9.11 Myths about Post-Election Changes in the Rules of the Game, Withdrawal, and Enforceability

This section discusses the hypothetical scenario in which a Governor and state legislature might try—for partisan political reasons—to change the “rules of the game” for electing the President by repealing (withdrawing from) the National Popular Vote compact after Election Day in November but before the meeting of the Electoral College in mid-December. Under this scenario, the Governor and legislature would presumably implement some politically advantageous alternative method of appointing presidential electors (say, legislative appointment) after Election Day.

John Samples of the Cato Institute says that the National Popular Vote compact:

“cannot offer any certainty that states will not withdraw from the compact when the results of an election become known.”[272]

There are six separate and independent reasons why Sample’s hypothetical scenario cannot happen (and a seventh reason applicable if the compact happened were enacted by the citizen-initiative process in a particular state).

All but two of these independent reasons (the second and sixth) apply to both the current system and the National Popular Vote compact. Thus, if John Sample’s hypothetical scenario of changing the “rules of the game” were legally permissible or politically plausible, it would have already occurred under the current system on the numerous previous occasions when a particular presidential candidate was not favored by a particular Governor and state legislature.

We start with the simplest of the numerous reasons why John Sample’s hypothetical scenario is of no concern.

Any attempt to appoint presidential electors after the people vote in November would be unconstitutional on its face because the Constitution gives Congress the power to establish the day for appointing presidential electors and existing federal law allows presidential electors to be appointed on only one specific day in each four-year period (namely, the Tuesday after the first Monday in November).

John Sample’s hypothetical scenario in which a politically motivated Governor and legislature try to change their state’s law on appointing presidential electors after “the results of an election become known” is legally impossible in the United States.

The U.S. Constitution (Article II, section 1, clause 4) specifically grants Congress the power to establish the time for appointing presidential electors:

“The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” [Spelling as per original] [Emphasis added]

Congress has exercised this power by enacting a federal law (section 1 of Title 3 of the United States Code) that requires presidential electors to be appointed on one specific day in every four-year period namely, the Tuesday after the first Monday in November (Election Day).

“The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.” [Emphasis added]

Thus, no state may appoint its presidential electors after “the results of an election become known.” This existing federal law is applicable to both the National Popular Vote compact and the current system.

Note that the U.S. Constitution does not require a state to permit its own voters to vote directly for President or presidential electors. Under the Constitution, state legislatures have always had the power to appoint presidential electors without consulting the voters.[273] However, if a state legislature decides that it is going to appoint presidential electors itself, it must make the appointments on the specific single day established by Congress (the Tuesday next after the first Monday in November). In particular, a state legislature cannot appoint presidential electors after Election Day (e.g., after seeing the election results in its own state or other states).

Aside from being illegal, John Sample’s hypothetical scenario would be politically implausible. In all but three states, between 50% and 100% of the state legislature is up for re-election on the same day that the President is being elected. That is, on the very day when the legislators are trying to get themselves re-elected, they would have to be sitting in the state capitol attempting to change the “rules of the game” of the ongoing presidential election. In particular, the legislators would not be in their districts campaigning for re-election. Also, in a quarter of the states, the Governor is up for re-election on the same day that the President is being elected.

The role of Article II, section 1, clause 4 of the Constitution in conjunction with section 1 of Title 3 of the United States Code in squelching John Sample’s hypothetical scenario was illustrated in the 1960 presidential election.

John F. Kennedy won the nationwide popular vote by 114,673 votes. However, Kennedy’s majority in the Electoral College (only 34 electoral votes in excess of the majority needed for election) depended on the fact that he had carried Illinois by the slender margin of 4,430 popular votes and carried South Carolina by 4,732 votes. Some members of the South Carolina legislature suggested that the legislature repeal South Carolina’s winner-take-all law for awarding the state’s electoral votes and appoint non-Kennedy presidential electors themselves.

Nothing came of this suggestion in South Carolina in 1960, because section 1 of Title 3 of the United States Code specifies that Election Day is the single day in the four-year cycle on which presidential electors may be appointed. Election Day had, of course, passed by the time South Carolina leaders realized that Kennedy’s margin of victory in the Electoral College depended in large part on South Carolina’s electoral votes. If the South Carolina legislature had wanted to appoint presidential electors itself, it could have chosen to do so, but it would have had to have convened in Columbia for this purpose on Election Day (i.e., the Tuesday next after the first Monday in November).[274]

There is only one exception permitted by Congress to section 1’s requirement of appointing presidential electors on Election Day, and it does not apply to John Sample’s hypothetical scenario. Section 2 of Title 3 of the United States Code provides:

“Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” [Emphasis added]

This “failure to make a choice” exception covers contingencies such as the occurrence of a tie in a state’s popular vote. Accordingly, many states have adopted legislation to deal with ties in a state’s popular vote.

The “failure to make a choice” exception offered by section 2 would not be applicable to John Sample’s hypothetical scenario involving the National Popular Vote compact, because the voters would have already made a choice on Election Day—simply a choice that a particular Governor and legislature did not like.

The exception in section 2 played a (sometimes misunderstood) role in the debate over the disputed presidential election count in Florida in 2000.[275] Because of section 1 of the United States Code, everyone recognized that there was no possibility that the Republican-controlled Florida legislature could meet after Election Day, retroactively decide to ignore the already-cast popular vote, and directly appoint Republican presidential electors favorable to George W. Bush.

However, the argument was advanced that if a recount were ordered by a court, if the court-ordered recount were to vacate the initial count, and if the court-ordered recount were not completed by the “safe harbor” date (i.e., six days prior to the meeting of the Electoral College), then there would have been a “failure to make a choice” in Florida.

Florida could then have been left with no presidential electors by the “safe harbor” day because of its “failure to make a choice.” Note that the Constitution does not require an absolute majority of the electoral votes to become President, but only a

“majority of the whole number of electors appointed.”[276] [Emphasis added].

If Florida had failed to cast its 25 electoral votes in the Electoral College, Al Gore would have been elected President because he would have had a majority of the electors appointed.

To forestall that possibility, the Republican-controlled Florida House of Representatives passed a resolution reaffirming the initial already-certified vote count (in favor of 25 Republican presidential electors pledged to George W. Bush). Nothing came of this “reaffirming” motion in the Republican-controlled state Senate because of subsequent action in the courts (specifically, the U.S. Supreme Court’s decision in the case of Bush v. Gore).

Finally, it should be noted that if John Sample’s hypothetical scenario (of appointing presidential electors after the people voted on Election Day) were legally permissible or politically plausible, it could occur under the current system.

The winner-take-all rule is not in the U.S. Constitution. It is simply state law. If post-election changes in the method of appointing presidential electors were legally permissible or politically plausible, it would have been possible for this scenario to have occurred in each of the nation’s 57 presidential elections between 1789 and 2012, including the 2000 election.

Of course, we all know that there were no special sessions of legislatures in late November 2000 in Democratic states that George W. Bush carried (North Carolina, West Virginia, Alabama, and Arkansas).[277] None of these four states repealed their existing winner-take-all laws and appointed presidential electors who would vote for the candidate who received the most popular votes nationwide. Such an action in any one of these four states would have given Al Gore a majority of the Electoral College in 2000—even after George W. Bush was awarded all 25 of Florida’s electoral votes.

Similarly, the North Carolina Legislature did not switch, after Election Day in 2000, to an allocation of electoral votes based on congressional districts or a proportional allocation of the state’s electoral votes. Either of those two actions would have given Al Gore a majority in the Electoral College.

Moreover, the Alabama legislature did not switch, after Election Day, to a proportional allocation of electoral votes—an action that would have given Al Gore a majority in the Electoral College.

Note that these Governors and legislatures could easily have fabricated political “spin” to justify their action based on the widespread public support for the concept that the candidate receiving the most popular votes in all 50 states and the District of Columbia should become President.

Indeed, Gallup polls since 1944 have shown that only about 20% of the public have supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided).

The Governors and legislatures of these four states could also have quickly conducted public opinion polls in their own states on the abstract question of whether the winner of the nationwide popular vote should become President. Polls taken later showed that 81% of West Virginia voters, 80% of Arkansas voters, and 74% of North Carolina voters supported the proposition that the winner of the nationwide popular vote should become President.[278]

Of course, as we all know, no state legislatures took any of the above actions after the November 2000 election because everyone recognized that such action would have been unconstitutional on its face under Article II, section 1, clause 4 of the U.S. Constitution and section 1 of Title 3 of the United States Code.[279] If such an action had been attempted, it would have been immediately voided by a state or federal court by summary judgment—with no credence being given to the disingenuous political “spin” offered by the Governor or legislature for their post-election change in the rules of the game.

The American people accepted the ascendancy of the second-place candidate to the White House in 2000 because everyone understood that the election had been conducted under the established “rules of the game” that were known to both candidates, namely the state-by-state winner-take-all method. This was the case even though a substantial majority of the public disapproved (then and now) of the state-by-state winner-take-all system and favored (then and now) a national popular vote for President.

In summary, Article II, section 1, clause 4 of the U.S. Constitution and section 1 of Title 3 of the United States Code precludes any state from appointing presidential electors after “the results of an election become known”—under either the National Popular Vote compact or the current system.

Any law repealing the compact that purports to take effect between July 20 of a presidential year and Inauguration Day would be unconstitutional on its face, because it would violate the Impairments Clause of the U.S. Constitution.

An interstate compact is a contract. Withdrawal from any contract may only be made in accordance with the contract’s own terms.

Like most interstate compacts, the National Popular Vote compact permits states to withdraw from the compact (simply by passing a repeal statute).

And, like most other interstate compacts, the National Popular Vote compact delays the effectiveness of any withdrawal for a certain amount of time appropriate to the subject matter of the compact.

The National Popular Vote compact permits any member state to withdraw, subject to the limitation that a withdrawal cannot take effect during a six-month period between July 20 of a presidential election year and January 20 (Inauguration Day) of the following year. Clause 2 of Article IV of the National Popular Vote compact provides:

“Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.”

This six-month “blackout” period includes six important events relating to presidential elections namely, the:

• national nominating conventions,
• fall general election campaign period,
• Election Day on the Tuesday after the first Monday in November,
• meeting of the Electoral College on the first Monday after the second Wednesday in December,
• counting of the electoral votes by Congress on January 6, and
• inauguration of the President and Vice President for the new term on January 20.

The blackout period in the National Popular Vote compact is aimed at preventing a withdrawal in the midst of the presidential election process and, in particular, during the especially sensitive period (approximately 35 days) between Election Day in early November and the meeting of the Electoral College in mid-December.

The Impairments Clause (sometimes called the “Contracts Clause”) of the U.S. Constitution (Article I, section 10, clause 1) provides:

“No State shall … pass any … Law impairing the Obligation of Contracts.”

Because of the Impairments Clause, the courts have never allowed any state to withdraw from any interstate compact without following the procedure for withdrawal specified by the compact.

The U.S. Supreme Court succinctly dismissed the possibility in Petty v. Tennessee-Missouri Bridge Commission in 1952:

“A compact, is after all, a contract.”[280]

On numerous occasions, federal and state courts have implemented the U.S. Supreme Court’s interpretation of the Impairments Clause and rebuffed the occasional (sometimes creative) attempts by states to evade their obligations under interstate compacts.

The U.S. District Court for the District of Maryland in Hellmuth and Associates v. Washington Metropolitan Area Transit Authority stated in 1976:

“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.”[281] [Emphasis added]

The 1999 case of Aveline v. Pennsylvania Board of Probation and Parole was concerned with withdrawal from the Interstate Compact for the Supervision of Parolees and Probationers. Section 7 of that compact provides:

“The duties and obligations hereunder of a renouncing state shall continue as to parolees or probationers residing therein at the time of withdrawal until retaken or finally discharged by the sending state. Renunciation of this compact shall be by the same authority which executed it, by sending six months' notice in writing of its intention to withdraw from the compact to the other states party hereto.”[282] [Emphasis added]

In 1999, the Commonwealth Court of Pennsylvania ruled in Aveline v. Pennsylvania Board of Probation and Parole:

“A compact takes precedence over the subsequent statutes of signatory states and, as such, a state may not unilaterally nullify, revoke, or amend one of its compacts if the compact does not so provide.”[283] [Emphasis added]

The 1991 case of McComb v. Wambaugh was concerned with withdrawal from the Interstate Compact on Placement of Children. The compact permits withdrawal with two-years notice.

“Withdrawal from this compact shall be by the enactment of a statute repealing the same, but shall not take effect until two years after the effective date of such statute and until written notice of the withdrawal has been given by the withdrawing state to the Governor of each other party jurisdiction. Withdrawal of a party state shall not affect the rights, duties and obligations under this compact of any sending agency therein with respect to a placement made prior to the effective date of withdrawal.” [Emphasis added]

The United States Court of Appeals for the Third Circuit ruled in McComb v. Wambaugh:

“Having entered into a contract, a participant state may not unilaterally change its terms. A Compact also takes precedence over statutory law in member states.”[284] [Emphasis added]

As the Court of Appeal of the State of California said in The Gillette Company et al. v. Franchise Tax Board in 2012:

“Interstate compacts are unique in that they empower one state legislature—namely the one that enacted the agreement—to bind all future legislatures to certain principles governing the subject matter of the compact. (Broun on Compacts, supra, § 1.2.2, p. 17.)”[285] [Emphasis added]

The Council of State Governments summarized the nature of interstate compacts as follows:

“Compacts are agreements between two or more states that bind them to the compacts’ provisions, just as a contract binds two or more parties in a business deal. As such, compacts are subject to the substantive principles of contract law and are protected by the constitutional prohibition against laws that impair the obligations of contracts (U.S. Constitution, Article I, Section 10).

“That means that compacting states are bound to observe the terms of their agreements, even if those terms are inconsistent with other state laws. In short, compacts between states are somewhat like treaties between nations. Compacts have the force and effect of statutory law (whether enacted by statute or not) and they take precedence over conflicting state laws, regardless of when those laws are enacted.

“However, unlike treaties, compacts are not dependent solely upon the good will of the parties. Once enacted, compacts may not be unilaterally renounced by a member state, except as provided by the compacts themselves. Moreover, Congress and the courts can compel compliance with the terms of interstate compacts. That’s why compacts are considered the most effective means of ensuring interstate cooperation.”[286] [Emphasis added]

The occasional attempts by states to evade their obligations under interstate compacts are consistently rejected by the courts.

Both state courts and federal courts have the power to enforce the Impairments Clause.

An example of state-level enforcement of the Impairments Clause is found in the 2012 case of The Gillette Company et al. v. Franchise Tax Board. In that case, the California Court of Appeal voided a state law attempting to override a provision of the Multistate Tax Compact (from which California had not withdrawn at the time of the court’s decision)[287].

“Some background on the nature of interstate compacts is in order. These instruments are legislatively enacted, binding and enforceable agreements between two or more states.” [288]

“As we have seen, some interstate compacts require congressional consent, but others, that do not infringe on the federal sphere, do not.[289]

“Where, as here, federal congressional consent was neither given nor required, the Compact must be construed as state law. (McComb v. Wambaugh (3d Cir. 1991) 934 F.2d 474, 479.) Moreover, since interstate compacts are agreements enacted into state law, they have dual functions as enforceable contracts between member states and as statutes with legal standing within each state; and thus we interpret them as both. (Aveline v. Bd. of Probation and Parole (1999) 729 A.2d 1254, 1257; see Broun et al., The Evolving Use and the Changing Role of Interstate Compacts (ABA 2006) § 1.2.2, pp. 15-24 (Broun on Compacts); 1A Sutherland, Statutory Construction (7th ed. 2009) § 32:5; In re C.B. (2010) 188 Cal.App.4th 1024, 1031 [recognizing that Interstate Compact on Placement of Children shares characteristics of both contractual agreements and statutory law].)

“The contractual nature of a compact is demonstrated by its adoption: There is an offer (a proposal to enact virtually verbatim statutes by each member state), an acceptance (enactment of the statutes by the member states), and consideration (the settlement of a dispute, creation of an association, or some mechanism to address an issue of mutual interest.)” (Broun on Compacts, supra, § 1.2.2, p. 18.) As is true of other contracts, the contract clause of the United States Constitution shields compacts from impairment by the states. (Aveline v. Bd. of Probation and Parole, supra, 729 A.2d at p. 1257, fn. 10.) Therefore, upon entering a compact, “it takes precedence over the subsequent statutes of signatory states and, as such, a state may not unilaterally nullify, revoke or amend one of its compacts if the compact does not so provide.” (Ibid.; accord, Intern. Union v. Del. River Joint Toll Bridge (3d Cir. 2002) 311 F.3d 273, 281.) Thus interstate compacts are unique in that they empower one state legislature—namely the one that enacted the agreement—to bind all future legislatures to certain principles governing the subject matter of the compact. (Broun on Compacts, supra, § 1.2.2, p. 17.)

“As explained and summarized in C.T. Hellmuth v. Washington Metro. Area Trans. (D.Md. 1976) 414 F.Supp. 408, 409 (Hellmuth): ‘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. It, therefore, appears settled that one party may not enact legislation which would impose burdens upon the compact absent the concurrence of the other signatories.’ Cast a little differently, ‘[i]t is within the competency of a State, which is a party to a compact with another State, to legislate in respect of matters covered by the compact so long as such legislative action is in approbation and not in reprobation of the compact.’ (Henderson v. Delaware River Joint Toll Bridge Com’m (1949) 66 A.2d 843, 849-450.) Nor may states amend a compact by enacting legislation that is substantially similar, unless the compact itself contains language enabling a state or states to modify it through legislation ‘“concurred in”’ by the other states. (Intern. Union v. Del. River Joint Toll Bridge, supra, 311 F.3d at pp. 276-280.)”[290] [Emphasis added]

The court also stated:

“Were this simply a matter of statutory construction involving two statutes—sections 25128 and 38006—we would at least entertain the FTB’s argument that section 25128 repealed the section 38006 taxpayer election to apportion under the Compact formula, and now mandates the exclusive use of the double-weighted sales apportionment formula. However, this construct is not sustainable because it completely ignores the dual nature of section 38006. Once one filters in the reality that section 38006 is not just a statute but is also the codification of the Compact, and that through this enactment California has entered a binding, enforceable agreement with the other signatory states, the multiple flaws in the FTB’s position become apparent. First, under established compact law, the Compact supersedes subsequent conflicting state law. Second, the federal and state Constitutions prohibit states from passing laws that impair the obligations of contracts. And finally, the FTB’s construction of the effect of the amended section 25128 runs afoul of the reenactment clause of the California Constitution.…

“By its very nature an interstate compact shifts some of a state’s authority to another state or states. Thus signatory states cede a level of sovereignty over matters covered in the Compact in favor of pursuing multilateral action to resolve a dispute or regulate an interstate affair. (Hess v. Port Authority Trans-Hudson Corporation (1994) 513 U.S. 30, 42; Broun on Compacts, supra, § 1.2.2, p. 23.) Because the Compact is both a statute and a binding agreement among sovereign signatory states, having entered into it, California cannot, by subsequent legislation, unilaterally alter or amend its terms. Indeed, as an interstate compact the Compact is superior to prior and subsequent the statutory law of member states. (McComb v. Wambaugh, supra, 934 F.2d at p. 479; Hellmuth, supra, 414 F.Supp. at p. 409.) This means that the Compact trumps section 25128, such that, contrary to the FTB’s assertion, section 25128 cannot override the UDITPA election offered to multistate taxpayers in section 38006, article III, subdivision 1. It bears repeating that the Compact requires states to offer this taxpayer option. If a state could unilaterally delete this baseline uniformity provision, it would render the binding nature of the compact illusory and contribute to defeating one of its key purposes, namely to “[p]romote uniformity or compatibility in significant components of tax systems.” (§ 38006, art. I, subd. 2.) Because the Compact takes precedent over subsequent conflicting legislation, these outcomes cannot come to pass.[291]

The courts have long held that a state belonging to an interstate compact may not unilaterally renounce the agreement. The U.S. Supreme Court addressed this issue in a 1950 case involving the Ohio River Valley Water Sanitation Compact. The parties to this compact included eight states and the federal government. The compact established a commission consisting of representatives from each of the governmental units. It provided that each party state would pay a specified share of the operating expenses of the compact’s commission.

“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, one half of such amount to be prorated among the several states in proportion of their population within the district at the last preceding federal census, the other half to be prorated in proportion to their land area within the district.” [Emphasis added]

There was considerable political division in the West Virginia state government over the desirability of the compact. The state legislature ratified the compact and, in 1949, appropriated $12,250 as West Virginia’s initial contribution to the expenses of the compact’s commission.

The state Auditor, however, refused to make the payment from the state treasury. He argued that the legislature’s approval of the compact violated the state constitution in two respects. First, the Auditor argued that the compact was unconstitutional because it delegated the state’s police power to an interstate agency involving other states and the federal government. Second, the Auditor argued that the compact was invalid because it bound the West Virginia legislature in advance to make appropriations for the state’s share of the commission’s operating expenses in violation of a general provision of the state constitution concerning the incurring of “debts.”

The West Virginia State Water Commission supported the compact and went to court requesting a mandamus order (a judicial writ ordering performance of a specific action) to compel the Auditor to make the payment from the state treasury. The Supreme Court of Appeals of West Virginia invalidated the legislature’s ratification of the compact on the grounds that the compact violated the state constitution.

In 1950, the U.S. Supreme Court reversed the state ruling and prevented West Virginia from evading its obligations under the compact. The Court wrote in West Virginia ex rel. Dyer v. Sims:

“But a compact is after all a legal document.… It requires no elaborate argument to reject the suggestion that an agreement solemnly entered into between States by those who alone have political authority to speak for a State can be unilaterally nullified, or given final meaning by an organ of one of the contracting States. A State cannot be its own ultimate judge in a controversy with a sister State.”[292] [Emphasis added]

The Court continued:

“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.”[293] [Emphasis added]

Justice Robert Jackson’s concurring opinion set forth an additional justification for the Court’s decision. Justice Jackson suggested that the Supreme Court did not need to interpret the West Virginia state constitution in order to conclude that the compact bound West Virginia. Instead, he stated that West Virginia was estopped from changing its position after each of the other governmental entities relied upon, and changed their position because of, the compact.

“West Virginia assumed a contractual obligation with equals by permission of another government that is sovereign in its field (the federal government). After Congress and sister states had been induced to alter their positions and bind themselves to terms of a covenant, West Virginia should be estopped from repudiating her act. For this reason, I consider that whatever interpretation she put on the generalities of her Constitution, she is bound by the Compact.”[294] [Emphasis added]

The pre-ratification expectations of states joining a compact are especially important whenever there is a post-ratification dispute among compacting parties concerning voting rights within the compact.

In one case, Nebraska (which was obligated to store radioactive waste under the terms of an interstate compact) sought additional voting power on the compact’s commission after the compact had gone into effect. A majority (but not all) of the compact’s other members consented to Nebraska’s request. Nebraska’s request was, however, judicially voided in 1995 in State of Nebraska v. Central Interstate Low-Level Radioactive Waste Commission

“because changes in ‘voting power’ substantially alter the original expectations of the majority of states which comprise the compact.”[295]

Amplifying the principle of West Virginia ex rel. Dyer v. Sims, the courts have noted that a single state cannot obstruct the workings of a compact. In Hess v. Port Authority Trans-Hudson Corp., the U.S. Supreme Court held in 1994 that a compact is

“… not subject to the unilateral control of any one of the States … .”[296]

Similarly, in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, the U.S. Supreme Court in 1979 held that a member state may not unilaterally veto the actions of a compact’s commission. Instead, the remedy of an aggrieved state consists of withdrawing from the compact in accordance with the compact’s terms for withdrawal.[297]

In Kansas City Area Transportation Authority v. Missouri, the Eighth Circuit in 1981 held that a member state may not legislatively burden the other member states unless they concur.[298]

Moreover, the courts have prevented a compacting state from undermining the workings of that compact. In the 1993 case of Alcorn v. Wolfe, the removal of an appointee to a compact commission, initiated by a Governor to inject his political influence into the operations of the commission, was invalidated because it

“clearly frustrate[d] one of the most important objectives of the compact.”[299]

In State of Nebraska v. Central Interstate Low-Level Radioactive Waste Commission, Nebraska was estopped in 1993 from seeking equitable relief to prevent a compact, of which it was a member, from pursuing its central mission.[300] In New York v. United States, the U.S. Supreme Court held that the estoppel doctrine was applicable only to the states that have adopted the interstate compact.[301]

In short, a state may be estopped from withdrawing from a compact in any manner not permitted by the terms of the compact.

Recall that most interstate compacts contain obligations that a member state would never have agreed to unless it could rely on the enforceability of the obligations undertaken by its sister states. Consequently, most interstate compacts impose a delay on withdrawal because each member state must be able to rely on each contracting party to fulfill its obligations and must have time (and sometimes compensation) to adjust if another state desires to withdraw.

The six-month blackout period for withdrawing from the proposed “Agreement Among the States to Elect the President by National Popular Vote” is reasonable and appropriate in order to ensure that a politically motivated member state does not change its position after the candidates, the political parties, the voters, and the other compacting states have proceeded through the presidential campaign and presidential election cycle in reliance on each compacting state fulfilling its obligations under the compact.

The enforceability of interstate compacts under the Impairments Clause is precisely the reason why sovereign states enter into interstate compacts. If a state were willing to merely rely on the goodwill and graciousness of other states to undertake certain actions, it could unilaterally enact its own independent law on the subject matter involved (unconnected with the actions of other states), unilaterally enact a uniform state law (and hope that other states did the same), or unilaterally enact a contingent state law (if permitted by the state constitution). However, if a state wants an agreement that is legally binding on other states, it enters into an interstate compact.

Thus, if a Governor and state legislature were to enact legislation purporting to withdraw from the National Popular Vote compact during the six-month period between July 20 of a presidential election year and Inauguration Day (January 20), that legislation would be unconstitutional on its face because of the Impairments Clause.[302]

Professor Norman R. Williams of Willamette University has made the argument that the state legislature’s plenary power to choose the manner of appointing presidential electors is not subject to any specific provisions in the Constitution restricting the exercise of legislative power.

“It is not clear that the NPVC is valid and enforceable against a state that decides to withdraw from it after July 20 in a presidential election year. Article II of the U.S. Constitution entrusts the method of appointment of the presidential electors to the state legislature. For some, that federal constitutional delegation of authority must be read literally, meaning that the state legislature's power cannot be circumscribed to any extent or in any manner.”[303] [Emphasis added]

According to Williams’ “imperial legislature” theory, specific restrictions in the Constitution, such as the Impairments Clause, cannot restrain the exercise of legislative power.

This argument ignores the reality that the vast majority of interstate compacts involve state plenary powers. States voluntarily enter into interstate compacts precisely because compacts, in conjunction with the Impairments Clause, provide a way to create enforceable restrictions on state action. States mutually agree to these restrictions because each participating state believes that the restrictions are mutually beneficial.

Section 1 of 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….”[304] [Emphasis added]

The wording “in such manner as the ___ may direct” is a grant of power permitting each state to exercise a certain power; however, it does not create a power that stands above the rest of the U.S. Constitution or outside the Constitution.

Tellingly, section 1 of Article II does not say:

“Notwithstanding any other provision of this Constitution, each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”

Section 1 of Article II is neither more nor less than a delegation of a certain power to a certain body (in this case the state legislature). The exercise of that legislative power is subject to all of the other specific restraints in the U.S. Constitution (and state constitution) that may apply to the exercise of legislative power.

Among the specific restrictions on the power of a state 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).

Article I, section 10, clause 1 of the U.S. Constitution provides:

“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 section 1 of Article II, a state legislature may, for example, pass a law making it a crime to commit fraud in a presidential election. However, notwithstanding Professor Williams’ “imperial legislature” theory, a state legislature may not pass an ex post facto (retroactive) law making it a crime to commit fraud in a previous presidential election because the Constitution’s explicit prohibition against ex post facto laws operates as a restraint on the delegation of power contained in section 1 of Article II.

Similarly, the Constitution’s explicit prohibition against a “law impairing the obligation of contract” (appearing adjacent to the prohibition against ex post facto laws) operates as a restraint on the delegation of power contained in section 1 of Article II.

It is interesting to note that the wording “in such manner as the ___ may direct” appears in a second place in the Constitution in connection with the specific subject of selecting the manner of appointing presidential electors. The 23^rd Amendment to the U.S. Constitution (ratified in 1961) provides:

“The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct a number of electors of President and Vice President….”

Surely no one would argue that “in such manner as the ___ may direct” (the exact parallel of the wording of section 1 of Article II) means that Congress is not subject to specific provisions of the Constitution restricting the exercise of its plenary legislative power, and that Congress could therefore, for example, exclude women and African-Americans from voting in the selection of presidential electors in the District of Columbia, notwithstanding the specific requirements of the 19^th Amendment (ratified in 1920) and the 15^th Amendment (ratified in 1870).

The wording “in such manner as the ___ may direct” also appears in the 17^th Amendment (ratified in 1913) in connection with temporary appointments to fill U.S. Senate vacancies

“…until the people fill the vacancies by election as the legislature may direct.” [Emphasis added]

Certainly, no one would argue that the “may direct” wording means that a state legislature is not subject to other specific provisions in the Constitution restricting the exercise of this plenary legislative power such as, say, the 15^th Amendment (ratified in 1870) or the Equal Protection clause of the 14^th Amendment (ratified in 1868). A state legislature could not, for example, exclude African-American voters in a vacancy-filling election for the U.S. Senate.

In fact, both the U.S. Constitution and state constitutions are replete with plenary powers possessed by their respective legislative bodies. Congress, for example, has plenary power over counterfeiting, the District of Columbia, federal taxation, and numerous other “enumerated” areas, but no one would argue that these plenary powers are not subject to specific provisions of the Constitution restricting the exercise of all legislative power, such as, say, the specific constitutional prohibition against ex post facto laws (Article I, section 9, clause 3). For example, Congress may not pass ex post facto laws applicable to the District of Columbia under its plenary powers in Article I, section 8, clause 17:

“The Congress shall have Power … to exercise exclusive Legislation in all Cases whatsoever, over such District.”

Similarly, state legislatures have plenary power over innumerable matters, but no one would argue that these plenary powers are not subject to specific restrictive provisions of the U.S. Constitution and their state constitutions.

In short, two centuries of settled law concerning the enforceability of interstate compacts under the Impairments Clause would be available to rebuff any attempt to execute the hypothetical scenario concerning withdrawal.

See section 9.11.3 for a detailed discussion of another of Professor Williams’ claims that interstate compacts are “toothless.”

The Safe Harbor provision of federal law confers conclusiveness only on appointments of presidential electors made under “laws enacted prior to” Election Day.

As already discussed in an earlier part of this section, John Sample’s hypothetical scenario about a state withdrawing from the National Popular Vote compact after “the results of an election become known” is legally impossible because of Article II, section 1, clause 4 of the Constitution and section 1 of Title 3 of the United States Code.

Even if a state legislature were to meet on Election Day to appoint presidential electors, that action would not be sufficient.

The “safe harbor” section of federal law (Title 3, section 5) treats a state’s appointment of presidential electors as “conclusive” only if the appointment is based on

“laws enacted prior to the day fixed for the appointment of the electors.” [Emphasis added]

The day fixed by law for appointment of presidential electors is the Tuesday after the first Monday in November (i.e., Election Day).

Thus, the state’s pre-existing law specifying the manner of appointing presidential electors (either under the National Popular Vote compact or under the current state-by-state winner-take-all system) would have to have been repealed prior to Election Day before the legislature could meet on Election Day to appoint presidential electors.

The hypothetical scenario could only be executed in about four states because of numerous practical political reasons, including high quorum requirements, the fact that many states have politically divided government at any given time, the significant time delay before a new state law may take effect, the numerous time-delaying tactics enabling the minority party to delay action in the short period of time between Election Day and the meeting of the Electoral College, and other factors.

Even if the Impairments Clause of the U.S. Constitution and sections 1 and 5 of Title 3 of the United States Code did not exist, there are practical reasons that would prevent John Sample’s hypothetical scenario in which a state legislature and Governor might try, for partisan political advantage, to change the “rules of the game” between Election Day in early November and the meeting of the Electoral College in mid-December.

Changing the way a state chooses its presidential electors requires several distinct steps.

• First, the state legislature and Governor would have to enact a statute repealing (withdrawing from) the National Popular Vote compact.
• Second, after passing the legislature and being signed by the Governor, the repeal statute would have to take effect in the state involved.
• Third, the legislature and Governor would have to enact a statute providing a new way to appoint the state’s presidential electors. For example, the legislature and Governor might enact a statute empowering the legislature to appoint the state’s presidential electors.
• Fourth, the statute providing a new way to appoint the state’s presidential electors would have to take effect in the state involved.
• Fifth, the presidential electors would have to be appointed under the newly enacted procedure.

Because most state legislatures are not in session in November and December, it first would be necessary to call the legislature into special session for this purpose. Governors generally have the power to call their state legislatures into special session. In some states, legislators may have an independent power to convene a special session.

All Governors have the power to veto legislative bills. Thus, the Governor’s support would, as a practical matter, be a necessary part of any effort to repeal the compact except in the unusual situation where the legislative leadership possesses the power to convene a special session and controls a veto-proof majority.[305]

An attempt to change the manner of appointing a state’s presidential electors after the state’s voters cast their votes on Election Day would be a partisan maneuver of the most extreme and extraordinary nature. It would elicit fierce opposition from the to-be-disadvantaged political party.

Thus, John Sample’s hypothetical scenario could not even be contemplated in two-thirds of the states because of

1. high quorum requirements,
2. lengthy lay-over requirements before a bill may be considered,
3. the fact that almost half the states generally have politically divided government at any given time,
4. the fact that state constitutions in 21 states would delay the effective date of the new state law until after the Electoral College met in mid-December,
5. numerous time-delaying tactics enabling the minority party to delay action in the short period of time between Election Day and the meeting of the Electoral College, and
6. other factors.

These practical political difficulties can be appreciated by visualizing what would have happened if John Sample’s hypothetical scenario had been contemplated immediately after the November 2008 presidential election.

First, the constitutions of four states (Texas, Oregon, Indiana, and Tennessee) specify a two-thirds quorum requirement for a meeting of the legislature. No political party had two-thirds control of both houses of the legislature in any of these states in November of 2008. Thus, it would be futile to even contemplate executing the hypothetical scenario in these states because the minority party would simply have boycotted the legislative session during the short period of time between Election Day and the meeting of the Electoral College in mid-December. The opposition would simply run out the clock.

Second, in California, there is a constitutional lay-over requirement preventing consideration of any bill for 30 days after its introduction (unless waived by a three-quarters vote). Neither political party had a three-quarters super-majority in the California legislature in 2008. Thus, it would be futile to even contemplate executing the hypothetical scenario in California.

Third, at any given time, the Governor’s office and the two houses of state legislatures are not controlled by the same political party in many states. Over half the states had divided political control in the 20-year period starting in 1984. In 2004, 30 states had divided political control.[306], [307] In November of 2008, for example, no political party controlled both houses of the legislature plus the Governor’s office (or had a veto-proof legislative majority in both houses) in 18 states in addition to the five states mentioned above. These 18 additional states were Alabama, Arizona, Connecticut, Kansas, Kentucky, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New York, Ohio, Oklahoma, Pennsylvania, Vermont, Virginia, and Wisconsin.

Fourth, the constitutions of 21 states significantly delay the effective date of all newly enacted state laws. Thus, in 10 states (in addition to the above 23 states), a new law changing the method of appointing presidential electors could not even take effect prior to the mid-December meeting of the Electoral College. The 10 additional states are Alaska, Illinois, Louisiana, Maine, Maryland, Nebraska, New Mexico, North Dakota, South Dakota, and Utah.

The shortest such delay in this group of 10 additional states is 60 days after the Governor’s signature. There are only about 35 days between Election Day in November and the mid-December meeting of the Electoral College. Thus, the presidential electors from these states would have met and cast their votes under the pre-existing state law long before the politically motivated law repealing the National Popular Vote compact could take effect. In fact, in some of these states, the new President would have been inaugurated before the repeal law could take effect.

Table 9.12 shows the earliest date when a new state law can take effect in a given state.

Table 9.12 Earliest possible effective date for new state laws

 

The only exception to the delays imposed by state constitutions is to give a newly enacted law immediate effect by passing it as an “emergency bill.” However, emergency bills require super-majorities (three-fifths, two-thirds, three-quarters, or four-fifths, depending on the state). Column 3 of table 9.12 shows the super-majority needed to give a bill immediate effect. In November 2008, no political party had the super-majorities necessary to pass an emergency bill in the additional group of 10 states. Thus, a statute repealing the compact simply could not take effect prior to the mid-December meeting of the Electoral College. Therefore, it would be pointless to even consider trying to execute John Sample’s hypothetical scenario in this group of states.

Note that there are overlapping reasons why John Sample’s hypothetical scenario could not be executed in most states. For example, two states with a two-thirds quorum (Tennessee and Indiana) also had divided government in November 2008. Moreover, bills passed in a special session in California do not take effect until 91 days after a bill is passed (unless the bill is given immediate effect by a two-thirds vote of each house). Neither party in California in November 2008 had the super-majority necessary to give a bill immediate effect. The state constitutions of many of the states with divided government in November 2008 would delay a new bill’s effective date well beyond the mid-December meeting of the Electoral College.

Summarizing the above four points, John Sample’s hypothetical scenario could not even be contemplated in 33 states (that is, two-thirds of the states).

That leaves 17 states where the hypothetical scenario would have been theoretically possible in November 2008. Those 17 states are Arkansas, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Iowa, Massachusetts, New Hampshire, New Jersey, North Carolina, Rhode Island, South Carolina, West Virginia, Washington state, and Wyoming. These are states lacking high quorums, lacking significant lay-over requirements, lacking significant delays before new laws take effect, and where one political party was in total control of the law-making process in November 2008 (either by controlling both houses of the legislature and the Governor’s office or by enjoying veto-proof majorities in both houses of the legislature).

However, even this small remaining group of 17 states is illusory. This group of 17 states would be immediately winnowed down to about four states because of two independent factors:

• (A) A state cannot withdraw from the compact if it is not already a member. John Sample’s hypothetical scenario would be irrelevant if the state were not a member of the National Popular Vote compact in the first place. If we make the reasonable assumption that about half of the states will be in the compact when it takes effect, this factor would alone eliminate about half of this group of 17 states.
• (B) There would be no reason to withdraw from the compact if the political party controlling a given state is pleased with the outcome of the nationwide popular vote. Thus, the hypothetical scenario would be irrelevant in states where the political party in control of a given state had just won the national popular vote. This factor would independently eliminate about half of the states not eliminated by factor (A). That is, there would only be about four states in which Sample’s hypothetical scenario might be possible at any given time.

Even in this winnowed-down group of four states, there are several additional practical reasons why the hypothetical scenario probably could not be executed in the limited amount of time available.

First, a highly motivated minority in most state legislatures can delay the enactment of new legislation for a considerable length of time by invoking various parliamentary tactics. These tactics include offering amendments, filibusters, insisting that no action occur until pending amendments are printed, and, most importantly, “working to rule”—that is, refusing to waive the numerous time-consuming notice, scheduling, and lay-over requirements that are routinely waived in ordinary circumstances. The dilatory tactics available to a legislative minority cannot delay enactment of a particular bill forever; however, in most states, they are more than sufficient to delay a legislative bill in the short time available between Election Day and the mid-November meeting of the Electoral College.

Second, this winnowed-down group of states would probably not possess enough electoral votes to reverse the outcome in the Electoral College. One reason is that the compact might well be enacted by a sufficiently large number of states so that the compacting states would possess significantly more than 270 electoral votes. Another (even more compelling) reason (discussed in greater detail below) is that, in a typical future presidential election under the National Popular Vote compact, the candidate winning the national popular vote would generally receive an exaggerated margin of victory in the Electoral College (roughly 75%).

Third, in several states in this winnowed-down group of 17 (e.g., Colorado, Washington state, and Wyoming), a protest referendum petition could be circulated to suspend the politically motivated action of the state legislature. The filing of a protest referendum petition automatically and unconditionally suspends the effectiveness of any new state law passed by the legislature until a subsequent statewide election. Protest referendum petitions generally require only a modest number of signatures (far smaller than the number of signatures required, say, to initiate a new state law). The aggrieved political party could, almost certainly, quickly acquire the requisite number of signatures. There would, of course, be no time to hold the referendum in the short five-week period between Election Day in early November and the meeting of the Electoral College in mid-December.

Thus, even if the Impairments Clause of the U.S. Constitution and sections 1 and 5 of Title 3 of the United States Code did not exist to prevent John Sample’s hypothetical scenario, parliamentary difficulties would make it unlikely that the hypothetical scenario could be successfully implemented in practice.

The next section discusses an additional reason—indeed, the controlling reason—why John Sample’s hypothetical scenario could not be executed in the real world, namely public opinion.

Any attempt to appoint presidential electors after the people vote in November would be politically preposterous in the real world.

There would be virtually no public support for John Sample’s hypothetical scenario of changing the “rules of the game” after the people voted in November.

John Sample’s hypothetical scenario assumes that the public strongly and enthusiastically supports the state-by-state winner-take-all system and would support a high-handed, last-ditch maneuver to restore it (in a state whose Governor and legislature had already enacted the National Popular Vote compact).

Recall that the political context of the hypothetical scenario would be some future time when the National Popular Vote compact is in effect. At that moment, the political environment would be such that

• a nationwide presidential campaign had already been conducted, over a period of many months, in which the candidates and the voters acted in accordance with the expectation that the national popular vote will determine who will become President;
• more than 70% of the American public favors a nationwide vote for President;
• more than 70% of the public in the state involved favors a nationwide vote for President;
• the legislature and Governor of the state involved have enacted the National Popular Vote bill; and
• the National Popular Vote compact has been enacted by (25 or so) states representing a majority of the people of the United States.

In reality, there is no significant public support for the current system at either the national or state level. Over 70% of the American people support the idea that the candidate who receives the most votes in all 50 states and the District of Columbia should win the Presidency (with 20% opposed and 10% undecided). Virtually identical percentages have been registered in state-level polls in big states, small states, spectator states, battleground states, red states, blue states, border states, and Southern states, as detailed in section 7.1.

Given the citizen nature of most state legislatures, it would require an extraordinary degree of control to whip a party’s state legislators into line for such an unprecedented and highly partisan maneuver.

To execute John Sample’s proposed partisan maneuver, the Governor and both houses of the state legislature would have to convene on Election Day (i.e., the Tuesday after the first Monday in November) because this is the only day in every four-year period when it is legal to choose presidential electors. This is, of course, the very same day when most state legislators would ordinarily be busy campaigning in their own districts (where, in most states, 50% to 100% of them are up for re-election). In addition, about a quarter of the nation’s Governors are elected on Election Day in presidential election years. Thus, on the very same day when the voters would be going to the polls to cast their ballots for President in accordance with pre-existing state law (i.e., the National Popular Vote compact), the Governor and his supporters in the legislature would be hunkered down in the state Capitol Building, telling the voters that they intend to ignore the choice the people were in the process of making on Election Day (while simultaneously urging those same voters to re-elect them).

In short, John Sample’s hypothetical partisan and illegal maneuver of attempting to withdraw from the National Popular Vote compact is a parlor game with no connection to the real world.

The hypothetical scenario would probably not matter because the national popular vote winner will typically receive about 75% of the electoral votes in the Electoral College, thereby producing a cushion of about 135 electoral votes above the 270 needed to win the Presidency.

Even if the Impairments Clause of the U.S. Constitution and sections 1 and 5 of Title 3 of the United States Code did not exist, John Sample’s hypothetical scenario would probably not matter, because the national popular vote winner would typically receive an exaggerated margin in the Electoral College under the National Popular vote compact.

The reason is that the compact guarantees that the presidential candidate receiving the most popular votes in all 50 states and the District of Columbia will receive at least 270 electoral votes (that is, a majority of the 538 electoral votes) from the states belonging to the compact. Then, in addition to this minimum guaranteed bloc of 270 or more electoral votes from the compacting states, the nationwide winning candidate would receive a certain number of additional electoral votes from whichever non-compacting states he or she happened to win under existing (winner-take-all) laws for awarding electoral votes in those states. If the non-compacting states divided approximately equally between the candidates, the nationwide winning candidate would generally receive an exaggerated margin (roughly 75%) of the votes in the Electoral College (that is, about 404 out of 538 electoral votes). Thus, even if it were legally possible to execute John Sample’s hypothesized partisan maneuver in one state (or even several states), the maneuver would almost certainly not affect who became President.

State constitutions provide additional constraints on withdrawal from a compact enacted by the citizen-initiative process.

In the case of a compact enacted by the citizen-initiative process, state constitutions would provide an additional constraint on a withdrawal from the National Popular Vote compact during the 35-day period between Election Day in November and the meeting of the Electoral College in mid-December.

In 11 states, there are state constitutional limitations concerning the repeal or amendment of a statute originally enacted by the voters by means of the citizen-initiative process. In seven of these states, the constraint on the legislature runs for a specific period of time. In four of the 11 states, the constraint is permanent—that is, the voters must be consulted in a subsequent referendum about any proposed repeal or amendment.

Table 9.13 briefly describes these constitutional limitations. Appendix R contains the complete constitutional provisions.

Table 9.13 State constitutional limitations on the repeal or amendment of statutes originally enacted by the voters through the citizen-initiative process

 

In addition to constitutional limitations, public opinion acts as an especially strong inhibition against legislative repeal of a statute that the voters originally enacted by means of the citizen-initiative process. This political inhibition is particularly forceful in Western states where the citizen-initiative process is frequently used.

Footnotes

The following concern has been raised on an election blog regarding the National Popular Vote bill:

“In 2004 George Bush won a majority of the votes nationwide, but John Kerry came within something like 60,000 votes in Ohio of winning the Electoral College while losing the popular vote. Say Kerry won those 60,000 votes in Ohio, and the NPV program was in place with California a signer. In that entirely plausible scenario, does anyone think California’s (Democratic) Secretary of State, representing a state that Kerry won by a 10% margin (54%–44%), would actually certify George Bush’s slate of electors and personally put George Bush over the top for re-election, as the NPV agreement would have required?”[308]

Section 1 of 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….”[309] [Emphasis added]

No state legislature has delegated the power to select the manner of appointing the state’s presidential electors to the Secretary of State. Instead, the method of awarding electoral votes in each state is controlled by the state’s election law—not the personal political preferences of the Secretary of State.

A Secretary of State may not ignore or override the National Popular Vote law any more than he or she may ignore or override the winner-take-all rule that is currently in effect in 48 states.

It does not matter whether the Secretary of State personally thinks that electoral votes should be allocated by congressional district, in a proportional manner, by the winner-take-all rule, or by a national popular vote. The role of the Secretary of State in certifying the winning slate of presidential electors is entirely ministerial. That is, the role of the Secretary of State is to execute existing state law.

In the unlikely and unprecedented event that a Secretary of State were to attempt to certify an election using a method of awarding electoral votes different from the one specified by state law, a state court would immediately prevent the Secretary of State from violating the law’s provisions (by injunction) and compel the Secretary of State to execute the provisions of the law (by mandamus).

If this hypothetical scenario were legally permissible or politically plausible, it would have occurred previously under the current system.

In 2000, there were 10 states[310] that George W. Bush carried that had a Democratic Secretary of State (or chief elections official).[311]

The electoral votes of any of these 10 states would have been sufficient to give Al Gore enough electoral votes to become President (even after Bush received all 25 of Florida’s electoral votes).[312] Seventy percent or more of voters in the country supported the proposition that the candidate who receives the most popular votes in all 50 states and the District of Columbia should become President (as discussed in section 7.1).

Nonetheless, it can be safely stated that it did not even occur to any of these 10 Democratic Secretaries of State to attempt to try to override their states’ laws by certifying the election of Democratic presidential electors in their states.

Such a post-election change in the rules of the game would not have been supported by the public (even though the public intensely dislikes the winner-take-all system), would immediately have been nullified by a state court, and almost certainly would have led to the subsequent impeachment of any official attempting it.

Moreover, awarding electoral votes proportionally in any of nine states with a Democratic Secretary of State would have been sufficient to give Gore enough electoral votes to become President (even after Bush received all 25 of Florida’s electoral votes).[313] A proportional allocation of electoral votes would have, indisputably, represented the will of the people of each of these nine states more accurately than the state-level winner-take-all rule.

In addition, awarding electoral votes by congressional districts in any of three states with a Democratic Secretary of State,[314] would have been sufficient to give Al Gore enough electoral votes to become President (even after Bush received all 25 of Florida’s electoral votes). A district allocation of electoral votes arguably would have represented the will of the people of each of these three states more closely than the winner-take-all rule.

There has also been speculation that a Secretary of State might be “vilified” by certifying the election of the national popular vote winner. Under the National Popular Vote legislation, a dilemma has been hypothesized as to

“whether the Secretary of State would really certify the losing panel of electors from the state in question, or find some justification to send the panel actually elected by the voters in the state. That’s a very tough call and near-certain political vilification, either way, for the Secretary of State.”[315]

This is not a “tough call” at all. In fact, there is no call to make. The Secretary of State is a ministerial official whose actions are directed and controlled by state law.

If 70% of the voters in a state prefer that the President be elected by a national popular vote, and if a state legislature enacts the National Popular Vote bill in response to the strong desires of the state’s voters, and if the presidential campaign is then conducted with both voters and candidates knowing that the National Popular Vote compact is going to govern the election in that state, then the voters are not going to complain about a Secretary of State who faithfully executes the state’s law.

Aside from the legal issues, the hypothesized scenario presupposes that the people heavily support the currently prevailing winner-take-all rule. In fact, public support for the current system of electing the President is very low (as discussed in section 7.1).

In short, the hypothesized scenario has no basis in law and certainly no basis in political reality.

Footnotes

Professor Norman R. Williams of Willamette University discusses a variation on John Sample’s hypothetical withdrawal scenario (section 9. 11.1) by saying:

“In every state where the state legislature is controlled by the party of the national popular vote loser, there will be calls by disaffected constituents to withdraw from the NPVC.…

“In fairness, the NPVC foresees this problem and attempts to address it by forbidding states from withdrawing from the compact after July 20 in a presidential election year. States that are signatories as of July 20 are mandated by the NPVC to adhere to the compact and its rules for appointing electors. Depending on whether Congress ratifies the NPVC, however, that provision is either toothless or fraught with difficulties.”[316] [Emphasis added]

In support of his claim, Professor Williams has presented the following legally incorrect argument—with some astonishingly inappropriate legal citations—concerning the enforceability of interstate compacts that do not require congressional consent in order to take effect:

“Article I, Section 10 of the U.S. Constitution requires Congress to consent to any interstate compact before it can go into operation. [Williams’ footnote 171 appears here]

“Let’s suppose Congress does not consent to the compact, as its supporters urge is unnecessary despite the seemingly categorical command of the Compact Clause.

“In that case, the compact does not acquire the force of federal law, as congressionally endorsed compacts do, and therefore, it remains merely the law of the state.

“Its status as state law, however, makes it no different from any other statute enacted by the state legislature.

“And, like any other state statute, a subsequent legislature can amend or repeal the NPVC consistent with the state’s own constitutionally prescribed legislative process. [Williams’ footnote 175 appear here]

“A prior legislature may not bind subsequent legislatures through subconstitutional measures, such as statutes or congressionally unratified interstate compacts.[317] [Williams’ footnote 176 appears here] [Emphasis added]

Williams’ statement that “the U.S. Constitution requires Congress to consent to any interstate compact before it can go into operation” is supported by his footnote 171 citing the Compacts Clause of the Constitution. However, Williams fails to cite a century and a quarter of settled compact jurisprudence interpreting the Compacts Clause of the Constitution, including rulings of the U.S. Supreme Court such as the 1893 case of Virginia v. Tennessee[318] and the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission[319] (both quoted at length in section 9.16.5 and contained in full in appendices AA and BB, respectively).

The facts are that numerous interstate compacts that never received congressional consent are in force today based on the U.S. Supreme Court’s rulings in Virginia v. Tennessee and U.S. Steel Corporation v. Multistate Tax Commission. For example, the Supreme Court ruled that the Multistate Tax Compact—the subject of U.S. Steel Corporation v. Multistate Tax Commission—did not require congressional consent in order to go into effect.

Williams’ characterization of the Compacts Clause as a “categorical command” fails to acknowledge that the U.S. Supreme Court specifically ruled in both U.S. Steel Corporation v. Multistate Tax Commission and Virginia v. Tennessee that the Compact Clause was not categorical. As the Court said:

“Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.

“The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee.[320] His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta, but this Court did not have occasion expressly to apply it in a holding until our recent decision in New Hampshire v. Maine,[321] supra.”

“Appellants urge us to abandon Virginia v. Tennessee and New Hampshire v. Maine, but provide no effective alternative other than a literal reading of the Compact Clause. At this late date, we are reluctant to accept this invitation to circumscribe modes of interstate cooperation that do not enhance state power to the detriment of federal supremacy.”[322] [Emphasis added]

See section 9.16.5 for additional discussion of the U.S. Supreme Court’s decisions and criteria for whether a particular interstate compact requires congressional consent.

Williams’ statement that a compact’s “status as state law … makes it no different from any other statute enacted by the state legislature” is legally incorrect.

The fact that a congressionally approved compact acquires the status of federal law is unrelated to the question of whether a compact has gone into effect and is an enforceable contract.

Compacts go into operation in one of two ways.

• First, if the compact requires congressional consent, the compact goes into effect only after (1) being enacted by the requisite combination of states, and (2) Congress confers its consent. A compact that requires congressional consent, but has not received it, simply never goes into effect.
• If the compact does not require congressional consent, the compact goes into effect after being enacted by the requisite combination of states.

The question of whether a particular compact requires congressional consent in order to take effect is a legal question that is answered by whether or not it satisfies the criteria established by rulings of the U.S. Supreme Court.

In practice, there may be litigation to determine whether a particular new compact requires congressional consent.

When Congress consents to an interstate compact, the compact acquires the status of federal law.

Compacts that do not require congressional consent do not acquire the status of federal law.

Once a compact is in effect, it is an enforceable contractual arrangement among participating states. The Impairments Clause of the U.S. Constitution provides:

“No State shall … pass any … Law impairing the Obligation of Contracts.”[323]

State courts routinely enforce interstate compacts not requiring congressional consent on the basis of the Impairments Clause.

The fact that a compact not requiring congressional consent has not been converted into federal law is unrelated to its enforceability.

A 2012 state court ruling involving the Multistate Tax Compact (the same interstate compact that was the subject of the U.S. Supreme Court’s decision in U.S. Steel Corporation v. Multistate Tax Commission) illustrates this point.

In The Gillette Company et al. v. Franchise Tax Board, the California Court of Appeal voided a state law attempting to override a provision of the Multistate Tax Compact (from which California had not withdrawn at the time of the decision).

“In 1972, a group of multistate corporate taxpayers brought an action on behalf of themselves and all other such taxpayers threatened with audits by the Commission. The complaint challenged the constitutionality of the Compact on several grounds, including that it was invalid under the compact clause of the United States Constitution. (U.S. Steel, supra, 434 U.S. at p. 458.)

“The high court acknowledged that the compact clause, taken literally, would require the states to obtain congressional approval before entering into any agreement among themselves, ‘irrespective of form, subject, duration, or interest to the United States.’ (U.S. Steel, supra, 434 U.S. at p. 459.) However, it endorsed an interpretation, established by case law, that limited application of the compact clause ‘to agreements that are “directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.’ … This rule states the proper balance between federal and state power with respect to compacts and agreements among States.”’ (Id. at p. 471, initial quote from Virginia v. Tennessee (1893) 148 U.S. 503, 519.)

“Framing the test as whether the Compact enhances state power with respect to the federal government, the court concluded it did not.”[324]

The California court continued:

“Some background on the nature of interstate compacts is in order. These instruments are legislatively enacted, binding and enforceable agreements between two or more states.”[325]

“As we have seen, some interstate compacts require congressional consent, but others, that do not infringe on the federal sphere, do not.[326]

“Where, as here, federal congressional consent was neither given nor required, the Compact must be construed as state law. (McComb v. Wambaugh (3d Cir. 1991) 934 F.2d 474, 479.) Moreover, since interstate compacts are agreements enacted into state law, they have dual functions as enforceable contracts between member states and as statutes with legal standing within each state; and thus we interpret them as both. (Aveline v. Bd. of Probation and Parole (1999) 729 A.2d 1254, 1257; see Broun et al., The Evolving Use and the Changing Role of Interstate Compacts (ABA 2006) § 1.2.2, pp. 15-24 (Broun on Compacts); 1A Sutherland, Statutory Construction (7th ed. 2009) § 32:5; In re C.B. (2010) 188 Cal.App.4th 1024, 1031 [recognizing that Interstate Compact on Placement of Children shares characteristics of both contractual agreements and statutory law].)

“The contractual nature of a compact is demonstrated by its adoption: “There is an offer (a proposal to enact virtually verbatim statutes by each member state), an acceptance (enactment of the statutes by the member states), and consideration (the settlement of a dispute, creation of an association, or some mechanism to address an issue of mutual interest.)” (Broun on Compacts, supra, § 1.2.2, p. 18.) As is true of other contracts, the contract clause of the United States Constitution shields compacts from impairment by the states. (Aveline v. Bd. of Probation and Parole, supra, 729 A.2d at p. 1257, fn. 10.) Therefore, upon entering a compact, “it takes precedence over the subsequent statutes of signatory states and, as such, a state may not unilaterally nullify, revoke or amend one of its compacts if the compact does not so provide.” (Ibid.; accord, Intern. Union v. Del. River Joint Toll Bridge (3d Cir. 2002) 311 F.3d 273, 281.) Thus interstate compacts are unique in that they empower one state legislature—namely the one that enacted the agreement—to bind all future legislatures to certain principles governing the subject matter of the compact. (Broun on Compacts, supra, § 1.2.2, p. 17.)

“As explained and summarized in C.T. Hellmuth v. Washington Metro. Area Trans. (D.Md. 1976) 414 F.Supp. 408, 409 (Hellmuth): ‘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. It, therefore, appears settled that one party may not enact legislation which would impose burdens upon the compact absent the concurrence of the other signatories.’ Cast a little differently, ‘[i]t is within the competency of a State, which is a party to a compact with another State, to legislate in respect of matters covered by the compact so long as such legislative action is in approbation and not in reprobation of the compact.’ (Henderson v. Delaware River Joint Toll Bridge Com’m (1949) 66 A.2d 843, 849-450.) Nor may states amend a compact by enacting legislation that is substantially similar, unless the compact itself contains language enabling a state or states to modify it through legislation ‘ “concurred in” ’ by the other states. (Intern. Union v. Del. River Joint Toll Bridge, supra, 311 F.3d at pp. 276-280.)”[327] [Emphasis added]

The California court thus rejected a California state law overriding the Multistate Tax Compact as unconstitutional.[328]

Although state courts are more than capable of enforcing interstate compacts (and, in particular, voiding state legislation that attempts to evade a particular state’s obligations under a compact), interstate compacts may be litigated (and often are litigated) at the U.S. Supreme Court, as explained in Interstate Disputes: The Supreme Court’s Original Jurisdiction.[329]

The U.S. Constitution states:

“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction.”[330]

Williams supports his next legally incorrect statement (that a compact for which congressional consent is unnecessary is “merely” a state law and not an enforceable contract) with a totally inapplicable legal authority. Williams says:

“A subsequent legislature can amend or repeal the NPVC consistent with the state’s own constitutionally prescribed legislative process. [Williams’ footnote 175 appears here]”[331]

Williams’ authority for this legally incorrect statement (that is, his own footnote 175) is the 1951 U.S. Supreme Court decision in West Virginia ex rel. Dyer v. Sim.[332] However, this case is not about a state being allowed to evade its obligations under an interstate compact, but about the U.S. Supreme Court ruling that West Virginia could not evade its obligations under the compact. What the U.S. Supreme Court said was:

“But a compact is after all a legal document.… It requires no elaborate argument to reject the suggestion that an agreement solemnly entered into between States by those who alone have political authority to speak for a State can be unilaterally nullified, or given final meaning by an organ of one of the contracting States. A State cannot be its own ultimate judge in a controversy with a sister State.”[333] [Emphasis added]

Williams’ final legally incorrect statement and inappropriate footnote are even more astonishing:

“A prior legislature may not bind subsequent legislatures through subconstitutional measures, such as statutes or congressionally unratified interstate compacts. [Williams’ footnote 176 appear here]”[334]

Williams cites two authorities for this incorrect statement in his footnote 176:

• the 1996 Nebraska case of State ex rel. Stenberg v. Moore,[335] and
• the 1936 Pennsylvania case of Visor v. Waters.[336]

In fact, neither case supports Williams’ statement, and the ruling in one of them is exactly opposite to what Williams claims.

State ex rel. Stenberg v. Moore was concerned with a 1993 Nebraska state law (Legislative Bill 507) that attempted to require future legislatures to provide certain fiscal estimates and provide appropriations at the time when that future legislature took any action that might increase the number of inmates in the state’s correctional facilities.

Legislative Bill 507 provided:

“(1) When any legislation is enacted after June 30, 1993, which is projected in accordance with this section to increase the total adult inmate population or total juvenile population in state correctional facilities, the Legislature shall include in the legislation an estimate of the operating costs resulting from such increased population for the first four fiscal years during which the legislation will be in effect.…

(3) The Legislature shall provide by specific itemized appropriation, for the fiscal year or years for which it can make valid appropriations, an amount sufficient to meet the cost indicated in the estimate contained in the legislation for such fiscal year or years. The appropriation shall be enacted in the same legislative session in which the legislation is enacted and shall be contained in a bill which does not contain appropriations for other programs.

“(4) Any legislation enacted after June 30, 1993, which does not include the estimates required by this section and is not accompanied by the required appropriation shall be null and void.” [Emphasis added]

In State ex rel. Stenberg in 1996, the Nebraska Supreme Court made the unsurprising ruling that it was unconstitutional for the legislature to attempt to bind succeeding legislatures by means of an ordinary state statute.

Significantly, in its ruling, the Nebraska Supreme Court specifically recognized interstate compacts as one of the rare exceptions to the general principle that one legislature cannot bind a future legislature:

“One legislature cannot bind a succeeding legislature or restrict or limit the power of its successors to enact legislation, except as to valid contracts entered into by it, and as to rights which have actually vested under its acts, and no action by one branch of the legislature can bind a subsequent session of the same branch.”[337] [Emphasis added]

Thus, the 1996 Nebraska case of State ex rel. Stenberg v. Moore cited by Williams is not a legal authority supporting Williams’ statement, but a ruling making it clear that Williams is just plain wrong.

Williams’ citation of the 1936 Pennsylvania case of Visor v. Waters also fails to support Williams’ claim. Visor v. Waters was concerned with an attempt by one house of the Pennsylvania legislature to nullify a previously enacted state statute by means of a resolution passed only by the one house. Visor v. Waters was not even about a state statute (much less an interstate compact). The court’s ruling said:

“It is a settled rule that one Legislature cannot bind another and no action by one House could bind a subsequent session of that same House, but when the constituent bodies are united in a statute, a single House, by a mere resolution cannot set aside and nullify the positive provisions of a law.… A new law can do that, but nothing less than a new law can.”[338] [Emphasis added]

The fact is that there are no applicable citations in support of Williams’ statements about the unenforceability of interstate compacts. The reason is that Williams is just plain wrong.

Another example of a compact that did not require congressional consent is the Interstate Compact for the Placement of Children. All 50 States and the District of Columbia are parties to this compact.[339]

In the 1991 case of McComb v. Wambaugh, the U.S. Court of Appeals for Third Circuit ruled that the compact took precedence over state law.

“The Constitution recognizes compacts in Article I, section 10, clause 3, which reads, ‘No state shall, without the Consent of the Congress ... enter into any Agreement or Compact with another State.’ Despite the broad wording of the clause Congressional approval is necessary only when a Compact is ‘directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.’ United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 468, 98 S.Ct. 799, 810, 54 L.Ed.2d 682 (1978) (quoting Virginia v. Tennessee, 148 U.S. 503, 519, 13 S.Ct. 728, 734, 37 L.Ed. 537 (1893)).

“The Interstate Compact on Placement of Children has not received Congressional consent. Rather than altering the balance of power between the states and the federal government, this Compact focuses wholly on adoption and foster care of children—areas of jurisdiction historically retained by the states. In re Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 852-53, 34 L.Ed. 500 (1890); Lehman v. Lycoming County Children’s Services Agency, 648 F.2d 135, 143 (3d Cir. 1981) (en banc), aff’d, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). Congressional consent, therefore, was not necessary for the Compact’s legitimacy.”

“Because Congressional consent was neither given nor required, the Compact does not express federal law. Cf. Cuyler v. Adams, 449 U.S. 433, 440, 101 S.Ct. 703, 707, 66 L.Ed.2d 641 (1981). Consequently, this Compact must be construed as state law. See Engdahl, Construction of Interstate Compacts: A Questionable Federal Question, 51 Va.L.Rev. 987, 1017 (1965) (‘[T]he construction of a compact not requiring consent ... will not present a federal question....’).

“Having entered into a contract, a participant state may not unilaterally change its terms. A Compact also takes precedence over statutory law in member states.”[340] [Emphasis added]

Footnotes