The National Popular Vote plan is an interstate compact—a type of state law that is explicitly authorized by the U.S. Constitution to enable otherwise sovereign states to enter into legally enforceable contractual obligations with one another.
There are hundreds of major interstate compacts. Examples of interstate compacts include the Colorado River Compact (allocating water among seven western states), the Multi-State Tax Compact (whose membership includes 23 states and the District of Columbia), the Interstate Oil and Gas Compact, the Interstate Corrections Compact, the Mutual Aid Compact, the Great Lakes Basin Compact, the Port Authority of New York and New Jersey (a two-state compact), and the Multi-State Lottery Compact (which operates the Power Ball lotto game in 21 states). Numerous other compacts are listed in Appendix M of this book. Some compacts include all 50 states and the District of Columbia. Interstate compacts existed under the Articles of Confederation, and the U.S. Constitution explicitly continued compacts that were in existence when the Constitution came into force.
Interstate compacts are legally enforceable on the states because the U.S. Constitution requires a state to honor all commitments that it makes in an interstate compact. The Impairments Clause of the U.S. Constitution provides:
"No State shall … pass any … Law impairing the Obligation of Contracts."82
The Council of State Governments summarizes 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."83
For additional information about interstate compacts, see chapter 5 of this book.
15.2 MYTH: The National Popular Vote compact is defective because Congress did not consent to the compact prior to its consideration by state legislatures.
15.3 MYTH: The National Popular Vote compact is defective because it fails to specifically mention Congress in its text.
15.4 MYTH: The National Popular Vote compact requires congressional consent to become effective.
Congressional consent is not required for the National Popular Vote compact under prevailing U.S. Supreme Court rulings. However, because there would undoubtedly be time-consuming litigation about this aspect of the compact, National Popular Vote is working to introduce a bill in Congress for congressional consent.85
The U.S. Constitution provides:
"No state shall, without the consent of Congress,… enter into any agreement or compact with another state…."86
Although this language may seem straight forward, the U.S. Supreme Court has ruled, in 1893 and again in 1978, that the Compacts Clause can "not be read literally." In deciding the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission,87 the Court wrote:
"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.88 His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta."89
Specifically, the Court's 1893 ruling in Virginia v. Tennessee stated:
"Looking at the clause in which the terms 'compact' or 'agreement' appear, it is evident that the prohibition 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."90 [Emphasis added]
The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:
"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…."91
In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote:
"The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States"92 [Emphasis added]
The National Popular Vote compact would not "encroach upon or interfere with the just supremacy of the United States" because there is simply no federal power—much less federal supremacy—in the area of awarding of electoral votes in the first place.
In the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the compact at issue specified that it would come into force when seven or more states enacted it. The compact was silent as to the role of Congress. The compact was submitted to Congress for its consent. After encountering fierce political opposition from various business interests concerned about the more stringent tax audits anticipated under the compact, the compacting states proceeded with the implementation of the compact without congressional consent. U.S. Steel challenged the states' action. In upholding the constitutionality of the implementation of the compact by the states without congressional consent, the U.S. Supreme Court applied the interpretation of the Compacts Clause from its 1893 holding in Virginia v. Tennessee, writing that:
"the test is whether the Compact enhances state power quaod [with regard to] the National Government."93
The Court also noted that the compact did not
"authorize the member states to exercise any powers they could not exercise in its absence."94
Of course, there is always the possibility that the U.S. Supreme Court might change the legal standards concerning congressional consent contained in its 1893 and 1978 rulings. Some have argued, for example, that congressional intervention in what would otherwise be an exclusively state matter might be required if the compacting states exerted some kind of adverse "political" effect on non-compacting states. In a dissenting opinion, U.S. Supreme Court Justice White suggested, in U.S. Steel v. Multi-State Tax Commission, that courts could consider the possible adverse effects of a compact on non-compacting states in deciding whether congressional consent is required.
Because each state has independent power to award its electoral votes in the manner it sees fit, it is difficult to see what "adverse effect" might be claimed by one state from the decision of another state to award its electoral votes in a particular way. It is especially unclear what adverse "political" effect might be claimed, given that the National Popular Vote compact would treat votes cast in all 50 states and the District of Columbia equally. A vote cast in a compacting state is, in every way, equal to a vote cast in a non-compacting state. The National Popular Vote compact does not confer any advantage on states belonging to the compact as compared to non-compacting states. A vote cast in a compacting state would be, in every way, equal to a vote cast in a non-compacting state. The National Popular Vote compact certainly would not reduce the voice of voters in non-compacting states relative to the voice of voters in member states.
The electoral votes of non-compacting states would continue to be cast in the manner specified by each state's current law. That means most non-compacting states would probably continue to award their electoral votes based on the winner-take-all rule. The National Popular Vote compact would not invalidate or negate the electoral votes cast by non-compacting states. Nor would it require non-compacting states to cast their electoral votes for the winner of the national popular vote. Non-compacting states could continue to cast their votes for the winner of the statewide popular vote (or district-wide popular vote), even after the National Popular Vote compact is implemented. No non-compacting state would be compelled to cast its electoral votes for the winner of the national popular vote.
Of course, it has always been the case that one state (by its choice of method of awarding its electoral votes) can exert a political effect on the value of a vote cast in another state. For example, when a closely divided battleground state, such as Florida, uses the winner-take-all rule, this choice by Florida diminishes the political value of the votes cast by citizens in the two-thirds of the states that are not battleground states. Because of the use by battleground states of the winner-take-all rule, presidential candidates concentrate their polling, visits, advertising, organizing, and attention on the concerns of battleground states, while ignoring the concerns of the remaining states. In 2004, for example, candidates concentrated over two-thirds of their money and campaign visits in just five states (spending the most in Florida); over 80% in just nine states; and over 99% of their money in just 16 states. In 2008, candidates concentrated over two-thirds of their campaign events and ad money in just states, and 98% in just 15 states.95 The use of the winner-take-all rule by closely divided battleground states marginalizes voters in the non-battleground states. Two-thirds of the states are currently disenfranchised in presidential elections because of the use of the winner-take-all rule by the closely divided battleground states. It is not California's winner-take-all rule or Wyoming's winner-take-all rule that makes votes in these states unimportant in presidential elections. Instead, it is the winner-take-all rule in the closely divided battleground states that diminishes the political value of the votes cast in California and Wyoming.
Florida could, of course, eliminate its current effect on other states by changing its method of awarding its electoral votes. For example, if Florida were to award its electoral votes by congressional district, presidential candidates could then simply ignore all of Florida (except for its competitive 2nd, 10th, 18th, and 22nd districts) and focus their attention on other states. However, under the U.S. Constitution, Florida is clearly under no obligation to make such changes to accommodate other states. Indeed, it is inherent in the Constitution's grant to each state of the independent power to choose the method of appointing its presidential electors that one state's decision may have a political impact on other states.
The U.S. Supreme Court has already declined to act in response to a complaint concerning the political impact of one state's choice of the manner of appointing its presidential electors on another state. In 1966, Delaware led a group of 12 predominantly low-population states (including North Dakota, South Dakota, Wyoming, Utah, Arkansas, Kansas, Oklahoma, and Iowa) in suing New York in the U.S. Supreme Court. The 12 states argued that New York's decision to use the winner-take-all rule effectively disenfranchised voters in the 12 plaintiff states. The pleadings are available online,96 and New York's (defendant) brief is especially pertinent. Despite the fact that the case was brought under the Court's original jurisdiction, the Court declined to hear the case (presumably because of the well-established constitutional provision that the manner of awarding electoral votes is exclusively a state decision).
The fact that the 1966 case was initiated by predominantly small states reflects the political reality (and recognition by the small states) that each state's bonus of two electoral votes is an illusory benefit to the small states in presidential elections. Only one of the 13 smallest states and only five of the 25 smallest states are battleground states in presidential elections. The political reality is that 12 of the 13 smallest states are almost totally ignored in presidential elections because they are politically non-competitive in presidential elections. Six states (Idaho, Montana, Wyoming, North Dakota, South Dakota, and Alaska) regularly vote Republican, while six others (Rhode Island, Delaware, Hawaii, Vermont, Maine, and the District of Columbia) regularly vote Democratic. These 12 jurisdictions together contain 11 million people. Because of the two-electoral-vote bonus that each state receives, these 12 non-competitive small states have 40 electoral votes. However, Ohio has 11 million people and has "only" 20 electoral votes. The 11 million people in Ohio are the center of attention in presidential campaigns, whereas the 11 million people in the 12 non-competitive small states are irrelevant. In the real world of presidential politics, 20 electoral votes in a battleground state are far more important than 40 electoral votes in spectator states. Nationwide election of the President would make each voter in the 12 smallest states as important as an Ohio voter.
Under the National Popular Vote compact, every voter throughout the United States would be equal. The votes from all 50 states and the District of Columbia would be added together to determine the national popular vote winner. Then, the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia would be guaranteed enough votes in the Electoral College to be elected President by the Electoral College.
The question of congressional consent is discussed in greater detail in chapter 5 of this book.
