appoint presidential electors.

The losing attorney (F.A. Baker) in the 1892 case of McPherson v. Blacker strenuously argued before the U.S. Supreme Court that section 2 of the 14^th Amendment limited the states in their choice of manner of electing presidential electors.

“The electoral system as it actually exists is recognized by the 14^th and 15^th amendments, and by necessary implication, the general ticket method [i.e., the winner-take-all rule] for choosing presidential electors is made permanent, and the only constitutional method of appointment.[99]” [Emphasis added]

As pointed out in the brief[100] of the winning attorney (Otto Kirchner) in McPherson v. Blacker, one (of the many) deficiencies in Baker’s interpretation of section 2 of the 14^th Amendment is that “judicial officers of a state” are also mentioned in section 2 of the 14^th Amendment. Judges were not elected by the people in many states at the time of formulation, debate, and ratification of the 14^th Amendment.

Even more pertinently, the history of the 14^th Amendment shows that it was never intended to limit the states in their choice of method of appointing presidential electors. The 14^th Amendment was ratified in 1867. Immediately before, during, and after the period of the Amendment’s formulation, debate, and ratification, some state legislatures appointed presidential electors without a vote by the people (e.g., South Carolina in 1860, Florida in 1868, and Colorado in 1876).

In addition, the congressional act providing for Colorado’s statehood in 1876 included a specific acknowledgement of the fact that the Colorado legislature would appoint the state’s presidential electors for the 1876 election.

If Baker’s interpretation of the 14^th Amendment had any validity, the appointment of presidential electors by the Florida legislature in 1868 and by the Colorado legislature in 1876 would have been unconstitutional. However, no contemporary argued that these actions by the state legislatures were unconstitutional under the 14^th Amendment.

If contemporaries thought the 14^th Amendment mandated popular election of presidential electors, that legal argument would certainly have been vigorously advanced during the contentious dispute over the 1876 presidential election. If the Colorado legislature’s appointment of the state’s three presidential electors (favoring Republican Rutherford B. Hayes) in 1876 had been found to be unconstitutional, Tilden would have had the “majority of the whole number of Electors appointed”[101] and, therefore, would have become President—even after losing the contested electoral votes of Louisiana, Florida, and South Carolina in the Electoral Commission. However, contemporaries favoring Tilden never raised this argument.

The history and practices used to choose presidential electors were exhaustively reviewed during the dispute over the 1876 election. The report of the Senate Committee on Privileges and Elections reviewed the history concerning the appointment of presidential electors and stated:

“The appointment of these electors is thus placed absolutely and wholly with the Legislatures of the several states. They may be chosen by the Legislature, or the Legislature may provide that they shall be elected by the people of the State at large, or in districts, as are members of Congress, which was the case formerly in many States, and it is no doubt competent for the Legislature to authorize the governor, or the Supreme Court of the State, or any other agent of its will, to appoint these electors.”[102] [Emphasis added]

In any event, the U.S. Supreme Court was not moved by Baker’s argument that section 2 of the 14^th Amendment requires the states to use the statewide winner-take-all rule. The Court unanimously ruled in McPherson v. Blacker that:

“The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket [i.e., the ‘winner-take-all’ rule], nor that the majority of those who exercise the elective franchise can alone choose the electors.”[103] [Emphasis added]

In 2000, the U.S. Supreme Court wrote:

“The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U.S. Const., Art. II, §1.

“This is the source for the statement in McPherson v. Blacker … that the State legislature’s power to select the manner for appointing electors is plenary.” …

“There is no difference between the two sides of the present controversy on these basic propositions.”[104] [Emphasis added]

Far from denying or abridging “the right to vote at any election for the choice of electors for President and Vice President of the United States,” the National Popular Vote compact would reinforce the people’s vote for President in compacting states. Article II of the compact states:

“Each member state shall conduct a statewide popular election for President and Vice President of the United States.”[105]

Footnotes

The Privileges and Immunities Clause of the 14th Amendment (ratified in 1867) reads:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

The Privileges and Immunities Clause gives each citizen the same protection against abridgments by state governments as each citizen already possesses, by virtue of national citizenship, relative to abridgments by the federal government.

The National Popular Vote compact would not deny or abridge any constitutional privilege or immunity currently possessed by citizens of the United States.

In particular, as discussed in section 9.1.15, there is no federal right to vote for President conferred by section 2 of the 14^th Amendment. Moreover, even if there were a federal right to vote for President, the National Popular Vote compact would do nothing to abridge it.

The Due Process Clause of the 14^th Amendment provides:

“… nor shall any State deprive any person of life, liberty, or property, without due process of law …”

The National Popular Vote compact would not deny any person of life, liberty, or property in any way.

The U.S. Constitution does not require that the election laws of all 50 states be identical. In fact, the Constitution virtually guarantees that election procedures will not be identical from state to state because it gives the states control over elections. Thus, differences in election laws are inherent under the federalist system established by the U.S. Constitution.

There are numerous differences in the ways that the states conduct elections.

For example, some states (e.g., Kentucky and Indiana) close their polling places at 6:00 P.M., while others keep their polls open later into the evening. Some states provide extensive opportunities for early voting, while other states are more restrictive. Some states have no early voting.

Some states permit previously incarcerated felons to vote after they serve their prison term, whereas others restore voting rights after passage of a certain amount of time, and other states never restore voting rights.

Some states (e.g., Oregon and Washington) conduct their elections entirely by mail, while other states conduct voting at traditional polling places.

Some states require photo identification at the polls, while others do not.

Professor Norman R. Williams of Willamette University has written the following concerning the National Popular Vote compact:

“Aggregating votes from each of the fifty states and District of Columbia raises severe problems under the Equal Protection Clause of the Fourteenth Amendment.…

“Once the relevant voting community is expanded to include the entire nation, however—as the NPVC seeks to do—it is hard to see how the disparate voting qualifications and systems in each state would be constitutionally tolerable.…

“The Court in Bush v. Gore did require the deployment of a uniform statewide standard for evaluating and tabulating votes for presidential electors, as well as a system of training election personnel to ensure such uniformity. If the differences in voting standards between Palm Beach and Miami-Dade counties violated the Equal Protection Clause, so too must the differences between states that count mismarked ballots as valid, such as Massachusetts, and those states, such as California, that typically do not.”[106] [Emphasis added]

The actual wording of the Equal Protection Clause of the 14^th Amendment does not, however, support Williams’ contention that “so too must the differences between states.” The U.S. Constitution provides:

“No state shall … deny to any person within its jurisdiction the equal protection of the laws”[107] [Emphasis added]

Voters in Palm Beach and Miami-Dade counties are within the jurisdiction of the state of Florida. Consequently, Florida must provide uniformity to them because they are “within its jurisdiction.”

The Equal Protection Clause does not, however, impose any obligation on any state concerning a “person” in another state who is not “within its [the first state’s] jurisdiction.”

Florida state universities do not charge students from Palm Beach County a higher tuition rate than those from Miami-Dade County, nor do they charge black Floridians a different tuition rate than white Floridians. However, Florida state universities do charge different tuition rates to out-of-state students.

Vikram David Amar responded to Williams’ contention concerning interstate non-uniformity by saying:

“Bush v. Gore (which itself crafted newfangled equal protection doctrine) was concerned with intrastate—not interstate—non-uniformity. Under the NPVC, it is hard to see how variations among states results in any one state denying equal protection of the laws ‘to any person within its jurisdiction,’ insofar as all persons within each state’s jurisdiction (i.e., voters in the state) are being dealt with similarly. No single state is treating any people who reside in any state differently than the other folks who live in that state.”[108] [Emphasis added]

Jennings Jay Wilson observed:

“There is no legal precedent for inter-state equal protection claims. Successful equal protection claims have always been brought by citizens being disadvantaged vis-à-vis other citizens of their own state.”[109] [Emphasis added]

Indeed, the U.S. Supreme Court has previously considered, and rejected, claims that the 14^th Amendment applies to interstate differences in connection with the appointment of presidential electors.

In 1968, the constitutionality of the statewide winner-take-all rule was challenged in Williams v. Virginia State Board of Elections. In that case, a federal court in Virginia considered and rejected an interstate equal protection claim as well as a claim based on the one-person-one-vote principle. The full opinion may be found in appendix FF.

The plaintiffs in Williams v. Virginia State Board of Elections argued that the state of Virginia violated the rights of Virginia voters to equal treatment under the Equal Protection Clause (and, therefore, that Virginia’s winner-take-all statute was unconstitutional) because Virginia’s statute limited Virginia voters to influencing the selection of only 12 presidential electors, whereas New York’s voters influenced the selection of 43 presidential electors.

The federal court described the plaintiff’s interstate equal protection argument as follows:

“Presidential electors provided for in Article II of the Constitution of the United States cannot be selected, plaintiffs charge, by a statewide general election as directed by the Virginia statute. Under it all of the State’s electors are collectively chosen in the Presidential election by the greatest number of votes cast throughout the entire State….

“Unfairness is imputed to the plan because it gives the choice of all of the electors to the statewide plurality of those voting in the election—“winner take all”—and accords no representation among the electors to the minority of the voters. An additional prejudice is found in the result of the system as between voters in different States. We must reject these contentions.” …

“Plaintiffs’ proposition is advanced on three counts:

(1) the intendment of Article II, Section 1, providing for the appointment of electors is that they be chosen in the same manner as Senators and Representatives, that is two at large and the remainder by Congressional or other equal districts;

(2) the general ticket method violates the ‘one-person, one-vote’ principle of the Equal Protection Clause of the Fourteenth Amendment, i.e., the weight of each citizen’s vote must be substantially equal to that of every other citizen. Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 9 L.Ed. 2d 821 (1963); Wesberry v. Sanders, 376 U.S. 1, 18, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); and

(3) the general ticket system gives a citizen in a State having a larger number of electors than Virginia the opportunity to effectuate by his vote the selection of more electors than can the Virginian.[110] [Emphasis added] [Italics in original]

The federal court made the following ruling concerning the argument that Virginia’s statewide winner-take-all statute violates the Equal Protection clause and one-person-one-vote principle:

“It is difficult to equate the deprivations imposed by the unit rule with the denial of privileges outlawed by the one-person, one-vote doctrine or banned by Constitutional mandates of protection. In the selection of electors the rule does not in any way denigrate the power of one citizen’s ballot and heighten the influence of another’s vote. Admittedly, once the electoral slate is chosen, it speaks only for the element with the largest number of votes. This in a sense is discrimination against the minority voters, but in a democratic society the majority must rule, unless the discrimination is invidious. No such evil has been made manifest here. Every citizen is offered equal suffrage and no deprivation of the franchise is suffered by anyone.” [Emphasis added]

The federal court said the following in connection with “interstate inequality of voters”:

“Further instances of inequality in the ballot’s worth between them as Virginia citizens, plaintiffs continue, and citizens of other States, exists as a result of the assignment of electors among the States. To illustrate, New York is apportioned 43 electors and the citizen there, in the general system plan, participates in the selection of 43 electors while his Virginia compatriot has a part in choosing only 12. His ballot, if creating a plurality for his preference, wins the whole number of 43 electors while the Virginian in the same circumstances could acquire only 12.…

“Disparities of this sort are to be found throughout the United States wherever there is a State numerical difference in electors. But plainly this unevenness is directly traceable to the Constitution’s presidential electoral scheme and to the permissible unit system.

“For these reasons the injustice cannot be corrected by suit, especially one in which but a single State is impleaded. Litigation of the common national problem by a joinder of all the States was evidently unacceptable to the Supreme Court. State of Delaware v. State of New York, supra, 385 U.S. 895, 87 S.Ct. 198. Readily recognizing these impediments, plaintiffs point to the district selection of electors as a solution, or at least an amelioration, of this interstate inequality of voters. However, to repeat, this method cannot be forced upon the State legislatures, for the Constitution gives them the choice, and use of the unit method of tallying is not unlawful.” [Emphasis added]

The U.S. Supreme Court affirmed the decision of the Virginia federal court in a per curiam decision in 1969.

Tara Ross has made an argument similar to Professor Williams’ concerning interstate equal protection.

“NPV claims that its change to a direct election system is needed in order to guarantee ‘every vote equal.’ Oddly, its proposal guarantees the exact opposite. It would cram voters from across the country into one election pool, despite the fact that different election laws apply to different voters. Voters would not be more equal. They would be more unequal. Lawsuits claiming Equal Protection would certain follow.

“Consider the issue of early voters. Voters in Alaska have one set of laws regarding early voting. Other states might have provisions regarding when early voting starts, how long it lasts, or who may early vote and how they may early vote. These differences in laws do not matter when Alaskans are participating in their own election only with Alaskans—all voters are treated equitably with other members of the same election pool. However, if NPV throws Alaskans into another, national electorate, then the difference in laws begin to create many inequities. Some voters in this election pool, for instance, may have more time to vote than Alaskan voters. Or maybe others have an easier time registering to early vote. Alaskans are not treated equitably with other members of the national election pool if they must abide by a more restrictive—or even a less restrictive!—set of election laws.”[111] [Italics in original] [Emphasis added]

There is nothing incompatible between the concept of a national popular vote for President and the inevitable differences in election laws resulting from state control over elections. That was certainly the overwhelming mainstream view when the U.S. House of Representatives passed a constitutional amendment in 1969 for a national popular vote by a 338–70 margin. The 1969 amendment was endorsed by Richard Nixon, Gerald Ford, and Jimmy Carter. It was endorsed by various members of Congress who later ran for Vice President or President, including then-Congressman George H.W. Bush, then-Senator Bob Dole, and then-Senator Walter Mondale. The American Bar Association also endorsed it.

The amendment proposed in 1969 provided that, once a person’s vote has been cast under each state’s existing (admittedly differing) policies, the popular-vote tallies from each state would be comingled and added together to obtain the nationwide total for each candidate.

The National Popular Vote compact employs the same process, namely once a person’s vote has been cast under each state’s existing (admittedly differing) policies, the popular-vote tallies from each state would be comingled and added together to obtain the nationwide total for each candidate.

In fact, the current state-by-state winner-take-all system of electing the President employs the same process of comingling and adding. Under the current state-by-state system, the electoral vote counts from all 50 states are comingled and added together—despite the fact that the electoral-vote counts reported by the states are each profoundly affected by differing state policies concerning the hours of voting, voter registration procedures, policies concerning ex-felon voting, the ease of advance voting, the interpretation of mismarked ballots, voter photo identification requirements, and so forth.

The 2000 Certificate of Ascertainment from the state of Florida reported 2,912,790 popular votes for George W. Bush and 2,912,253 popular votes for Al Gore and a 25–0 allocation of electoral votes between Bush and Gore. When Florida’s 25–0 allocation of electoral votes was added together with the allocations of electoral votes from other states, Florida’s 25–0 allocation decided the outcome of the national election.

The procedures governing presidential elections in closely divided battleground states (e.g., Florida and Ohio) can affect, and indeed have decisively affected, the ultimate outcome of national elections. Thus, everyone in the United States is affected by (and has an “interest” in) every state’s allocation of its electoral votes because the Presidency is determined by these state-by-state allocations of electoral votes.

In the same way, the numerical division of the popular vote reported on the Certificate of Ascertainment from Florida and every other state would decide the national outcome of some future election conducted under the National Popular Vote compact.

Let us analyze Ross’ argument in connection with the closely divided battleground state of Virginia (with no early voting in 2012) and the battleground state of Ohio (with early voting in 2012).[112]

Ross would argue that votes cast by Virginia citizens are diminished in comparison to votes cast by Ohio citizens because when the (diminished) Virginia votes are comingled and added together with the Ohio votes, the votes of one state “are not treated equitably with other members of the national election pool.” Ross would argue that the comingling and adding together of popular votes under the National Popular Vote compact would violate the Equal Protection Clause of the 14^th Amendment. However, this same comingling and adding together happened in 2012 (and all previous presidential elections) under the current system in connection with electoral votes. The votes cast from the state having less convenient early voting are comingled and added together with electoral votes of other states with more convenient early voting.

If there were a possibility of successful litigation against the National Popular Vote compact on the basis of Ross’ doctrine of “interstate inequality” under the 14^th Amendment, then the possibility of successful litigation would exist today with respect to the adding together and comingling of electoral votes under the current system.

Let’s assume that, as a result of a close statewide popular vote, Ohio reported an 18–0 division of its electoral votes in favor of Barack Obama on its 2012 Certificate of Ascertainment and that those 18 votes decided the Presidency. There would be no possibility today of successful 14^th-Amendment litigation initiated by disgruntled Republicans from Virginia (where there is no early voting) arguing that Virginia voters were devalued and that their party lost the White House because Ohio’s early voting benefited the Democrats. The state of Ohio definitely has obligations to “any person in its jurisdiction” to ensure that all of Ohio’s voters were treated in the same way, but it has no obligation to disgruntled Virginia Republicans to treat its voters the same way that Virginia does.

If were such a thing as a doctrine of “interstate inequality” under the 14^th Amendment, the courts would quickly use it to declare existing state winner-take-all statutes unconstitutional. The argument that was unsuccessfully made in 1968 in Williams v. Virginia State Board of Elections (discussed above) would immediately become a winning legal argument. Moreover, there would suddenly be a legal basis for challenging the numerous other “interstate inequalities” created by the winner-take-all rule. For example, Al Gore won five electoral votes by virtue of his margin of 365 popular votes in New Mexico in 2000, whereas George W. Bush won five electoral votes by virtue of his margin of 312,043 popular votes in Utah—an 855-to-1 disparity in the value of a vote.

The only way to achieve totally uniform national rules governing elections would be to amend the U.S. Constitution to eliminate state control of elections and establish uniform federal election rules.

Elimination of state control of elections was not seen as a politically realistic possibility when Congress considered the proposed 1969 federal constitutional amendment.

In any case, the National Popular Vote compact would not change the operation of elections inside any state—member or non-member.

As then-Congressman George H.W. Bush said on September 18, 1969, in support of a constitutional amendment for direct popular election of the President in which the states would have continued to conduct elections under differing state election laws:

“This legislation has a great deal to commend it. It will correct the wrongs of the present mechanism … by calling for direct election of the President and Vice President.… Yet, in spite of these drastic reforms, the bill is not … detrimental to our federal system or one that will change the departmentalized and local nature of voting in this country.

“In electing the President and Vice President, the Constitution establishes the principle that votes are cast by States. This legislation does not tamper with that principle. It only changes the manner in which the States vote. Instead of voting by intermediaries, the States will certify their popular vote count to the Congress. The states will maintain primary responsibility for the ballot and for the qualifications of voters. In other words, they will still designate the time, place, and manner in which elections will be held. Thus, there is a very good argument to be made that the basic nature of our federal system has not been disturbed.”[113] [Emphasis added]

Footnotes

No court has invalidated an interstate compact on the grounds that the compact impermissibly delegated a state’s sovereign power.

Indeed, except for purely advisory compacts, the purpose of almost all interstate compacts is, as Marian Ridgeway put it in Interstate Compacts: A Question of Federalism:

“[to] shift a part of a state’s authority to another state or states.”[114]

As summarized in Hellmuth and Associates v. Washington Metropolitan Area Transit Authority:

“Upon entering into an interstate compact, a state effectively surrenders a portion of its sovereignty; the compact governs the relations of the parties with respect to the subject matter of the agreement and is superior to both prior and subsequent law. Further, when enacted, a compact constitutes not only law, but a contract which may not be amended, modified, or otherwise altered without the consent of all parties.”[115] [Emphasis added]

The question arises as to whether the National Popular Vote compact would be an impermissible delegation of a state’s sovereign power. In particular, the following question might be raised:

“May a state delegate, under the auspices of an interstate compact, the choice of its presidential electors to the collective choice of the voters of a group of states?”

This inquiry requires an examination of whether the appointment of a state’s presidential electors is one of the state’s sovereign powers and, if so, whether that power can be shared with voters throughout the United States.

A state’s “sovereign powers” may be delegated by an interstate compact

The sovereign authority of a state is not easily defined. The federal courts have not defined sovereignty, although they have attempted to describe it on various occasions. In Hinderlider v. La Plata River & Cherry Creek Ditch Co. in 1938, the U.S. Supreme Court traced the history of compacts during the colonial period and immediately thereafter and viewed compacts as a corollary to the ability of independent nations to enter into treaties with one another.

“The compact—the legislative means [for resolving conflicting claims]—adapts to our Union of sovereign States the age-old treaty making power of sovereign nations.”[116]

In the 1992 case of Texas Learning Technology Group v. Commissioner of Internal Revenue, the U.S. Court of Appeals for the Fifth Circuit wrote:

“The power to tax, the power of eminent domain, and the police power are the generally acknowledged sovereign powers.”[117]

The appropriation power is another example of a power that is viewed as fundamental to a state.

The filling of public positions that are central to the operation of state government (including legislative, executive, or judicial positions and the position of delegate to a state constitutional convention) is regarded as a sovereign state power.[118],[119]

The historical practice of the states, the long history of approvals of interstate compacts by Congress, and court decisions all support the view that a state’s sovereign powers may be granted to a group of states acting through an interstate compact. For example, New York and New Jersey delegated certain sovereign powers to the Port Authority of New York and New Jersey, including the power of eminent domain and the power to exempt property from taxation. New York and New Jersey granted the power to tax to the commission created by the 1953 New York–New Jersey Waterfront Compact. Such delegation was upheld in 1944 in Commissioner of Internal Revenue v. Shamberg’s Estate.[120]

The Ohio River Valley Water Sanitation Compact provided:

“The signatory states agree to appropriate for the salaries, office and other administrative expenses, their proper proportion of the annual budget as determined by the Commission and approved by the governors of the signatory states….”

In West Virginia ex rel. Dyer v. Sims (discussed at greater length in section 8.6.2), the U.S. Supreme Court upheld the delegation of West Virginia’s appropriation power and wrote in 1950:

“The issue before us is whether the West Virginia Legislature had authority, under her Constitution, to enter into a compact which involves delegation of power to an interstate agency and an agreement to appropriate funds for the administrative expenses of the agency.

“That a legislature may delegate to an administrative body the power to make rules and decide particular cases is one of the axioms of modern government. The West Virginia court does not challenge the general proposition but objects to the delegation here involved because it is to a body outside the State and because its Legislature may not be free, at any time, to withdraw the power delegated.… What is involved is the conventional grant of legislative power. We find nothing in that to indicate that West Virginia may not solve a problem such as the control of river pollution by compact and by the delegation, if such it be, necessary to effectuate such solution by compact.… Here, the State has bound itself to control pollution by the more effective means of an agreement with other States. The Compact involves a reasonable and carefully limited delegation of power to an interstate agency.”[121] [Emphasis added]

In the 1970 U.S. Supreme Court case of Oregon v. Mitchell, Justice Potter Stewart (concurring in part and dissenting in part) pointed out that if Congress had not acted to bring about uniformity among state durational residency requirements for voters casting ballots in presidential elections, then the states could have adopted an interstate compact to do so.[122] The right to vote for a presidential elector is not beyond the reach of an interstate compact.

In short, there is nothing about the nature of an interstate compact that fundamentally prevents the delegation of a state’s sovereign power to a group of compacting states.

As Ridgeway wrote:

“If the state chooses to inaugurate some new pattern of local government [by means of an interstate compact] that is not in conflict with the state’s constitution, it can do so, as long as the people lose none of their ultimate power to control the state itself.”[123] [Emphasis added]

This statement reflects various court decisions that emphasize the ability of a sovereign entity to operate independently of any other.[124]

The U.S. Supreme Court has recognized, in the 1892 case of McPherson v. Blacker, that a state’s constitution may limit the power to choose the method of appointing presidential electors.

“The state does not act by its people in their collective capacity, but through such political agencies as are duly constituted and established. The legislative power is the supreme authority, except as limited by the constitution of the state, and the sovereignty of the people is exercised through their representatives in the legislature, unless by the fundamental law power is elsewhere reposed. The constitution of the United States frequently refers to the state as a political community, and also in terms to the people of the several states and the citizens of each state. What is forbidden or required to be done by a state is forbidden or required of the legislative power under state constitutions as they exist. The clause under consideration does not read that the people or the citizens shall appoint, but that ‘each state shall;’ and if the words, ‘in such manner as the legislature thereof may direct,’ had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion of those words, while operating as a limitation upon the state in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself.”[125] [Emphasis added]

The U.S. Supreme Court rejected a specific argument about what constitutes an appointment by the state:

“The manner of the appointment of electors directed by the act of Michigan is the election of an elector and an alternate elector in each of the twelve congressional districts into which the state of Michigan is divided, and of an elector and an alternate elector at large in each of two districts defined by the act. It is insisted that it was not competent for the legislature to direct this manner of appointment, because the state is to appoint as a body politic and corporate, and so must act as a unit, and cannot delegate the authority to subdivisions created for the purpose; and it is argued that the appointment of electors by districts is not an appointment by the state, because all its citizens otherwise qualified are not permitted to vote for all the presidential electors.”[126] [Emphasis added]

The Court answered this argument by ruling:

“The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object.[127] [Emphasis added]

The National Popular Vote compact does not delegate a sovereign state power

There is no authority from any court regarding whether presidential electors exercise a sovereign power of their state. Given the temporary nature of the function of presidential electors, it is doubtful that a court would rule that presidential electors exercise inherent governmental authority. In contrast to members of the legislative, executive, or judicial branches of state government or members of a state constitutional convention, the function that presidential electors perform is not one that addresses the sovereign governance of the state. Instead, presidential electors decide the identity of the chief executive of the federal government. That is, the selection of electors is not a manifestation of the way in which the state itself is governed.

If the power to determine a state’s electors is deemed not to be a sovereign power of the state, then the ability to delegate it is unquestioned. No court has invalidated an interstate compact for delegating a power that is not central to the organic ability of a state to operate independently as a political and legal entity, no matter how broad the delegation. In Hinderlider v. La Plata River & Cherry Creek Ditch Co., the U.S. Supreme Court ruled that a compact to administer an interstate stream was

“binding upon the citizens of each State and all water claimants, even where the State had granted the water rights before it entered into the compact.”[128]

Given the states’ exclusive role under the Constitution to determine the manner of appointing its presidential electors,[129] if the determination of a state’s electors is a sovereign power and its delegation would shift political power to the group of compacting states, the National Popular Vote compact will not be deemed to compromise federal supremacy.[130] The fact of the delegation would not, in and of itself, violate the U.S. Constitution.

Footnotes

Tara Ross, an opponent of the National Popular Vote plan, has argued that the decisions of the U.S. Supreme Court in U.S. Term Limits, Inc. v. Thornton (the 1995 term limits case) and Clinton v. City of New York (the 1998 line item veto case) imply that the National Popular Vote plan would be unconstitutional.

Term Limits Case

The 1995 case of U.S. Term Limits, Inc. v. Thornton involved the Qualifications Clause of the U.S. Constitution that establishes three requirements for serving in the U.S. House of Representatives.

“No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”[131]

In the mid-1990s, numerous states passed statutes or state constitutional amendments to prevent members of Congress from serving more than a specified number of terms in office (typically by denying long-serving incumbents access to the ballot).

The U.S. Supreme Court ruled that states cannot impose requirements on prospective members of Congress that were stricter than those specified by the Qualifications Clause of the U.S. Constitution.

Ross argues that the Court’s decision in U.S. Term Limits, Inc. v. Thornton bears on the National Popular Vote compact.

“In two notable cases, the Court struck down statutes that were said to upset the compromises struck and the delicate balances achieved during the Constitutional Convention.…

“The Court would find support for such a holding in U.S. Term Limits. That case held that the Qualifications Clauses of the Constitution prevented an individual state from attempting to impose term limits on its own senators and congressmen.

“Justice Stevens’ majority opinion seemed wary of statutes that attempt to evade the Constitution’s requirements. Stevens wrote that a state provision

‘with the avowed purpose and obvious effect of evading the requirements of the Qualifications Clauses … cannot stand. To argue otherwise is to suggest that the Framers spent significant time and energy in debating and crafting Clauses that could be easily evaded.’ [Emphasis added]

“Allowing such action, he [Justice Stevens] concluded:

‘trivializes the basic principles of our democracy that underlie those Clauses. Petitioners’ argument treats the Qualifications Clauses not as the embodiment of a grand principle, but rather as empty formalism.

‘It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.’”[132]

The clause of the U.S. Constitution at issue in the National Popular Vote bill is Article II, section 1, clause 1 providing:

“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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” [Emphasis added]

The National Popular Vote compact is state legislation that directs the appointment of 100% of a state’s presidential electors from the political party associated with the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia.

The compact would replace state winner-take-all statutes that direct the appointment of 100% of a state’s presidential electors from the political party associated with the presidential candidate who receives the most popular votes in each separate state.

The authors of this book agree with the U.S. Supreme Court’s ruling in U.S. Term Limits against a state statute with the

“avowed purpose and obvious effect of evading the requirements of the Qualifications Clause.” [Emphasis added]

What “requirement” of Article II, section 1, clause 1 would be evaded by the National Popular Vote compact?

There certainly is no “requirement” in Article II, section 1, clause 1 mandating that 100% of a state’s presidential electors must vote in lockstep or that they must vote in accordance with the dictates of an extra-constitutional body such as the nominating caucus or convention of a political party.

Indeed, the Founding Fathers envisioned the Electoral College to be a deliberative body whose members would exercise individual judgment in picking the President. As Alexander Hamilton (the presumed author of Federalist No. 68) wrote in 1788:

“[T]he immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.” [Emphasis added]

Moreover, there is no “requirement” in Article II, section 1, clause 1 that states appoint 100% of their presidential electors from just one political party—whether it be the party that carried the state, the party that carried the entire nation, or the party that carried particular districts within the state.

The U.S. Supreme Court ruled in the 1892 case of McPherson v. Blacker:

“The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket [the winner-take-all rule] nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object. The framers of the constitution employed words in their natural sense; and, where they are plain and clear, resort to collateral aids to interpretation is unnecessary, and cannot be indulged in to narrow or enlarge the text.…

“In short, the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States.”[133] [Emphasis added]

In fact, Article II, section 1, clause 1 contains only one “requirement,” namely that presidential electors not hold federal office. The National Popular Vote compact certainly does not have the “avowed purpose and obvious effect of evading” that “requirement.”

Aside from that single “requirement” in Article II, section 1, clause 1, the exercise of any legislative power is indisputably also subject to all the other specific “requirements” in the U.S. Constitution that may apply to the exercise of legislative power.

Five specific restrictions on a state’s power under section 1 of Article II are those contained in

• the 14^th Amendment (equal protection),
• 15^th Amendment (prohibiting denial of the vote on account of “race, color, or previous condition of servitude”),
• the 19^th Amendment (woman’s suffrage),
• the 24^th amendment (prohibiting poll taxes), and
• the 26^th Amendment (18-year-old vote).

Three additional specific restrictions on a state’s power under section 1 of Article II are contained in Article I, section 10, clause 1 of the U.S. Constitution:

“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” [Emphasis added]

Thus, under Article II, section 1, clause 1, a state legislature may, for example, pass a law making it a crime to commit fraud in a presidential election. However, a state legislature may not pass an ex post facto (retroactive) law making it a crime to commit fraud in a previous presidential election.

Similarly, a state legislature may not pass a law imposing criminal penalties on specifically named persons whom the legislature believes may have committed fraudulent acts in connection with a presidential election (that is, a bill of attainder).

Also, the Constitution’s explicit prohibition against a “law impairing the obligation of contract” operates as a restraint on the delegation of power contained in section 1 of Article II.

However, after reviewing all nine of the above generic restraints on legislative action, we do not find any specific “requirement” of the U.S. Constitution that would be evaded by the National Popular Vote compact.

U.S. Term Limits was concerned with state legislation that attempted to contravene the “requirements” of a specific clause of the U.S. Constitution, whereas the National Popular Vote compact represents the exercise of a state power that is explicitly (and exclusively) granted to the states by the U.S. Constitution.

Line Item Veto case

The second case cited by Tara Ross is the 1998 case of Clinton v. City of New York. That case involved the Presentment Clause of the U.S. Constitution (establishing the specific steps necessary to enact a federal law).

“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”[134]

The Line Item Veto Act of 1996 gave the President the power to unilaterally amend or repeal parts of statutes that had been duly enacted into law in accordance with the Presentment Clause.

Tara Ross described the U.S. Supreme Court’s rejection of the line item veto by saying:

“The 1998 case of Clinton v. New York invalidated the federal Line Item Veto Act. Writing for the majority, Justice Stevens emphasized the

‘great debates and compromises that produced the Constitution itself,’

“and he found that the Act could not stand because it disrupted

‘the ‘finely wrought’ procedure that the Framers designed.’[135] [Emphasis added]

“The Constitution was the product of much give and take among the delegates.”

Ross then asserted:

“The Court could reasonably determine that NPV … disrupts the ‘finely wrought’ procedures found in the Constitution.” [Emphasis added]

The authors of this book agree with the U.S. Supreme Court’s ruling in Clinton v. New York against a statute that attempted to change “procedures” that resulted from careful deliberation by the Founding Fathers and that are laid out in explicit detail in the U.S. Constitution.

The delegates to the 1787 Constitutional Convention debated the method of electing the President on 22 separate days and held 30 votes on the topic.[136] The Convention considered a variety of methods for selecting the President, including

• election of presidential electors by districts,
• having state legislatures choose the President,
• having Governors choose the President,
• nationwide direct election, and
• having Congress choose the President.

The Convention never established any of the above methods for selecting the President as the uniform nationwide method for electing the President. Instead, the Convention decided that the President would be elected by presidential electors and then established a “procedure” by which state governments could choose a method for appointing their presidential electors, namely by enacting state laws.

There is evidence that the Convention acted carefully in crafting the “procedure” by which states would choose the manner of appointing their presidential electors. For example, the Convention decided that the states would not be subject to congressional review or veto in choosing the method of choosing their presidential electors, whereas the states would be subject to such review and veto imposed in connection with choosing the method of conducting congressional elections (Article I, section 4, clause 1). This decision reflected the Convention’s concern that a sitting President might (in conjunction with a compliant national legislature) manipulate the rules governing his own re-election.

The “procedure” crafted by the Constitutional Convention empowering state legislatures to decide on the method of appointing their presidential electors was explicitly stated in Article II, section 1, clause 1 and provided:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…” [Emphasis added]

Note that Article II, section 1, clause 1 permits a legislature to choose its method of appointing its presidential electors by passage of state legislation—without a federal constitutional amendment and without congressional oversight.

We believe that the Founders’ lengthy consideration of Article II, section 1, clause 1 qualifies this constitutional provision as “the product of much give and take among the delegates” and as a “finely wrought procedure.:

State winner-take-all statutes were used by only three states in the nation’s first presidential election in 1789. The winner-take-all rule became widespread—without a federal constitutional amendment—by the 1830’s through enactment of state legislation authorized using the “finely wrought procedures” of Article II, section 1, clause 1. The winner-take-all rule specifies that 100% of a state’s presidential electors be appointed on the basis of the overall intra-state popular vote. The national Popular Vote compact specifices that 100% of an enacting state’s presidential electors be appointed on the basis of the overall interstate popular vote.

Why does Tara Ross think that the “finely wrought procedure” used to originally enact state winner-take-all statutes would no longer qualify as a “finely wrought procedure” if the states chose to use the same “procedure” to repeal their state winner-take-all statutes?

The 1998 line item veto case was concerned with federal legislation that attempted to establish a “procedure” that contravened the “finely wrought procedure” contained in the U.S. Constitution, whereas the National Popular Vote compact represents the use by the states of a “finely wrought procedure” already contained in the Constitution.

Footnotes

Tara Ross, an opponent of the National Popular Vote plan, has argued:

“Even assuming that the Electoral College should be eliminated, respect for the Constitution demands that we go through the formal amendment process.”[137]

The National Popular Vote bill does not eliminate the Electoral College. It replaces state winner-take-all statutes (enacted on a piecemeal basis by the states over a period of decades after the 1787 Constitutional Convention) with a system that guarantees the Presidency to the candidate who receives the most popular votes in all 50 states and the District of Columbia.

The Founding Fathers did not anticipate—much less favor—the current winner-take-all method of awarding electoral votes (as discussed in detail in section 9.1.4).

The winner-take-all method is not in the U.S. Constitution and was never ratified as a federal constitutional amendment.

The winner-take-all method may be modified or replaced in the same manner it was originally adopted namely, passage of state-level legislation under the authority of section 1 of Article II.

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[138] [Emphasis added]

One does not show respect for the Founding Fathers by ignoring the specific method t they built into the U.S. Constitution for changing the method of electing the President—that is, state-level action under section 1 of Article II. The Founding Fathers gave the states exclusive and plenary control over the manner of awarding their electoral votes.

There is nothing in the Constitution that needs to be amended in order for states to switch from their current practice of awarding their electoral votes to the candidate who receives the most popular votes inside their individual states (the winner-take-all method) to a system in which they award their electoral votes to the candidate who receives the most popular votes in all 50 states and the District of Columbia (the National Popular Vote plan).

One does not show respect for the Constitution by unnecessarily amending it. Before contemplating a change in the U.S. Constitution, states should be given the chance to exercise the specific authority that the Founding Fathers gave to the states in the Constitution to change the electoral system.

The method that is built into the Constitution should be attempted first. Amending the Constitution should be the last resort.

Moreover, one does not show respect for the judgment of the Founding Fathers by passing a constitutional amendment that removes the states’ existing power to make changes in the method of electing the President.

Footnotes

In her book Enlightened Democracy: The Case for the Electoral College, Tara Ross characterizes a federal constitutional amendment as being a fairer and more democratic means for replacing state winner-take-all statutes with the National Popular Vote compact because it turns the question of how to elect the President over to “the people.”

A federal constitutional amendment must be ratified by 38 of the 50 states. An amendment favored by states representing 97% of the nation’s population can be blocked by the 13 smallest states (representing only 3% of the population).

Given that the state-by-state winner-take-all rule is not part of the U.S. Constitution, it is difficult to see why the repeal of the winner-take-all rule would require a constitutional amendment—much less why the constitutional-amendment procedure should be considered to be a more democratic way to repeal the winner-take-all rule than the method of its original adoption.

Tara Ross, an opponent of the National Popular Vote plan, has criticized the compact on the grounds that “11 colluding states” could, if they acted in concert, impose a national popular vote on the country.

The 11 biggest states do, indeed, contain a bare majority of the electoral votes (270 of 538 according to the 2010 census). Theoretically, these same 11 states could, under the current system of electing the President, get together and impose their choice for President on the country in every presidential election.

In reality, the 11 biggest states have little in common with one another politically, and they rarely act in concert on any issue.

In 2000 and 2004, five of the 11 biggest states (Texas, Florida, Ohio, Georgia, and North Carolina) voted Republican, and six (California, New York, Illinois, Pennsylvania, Michigan, and New Jersey) voted Democratic.

These disparate 11 states are no more likely to get together on enactment of the National Popular Vote compact than they are to get together on their choice of a President or the level of taxation.

Tara Ross’ hypothesized scenario of “collusion” among the nation’s 11 biggest states has already been demonstrated to be false by the actual history of adoption by the states of the National Popular Vote compact.

As of 2012, the National Popular Vote compact has been enacted by nine jurisdictions possessing a total of 132 electoral votes—49% of the 270 electoral votes needed to activate the compact. These nine jurisdictions include a mixture of small, medium, and big states.

• Small states
  • the District of Columbia (3 electoral votes)
  • Hawaii (4 electoral votes)
  • Vermont (3 electoral votes)
• Medium-sized states
  • Maryland (10 electoral votes)
  • Massachusetts (11 electoral votes)
  • Washington state (12 electoral votes)
• Big states
  • California (55 electoral votes)
  • Illinois (20 electoral votes)
  • New Jersey (14 electoral votes).

Ross’ concern about the 11 biggest states is apparently premised on the incorrect belief that support for the National Popular Vote plan is limited to large states. In fact, the National Popular Vote plan has considerable support in small states. As of 2012, the National Popular Vote compact has been approved by a total of nine legislative chambers in small states. In addition to the five legislative chambers in Hawaii, Vermont, and the District of Columbia, the National Popular Vote compact has been approved by the Maine Senate, Delaware House, and both houses in Rhode Island.

Public opinion polls show a high level of support for a nationwide popular election for President in small states such as

• Alaska (70%),
• Delaware (75%),
• District of Columbia (76%),
• Idaho (77%),
• Maine (77%),
• Montana (72%),
• New Hampshire (69%),
• Rhode Island (74%),
• South Dakota (75%),
• Vermont (75%), and
• Wyoming (69%).[139]

In fact, public support for a national popular vote runs slightly higher than the national average in most of the small states. The reason may be that small states are the most disadvantaged group of states under the current system (as discussed in section 9.4.1).

Footnotes

State action to change the winner-take-all method of awarding electoral votes is preferable to a federal constitutional amendment for several reasons.

First, it is far easier to amend or repeal state legislation than to amend or repeal a constitutional amendment if some adjustment becomes advisable. It is inconsistent for opponents of the National Popular Vote compact to argue that nationwide election of the President will usher in numerous adverse consequences, but that the change should be implemented in a manner (namely a federal constitutional amendment) that is not easily amended or repealed.

Second, the National Popular Vote compact leaves untouched existing state control over presidential elections. Many of the constitutional amendments concerning the Electoral College that have been introduced and debated in Congress over the years would have reduced or eliminated state control over presidential elections. The Constitution’s delegation of power over presidential elections (section 1 of Article II) is not a historical accident or mistake, but was intended as a “check and balance” on a sitting President who, with a compliant Congress, might be inclined to manipulate election rules to perpetuate himself in office.[140] The Founders dispersed the power to control presidential elections among the states, knowing that no single “faction” would simultaneously be in power in all the states.

Third, under the National Popular Vote approach, states would retain their exclusive and plenary power to choose the method of awarding their electoral votes, including the option to make other changes in the future. A federal constitutional amendment would eliminate this state power.

Fourth, state action is the right way to make the change. The U.S. Constitution provides a built-in mechanism for changing the method of electing the President. Section 1 of Article II permits the states to choose the manner of awarding their electoral votes. The right way to make a change is the way already contained in the Constitution.

Fifth, passing a constitutional amendment requires an enormous head of steam at the front-end of the process (i.e., getting a two-thirds vote in both houses of Congress). Only 17 constitutional amendments have been ratified since passage of the Bill of Rights. The last time Congress successfully launched a federal constitutional amendment (voting by 18-year-olds) was in 1971. The last constitutional amendment to be ratified was the 27^th Amendment in 1992.[141] In contrast, state action permits support to bubble up from the people through the state legislative process. The genius of the U.S. Constitution is that it provides a way for both the central government and state governments to initiate change. Building support from the bottom-up is more likely to yield success than a top-down approach.

Debates over the process to be employed to achieve a particular election reform have frequently delayed achievement of that objective. The passage of women’s suffrage, for example, was delayed by decades as a result of a long-running argument within the women’s suffrage movement over whether to pursue changes at the state level versus a federal constitutional amendment. Women’s suffrage was first adopted by individual states using the state’s power, under the U.S. Constitution, to conduct elections. It was 50 years between the time when Wyoming permitted women to vote (1869) and the passage of the 19^th Amendment by Congress (1919). By the time Congress finally passed the 19^th Amendment, women had already won the right to vote in 30 of the then-48 states.

Footnotes

The Founding Fathers specifically gave state legislatures the exclusive power to choose the manner of awarding their state’s electoral votes. Article II of the U.S. Constitution provides:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[142] [Emphasis added]

The Founding Fathers had good reason to give states the power to control the conduct of presidential elections. They specifically wanted to thwart the possibility that a sitting President, in conjunction with a possibly compliant Congress, could manipulate the manner of conducting presidential elections in a politically advantageous way.

The U.S. Constitution also gives states the primary power over the manner of conducting congressional elections.[143]

Control over elections is a state power under the U.S. Constitution.

For additional information, see section 1.1 and chapter 2.

Footnotes

In a 2007 article in the Akron Law Review, Adam Schleifer stated:

“The Framers assumed that the election of the President would often require resort to the House of Representatives; in the absence of a stable two-party system, it did not seem inevitable that all presidential elections would result in a majority vote total for any single candidate. Under the [National Popular Vote] plan, there could never be a situation where the House selected the President, as the electoral vote is guaranteed to constitute a majority of the total as a precondition of enactment of [the National Popular Vote plan].”[144]

Tara Ross, an opponent of the National Popular Vote plan, has stated:

“NPV affects the balance of power between federal and state governments because the House’s role in presidential elections will be effectively removed.”[145] [Emphasis added]

It is true that the National Popular Vote compact would guarantee an absolute majority of the electoral votes (at least 270 out of 538) to the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia.

Most people would consider the elimination of the possibility that the House of Representatives might elect the President as a highly desirable collateral benefit of the National Popular Vote plan.

Nonetheless, let us consider the argument made by Schleifer and Ross in detail.

A candidate can fail to win an absolute majority in the Electoral College either because of a tie in the Electoral College (which occurred in 1800) or because of a fragmenting of votes among numerous candidates (which occurred in 1824). As Alexander Hamilton (the presumed author of Federalist No. 68) noted in 1788:

“A majority of the votes might not always happen to centre in one man, and as it might be unsafe to permit less than a majority to be conclusive, it is provided that . . . the House of Representatives shall [elect the President].”

In the 1824 election, four candidates received substantial numbers of electoral votes (99, 84, 41, and 37) and, as a result, no presidential candidate received an absolute majority in the Electoral College.

In the context of present-day two-party politics, each presidential election presents numerous scenarios for a 269–269 tie in the Electoral College. A recent example is Dan Amira’s article entitled “16 Plausible Ways the Electoral College Could Tie in 2012.”[146]

In the event that no candidate wins an absolute majority in the Electoral College, the U.S. Constitution provides for a “contingent election” in which the Congress chooses the President and Vice President. The procedures for the contingent election were specified in Article II of the original Constitution. They were revised (and restated) by the 12^th Amendment.

In the contingent election, the U.S. House of Representatives would choose the President (with each state having one vote), and the U.S. Senate would choose the Vice President (with each Senator having one vote).

Under the 12^th Amendment, the House must make its choice from among the three presidential candidates who received the most electoral votes. The Senate must make its choice from between the two vice-presidential candidates with the most electoral votes.

In a contingent election, if there is no absolute majority in a state’s delegation in the House, the state loses its vote for President. Regardless of how many delegations lose their vote in this way, an absolute majority of the states (currently 26 of 50) is necessary to elect a President. Given that many states have divided congressional delegations, the possibility exists that no presidential candidate could amass an absolute majority. If the House is unable to make a choice, the Vice President chosen by the Senate becomes the acting President. Because the Senate is limited to choosing between the two vice-presidential candidates with the most electoral votes, the candidates who competed for the Presidency are precluded from being chosen as the acting President by the Senate.

These choices are made by the newly elected U.S. House of Representatives and Senate in January.

It is, of course, possible that the House and Senate would be controlled by different political parties at the time of the contingent election.

Some have argued that the Founding Fathers did not intend or expect that the Electoral College would elect the President in most elections. Instead, it has been suggested that the Founders anticipated that, after George Washington, no candidate would win a majority of the Electoral College, and the choice for President would routinely devolve on the U.S. House of Representatives. Under this “designed to fail” interpretation of the Constitution’s history, the Electoral College would ordinarily serve as a body that would, in effect, merely nominate candidates for President, and the U.S. House of Representatives would ordinarily make the final decision. Gary Gregg II discusses this “designed to fail” interpretation of the method of electing the President in his article entitled “The Origins and Meaning of the Electoral College.”[147]

Based on the “designed to fail” interpretation, it is then argued that the National Popular Vote compact is unconstitutional because the compact would have the almost-certain practical political effect of depriving the U.S. House of Representatives of its rightful constitutional opportunity to choose the President by preventing a tie in the Electoral College and guaranteeing an absolute majority of the electoral votes to the candidate receiving the most popular votes in all 50 states and the District of Columbia.

Gary Gregg II of the University of Louisville, a strong supporter of the current system of electing the President and editor of a book defending the current system, has dismissed this interpretation of the Constitution by writing:

“Some interpreters have claimed that the system of presidential election outlined in Article II of the Constitution was designed as a type of grand political shell game. On paper it would seem the president would be elected by a select group close to the people in the states, but in reality, the argument goes, it was established to routinely fail and send the actual selection of the president to the House…”

“If one looks closely at the debates during the Constitutional Convention and the votes of the men who drafted the Constitution, one can see quite clearly that there is little evidence for the thesis that the Electoral College was a jerry-rigged system designed to regularly “fail” and send the ultimate decision to Congress.”[148]

Prior to 1961, the number of votes in the Electoral College was the sum of the number of members of the U.S. House of Representatives and the U.S. Senate. After ratification of the 23^rd Amendment giving the District of Columbia three electoral votes in 1961, the number of votes in the Electoral College has been three more than the sum of the number of members of the U.S. House of Representatives and the U.S. Senate.

The size of the U.S. Senate is twice the number of states (and hence, always an even number).

Prior to ratification of the 23^rd Amendment giving the District of Columbia three electoral votes in 1961, the size of the Electoral College was an odd number or an even number, depending on whether the size of the House of Representatives was odd or even, respectively. Since 1961, the size of the Electoral College has been odd or even, depending on whether the size of the House of Representatives was even or odd, respectively. The size of the House has been an odd number (435) since 1961, and therefore the size of the Electoral College has been an even number (538) since 1961.

The original size of the U.S. House of Representatives was established in the U.S. Constitution for the nation’s first election (at 65 members). Since the 1790 census, the size of the House has been set by federal statute. The statute has been changed on numerous occasions.

It is difficult to sustain the argument that preserving the opportunity for the U.S. House of Representatives to choose the President was ever a significant guiding factor (much less a constitutional imperative) in the choice of the size of the House. In the time between ratification of the 12^th Amendment and 2012, the size of the House has been such as to make the size of the Electoral College an even number in only about half of the years in which presidential elections were held.

The Solicitor General’s brief to the U.S. Supreme Court in 2010 in the case of John Tyler Clemons et al. v. United States Department of Commerce traces the history of the various statutes that set the size of the U.S. House of Representatives.

The (ultimately unsuccessful) plaintiff in that case argued that the present-day size of the U.S. House of Representatives is unconstitutionally small because it creates unconstitutionally large differences in the number of people represented by congressmen from different states.[149]

The Solicitor General’s brief shows that Congress did not view protection of its own prerogative to elect the President and Vice President as a factor in setting the size of the House.

“After each decennial census from 1790 to 1910, Congress reconsidered the number of Representatives, enacting new apportionment legislation ‘within two years after the taking of the census.’ H.R. Rep. No. 2010, 70th Cong., 2d Sess. 1 (1929) (1929 House Report). Until 1850, Congress first determined the number of persons that would be represented by each Representative, then divided that number into the population of each State, assigned the resulting number of Representatives (less any fractional remainder) to each State, and summed those numbers to arrive at the overall size of the House of Representatives. See United States Dep’t of Commerce v. Montana, 503 U.S. 442, 449-451 (1992). Although Congress repeatedly increased the number of persons represented by each Member of the House, the size of the House continued to grow steadily, rising from 105 Members in 1790 to 243 Members by 1850.” [Emphasis added]

If Congress thought that the opportunity to break a tie in the Electoral College was a constitutional imperative—or even a worthy secondary objective—Congress could have easily accommodated that factor when it periodically adjusted the size of the House.

If it were unconstitutional to enact an electoral arrangement that has the almost-certain practical effect of depriving the U.S. House of Representatives of the opportunity to occasionally choose the President, then the House has operated with a constitutionally impermissible structure for about half of American history.

The contingent election procedure exists in order to resolve a deadlock if one should arise in the Electoral College. The existence of a contingent procedure does not create a constitutional imperative that other statutes be fashioned so as to guarantee that the contingent procedure will be invoked.

If the U.S. House of Representatives were intended to be a routine part of the procedure for electing the President, the Founding Fathers could have easily specified that the size of the House always be chosen so as to result in an even-numbered size of the Electoral College.

Moreover, if it were important to protect the opportunity of the U.S. House of Representatives to play a routine part in most presidential elections, the country had two convenient opportunities shortly after ratification of the original Constitution to increase the likelihood of House participation.

The first Congress in 1789 debated the issue of the size of the House of Representatives and approved a constitutional amendment on that topic.[150] That particular constitutional amendment (part of a package of 12 amendments that included the 10 amendments that are now called “the Bill of Rights”) was never ratified by the states. The amendment proposed in 1791 did not require that the size of the House (and hence the Electoral College) be an even number.

Second, the 1800 presidential election (which produced a tie in the Electoral College) led to a significant reexamination of the procedure of electing the President. Congress then approved, and the states ratified, the 12^th Amendment in time for the 1804 election. Congress could easily have included, in the amendment, a requirement that the size of the U.S. House of Representatives always be an even number.[151] [152] [153]

In addition, the Congress had a convenient opportunity when it drafted the 23^rd Amendment (giving the District of Columbia three electoral votes) to increase the likelihood of House participation by requiring that the size of the House always be chosen (odd or even) so as to ensure that the size of the Electoral College be an even number.

Footnotes

John Samples of the Cato Institute argues that the National Popular Vote compact

“circumvent[s] the Constitution’s amendment procedures.”[154]

It is a truism that every statute enacted by every state legislature circumvents the Constitution’s amendment procedures.

If a piece of legislation is a valid exercise of a state legislature’s power, then there is no reason for it to be enacted using the Constitution’s amendment procedures.

If the piece of legislation is not a valid exercise of powers granted by the Constitution (that is, if it is unconstitutional), then everyone would agree that the Constitution’s amendment procedure is the only way to enact the policy involved.

Observing that a statute was enacted without employing the Constitution’s amendment procedure cannot serve as a substitute for a specific legal argument as to why the statute violates the Constitution.

The fact that a legislative body decided to implement a particular policy by means of a statute is evidence that the legislative body believed that it had authority to enact that statute and that it believed that it was not necessary to implement the policy by means of a constitutional amendment.

The state legislatures that have enacted the National Popular Vote compact believed that section 1 of Article II of the U.S. Constitution provided them with authority to act:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[155] [Emphasis added]

That belief is supported by the decision of the U.S. Supreme Court in the leading case on the awarding of electoral votes:

“The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket [the winner-take-all rule] nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object. The framers of the constitution employed words in their natural sense; and, where they are plain and clear, resort to collateral aids to interpretation is unnecessary, and cannot be indulged in to narrow or enlarge the text.…

“In short, the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States.”[156] [Emphasis added]

Ultimately, John Sample’s argument attempts to use his own desired conclusion (namely that the National Popular Vote compact is unconstitutional) as the justification for his claim that the compact is unconstitutional (and, therefore, requires a constitutional amendment).

Footnotes