9.1 Myths about the Constitution

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

Article II, section 1, clause 2 says:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” [Emphasis added]

The first 17 words of this clause are the Constitution’s delegation of power to the states empowering them to choose how to award their electoral votes.

The delegates to the 1787 Constitutional Convention debated various methods for electing the President on 22 separate days and held 30 separate votes on the topic.[1]

On four separate occasions, the Convention voted that Congress should choose the President. This method was natural and familiar to the Founders, because the Governors of eight of the 13 states were chosen by their state legislatures at the time.

However, election of the President by the legislative branch was inconsistent with the Founders’ desire to create an executive branch that was independent of the legislative branch.

At one point, the delegates voted that the state legislatures would choose the President; however, the Convention reversed itself on that decision.

On another occasion, the delegates considered empowering state Governors to choose the President.

In its closing days, the Convention created a body of intermediate officials whose sole purpose would be to elect the President. These presidential electors (collectively called the “Electoral College”) could not be members of Congress or hold any other federal office.

Even after creating this new body, the Convention could not agree on how the presidential electors would be chosen. Instead, the Convention ended up leaving several politically significant questions undecided, including:

• Should presidential electors be chosen by the people—analogous to the method of electing members of the U.S. House of Representatives?
• Should presidential electors be chosen by the state legislatures—analogous to the method (in the original Constitution) of appointing U.S. Senators?[2]
• Should presidential electors be chosen in some other way (e.g., by Governors)?

Unable to agree upon a method for selecting presidential electors—the Founding Fathers adopted the open-ended language in Article II. That is, they gave each state independent power to choose the method of selecting its members of the Electoral College.

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

• If a state legislature decides to allow its citizens to vote for presidential electors, Article II does not specify whether the electors would be elected (1) statewide, (2) by congressional district, (3) by county, (4) from single-elector districts, (5) in multi-elector districts, or (6) some other way.
• If the legislature decides against allowing its citizens to vote for the state’s presidential electors, the Constitution does not specify whether they should be appointed (1) by the Governor and his cabinet, (2) by the Governor and the lower house of the state legislature, (3) by both houses of the legislature sitting together in a joint convention, (4) by both houses of the legislature using a concurrent resolution, or (5) some other way.

Indeed, six different methods of selecting presidential electors were used in the nation’s first presidential election in 1789, and a total of twelve different methods were used by 1828 (as detailed in section 2.1).

The most salient feature of our nation’s current method of electing the President—the winner-take-all method of awarding electoral votes—was never debated or voted upon at the Constitutional Convention. It does not appear in the U.S. Constitution. It was not mentioned in the Federalist Papers. It was not until the eleventh presidential election—four decades after the Constitutional Convention—that the winner-take-all method was used by even half the states. Indeed, the Founders had been dead for decades before the winner-take-all rule became the predominant method of awarding electoral votes.

Under the winner-take-all method of awarding electoral votes (also known as the “unit rule” or “general ticket”), a plurality of a state’s voters are empowered to choose all of a state’s presidential electors.[3]

When the Founding Fathers returned from the Constitutional Convention in Philadelphia to organize the nation’s first presidential election in 1789, only three states (New Hampshire, Pennsylvania, and Maryland) chose to employ the winner-take-all method for selecting their presidential electors.

All three had repealed winner-take-all by 1800, and each later readopted it.

Today, Maine and Nebraska currently elect one presidential elector on a winner-take-all basis in each of the state’s congressional districts (and the state’s remaining two electors on a statewide winner-take-all basis).

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

The leading case on the power of the states to award their electoral votes is the 1892 case of McPherson v. Blacker. The U.S. Supreme Court ruled:

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

“In short, the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States.”[4] [Emphasis added]

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

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

“There is no difference between the two sides of the present controversy on these basic propositions.”[5] [Emphasis added]

In Chiafalo v. Washington in 2020, the U.S. Supreme Court wrote:

“Article II, §1’s appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint.”

In short, states may exercise their power to choose the manner of appointing their presidential electors in any way they see fit (provided, of course, that they do not violate any restriction contained elsewhere in the U.S. Constitution).[6], [7]

The Constitution’s grant of exclusive power to the states to decide how presidential elections are conducted was not a historical accident or mistake. The Founders had good reason to give the states the power to control the conduct of presidential elections.

State control over presidential elections thwarts the possibility of an over-reaching President, in conjunction with a compliant Congress, manipulating the rules governing the President’s own re-election. This dispersal of power concerning presidential elections was intended to guard against the establishment of a self-perpetuating President. In particular, this dispersal of power to the states addressed the Founders’ concern about the possible establishment of a monarchy in the United States.

More importantly, existing winner-take-all statutes did not come into being by means of an amendment to the U.S. Constitution. Instead, the winner-take-all method of awarding electoral votes was adopted piecemeal on a state-by-state basis. The winner-take-all method enabled a state’s dominant political party to maximize its power by stifling the state’s minority party. The existing winner-take-all system is entirely a matter of state law.

Accordingly, repealing state winner-take-all statutes does not require an amendment to the U.S. Constitution. Winner-take-all statutes may be repealed in the same way they were enacted—that is, through each state’s process for enacting and repealing state laws.

Indeed, the winner-take-all method of awarding electoral votes has been adopted, repealed, and re-adopted by various states on numerous occasions over the years (section 2.1).

Massachusetts, for example, changed its method of awarding its electoral votes in every one of the first 10 presidential elections (section 2.8). None of these changes was implemented by means of an amendment to the U.S. Constitution. Each was enacted by the Massachusetts legislature using the U.S. Constitution’s built-in method for changing the method of electing the President, namely Article II, section 1. That provision gives Massachusetts (and all the other states) exclusive and plenary power to choose the manner of awarding their electoral votes.

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

Footnotes

The Founding Fathers at the 1787 Constitutional Convention did not debate, vote on, or adopt the most salient feature of our nation’s present-day system of electing the President, namely state winner-take-all statutes (i.e., awarding all of a state’s electoral votes to the presidential candidate who receives the most popular votes within each separate state).

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

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

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

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

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

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

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

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

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

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

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

As the Supreme Court observed in McPherson v. Blacker in 1892:

“Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the chief executive, but experience soon demonstrated that, whether chosen by the legislatures or by popular suffrage on general ticket or in districts, they were so chosen simply to register the will of the appointing power in respect of a particular candidate. In relation, then, to the independence of the electors, the original expectation may be said to have been frustrated.”[8] [Emphasis added]

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

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

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

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

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

Of the 24,068 electoral votes cast for President in the nation’s 59 presidential elections between 1789 and 2020, the vote of Samuel Miles for Thomas Jefferson in 1796 remains the only instance when the elector may have believed, at the time he cast his vote, that his vote might possibly affect the national outcome.[9]

The expectation that presidential electors should faithfully support the candidates nominated by their party has persisted to this day.[10]

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

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

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

‘They always voted at their party’s call

‘And never thought of thinking for themselves at all.’”[11]

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

Footnotes

John Samples of the Cato Institute has written the following about the National Popular Vote Compact:

“NPV brings about this change without amending the Constitution, thereby undermining the legitimacy of presidential elections.”[12] [Emphasis added]

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

Many of the most significant changes in the method of electing the President were implemented entirely at the state level—without a federal constitutional amendment—including:

• permitting the people to vote for President,
• abolition of property, wealth, and income qualifications for voting, and
• the winner-take-all method of awarding electoral votes.

Except for the 12^th Amendment, the subject matter of every federal constitutional amendment involving elections was first enacted in the form of state legislation, including:

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

Permitting the People to Vote for President

The most significant change that has ever been made in the way the President of the United States is elected was to allow the people to vote for President.

This change was implemented by means of state statutes—not a federal constitutional amendment.

This change has never been enshrined by any federal constitutional amendment.

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

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

“The constitution does not provide that the appointment of [presidential] electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object.”[13] [Emphasis added]

As the U.S. Supreme Court wrote in Bush v. Gore in 2000:

“The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”[14] [Emphasis added]

The Founders were divided as to whether the people should be allowed to vote for President at the 1787 Constitutional Convention. Thus, the Constitution was silent concerning this question.

They remained divided when they returned to their states to implement the newly ratified Constitution.

In the nation’s first presidential election in 1789, only six states (New Hampshire, Pennsylvania, Maryland, Delaware, Virginia, and Massachusetts) permitted the people to vote for presidential electors.[15]

In New Jersey, the Governor and his Council appointed the state’s presidential electors in 1789.[16]

In three states (Connecticut, South Carolina, and Georgia), the state legislature appointed the presidential electors in 1789.[17] See section 2.2 for additional details on the nation’s first presidential election in 1789.

The Federalist Papers recognized that the choice of method for appointing presidential electors was a state power, but never mentioned or advocated any particular method by which a state should appoint its presidential electors.

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

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

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

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

In permitting the people to vote for President, the states exercised their role, under Article II, section 1 of the U.S. Constitution, as the “laboratories of democracy.”[18]

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

By 1824, three-quarters of the states had embraced the idea of permitting the people to vote for the state’s presidential electors. However, the state-by-state process of empowering the people to vote for President was not completed until the 1880 election—almost a century after the Constitutional Convention.[19]

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

Permitting the people to vote for President was not a violation of the U.S. Constitution but an exercise of a power that the Founding Fathers explicitly assigned to state legislatures in Article II, section 1 of the Constitution.

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

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

Abolition of Property, Wealth, and Income Qualifications for Voting

When the U.S. Constitution came into effect in 1789, 10 of the 13 states had property, wealth, and/or income qualifications for voting.

The requirements varied from state to state and typically included factors such as ownership of a specific number of acres of land, ownership of other assets with a specific value, or specific amounts of income. In many states, there were more stringent requirements for voting for the upper house of the state legislature than for the lower house.

The requirements for voting were so stringent that in 1789, there were only about 100,000 eligible voters in a nation of about four million people.[20]

By 1855, only three of the 31 states had property qualifications for voting.[21]

In 1856, North Carolina became the last state to abolish property requirements to vote.

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

The elimination of property, wealth, and income qualifications was not accomplished by means of a federal constitutional amendment. It was not improper, inappropriate, or unconstitutional. This substantial expansion of the electorate occurred because state legislatures used a power that rightfully belonged to them to change the method of conducting elections.

Does John Samples really think that eliminating property, wealth, and income requirements to vote without passing a federal constitutional amendment “undermine[s] the legitimacy of presidential elections”?

Women’s suffrage

In several instances, a major reform initiated at the state level led to a subsequent federal constitutional amendment.

For example, women did not have the right to vote when the U.S. Constitution came into effect in 1789, except in New Jersey.[22]

Wyoming gave women the right to vote in 1869.

By the time Congress passed the 19^th Amendment (50 years later), women already had the vote in 30 of the 48 states.

Congress passed the 19^th Amendment in 1919 because:

• women were already voting in 30 states, and
• members of Congress from the remaining states knew that it was only a matter of time before women would obtain the right to vote in their states—with or without the federal constitutional amendment.

The immediate effect of the 19^th Amendment was to impose women’s suffrage on the minority of 18 states that had not already adopted it at the state level.[23]

The decision by 30 separate states to permit women to vote in the 50-year period between 1869 and 1919 was not an “end run” around the U.S. Constitution.

We have not encountered a single person who argues that state legislatures did anything improper, inappropriate, or unconstitutional when they made this very substantial expansion of their electorates. Women’s suffrage is another example of state legislatures using the authority granted to them by the U.S. Constitution to institute a major change concerning the conduct of elections.

Women’s suffrage was achieved because 30 states exercised their power as the “laboratories of democracy” to change the manner of conducting their own elections.

Direct election of U.S. Senators

The direct election of U.S. Senators is another example of a major change that was initiated at the state level and later became enshrined in the Constitution.

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

Support for the direct election of Senators grew throughout the 19^th century—particularly after popular voting for presidential electors became the norm during the Jacksonian “era of the common man.”

In practice, candidates for the U.S. Senate in the 19^th century campaigned in support of state legislative candidates who, if elected, would vote for them when the state legislature met to choose the state’s U.S. Senator.

For example, the famous Lincoln-Douglas debates in 1858 were part of the campaigns by the Illinois Democratic Party and Republican Party aimed at electing state legislators who, in turn, would elect the state’s U.S. Senator. The Democrats won the Illinois legislature and then promptly elected Douglas to the U.S. Senate.

Starting with the “Oregon Plan” in 1907, state legislatures responded to public pressure for direct popular elections for U.S. Senator by passing laws to establish statewide advisory votes for U.S. Senator. The state legislature would then dutifully rubber stamp the people’s choice by formally electing the winner of the advisory election to the U.S. Senate.

By the time the 17^th Amendment passed the U.S. Senate in 1912, the voters in 29 states were, for all practical purposes, electing U.S. Senators under various forms of the “Oregon” plan.

18-year-old vote

States took the lead in granting suffrage to 18-year-olds. Citizens under the age of 21 first acquired the right to vote in Georgia, Kentucky, Alaska, Hawaii, and New Hampshire. Then, in 1971, the 26^th Amendment to the U.S. Constitution extended the 18-year-old vote to all states.

Black suffrage

In New York, free black men had the right to vote under the 1821 Constitution (but only if they also met a property-ownership requirement not required of other male citizens).[24]

In New Jersey, free black men could vote under the 1776 Constitution if they met a generally applicable property requirement, but this right was rescinded in 1807.[25]

Under Pennsylvania’s 1790 constitution, African American males were citizens with the same legal rights as whites, including suffrage provided they paid the nominal tax required of all men twenty-one years old and older.[26] These rights were rescinded in 1838.

Free black men could vote in these states, and other states, at various times prior to the Civil War—sometimes in numbers sufficient to swing elections.[27]

After the Civil War, the 15^th Amendment (ratified in 1870) gave black men the right to vote in all states (although, in practice, subsequent Jim Crow laws in many southern states severely limited this right until the Voting Rights Act of 1965).

The winner-take-all rule

Finally, the politically most important characteristic of our nation’s current system of electing the President—the winner-take-all method of awarding electoral votes—was established by state statute—not a federal constitutional amendment.

John Samples has said that repealing the winner-take-all rule without a federal constitutional amendment would “undermine the legitimacy of presidential elections.”

However, he fails to apply this criticism to the original adoption of the winner-take-all rule by the states.

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

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

In referring to the National Popular Vote Compact, Professor Joseph Pika (author of The Politics of the Presidency) wrote:

“This effort would represent amendment-free constitutional reform, the way that most other changes have been made in the selection process since 1804.”[28] [Emphasis added]

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

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

Thus, the U.S. Constitution gives primary—but not exclusive—control to the states over the manner of electing Congress. In the case of congressional elections, the U.S. Constitution gives Congress the power to “make or alter” any state election law. In practice, Congress has exercised a light touch in this area over the years.

In contrast, Congress does not have comparable power over a state’s decision concerning the manner of awarding its electoral votes. State power to choose the manner of electing its presidential electors is, as the U.S. Supreme Court has repeatedly stated, “exclusive” and “plenary” (i.e., complete).

Footnotes

The National Popular Vote Compact is state legislation—not a federal constitutional amendment.

As such, it does not (indeed, could not) change—much less abolish—the structure of the Electoral College as specified in the U.S. Constitution.

Instead, the National Popular Vote Compact would change state laws that govern how the participating states choose their members of the Electoral College.

The National Popular Vote Compact makes use of the Constitution’s built-in state-based power for changing the method of appointing presidential electors, namely Article II, section 1 of the U.S. Constitution:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[29] [Emphasis added]

Clause 3 of Article III of the National Popular Vote Compact specifies that the “manner” of appointment of presidential electors would be as follows:

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

The National Popular Vote Compact would not abolish the Electoral College. In fact, it explicitly would use the Electoral College to achieve its intended purpose.

The Compact would reform the method of choosing members of the Electoral College so that a majority of the College would reflect the choice of the voters in all 50 states and the District of Columbia.

Because the Compact takes effect only when enacted by states possessing a majority of the electoral votes (i.e., 270 of 538), it guarantees that presidential electors nominated by the political party associated with the national popular vote winner will constitute a majority of the Electoral College.

Footnotes

The 1787 Constitutional Convention debated methods of choosing the President on 22 separate days and took 30 votes before arriving at the wording that actually appears in the U.S. Constitution.[30]

Six methods of electing the President were specifically rejected on one or more occasions during the 1787 Constitutional Convention:

• voters choosing presidential electors by districts
• state legislatures appointing presidential electors
• state legislatures choosing the President
• state Governors choosing the President
• nationwide popular election
• Congress choosing the President.

John Samples, an opponent of the National Popular Vote Compact, has argued that the Compact is unconstitutional because of a vote against a nationwide popular vote at the Constitutional Convention.

“The Framers considered several ways of electing a president. … On July 17, 1787, the delegates from nine states voted against direct election of the president. … The Framers chose an alternative to direct election, which is described in Article II, section 1 of the Constitution. Of course, that decision by the framers need not bind Americans for all time. The Constitution also permits overturning the decisions of the Framers through amendments to the Constitution. In contrast, NPV proposes that a group of states with a majority of electoral votes should have the power to overturn the explicit decision of the Framers against direct election. Since that power does not conform to the constitutional means of changing the original decisions of the Framers, NPV could not be a legitimate innovation.”[31] [Emphasis added]

Note Samples’ repeated use of the phrase “decisions of the Framers” as opposed to citing any actual provision of the Constitution that prohibits a nationwide election of the President.

The Founding Fathers’ course of conduct after the Constitutional Convention and rulings of the U.S. Supreme Court support both the appropriateness and constitutionality of using a method of electing the President that was rejected by the Constitutional Convention.

In fact, over two-thirds of the presidential electors in the nation’s first presidential election in 1789 were chosen by methods that were specifically rejected by the Constitutional Convention. Of the 69 presidential electors[32] who cast votes in the Electoral College in 1789:

• 36% were elected by district,[33]
• 28% were appointed by state legislatures,[34] and
• 9% were appointed by a state Governor and his Council.[35]

A majority of presidential electors who gave us the first five Presidents (George Washington, John Adams, Thomas Jefferson, James Madison, and James Monroe) were chosen by methods that were specifically rejected by the Constitutional Convention, namely popular election of presidential electors by district and appointment of presidential electors by state legislatures and Governors.

One of the methods that was rejected by the Constitutional Convention is employed today by Maine and Nebraska, namely popular election of presidential electors by district.

The U.S. Supreme Court has affirmed the constitutionality of two of the methods specifically rejected by the Constitutional Convention, namely election of presidential electors by district and appointment of presidential electors by state legislatures (as detailed below).

Let’s review what actually happened during the Constitutional Convention and what the Constitution actually says.

Popular election of presidential electors by districts

On June 2, 1787, the Convention voted 8–2 against a motion by James Wilson of Pennsylvania specifying that the voters would elect presidential electors by district and that these electors would, in turn, elect the President. According to Madison’s notes on the debates of the Constitutional Convention:

“Mr. Wilson made the following motion … ‘that the Executive Magistracy shall be elected in the following manner: That the States be divided into ___ districts: & that the persons qualified to vote in each district for members of the first branch of the national Legislature elect ___ members for their respective districts to be electors of the Executive magistracy, that the said Electors of the Executive magistracy meet at ___ and they or any ___ of them so met shall proceed to elect by ballot, but not out of their own body [the] person in whom the Executive authority of the national Government shall be vested.’”[36] [Emphasis added]

Despite the Constitutional Convention’s explicit rejection of the district method of choosing presidential electors on June 2, 1787,[37] Virginia, Massachusetts, and Delaware passed laws specifying that their voters would elect presidential electors by district in the nation’s first presidential election in 1789.

Moreover, five additional states (Maryland, North Carolina, Kentucky, Illinois, and Maine) passed laws specifying that their voters would elect presidential electors by districts on one or more occasions in the first nine presidential elections between 1789 and 1820.

When Michigan passed a law calling for the election of presidential electors by districts in 1892, the U.S. Supreme Court specifically upheld that law in McPherson v. Blacker.[38]

Today, Maine and Nebraska employ the district-method that was specifically rejected by the 1787 Convention.

Many of the members of the 1787 Constitutional Convention served as state legislators, Governors, or members of Congress after ratification of the Constitution. We know of no instance when any state legislator, Governor, or member of Congress argued that it was inappropriate—much less illegitimate or unconstitutional—for a state to use the district method or any other method of choosing presidential electors that had been rejected by the Constitutional Convention.

Appointment of presidential electors by state legislatures

On July 19, 1787, the Constitutional Convention voted 8–2 that the President should be “chosen by electors appointed, by the Legislatures of the States.”[39] However, that method was later rejected by the Convention.[40]

Nonetheless, in the nation’s first presidential election in 1789, the legislatures of Connecticut, South Carolina, and Georgia appointed their state’s presidential electors.

In the nine presidential elections between 1789 and 1820, the legislatures of 17 states appointed their presidential electors on one or more occasions.[41]

Citing McPherson v. Blacker, the U.S. Supreme Court stated in Bush v. Gore in 2000:

“The State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution.”[42] [Emphasis added]

Appointment of presidential electors by Governors

Madison’s notes on the June 9, 1787, debates of the Constitutional Convention report that Elbridge Gerry[43] of Massachusetts made a motion that state Governors should elect the President.

“Mr. Gerry, according to previous notice given by him, moved ‘that the National Executive should be elected by the Executives of the States.’”[44]

Madison reported that Gerry argued in favor of his motion in order to make the President independent of Congress.

“If the appointmt. should be made by the Natl. Legislature, it would lessen that independence of the Executive which ought to prevail, would give birth to intrigue and corruption between the Executive & Legislature previous to the election, and to partiality in the Executive afterwards to the friends who promoted him. Some other mode therefore appeared to him necessary.”[45] [Emphasis added] [Spelling as per original]

Madison also reported that Gerry made the following arguments in favor of appointment of the President by state Governors:

“He proposed that of appointing by the State Executives as most analogous to the principle observed in electing the other branches of the Natl. Govt.; the first branch being chosen by the people of the States, & the 2d. by the Legislatures of the States; he did not see any objection agst. letting the Executive be appointed by the Executives of the States. He supposed the Executives would be most likely to select the fittest men, and that it would be their interest to support the man of their own choice.”[46] [Spelling as per original] [Emphasis added]

Nevertheless, on June 9, 1787, the Constitutional Convention voted against selection of the President by state Governors.

When the time came to implement the Constitution in the nation’s first presidential election in 1789, the New Jersey legislature passed a law specifying that the state’s presidential electors would be appointed by the Governor and his Council (section 2.1.1).

Moreover, in 1792, the newly admitted state of Vermont combined two methods that were specifically rejected by the Constitutional Convention. Vermont’s presidential electors were chosen by a “Grand Committee” consisting of the Governor and his Council along with the membership of the state House of Representatives.[47]

Overall, a majority of presidential electors in the elections that gave us George Washington, John Adams, Thomas Jefferson, James Madison, and James Monroe (the first nine elections) were chosen by methods rejected by the Constitutional Convention.

Under standard principles of constitutional, statutory, and contractual interpretation, the rejected methods are constitutionally permissible today.

Five methods of electing the President were specifically rejected on one or more occasions during the 1787 Constitutional Convention:

• voters choosing presidential electors by districts
• state legislatures appointing presidential electors
• state Governors choosing the President
• nationwide popular election
• Congress choosing the President.

However, the Constitutional Convention took explicit action to prevent future use of only one of the five rejected methods of electing the President.

The wording that actually ended up in the U.S. Constitution prevents states from passing laws that authorize their U.S. Representatives and U.S. Senators from acting as presidential electors.

Article II, section 1 of the Constitution provides:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” [Emphasis added]

There is no parallel prohibition on using the other four methods of appointing presidential electors that were rejected by the Convention.

The existence of this explicit constraint is significant because of a standard principle of constitutional, statutory, and contractual interpretation—expressio unius est exclusio alterius (“the express mention of one thing excludes all others”). See section 9.1.14 for additional discussion.

Footnotes

In July 1787, the Constitutional Convention adopted the Great Compromise (also known as the “Connecticut Compromise” and “Sherman’s Compromise”).

The Great Compromise established a bicameral national legislature in which the U.S. House of Representatives was apportioned on the basis of population, and the U.S. Senate was structured on the basis of equal representation of the states (i.e., two Senators per state).

The delegates to the Constitutional Convention did not reach agreement on the method of electing the President until much later—September.[48]

When the Founders finally agreed that the President would be elected by an Electoral College, they allocated each state as many presidential electors as it had members in the two houses of Congress. That is, the composition of the Electoral College resembles a joint session of Congress, except that its members meet in their respective states rather than in one central place and except that members of Congress cannot be members of the Electoral College.

A posting to the Election Law Blog questioned the constitutionality of the National Popular Vote Compact on the basis of the Great Compromise:

“The NPVIC also undercuts the Great Compromise which was necessary to creation of the Constitution, by in effect changing the balance of power in choice of the President so that it does not reflect the two electoral votes that each state is to have as a result of simply being a state.”[49] [Emphasis added]

In an article entitled “Guaranteeing a Federally Elected President,” Kristin Feeley argued that the Compact is unconstitutional because:

“States adopting NPV legislation affect the influence of the remaining states systematically. … [A] movement to a national popular vote erases the advantage that small states gain from the fact that the number of electors each state receives is its number of senators plus its number of representatives. Even if this advantage is minor, it is granted by the Constitution.”[50] [Emphasis added]

The authors of this book would be delighted if it were true that the Constitution obligates each state to take care that its choice of method of awarding its electoral votes does not “affect the influence of the remaining states.”

Indeed, if that were true, all existing state winner-take-all laws would be unconstitutional, because they dramatically affect the political clout of other states.

No doubt, the Founders expected that the Constitution’s formula for allocating electoral votes would confer a certain amount of additional political influence on the less populous states by giving every state a bonus of two electoral votes corresponding to its two U.S. Senators.

Equally important, they expected that the Constitution’s formula for allocating electoral votes would give the bigger states a larger amount of influence in presidential elections.

Terms such as “political advantage” and “balance of power” do not appear in the Constitution.

What does appear in the Constitution is a mechanical arrangement that allocates a certain number of presidential electors to each state and that gives each state the separate and independent power to choose a method of appointing those electors.

The Founding Fathers’ expectations with respect to both small states and big states were never achieved by this mechanical arrangement.

Indeed, the “balance of powerin choice of the President” was dramatically changed by the widespread enactment by the states of winner-take-all laws during the first four decades after ratification of the Constitution.

These winner-take-all laws were enacted by the states acting under their power under Article II, section 1 of the Constitution.

Enactment of a winner-take-all law by one state did not, of course, change any other state’s nominal number of electoral votes; however, it did dramatically impact the political value of those electoral votes.

Once the winner-take-all rule became widespread, a state’s “power in choice of the President” was primarily determined by whether the state was a closely divided battleground state—not by its number of electoral votes.

For example, notwithstanding the Constitution’s allocation of electoral votes, almost all of the small states have no meaningful “power in choice of the President,” because they are one-party states in presidential elections. Accordingly, presidential candidates consistently (and wisely) ignore them. Of course, the small states still retain the nominal number of electoral votes assigned to them by the Constitution, and their presidential electors go through the motions of dutifully voting in the Electoral College in mid-December. However, the political clout of the small states was extinguished by the widespread enactment of winner-take-all laws by other states.

The Founders’ expectations concerning the big states were similarly frustrated. Numerous big states (e.g., California, New York, and Texas) have had virtually no “power in choice of the President,” because of the winner-take-all laws of other states. These big states still nominally retain the number of electoral votes assigned to them by the Constitution, and their presidential electors still cast their assigned number of electoral votes in December.

The fact that “power in choice of the President” flows from a state’s battleground status (rather than its number of electoral votes) can be seen by comparing states with an identical number of electoral votes.

New Hampshire and Idaho each have four electoral votes. In the six presidential elections between 2000 and 2020, New Hampshire received 69 general-election campaign events, because it was a closely divided battleground state during this period. Meanwhile, Idaho did not receive a single general-election campaign event between 2000 and 2020 (table 1.26). The Great Compromise gave both states four electoral votes. However, winner-take-all laws are what determine “power in choice of the President.”

New York and Florida each had 29 electoral votes in 2020. Florida received 319 general-election campaign events (out of a national total of 1,164) in the six presidential elections between 2000 and 2020 (table 1.26). Florida received this large amount of attention (more than a quarter of the nationwide total) because it was a closely divided battleground state. Meanwhile, New York did not receive a single general-election campaign event between 2000 and 2020.

The “3/2 rule”

The winner-take-all method of awarding electoral votes does more than extinguish the political influence of non-battleground states—both big and small.

It also magnifies the importance of larger battleground states at the expense of smaller battleground states.

For example, Pennsylvania (with 20 electoral votes) and Wisconsin (with 10) were both battleground states in 2016. In fact, Trump’s percentage of the two-party vote was virtually identical in the two states—50.4%.

However, Pennsylvania received 54 general-election campaign events, while Wisconsin received only 14. That is, even though Pennsylvania had merely twice as many electoral votes as Wisconsin, it received almost four times the attention.

In a 1974 paper, Steven Brams and Morton Davis analyzed the disproportionate attention conferred on larger states. Their analysis showed that the amount of attention that a state receives is not proportionate to its number of electoral votes. Instead, other things being equal, the larger state will receive disproportionately more attention in presidential elections under the winner-take-all method of awarding electoral votes. They presented both mathematical analysis and empirical data to support what they called the “3/2 rule.”[51]

Specifically, the “3/2 rule” predicts that the difference in attention is roughly equal to the ratio of the number of electoral votes of the two states—raised to the 3/2 power.

For example, if one state has twice as many electoral votes as another, the “3/2 rule” predicts that larger state would receive approximately 2.8 times more attention than the smaller state.

Widespread adoption of the state-by-state winner-take-all method of awarding electoral votes did not change the wording of the Constitution concerning the allocation of electoral votes among the states. However, it dramatically changed “the balance of power in choice of the President.”

Similarly, the National Popular Vote Compact does not change the Constitution’s allocation of electoral votes among the states. However, the Compact would make every voter in every state equally important in every presidential election.[52]

Footnotes

The U.S. Constitution does not require that the election laws of all 50 states be identical.

In fact, the Constitution virtually guarantees that election procedures will not be identical from state to state, because it gives the states control over elections.

Thus, differences in election laws are inherent under the federalist system established by the U.S. Constitution.

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

For example, some states (e.g., Kentucky and Indiana) close their polling places at 6 P.M., while others (e.g., New York) keep their polls open until 9 P.M. Some states provide extensive opportunities for early voting, while other states have very limited early voting or none at all. Some states conduct their elections entirely by mail, while other states do not. Some states require photo identification at the polls, while others do not. Some states automatically and immediately permit previously incarcerated felons to vote after they serve their prison term, whereas others do not.

Professor Norman Williams of Willamette University has written the following concerning the National Popular Vote Compact:

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

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

“The Court in Bush v. Gore did require the deployment of a uniform statewide standard for evaluating and tabulating votes for presidential electors, as well as a system of training election personnel to ensure such uniformity. If the differences in voting standards between Palm Beach and Miami-Dade counties violated the Equal Protection Clause, so too must the differences between states that count mismarked ballots as valid, such as Massachusetts, and those states, such as California, that typically do not.”[53] [Emphasis added]

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

The Equal Protection Clause of the 14^th Amendment states:

“No state shall … deny to any person within its jurisdiction the equal protection of the laws”[54] [Emphasis added]

The Bush v. Gore case involved potentially different treatment of voters within Florida, namely voters in Palm Beach County versus voters in Miami-Dade County—both of which are within the jurisdiction of the state of Florida.

The Equal Protection Clause does not, however, prohibit a state from treating a person in another state differently from a “person within its jurisdiction.”

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

Williams invokes the two words “equal protection” from the 14^th Amendment without quoting the inconvenient wording of the actual constitutional provision.

Law professor Vikram David Amar responded to Williams’ contention by saying:

“Bush v. Gore (which itself crafted newfangled equal protection doctrine) was concerned with intrastate—not interstate—non-uniformity. Under the NPVC, it is hard to see how variations among states results in any one state denying equal protection of the laws ‘to any person within its jurisdiction,’ insofar as all persons within each state’s jurisdiction (i.e., voters in the state) are being dealt with similarly. No single state is treating any people who reside in any state differently than the other folks who live in that state.”[55] [Emphasis added]

Jennings Jay Wilson observed:

“There is no legal precedent for inter-state equal protection claims. Successful equal protection claims have always been brought by citizens being disadvantaged vis-à-vis other citizens of their own state.”[56] [Emphasis added]

In fact, the U.S. Supreme Court has rejected the claim that the Equal Protection Clause of the 14^th Amendment applies to interstate differences in the appointment of presidential electors.

In Williams v. Virginia State Board of Elections, a three-judge federal court in Virginia considered and rejected an interstate equal protection claim as well as a claim based on the one-person-one-vote principle concerning the constitutionality of the winner-take-all method of awarding electoral votes.

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

As part of their case, the plaintiffs pointed out that a possible remedy for this inequality would be to choose presidential electors by equal-population districts. If the district method were used, voters in Virginia and New York would each influence the selection of an equal number of presidential electors. Thus, interstate equality would be achieved.

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

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

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

“Plaintiffs’ proposition is advanced on three counts:

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

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

‘(3) the general ticket system gives a citizen in a State having a larger number of electors than Virginia the opportunity to effectuate by his vote the selection of more electors than can the Virginian.’”[57] [Emphasis added] [Italics in original]

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

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

In connection with “interstate inequality of voters,” the federal court said:

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

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

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

The U.S. Supreme Court affirmed the decision of the three-judge federal court in a per curiam decision in 1969.[58]

Tara Ross, a lobbyist against the National Popular Vote Compact who works closely with Save Our States, has made an argument similar to Professor Williams’ concerning interstate equal protection:

“[The National Popular Vote Compact] would cram voters from across the country into one election pool, despite the fact that different election laws apply to different voters. Voters would not be more equal. They would be more unequal. Lawsuits claiming Equal Protection would certainly follow.

“Consider the issue of early voters. Voters in Alaska have one set of laws regarding early voting. Other states might have provisions regarding when early voting starts, how long it lasts, or who may early vote and how they may early vote. These differences in laws do not matter when Alaskans are participating in their own election only with Alaskans—all voters are treated equitably with other members of the same election pool. However, if NPV throws Alaskans into another, national electorate, then the difference in laws begin to create many inequities. Some voters in this election pool, for instance, may have more time to vote than Alaskan voters. Or maybe others have an easier time registering to early vote. Alaskans are not treated equitably with other members of the national election pool if they must abide by a more restrictive—or even a less restrictive!—set of election laws.”[59] [Italics in original] [Emphasis added]

Michael Morley, an assistant professor of law at Florida State University College of Law, told the Maine Committee on Veterans and Legal Affairs on May 11, 2021:

“The compact violates the Constitution in several ways, but most basically the Equal Protection Clause. In Bush v Gore, the Supreme Court held that a jurisdiction cannot afford arbitrary and disparate treatment to different voters participating in the same election. At least in some major respects, the same voting rules must apply to all members of the same electorate. Maine’s rules for voting differ from those of other states, including its rules for voter registration, ranked choice voting, rules governing opportunities for voting, the conduct of voting like voter ID, and even the more technical rules for accepting or rejecting contested ballots.

“The National Popular Vote Compact treatsthe entire nation as the relevant electorate for presidential elections, combining everyone’s votes together to determine the outcome. That violates the Equal Protection Clause because those votes were cast and counted based on materially different rules.” [Emphasis added]

In fact, if there were such a thing as “interstate equal protection,” the courts would have used it long ago to declare existing state winner-take-all laws unconstitutional. The Equal Protection argument that the three-judge federal court and the U.S. Supreme Court rejected in 1968 in Williams v. Virginia State Board of Elections would be a winning legal argument.

Moreover, if there were such a thing as “interstate equal protection,” there would suddenly also be a legal basis for challenging the numerous other interstate inequalities created by the winner-take-all method of awarding electoral votes. For example, Al Gore won five electoral votes by virtue of his margin of 365 popular votes in New Mexico in 2000, whereas George W. Bush won five electoral votes by virtue of his margin of 312,043 popular votes in Utah—an 855-to-1 disparity in the value of a vote between the two states.

Let’s analyze the “interstate equal protection” argument in connection with Kentucky (where the polls are open between only 6 A.M. and 6 P.M.) and New York (where the polls are open between 6 A.M. and 9 P.M.).[60]

The laws of both states concerning voting hours are constitutional, because the Constitution gives states control over the conduct of federal elections and because no provision of the U.S. Constitution is violated if polls close at 6 P.M. rather than 9 P.M.

Ross would argue that the votes cast by Kentucky citizens are diminished in comparison to those cast by New York citizens who enjoy more convenient voting hours, because (diminished) Kentucky votes would be comingled and added together with the New York votes under the National Popular Vote Compact.

However, a vote cast by a voter in Kentucky would be equal to a vote cast by a voter in New York under the Compact.

If there were a possibility of successful litigation against the National Popular Vote Compact on the basis of the “interstate equal protection” doctrine, then that same possibility would exist today with respect to the adding together and comingling of the electoral votes cast in the Electoral College. Indeed, when the Electoral College meets in mid-December, it comingles and adds together the votes from 538 presidential electors chosen under distinctly different state election laws concerning the hours of voting.

In fact, when the U.S. Senate and House of Representatives meet and vote on federal legislation, the votes of members chosen under distinctly different state election laws concerning the hours of voting are similarly comingled and added together.

The federal system created by the Founders at the 1787 Constitutional Convention explicitly involves comingling and adding together of votes from presidential electors, U.S. Representatives, and U.S. Senators who were chosen under different state laws.

Opponents of the National Popular Vote Compact would have people believe that federalism must be abandoned, and federal control of elections must be established, in order to have a nationwide vote for President.

The federalist approach to government set forth in the U.S. Constitution divides governmental power between the states and national government. In particular, the Constitution’s delegation of power over elections to the states greatly reduces the risk that a single political group will be in a position to impose politically advantageous voting procedures on the entire country and thereby lock in a self-perpetuating advantage on the national level.

The real question for opponents of state control over elections is whether they would have been comfortable under all of the following scenarios:

• Suppose that in 2003 (just prior to the 2004 presidential election), the then-Republican-controlled Congress and a then-sitting Republican President enacted uniform national voting procedures, including photo identification; vigorous purging of the voter rolls of those who did not vote in the immediately preceding election; and closing the polls at 6:00 P.M. in every state.
• Suppose that in 2009, the then-Democratic-controlled Congress and the then-sitting Democratic President enacted uniform national voting procedures, including automatic permanent voter registration; extensive advance voting; and mail-in voting in every state.
• Suppose that in 2017, the then-Republican-controlled Congress and a then-sitting Republican President reinstated their preferred election laws on a nationwide basis.
• Suppose that in 2021, the then-Democratic-controlled Congress and a then-sitting Democratic President reinstated their preferred election laws on a nationwide basis.

The Founders resolved this dilemma by choosing a federal approach that gives the states control over elections.

Under the federalist system set forth in the Constitution, different political parties have been able to enact their preferred election laws in the states where they are in control.

Of course, if a national consensus emerges in favor of uniform federal control of elections at some time in the future, the U.S. Constitution can be so amended to eliminate state control over elections at that time.

Meanwhile, the National Popular Vote Compact is based on the constitutional system that actually exists in the United States and on the reality that there is widespread public and legislative support for state control of elections.

The Compact provides that the results from each state (and D.C.) would be added together. Note that this is the same process of adding up 51 sets of numbers that would have occurred under the Bayh-Celler constitutional amendment for direct election of the President.

That amendment was endorsed by Richard Nixon after it passed the House in 1969. It was also endorsed by Gerald Ford, Jimmy Carter, and members of Congress who later became vice-presidential and presidential candidates, such as Congressman George H.W. Bush (R–Texas) and Senator Bob Dole (R–Kansas).[61]

Then-Congressman George H.W. Bush supported the Bayh-Celler constitutional amendment under which the states would have continued to conduct elections under differing state election laws by saying on September 18, 1969:

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

“In electing the President and Vice President, the Constitution establishes the principle that votes are cast by States. This legislation does not tamper with that principle. It only changes the manner in which the States vote. Instead of voting by intermediaries, the States will certify their popular vote count to the Congress. The states will maintain primary responsibility for the ballot and for the qualifications of voters. In other words, they will still designate the time, place, and manner in which elections will be held. Thus, there is a very good argument to be made that the basic nature of our federal system has not been disturbed.”[62] [Emphasis added]

Footnotes

Rob Natelson offers the following reason why the National Popular Vote Compact is unconstitutional:

“Because NPV states would have a majority of votes in the Electoral College, NPV would effectively repeal the Constitution’s provision for run-off elections in the House of Representatives.”[63]

Tara Ross, a lobbyist against the National Popular Vote Compact who works closely with Save Our States, has stated:

“NPV affects the balance of power between federal and state governments because the House’s role in presidential elections will be effectively removed.”[64] [Emphasis added]

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

“The Framers assumed that the election of the President would often require resort to the House of Representatives; in the absence of a stable two-party system, it did not seem inevitable that all presidential elections would result in a majority vote total for any single candidate. Under the [National Popular Vote] plan, there could never be a situation where the House selected the President, as the electoral vote is guaranteed to constitute a majority of the total as a precondition of enactment of [the National Popular Vote Compact].”[65] [Emphasis added]

It is true that the National Popular Vote Compact would result in the appointment of an absolute majority of presidential electors (at least 270 out of 538) who were nominated in association with the presidential candidate receiving the most popular votes in all 50 states and the District of Columbia.

Most people would consider the elimination of the possibility that the U.S. House of Representatives might elect the President as a highly desirable collateral benefit of the National Popular Vote Compact—a feature, not a bug.

Let’s consider the argument made by Schleifer and Ross in detail.

There are two scenarios in which no candidate can end up with an absolute majority in the Electoral College:

• a fragmentation of votes in the Electoral College among multiple candidates (which occurred in the 1824 election)
• a tie in the Electoral College (which occurred in the 1800 election).

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

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

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

In the 20^th and 21^st centuries, there have been only three occasions when a presidential candidate not nominated by one of the two major political parties carried a state:

• In 1968, segregationist George Wallace won 46 electoral votes by carrying Alabama, Arkansas, Georgia, Louisiana, and Mississippi.
• In 1948, segregationist Strom Thurmond had a strong regional appeal and won 38 electoral votes by carrying Alabama, Louisiana, Mississippi, and South Carolina.[66]
• In 1912, then-former President Theodore Roosevelt ran as a third-party candidate after he failed to win the Republican Party’s nomination against incumbent Republican President William Howard Taft. He won 88 electoral votes by carrying California, Michigan, Minnesota, Pennsylvania, South Dakota, and Washington.

Despite the fragmentation of the vote in these three elections, one of the major-party nominees ended up with a majority in the Electoral College.

In any case, there is a politically plausible scenario that might give rise to a 269–269 tie in the Electoral College in most presidential elections, including the 2024 election, as discussed in section 1.6.4 and shown in figure 1.22.

In the event that no candidate wins an absolute majority in the Electoral College, the U.S. Constitution provides for a “contingent election” in which the Congress chooses the President and Vice President (section 1.6).

Some have argued that the Founding Fathers did not expect that the Electoral College would elect the President in most elections. Instead, some have argued that the Founders anticipated that, after George Washington, no candidate would be likely to win a majority of the Electoral College, and the choice for President would routinely devolve on the U.S. House of Representatives.

Under this “designed to fail” theory, the Electoral College would usually merely serve as a screening body to nominate candidates for President, and the U.S. House of Representatives would ordinarily make the final decision.

Dr. Gary Gregg II of the University of Louisville discusses this “designed to fail” interpretation of the method of electing the President in an article entitled “The Origins and Meaning of the Electoral College.”[67]

Based on the “designed to fail” theory, it is then argued that the National Popular Vote Compact is unconstitutional because it would have the practical political effect of depriving the U.S. House of Representatives of the opportunity to choose the President.

Gregg, a strong supporter of the current system of electing the President and editor of a book defending it, has dismissed the “designed to fail” interpretation of the Constitution by writing:

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

“If one looks closely at the debates during the Constitutional Convention and the votes of the men who drafted the Constitution, one can see quite clearly that there is little evidence for the thesis that the Electoral College was a jerry-rigged system designed to regularly ‘fail’ and send the ultimate decision to Congress.”[68]

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

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

The original size of the U.S. House of Representatives was set by the U.S. Constitution for the nation’s first election at 65 members (i.e., an odd number). Since the first census in 1790, the size of the U.S. House of Representatives has been set by federal statute, and it has been both an odd and even number at various times in our nation’s history.

Prior to ratification of the 23^rd Amendment in 1961 giving the District of Columbia three electoral votes, the size of the Electoral College was either an odd or even number—depending on whether the size of the House of Representatives was odd or even, respectively.

Because the size of the House has been an odd number (435) since 1961, the size of the Electoral College has been an even number (538) since ratification of the 23^rd Amendment.

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

That is, the federal statutes establishing the size of the House had the practical political effect of depriving the House of the opportunity to elect the President for roughly half of American history—the same aspect of the National Popular Vote Compact that Natelson, Ross, and Schleifer find offensive.

The Solicitor General’s brief to the U.S. Supreme Court in 2010 in the case of John Tyler Clemons et al. v. United States Department of Commerce traced the history of the various statutes that set the size of the U.S. House of Representatives.[69]

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

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

If Congress thought that the opportunity to break a tie in the Electoral College was a constitutional imperative—or even a worthy secondary or tertiary objective—it would have been a trivial matter for Congress to accommodate that imperative when it periodically adjusted the size of the House.

If it were unconstitutional to enact a statute that has the almost-certain practical effect of depriving the U.S. House of Representatives of the opportunity to choose the President, then the House has operated with a constitutionally impermissible structure for about half of American history. In particular, it has operated with a constitutionally impermissible structure in every year since 1961.

The contingent election procedure exists in order to resolve a deadlock if one should arise in the Electoral College. However, the existence of a contingent procedure does not create a constitutional imperative that state election laws must be fashioned so as to guarantee that the contingent procedure can occur.

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

If it were a constitutional imperative not to deprive the U.S. House of Representatives of the opportunity to choose the President, there have been three very convenient occasions since ratification of the original Constitution to do so.

First, the 1^st Congress debated the issue of the size of the House of Representatives and approved a constitutional amendment on that very subject.[70] That particular amendment (part of a package of 12 amendments that included the 10 amendments that are now called “the Bill of Rights”) was never ratified by the states. That amendment did not require that the size of the House (and hence the Electoral College) be an even number.

Second, the 1800 presidential election (which produced a tie in the Electoral College) led to a close examination of the procedures for electing the President. Congress approved, and the states ratified the 12^th Amendment in time for the 1804 election. Congress could easily have included, in the amendment, a requirement that the size of the U.S. House of Representatives always be an even number.[71], [72], [73]

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

Footnotes

In 2012, Professor Norman Williams of Willamette University advanced the so-called “non-use” argument—the theory that the widespread use of the winner-take-all method of awarding electoral votes, over an extended period of time, has extinguished the power of the states to adopt different methods.

“History illuminates and informs the scope of state power under Article II. Throughout the nation’s history, states have used one of four processes for selecting their presidential electors … Critically, under all four systems, each state’s electors are selected in accordance with the wishes of the people of the state, not the nation generally.

“Not once between 1880 and today, a period in which every state in the union has conducted a statewide popular election for its electors, has any state selected its electors based on the votes of individuals in other states. Rather, as the framers expected, states have selected their electors based on the will of state voters, not the nation at large.”[74]

“Although Article II, Section 1 of the U.S. Constitution entrusts to the state legislatures the power to determine the manner in which presidential electors are selected, that power is not plenary in the customary sense. Rather, that power is limited, and the extent of that limitation is borne out by the historical understanding of the scope of state authority under Article II. At the time of the Framing of the U.S. Constitution, the framers envisioned a system in which states would select electors in accordance with the sentiments of state citizens, not the nation generally. Moreover, in the years following the Framing, every single state, both original and newly admitted, established a system of selecting presidential electors based either directly or indirectly on the sentiments of state voters. At no point in our nation’s history has any state sought to appoint its electors on the basis of voter sentiment outside the state, let alone the national popular vote. The Constitution’s delegation of power to the state legislature must therefore be read in light of this uniform, uncontested understanding that states are required to select electors in accordance with popular sentiment of voters in the state or the districts within it.”[75]

Professor Williams’ non-use argument echoes the argument made in 1892 before the U.S. Supreme Court by the losing attorney (F.A. Baker) in McPherson v. Blacker—the seminal case interpreting state power under Article II, section 1.

Baker argued that the widespread use of the state-by-state winner-take-all method of awarding electoral votes, over an extended period of time, extinguished the power of the states to adopt different methods of appointing their presidential electors.

“There is no rule of constitutional interpretation, or of judicial duty, which requires the court … to disregard the plan of the electoral college as it actually exists, after a century of practical experience and development.”[76] [Emphasis added]

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

“From the formation of the government until now, the practical construction of the clause has conceded plenary power to the state legislatures in the matter of the appointment of electors.”[77]

“In short, the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States.”[78]

“The question before us is not one of policy, but of power …. The prescription of the written law cannot be overthrown because the states have laterally exercised, in a particular way, a power which they might have exercised in some other way.”[79] [Emphasis added]

Footnotes

Tara Ross, a lobbyist against the National Popular Vote Compact who works closely with Save Our States, has asserted:

“If ever a compact encroached on federal … sovereignty, this is it.”[80]

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

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[81] [Emphasis added]

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

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

“In short, the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States.”[82] [Emphasis added]

In Bush v. Gore in 2000, the U.S. Supreme Court approvingly referred to McPherson v. Blacker. The Court identified Article II, section 1 of the Constitution as:

“the source for the statement in McPherson v. Blacker … that the State legislature’s power to select the manner for appointing electors is plenary.”[83] [Emphasis added]

The U.S. Supreme Court also approvingly referred to McPherson v. Blacker in Chiafalo v. Washington in 2020.

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

Note that the U.S. Constitution gives the states considerably more discretion in choosing the manner of appointing their presidential electors than it does in choosing the manner of electing members of Congress.

Article I, section 4, clause 1 of the U.S. Constitution provides:

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

Footnotes

Tara Ross, a lobbyist against the National Popular Vote Compact who works closely with Save Our States, has asserted:

“If ever a compact encroached on … state sovereignty, this is it.”[84]

The U.S. Supreme Court ruled in McPherson v. Blacker in 1892 that the choice of method for appointing a state’s presidential electors is an “exclusive” and “plenary” state power.

In addition, the U.S. Supreme Court approvingly referred to McPherson v. Blacker as recently as Bush v. Gore[85] in 2000 and in Chiafalo v. Washington[86] in 2020.

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

States that choose to enter the National Popular Vote Compact retain the power to review their decision and withdraw from the compact at a future time (section 6.2.4).

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

Footnotes

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

Supporters of federalism are particularly ardent about preserving and enhancing the power of state governments in relation to the power of the federal government.

John Samples argues that a national popular vote would “weaken federalism.”

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

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

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

“The realization of the NPV plan would continue [the] trend toward nationalization and centralized power.”[87] [Emphasis added]

UCLA law professor Daniel H. Lowenstein has argued:

“Against all the pressures of nationalization, it is important to maintain the states as strong and vital elements of our system.”[88] [Emphasis added]

Lowenstein expanded this argument by saying:

“The Electoral College orients elections around the states. Early in my career in 1971, I went to work for Jerry Brown when he was Secretary of State. I stayed in state government for 8 years. I’m a state government person. I think federal government people are pointy headed bureaucrats who don’t know the first thing about anything in life outside the Beltway. I share all the prejudices against the federal government. and I believe in preserving the states as important vital functioning parts of our system. And I think that anything that draws public attention to the states is valuable. And if you follow presidential politics at all, you hear a lot about states. … So the presidential elections do remind Americans that states are the component parts of our federal system.”[89] [Emphasis added]

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

In particular, there is no connection between the way power is distributed—or should be distributed—between the state and federal governments and whether a state uses the state-level winner-take-all method of awarding electoral votes.

Many of the Founding Fathers served as state legislators. When they returned from the 1787 Constitutional Convention, many of them helped organize the first presidential election in their respective states. In the nation’s first presidential election in 1789, the legislatures of Virginia, Massachusetts, and Delaware chose to elect their presidential electors by district.[90] In choosing not to award electoral votes on a statewide basis, those legislatures certainly did not reduce the powers of their state governments relative to the federal government.

Likewise, when the legislatures of Virginia, Massachusetts, and Delaware subsequently decided to change to the state-level winner-take-all method of awarding electoral votes (in 1800, 1824, and 1832, respectively), the powers of those state governments were not suddenly increased relative to the federal government.

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

In fact, the power of state governments—relative to the power of the federal government—has nothing whatsoever to do with the boundary lines used to select presidential electors.

The National Popular Vote Compact is based on the federal system that exists in the United States and on the political reality that there is widespread legislative and public support for federalism.

In fact, adoption of the National Popular Vote Compact is an exercise of federalism. It is an example of action by state governments to solve a recognized problem using a power explicitly granted to the states by the U.S. Constitution.

Footnotes

Trent England, Executive Director of Save Our States, wrote in Real Clear Politics in 2024:

“The California-based National Popular Vote campaign has lobbied states to join its eponymous interstate compact. They claim there are no limits on what legislatures can do with state electoral votes.”[91] [Emphasis added]

John Samples of the Cato Institute has written:

“NPV advocates … suggest that the power to appoint electors is unconstrained by the Constitution.”[92]

We do not know the identities of John Samples’ unnamed “NPV advocates,” and Trent England provides no source for his fabricated statement about the National Popular Vote organization.

In any case, neither the authors of the National Popular Vote Compact, the authors of this book, nor the National Popular Vote organization contend that the Article II powers of the states are “unconstrained by the Constitution” or that “there are no limits on what legislatures can do with state electoral votes.”

In fact, our position is that stated by the U.S. Supreme Court in Chiafalo v. Washington in 2020:

“Article II, §1’s appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint.”[93]

Justice Kagan continued:

“Checks on a State’s power to appoint electors, or to impose conditions on an appointment, can theoretically come from anywhere in the Constitution.A State, for example, cannot select its electors in a way that violates the Equal Protection Clause. And if a State adopts a condition on its appointments that effectively imposes new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause, see Art. II, §1, cl. 5.”[94] [Emphasis added]

Indeed, the Constitution contains numerous restraints on a state’s exercise of power to choose the method of awarding its electoral votes under Article II, section 1, including:

• the Due Process clause of the 5^th Amendment
• the Equal Protection clause of the 14^th Amendment
• the 15^th Amendment (outlawing the denial of vote based on race, color, or previous condition of servitude)
• the 19^th Amendment (women’s suffrage)
• the 24^th Amendment (outlawing poll taxes)
• the 26^th Amendment (18-year-old suffrage)
• prohibition on ex post facto laws (Article I, section 10)
• prohibition on bills of attainder (Article I, section 10)
• prohibition on state actions that impair the obligation of contracts (Article I, section 10)
• the Presidential Qualification Clause (Article II, section 1, clause 5).

For example, while a state legislature may pass a law under Article II, section 1 making it a crime to commit fraud in a presidential election, it cannot pass an ex post facto (retroactive) law making it a crime to have committed fraud in a previous presidential election.

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

Many of the above 10 provisions are discussed elsewhere in this chapter. For example, the Constitution’s explicit prohibition against a “law impairing the obligation of contract” operates as a restraint on a state’s power under Article II, section 1 is discussed in section 9.25.

The U.S. Supreme Court decision in 1968 in Williams v. Rhodes that rejected the argument that there are no constraints on a state’s power under Article II, section 1 to choose the manner of selecting presidential elector:

“The State also contends that it has absolute power to put any burdens it pleases on the selection of electors because of the First Section of the Second Article of the Constitution, providing that

‘Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…’

to choose a President and Vice President. There of course can be no question but that this section does grant extensive power to the States to pass laws regulating the selection of electors. But the Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution. For example, Congress is granted broad power to ‘lay and collect Taxes,’ but the taxing power, broad as it is, may not be invoked in such a way as to violate the privilege against self-incrimination. Nor can it be thought that the power to select electors could be exercised in such a way as to violate express constitutional commands that specifically bar States from passing certain kinds of laws. Clearly, the Fifteenth and Nineteenth Amendments were intended to bar the Federal Government and the States from denying the right to vote on grounds of race and sex in presidential elections.

“We therefore hold that no State can pass a law regulating elections that violates the Fourteenth Amendment’s command that

‘No State shall … deny to any person … the equal protection of the laws.’”[95] [Emphasis added]

In addition, the U.S. Supreme Court noted in McPherson v. Blacker in 1892 that a state’s constitution can limit the legislature’s choices over the manner of appointing the state’s presidential electors.

“The state does not act by its people in their collective capacity, but through such political agencies as are duly constituted and established. The legislative power is the supreme authority, except as limited by the constitution of the state, and the sovereignty of the people is exercised through their representatives in the legislature, unless by the fundamental law power is elsewhere reposed. The constitution of the United States frequently refers to the state as a political community, and also in terms to the people of the several states and the citizens of each state. What is forbidden or required to be done by a state is forbidden or required of the legislative power under state constitutions as they exist.”[96] [Emphasis added]

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

“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]

Footnotes

Opponents of the National Popular Vote Compact typically concede that there is no explicit prohibition in the U.S. Constitution against the Compact, while simultaneously suggesting that there are implicit restrictions that render the Compact unconstitutional.

For example, John Samples of the Cato Institute wrote:

“It is accurate that the Constitution does not explicitly constrain the power of state legislatures in allocating electors. But a brief consideration of the history of the drafting of this part of the Constitution suggests some implicit constraints on state choices.”[97] [Emphasis added]

Tara Ross, a lobbyist against the National Popular Vote Compact who works closely with Save Our States, writes:

“The [U.S. Supreme] Court has held that ‘the State legislature’s power to select the manner for appointing electors is plenary;’ … [however] Is this power of state legislators completely unrestricted?”[98] [Emphasis added]

The 1787 Constitutional Convention debated numerous methods of choosing the President on 22 separate days and took 30 votes before arriving at the wording that actually appears in the Constitution.[99] The methods that they considered included:

• Congress choosing the President
• voters choosing presidential electors by districts
• state legislatures appointing presidential electors
• Governors choosing the President
• nationwide popular election.

At the time the Constitution was written, the concept of having a legislative body select the chief executive was a familiar concept. In 1787, the Governors of eight of the original 13 states were chosen by their legislatures. Moreover, legislative selection of the chief executive was analogous to the method used by the British House of Commons.

Accordingly, on four separate occasions (June 2, July 17, July 24, and July 26), the 1787 Constitutional Convention approved congressional selection of the President.[100]

Notwithstanding the repeated votes by the delegates in favor of congressional selection of the President, the delegates were concerned that this method was incompatible with their goal of creating an independent executive and establishing a separation of powers between the executive and legislative branches of the new government.[101]

Toward the end of the Convention in September, this dilemma was resolved by the creation of a new body—separate from Congress—to choose the President, namely the Electoral College. In this “shadow Congress,” each state’s number of Electoral College members would equal the state’s number of U.S. Representatives and U.S. Senators.[102]

The Founders then specifically foreclosed the possibility that states might designate their members of Congress as their presidential electors by placing a restriction in Article II, section 1 on a state’s choice of its presidential electors:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” [Emphasis added]

The existence of this explicit constraint on the state’s Article II powers is significant because of a standard principle of constitutional, statutory, and contractual interpretation of expressio unius est exclusio alterius (“the express mention of one thing excludes all others”).

When the Constitution was being debated by ratifying conventions in several states, there was widespread concern that this standard principle of constitutional, statutory, and contractual interpretation might be used to deny the existence of rights not specifically enumerated in the Constitution.

To address this concern, Congress proposed in 1789, and the states ratified by 1791, the 9^th Amendment limiting the expressio unius est exclusio alterius principle in connection with the rights of the people. The 9^th Amendment states:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” [Emphasis added]

Gibson v. Matthews noted:

“The ninth amendment ‘was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution.’ Charles v. Brown, 495 F. Supp. 862, 863–64 (N.D.Ala.1980).”[103]

In short, under the principle of expressio unius est exclusio alterius, the inclusion of an explicit constraint in Article II, section 1 of the Constitution (in this case, making members of Congress and federal officials ineligible as presidential electors) excludes the possibility of implicit constraints.

The Fidel Castro argument

Notwithstanding the foregoing, opponents of the National Popular Vote Compact continue to argue that there are implicit restraints on the power of the states under Article II, section 1.

For example, throughout her book Enlightened Democracy: The Case for the Electoral College, Tara Ross generally describes the Founding Fathers in glowing terms:

“The Electoral College is … a carefully considered and thought-out solution.”[104] [Emphasis added]

Ross repeatedly refers to the

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

Ross reminds us that:

“The Founders spent months debating the appropriate presidential election process for the new American nation.”[105]

But, then, after repeatedly extolling the Founders’ work product, Ross would have us believe that they lacked “imagination.”

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

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

“Is this power of state legislators completely unrestricted? If it is, then Rhode Island could decide to allocate its electors to the winner of the Vermont election. In a more extreme move, New York could allocate its electors to the United Nations. Florida could decide that Fidel Castro always appoints its electors.”[106] [Emphasis added]

That is, Ross’ explanation for the inconvenient actual wording of the Constitution is that the Founders suffered from a “failure of imagination.”

However, a glance at the Constitution shows that the Founders displayed no shortage of legal talent or imagination in crafting numerous specific restrictions when they thought ones were advisable.

For example, Article 1, Section 8 provides:

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

Article I, Section 10 provides:

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

The Founders even included three specific limitations on future constitutional amendments in Article V:

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

The first clause of the ninth section of the first Article itself contains an explicit restriction:

“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.” [Emphasis added]

Similarly, the first clause of the ninth section of the first Article itself contains an explicit restriction:

“No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” [Emphasis added]

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

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

Ross’ rhetorical question about Fidel Castro echoes the argument made in 1892 by the losing attorney in McPherson v. Blacker—the seminal Supreme Court case on the power of state legislatures to choose the manner of appointing their presidential electors.

Referring to Great Britain (the villainous analog in 1892 of Fidel Castro), attorney F.A. Baker argued:

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

“Would it be competent for a State legislature to pass a similar act, and provide that A. B. and his heirs at law forever, or some one or more of them, should appoint the presidential electors of that State?”[107]

In its unanimous ruling in McPherson v. Blacker, the Court answered Baker’s argument about whether there were implicit constitutional restrictions on the power of the states to award their electoral votes:

“The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object. The framers of the constitution employed words in their natural sense; and, where they are plain and clear, resort to collateral aids to interpretation is unnecessary, and cannot be indulged in to narrow or enlarge the text.”[108] [Emphasis added]

The Court continued:

“In short, the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States”[109] [Emphasis added]

The argument that the Constitution is obsolete

Attorney F.A. Baker also strenuously urged the Supreme Court in McPherson v. Blacker to find implicit limitations in Article II, section 1.

He urged the Court to adopt a “more elastic system of government” and to judicially manufacture restrictions that do not actually appear in the Constitution, saying:

“There is no rule of constitutional interpretation, or of judicial duty, which requires the court … to adhere to the obsolete design of the constitution.”[110] [Emphasis added]

In his plea to the Court to engage in what we today call “judicial activism,” Baker bemoaned the fact that the Michigan Supreme Court had declined to do so:

“There can be no such thing as an absolutely rigid constitution. It is an impossibility, although the supreme court in Michigan in its wisdom most solemnly declares, that it will recognize no other.”[111] [Emphasis added]

Chiafalo v. Washington in 2020

In 2020, the U.S. Supreme Court unanimously ruled that states could pass laws requiring presidential electors to vote in the Electoral College for the presidential candidate nominated by the political party that nominated the elector—that is, that states could outlaw faithless presidential electors.

Eight of the nine justices signed Justice Elena Kagan’s majority opinion in Chiafalo v. Washington, saying:[112]

“Article II, §1’s appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint. As noted earlier, each State may appoint electors ‘in such Manner as the Legislature thereof may direct.’… This Court has described that clause as ‘conveying the broadest power of determination’ over who becomes an elector. McPherson v. Blacker.”

“And the power to appoint an elector (in any manner) includes power to condition his appointment—that is, to say what the elector must do for the appointment to take effect. A State can require, for example, that an elector live in the State or qualify as a regular voter during the relevant time period. Or more substantively, a State can insist (as Ray allowed) that the elector pledge to cast his Electoral College ballot for his party’s presidential nominee, thus tracking the State’s popular vote. See Ray, 343 U.S., at 227 (A pledge requirement ‘is an exercise of the state’s right to appoint electors in such manner’ as it chooses). Or—so long as nothing else in the Constitution poses an obstacle—a State can add, as Washington did, an associated condition of appointment: It can demand that the elector actually live up to his pledge, on pain of penalty. Which is to say that the State’s appointment power, barring some outside constraint, enables the enforcement of a pledge like Washington’s.

“And nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does. The Constitution is barebones about electors. Article II includes only the instruction to each State to appoint, in whatever way it likes, as many electors as it has Senators and Representatives (except that the State may not appoint members of the Federal Government). The Twelfth Amendment then tells electors to meet in their States, to vote for President and Vice President separately, and to transmit lists of all their votes to the President of the United States Senate for counting. Appointments and procedures and … that is all.”[113] [Emphasis added]

The 10th Amendment argument of Justices Thomas and Gorsuch

Justice Clarence Thomas wrote a concurring opinion in Chiafalo v. Washington, saying that the 10^th Amendment (rather than Article II, section 1) was the appropriate basis for deciding the case.

The 10^th Amendment to the Constitution reads:

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

Justice Thomas started his concurring opinion by saying that he disagreed with the

“attempt to base that power on Article II. In my view, the Constitution is silent on States’ authority to bind electors in voting.

“I would resolve this case by simply recognizing that

‘[a]ll powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each State.’

U.S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 848 (1995) (THOMAS, J., dissenting).

“The Constitution does not address—expressly or by necessary implication—whether States have the power to require that Presidential electors vote for the candidates chosen by the people. Article II, §1, and the Twelfth Amendment provide for the election of the President through a body of electors. But neither speaks directly to a State’s power over elector voting.

“The only provision in the Constitution that arguably addresses a State’s power over Presidential electors is Clause 2 of Article II, §1. That Clause provides, in relevant part, that

‘[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.’”[114] [Emphasis added]

Justice Neil Gorsuch (who was among the eight justices who signed Justice Kagan’s majority opinion in Chiafalo v. Washington) joined with the second part of Justice Thomas’ concurring opinion, which said:

“When the Constitution is silent, authority resides with the States or the people. This allocation of power is both embodied in the structure of our Constitution and expressly required by the Tenth Amendment. The application of this fundamental principle should guide our decision here.”

“This allocation of power is apparent in the structure of our Constitution. The Federal Government “is acknowledged by all to be one of enumerated powers.” McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). ‘[T]he powers delegated by the … Constitution to the federal government are few and defined,’ while those that belong to the States ‘remain … numerous and indefinite.’ The Federalist No. 45. … Article I, for example, enumerates various legislative powers in §8, but it specifically limits Congress’ authority to the ‘legislative Powers herein granted,’ §1. States face no such constraint because the Constitution does not delineate the powers of the States.”

“This structural principle is explicitly enshrined in the Tenth Amendment. That Amendment states that

‘[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’

“As Justice Story explained, ‘[t]his amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and enumerated powers, it follows irresistibly, that what is not conferred, is withheld, and belongs to the state authorities.’ J. Story, Commentaries on the Constitution of the United States.”

“Thus, ‘[w]here the Constitution is silent about the exercise of a particular power[,] that is, where the Constitution does not speak either expressly or by necessary implication,” the power is “either delegated to the state government or retained by the people.” U.S. Term Limits, supra, at 847–848 (THOMAS, J., dissenting).”

“Of course, the powers reserved to the States concerning Presidential electors cannot ‘be exercised in such a way as to violate express constitutional commands.’ Williams v. Rhodes…. That is,powers related to electors reside with States to the extent that the Constitution does not remove or restrict that power. Thus, to invalidate a state law, there must be “something in the Federal Constitution that deprives the [States of] the power to enact such [a] measur[e].” U.S. Term Limits, 514 U. S., at 850 (THOMAS, J., dissenting).” [Emphasis added]

Footnotes

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

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

“With this National Popular Vote method, we will no longer be a Republic, but a democracy. A democracy is the one thing that the Founding Fathers feared more than anything else. Every democracy in the history of the world has devolved into tyranny. Democracy is two wolves and a sheep voting on what’s for dinner. The Founding Fathers knew this and made every effort to prevent the U.S. from slipping into the abyss. As Franklin said, ‘This is a Republic, if you can keep it.’ The National Popular Vote Compact will end the Republic.”[115] [Emphasis added]

Zinn’s opinion as to what constitutes a “republic” differs considerably from the Founders’ definition of a “republic” and the use of the term in the U.S. Constitution.

In Federalist No. 10, James Madison (frequently called the “Father of the Constitution”) said:

“The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.”[116] [Emphasis added]

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

“The true distinction between these forms was also adverted to on a former occasion. It is, that in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region.”[117] [Emphasis added]

In short, the definition of a “republic” is based on whether elected officeholders exercise governmental power—compared to the people directly exercising governmental power. In a republic, the people do not rule directly, but instead, they elect officeholders to whom they delegate the power to conduct the business of government during the period between elections.

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

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

Today, direct democracy in the United States is confined to an occasional “small spot” (to use Madison’s wording in Federalist No. 14), such as some New England town meetings.

Popular election of the chief executive does not determine whether a government is a republic or democracy. The division of power between the citizenry and elected officeholders to whom governmental power is delegated is not affected by the boundaries of the regions used to tally popular votes for choosing presidential electors. The United States is neither less nor more a “republic” if its chief executive is elected under the state-by-state winner-take-all method, under Maine and Nebraska’s method of awarding electoral votes (where the boundaries of the regions to tally popular votes for choosing presidential electors are congressional districts), or under the National Popular Vote Compact (where popular votes would be tallied on a nationwide basis).

A change in the boundaries for tallying popular votes for choosing presidential electors would do nothing to change the fact that the people delegate power to elected officeholders who, in turn, run the government.

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

Moreover, popular election of the chief executive is not incompatible with a “republican form of government.”

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

“The United States shall guarantee to every State in this Union a Republican Form of Government.”[118] [Emphasis added]

At the time of the Constitutional Convention in 1787, the chief executive of five of the original 13 states (Connecticut, Massachusetts, New Hampshire, New York, and Rhode Island) was elected by a statewide popular vote.[119]

If popular election of a state’s chief executive meant that the state did not have a “republican form of government,” then these five states would have been in violation of the Guarantee Clause starting from the moment that the Constitution was ratified in 1789. These five states would therefore have been subject to immediate action by the federal government (including military intervention) to enforce the Guarantee Clause.

During the Dorr Rebellion in Rhode Island in 1842, President John Tyler acknowledged that the federal government could and would employ military action, if necessary, to enforce the Guarantee Clause. In a letter to the Governor of Rhode Island, President Tyler wrote:

“I should experience great reluctance in employing the military power of this Government against any portion of the people; but however painful the duty, I have to assure your excellency that if resistance be made to the execution of the laws of Rhode Island by such force as the civil power shall be unable to overcome, it will be the duty of this Government to enforce the constitutional guaranty—a guaranty given and adopted mutually by all the original States, of which number Rhode Island was one, and which in the same way has been given and adopted by each of the States since admitted into the Union; and if an exigency of lawless violence shall actually arise the executive government of the United States, on the application of your excellency under the authority of the resolutions of the legislature already transmitted, will stand ready to succor the authorities of the State in their efforts to maintain a due respect for the laws.”[120] [Emphasis added]

The five states that conducted popular election for Governor would not have voted for the Constitution at the 1787 Convention, or later ratified it at their respective state ratifying conventions, if they believed that their method of electing their chief executive put them in violation of the new Constitution’s requirement that each state have a “republican form of government.”

As to the other eight original states, popular election of Governors began in Pennsylvania in 1790, in Delaware in 1792, in Georgia in 1825, in Maryland in 1838, in North Carolina in 1836, in New Jersey is 1844, in Virginia in 1851, and in South Carolina in 1865.[121]

Among the new states that were admitted to the Union shortly after ratification of the Constitution, Vermont (admitted in 1790) was already conducting popular elections for Governor at the time of its admission,[122] and Kentucky (admitted in 1792) adopted that method in 1800.[123]

Every new state admitted between 1796 and 1860 either started conducting popular gubernatorial elections at the time of its admission (such as Tennessee in 1796) or had been doing so prior to its admission.[124]

No one has ever argued that these states denied their citizens a “republican form of government” because they directly elected their chief executive. No one has ever argued that the federal government would or should invoke the Guarantee Clause and intervene to prevent states from electing their Governors by popular vote.

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

As Senator Fred Thompson said:

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

Footnotes

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

“The United States shall guarantee to every State in this Union a Republican Form of Government.”[125]

In an article entitled “Guaranteeing a Federally Elected President,” Kristin Feeley argues that “the NPV legislation violates the Guarantee Clause.”[126]

Acceptance of Feeley’s conclusion requires all of the following:

• applying the Guarantee Clause to the federal government—that is, extending the words “every State in this Union” to include the federal government
• agreeing that popular election of the President is incompatible with the concept of a “republican form of government”
• overcoming judicial precedents that have established that the Guarantee Clause is non-justiciable
• arguing that popular election of the President is incompatible with the concept of a “compound republic.”

The Guarantee Clause does not apply to the federal government.

In order for the Guarantee Clause to apply to the federal government, it would have to say:

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

However, the Guarantee Clause of the U.S. Constitution does not say that.

Moreover, Feeley acknowledges that she has found no judicial precedent (or even a dissenting opinion) that has ever applied the Guarantee Clause to the national government.

Popular election of the chief executive is compatible with the concept of a “republican form of government.”

James Madison—frequently called the “Father of the Constitution”—wrote in Federalist No. 10:

“The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest.”[127] [Emphasis added]

In addition, Madison wrote in Federalist No. 14:

“The true distinction between these forms was also adverted to on a former occasion. It is, that in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents.”[128] [Emphasis added]

In short, in a republic, the people do not rule directly but instead elect officeholders to whom they delegate the power to conduct the business of government during the period between elections.

In contrast, in a democracy, the people rule directly (as they do today in some New England town meetings).

The National Popular Vote Compact would do nothing to change the fact that the people delegate power to elected officeholders who, in turn, run the government.

The Guarantee Clause is non-justiciable.

In 1849, the U.S. Supreme Court held that the Guarantee Clause is non-justiciable in Luther v. Borden.[129]

The Court reiterated this position in 1912 when it ruled that enforcement of the Guarantee Clause is a political question in Pacific States Telephone & Telegraph v. State of Oregon.[130]

The Compact is consistent with the concept of a “compound republic.”

Feeley raises the additional claim that the National Popular Vote Compact is incompatible with the concept of a “compound republic,” saying:

“The Guarantee Clause provides for a compound republican government at the national level. … NPV legislation violates the Guarantee Clause by blurring important state lines in our compound republic.”[131] [Emphasis added]

The term “compound republic” does not appear in the Constitution; however, it appears twice in the Federalist Papers.[132]

James Madison’s Federalist No. 51 discusses a simple “republic” where the people’s rights are protected by the separation of powers among different “departments” (that is, the legislative, executive, and judicial branches of government).

Madison then contrasts a simple “republic” with a “compound republic” where the separation of powers between two distinct levels of government works to protect the people’s rights.

“In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”[133] [Emphasis added]

In Federalist No. 62, Madison refers to:

“a compound republic, partaking both of the national and federal character.”[134]

In short, the definition of a “compound republic” is based on there being two distinct layers of government—state and federal—each of which is a republic.

The National Popular Vote Compact would do nothing to affect the existence of the two distinct layers of government—state and federal.

Moreover, the definition of a “compound republic” in the Federalist Papers is not based on the boundaries of the regions used to count popular votes in electing the head of one of the three branches of government (the executive “department”) of one of the two distinct layers of government (i.e., the federal government).

Thus, the United States is a “compound republic”—with or without—the National Popular Vote Compact.

The National Popular Vote Compact is concerned with the method of choosing presidential electors in the states that enact it.

Finally, Feeley has argued that the National Popular Vote Compact is unconstitutional because:

“Allowing a minority of states to switch the nation to a national popular vote would also violate the republican principle that no state shall legislate for another state.”[135] [Emphasis added]

The Compact specifies the manner of appointing presidential electors in the states belonging to the Compact. It does not alter the manner of appointing presidential electors in states that do not belong to the Compact. It does not obligate any non-member state to take any action that it would not otherwise take. It does not prohibit any non-member state from taking any action it may wish to take. In short, the Compact does not legislate for non-member states.

MORE DETAILED ANSWER:

Footnotes

Hans von Spakovsky of the Heritage Foundation has stated:

“Without question, the NPV deprives non-participating states of their right under Article V to participate in deciding whether the Twelfth Amendment, which governs the Electoral College, should be changed.”[136] [Emphasis added]

Despite what von Spakovsky claims, there is nothing in the National Popular Vote Compact that changes anything in the 12^th Amendment or affects the ability of any state (whether it belongs to the Compact or not) to exercise its Article V powers to amend the Constitution.

The 12th Amendment (found in appendix A) deals with the locations of the Electoral College meetings and what the presidential electors do at the meetings. It says nothing about the method of selecting presidential electors.

The National Popular Vote Compact is concerned with the method of selecting presidential electors—not what they do when they meet. There is nothing in the Compact that is contrary to anything in the 12^th Amendment.

Opponents of the National Popular Vote Compact often cite the first sentence of the 12^th Amendment. That sentence (the so-called “Meetings Clause”) provides:

“The Electors shall meet in their respective states, and vote by ballot for President and Vice-President.”

The National Popular Vote Compact does not alter the fact that the physical meeting of the presidential electors must occur inside each respective state.

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

“The electors of President and Vice President of each State shall meet and give their votes on the first Tuesday after the second Wednesday in December next following their appointment at such place in each State in accordance with the laws of the State enacted prior to election day.”[137] [Emphasis added]

Footnotes

The Privileges and Immunities Clause of the 14^th Amendment (ratified in 1868) reads:

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

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

Peter J. Walliston wrote in the National Review:

“Under the NPV process, any citizen’s vote for an elector pledged (in turn) to vote for that voter’s preferred presidential candidate would be nullified if all the state’s electoral votes are transferred to the winner of the national popular vote. If the NPV goes into effect, what will happen in this case is exactly what the language of the 14^th Amendment forbids.”

“It can hardly be imagined that taking away a voter’s right to have a vote counted for the person he or she prefers for president is not abridging that person’s privileges and immunities under the 14^th Amendment and the U.S. Constitution.”[138] [Emphasis added]

The authors of this book would be delighted if Walliston’s legal argument were correct in saying that it would be a violation of Privileges and Immunities Clause to:

“[take] away a voter’s right to have a vote counted for the person he or she prefers for president.”

Indeed, that is precisely what the current winner-take-all method of awarding electoral votes does.

Thus, if Walliston’s legal argument were correct, the winner-take-all method would be unconstitutional.

Under the current state-by-state winner-take-all method of awarding electoral votes, an individual’s vote for President is not “counted for the person he or she prefers” if it disagrees with the choice made by a plurality of other voters in the state.

That is, the individual voter’s choice is zeroed out below the level of the entire jurisdiction served by the office. The current system creates an artificial unanimity at the state level, even though the state’s voters are not unanimous.

The authors of this book would be further delighted if Walliston were correct in saying that voting for President or presidential electors were a “privilege” or “immunity” of a citizen of the United States.

The U.S. Supreme Court stated in Bush v. Gore:

“The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U.S. Const., Art. II, §1. This is the source for the statement in McPherson v. Blacker, 146 U.S. 1, 35 (1892), that the State legislature’s power to select the manner for appointing electors is plenary.”[139] [Emphasis added]

Thus, Walliston’s constitutional argument based on the Privileges and Immunities Clause is, unfortunately, incorrect.

More importantly, Walliston’s characterization of the National Popular Vote Compact is dead wrong as a factual matter, because one of the most important virtues of the Compact is that it guarantees that a voter’s vote is “counted for the person he or she prefers for president.”

Under the National Popular Vote Compact, every voter’s vote will be added to the vote total of that voter’s choice for President.

Footnotes

In 1892, the losing attorney (F.A. Baker) in McPherson v. Blacker argued before the U.S. Supreme Court that section 2 of the 14^th Amendment required the states to conduct a popular election for presidential electors and to use the state-level winner-take-all method in such elections. The losing brief argued:

“The electoral system as it actually exists is recognized by the 14^th and 15^th amendments, and by necessary implication, the general ticket method [i.e., the winner-take-all rule] for choosing presidential electors is made permanent, and the only constitutional method of appointment.[140]” [Emphasis added]

In discussing Section 2 of the 14^th Amendment, it is important to carefully read what the Amendment actually says—and does not say.

Section 2 of the 14^th Amendment does not require a state to allow its voters to vote for the state’s presidential electors, nor does it require that the state-level winner-take-all method be used if there is a popular election.

Instead, section 2 of the 14^th Amendment provides a significant potential penalty in the form of reduced congressional representation if the right to vote is “denied” or “abridged” by a state. It reads:

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

Section 2 of the 14^th Amendment does not give the voters the right to vote for presidential electors for two reasons.

Note the inclusion of the phrase “judicial officers of a state” in the list of offices in the triggering clause. At the time of formulation, debate, and ratification of the 14^th Amendment, judges were not elected by the voters in many states. Indeed, this continues to be the case today. If section 2 of the 14^th Amendment meant that the voters of every state had the right to vote for all of a state’s judges, then numerous states would have been in violation of the Amendment from the moment it was ratified, and numerous states would be in violation of the Amendment today.

Note also that the historical context of the 14^th Amendment shows that it was never intended to prevent state legislatures from appointing presidential electors.

Congress sent the 14^th Amendment to the states for ratification on June 13, 1866, and the Secretary of State declared the amendment to have been ratified on July 28, 1868.

Appointment of presidential electors by state legislatures was a familiar occurrence immediately before and after the period of the Amendment’s debate in Congress and its ratification by the state legislatures.

• The South Carolina legislature appointed the state’s presidential electors without a vote by the people in 1860.
• The Florida legislature did so in the 1868 election—less than four months after ratification of the Amendment.
• The Colorado legislature appointed presidential electors without a vote by the people in 1876.
• The congressional act providing for Colorado’s admission to the Union in 1876 specifically mentioned that the Colorado legislature was going to appoint the state’s presidential electors for the 1876 election.
• In 1868, the U.S. Senate approved a constitutional amendment prohibiting state legislative appointment of presidential electors (although the House did not).

The Senate Committee on Privileges and Elections conducted an extensive review of the presidential election process during the 43^rd Congress (1873–1875) and reported:

“The appointment of these electors is thus placed absolutely and wholly with the Legislatures of the several states. They may be chosen by the Legislature, or the Legislature may provide that they shall be elected by the people of the State at large, or in districts, as are members of Congress, which was the case formerly in many States, and it is no doubt competent for the Legislature to authorize the Governor, or the Supreme Court of the State, or any other agent of its will, to appoint these electors.”[141] [Emphasis added]

If interpretation of the 14^th Amendment argued by the losing attorney (F.A. Baker) in McPherson v. Blacker had any validity, the appointment of presidential electors by the Florida legislature in 1868 and by the Colorado legislature in 1876 would have been unconstitutional.

No such argument was made when the Florida legislature appointed the state’s presidential electors—just months after ratification of the 14^th Amendment in July 1868.

Moreover, if anyone thought the 14^th Amendment required statewide popular election of presidential electors, that legal argument would surely have been vigorously advanced during the contentious dispute over the 1876 presidential election.

In 1876, the Colorado legislature appointed three Republican presidential electors, and they voted for Rutherford B. Hayes. If these appointments had been invalid, Democratic candidate Samuel J. Tilden would have had the constitutionally required “majority of the whole number of Electors appointed”[142] and, therefore, would have become President—even after the Electoral Commission ruled against Tilden concerning the contested blocs of electoral votes of Louisiana, Florida, and South Carolina and the contested single electoral votes from Oregon and Vermont.

However, Tilden and his supporters never raised any question about the three Republican electors whom the Colorado legislature appointed in 1876.

On February 9, 1868, the U.S. Senate approved the following constitutional amendment by a 39–16 vote:

“Each state shall appoint, by a vote of the people thereof qualified to vote for Representatives in Congress, a number of electors equal to the whole number of Senators and Representatives to which the state may be entitled in the Congress … and the Congress shall have the power to prescribe the manner in which electors shall be chosen by the people.”[143] [Emphasis added]

Why would two-thirds of the U.S. Senate have voted for this constitutional amendment if they thought that the pending 14^th Amendment already required popular election of presidential electors? On the day of the Senate vote, the 14^th Amendment had already been ratified by 22 of the 28 states needed for ratification, and it acquired the additional six states just five months later (on July 9, 1868).

In any event, the U.S. Supreme Court was not moved by Baker’s argument that section 2 of the 14^th Amendment requires the states to use the state-level winner-take-all rule. The Court unanimously ruled in McPherson v. Blacker in 1892:

“The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket [i.e., the ‘winner-take-all’ rule], nor that the majority of those who exercise the elective franchise can alone choose the electors.”[144] [Emphasis added]

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

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

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

“There is no difference between the two sides of the present controversy on these basic propositions.”[145] [Emphasis added]

As to the National Popular Vote Compact, no person’s right to vote for presidential electors is “denied” or “abridged” by the Compact.

Under the Compact, voters would continue to vote for presidential electors in all states belonging to the Compact. Far from denying or abridging “the right to vote at any election for the choice of electors for President and Vice President of the United States,” the Compact actually reinforces the people’s vote for President in compacting states. Article II of the Compact provides:

“Each member state shall conduct a statewide popular election for President and Vice President of the United States.”[146]

Moreover, the Compact does not discriminate against any voter or groups of voters concerning their ability to vote—whether or not they live in a state belonging to the Compact. Therefore, the triggering criterion of section 2 (i.e., denial or abridgement of the right to vote) would not be satisfied, and section 2’s remedy (reduced congressional representation) would not apply.

Even if, for the sake of argument, section 2’s triggering criterion applied, section 2 does not require every state to allow its voters to vote for presidential electors or require every state to use the winner-take-all method. Instead, section 2 provides a strong disincentive (in the form of reduced congressional representation) if a state violates section 2.

Footnotes

William Josephson, a New York attorney, wrote:

“NPV Compact Article III-7 authorizes the popular vote winner, under certain circumstances, to nominate electors and requires the relevant states’ presidential election officers to certify them. Because the Constitution gives only state legislatures power to appoint electors, NPV’s delegation to the winning popular vote candidate of a power to appoint electors is almost certainly unconstitutional.”[147] [Emphasis added]

The National Popular Compact is a state law that expresses the state’s choice as to the “manner” of selecting its presidential electors.

The Compact specifies that the winning presidential electors are those who were nominated in that state in association with the national popular vote winner.

The Compact leaves the choice of method of nominating presidential electors entirely to existing state laws—provided that the correct number of elector candidates are nominated on behalf of the national popular vote winner in a particular state.

Candidates for the position of presidential elector are most commonly nominated at each party’s state and congressional-district conventions in the summer before the presidential election (section 3.2).

There are at least five scenarios (itemized in section 6.2.3) that might possibly result in an incorrect number of persons being nominated by a particular political party in a particular state.

The most frequently occurring scenario involves a state political party nominating an ineligible person—typically a federal official or employee—for the position of presidential elector. The result is that the presidential candidate who is entitled to a state’s electoral votes is left with an insufficient number of qualified nominees from his party. In that case, a nominee for presidential elector from an opposing party would become a presidential elector. One or more ineligible candidates for presidential elector were nominated by the Republican Party in Idaho in 2016 and Iowa in 2020, and by the Democratic Party in Ohio in 2004.

State laws for replacing such vacancies are sometimes vague—thus creating the possibility of hair-splitting litigation (as illustrated by the situation in Ohio in 2004 discussed in section 6.2.3).

The Compact’s remedy for all five scenarios is based on the concept behind the law used in Pennsylvania since 1937 for nominating all of its presidential electors.

Under Pennsylvania law, each presidential nominee personally and directly nominates all of the presidential electors who run under his or her name.[148]

The Compact uses the Pennsylvania approach only in the specific situation in which an insufficient (or excessive) number of presidential electors have been nominated in a particular state on behalf of a presidential candidate who has just won the national popular vote. In this specific situation, the Compact allows the presidential candidate who won the most popular votes nationwide to personally and directly nominate replacement electors (or eliminate excessive electors).

The seventh clause of Article III of the Compact provides:

“If, for any reason, the number of presidential electors nominated in a member state in association with the national popular vote winner is less than or greater than that state’s number of electoral votes, the presidential candidate on the presidential slate that has been designated as the national popular vote winner shall have the power to nominate the presidential electors for that state and that state’s presidential elector certifying official shall certify the appointment of such nominees.”

The purpose of the seventh clause of Article III of the Compact is a contingency clause designed to ensure that the presidential slate receiving the most popular votes nationwide gets what it is entitled to—100% of the electoral votes of each member state.

Josephson’s claim that the Compact’s vacancy-filling procedure is unconstitutional is based on his incorrect statement:

“The Constitution gives only state legislatures power to appoint electors.”

But that is not what the Constitution says. It actually says:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[149] [Emphasis added]

If Josephson’s claim that “the Constitution gives only state legislatures power to appoint electors” were correct, none of the nation’s 538 presidential electors in the 2020 presidential election (and in over two dozen previous elections) were constitutionally chosen.

In any event, Josephson fails to identify the particular provision of the U.S. Constitution that he thinks may be violated by the Compact’s vacancy-filling provision. Instead, he simply asserts that this provision of the Compact “is almost certainly unconstitutional.”

Of course, if the Compact’s vacancy-filling provision were unconstitutional, then the law Pennsylvania has routinely used since 1937 for nominating all of its presidential electors would be unconstitutional.

In particular, according to Josephson, all 20 Biden electors from Pennsylvania in 2020 would not have been validly selected. Tellingly, none of the numerous lawsuits challenging Biden’s presidential electors in Pennsylvania in 2020 made this argument.

In any case, the best argument against Josephson’s position is a legal analysis concerning the vacancy-filling process that was written in 1996—a decade before the National Popular Vote Compact was first introduced in any state legislature.

“Federal law provides that ‘each State may, by law, provide for the filling of any vacancies which may occur in its college of electors when such college meets to give its electoral vote. The Constitution gives each state authority to determine the manner of appointment of electors for that state. Therefore, the manner of filling vacancies in the office of elector, the manner of appointing alternate electors, and even the decision of whether alternates are appointed, would appear to be state issues.” [Emphasis added]

This analysis was written by none other than William Josephson.[150]

Footnotes

Tara Ross, a lobbyist against the National Popular Vote Compact who works closely with Save Our States, argues that the National Popular Vote Compact is unconstitutional based on quotations from the U.S. Supreme Court’s decision in the 1995 term limits case (U.S. Term Limits, Inc. v. Thornton). Ross wrote:

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

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

“Allowing such action, he concluded:

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

‘It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.’”[151], [152][Emphasis added]

The authors of this book agree with the U.S. Supreme Court’s reasoning and ruling in the term limits case.

The situation that gave rise to the term limits case (that is, an effort to evade a specific “requirement” of the Constitution) is very different from the situation involving the National Popular Vote Compact.

The Qualifications Clause of the Constitution for U.S. Representatives establishes three specific requirements (age, citizenship, and residency):

“No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”[153]

A similar Qualifications Clause specifies that U.S. Senators must be slightly older and have been a citizen for slightly longer.[154]

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

The U.S. Supreme Court ruled that states cannot impose requirements on members of Congress above and beyond the requirements contained in the Qualifications Clauses.

While the term limits case was concerned with state legislation that attempted to contravene the “requirements” of a specific clause of the U.S. Constitution, the National Popular Vote Compact is state legislation that exercises a power that is explicitly (and exclusively) granted to the states by the U.S. Constitution.

The Compact is state legislation that calls for the appointment of a state’s presidential electors nominated in association with the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia.

The Compact (like the winner-take-all laws it would replace) is enacted under the authority of Article II, section 1, clause 1 of the U.S. Constitution, which provides:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” [Emphasis added]

Note that there is no “requirement” in Article II, section 1, clause 1—or anywhere else in the U.S. Constitution—that would be evaded by the National Popular Vote Compact.

There certainly is no “requirement” in Article II, section 1, clause 1 mandating that a state’s presidential electors be chosen on a winner-take-all basis.

In fact, the U.S. Supreme Court ruled in McPherson v. Blacker in 1892:

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

“In short, the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States.”[155] [Emphasis added]

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

The exercise of any legislative power is indisputably also subject to all the other specific “requirements” in the U.S. Constitution that may apply to the exercise of state legislative power.

In section 9.1.13, we identified 10 restraints on state legislative action that could possibly apply to a new election law. None of them would be evaded by the National Popular Vote Compact.

Footnotes

The issue in the 1998 case of Clinton v. City of New York was the constitutionality of a “procedure” for enacting federal laws that contravened the specific procedure contained in the Constitution.

Tara Ross, a lobbyist against the National Popular Vote Compact who works closely with Save Our States, cites wording from the U.S. Supreme Court’s decision in the 1998 line-item veto case that she says renders the Compact unconstitutional. Ross argues:

“The Court struck down statutes that were said to upset the compromises struck and the delicate balances achieved during the Constitutional Convention.”

“Writing for the majority, Justice Stevens emphasized the ‘great debates and compromises that produced the Constitution itself,’ and he found that the [Line-Item Veto] Act could not stand because it disrupted ‘the “finely wrought” procedure that the Framers designed.’ NPV thumbs its nose at the Founders and the painstaking process that they went through to create a Union.”[156] [Emphasis added]

The authors of this book agree with the U.S. Supreme Court’s reasoning and ruling in the line-item veto case.

The situation that gave rise to the line-item veto case is very different from the situation involving the National Popular Vote Compact.

Far from contravening any “finely wrought procedure” provision of the Constitution, the National Popular Vote Compact employs the Constitution’s specific “procedure” giving the states “exclusive” and “plenary” power to choose the manner of awarding their electoral votes.

Here are the facts concerning the line-item veto case.

The Presentment Clause of the Constitution gives the President the power to veto a bill passed by Congress, saying:

“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”[157]

The Line-Item Veto Act of 1996 was intended to give the President the power to selectively veto a portion of a legislative bill while allowing the remaining portions to become law.

In 1998, the Supreme Court overturned the Line-Item Veto Act in Clinton v. City of New York.

Now let’s consider the procedure contained in the Constitution for awarding electoral votes and the history of that procedure at the 1787 Constitutional Convention.

Article II, section 1, clause 1 of the U.S. Constitution contains the procedure for determining the method of appointing a state’s presidential electors. Article II, section 1, clause 1 says:

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

All states have enacted state laws specifying the method of appointing their presidential electors, and they have changed those state statutes on numerous occasions (section 2.1).

There is voluminous evidence that the 1787 Constitutional Convention acted carefully in crafting Article II, section 1. This clause was the end product of considerable “debate and compromise.” Indeed, the 1787 Constitutional Convention debated the method of electing the President on 22 separate days and held 30 votes on the topic.[158]

During this debate, the Convention considered numerous methods for selecting the President, including:

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

In the end, the Convention decided that the President would be elected by presidential electors and that each state would have the independent power to choose the method for appointing them.

Moreover, in crafting Article II, section 1, the Convention decided that a state’s choice of method would not be subject to congressional review or veto by Congress.

Note that Article II, section 1 differs from the procedure that the Convention adopted for congressional elections.

Article I, section 4, clause 1 specifies that state laws governing congressional election are subject to review and veto by Congress.

The Constitutional Convention did not give Congress power over laws governing presidential elections because of its concern that a sitting President might (in conjunction with a compliant Congress) manipulate the rules governing the President’s own re-election.

Instead, the Founders dispersed power over presidential elections to the states.

If the Convention’s lengthy debates about the method of electing the President and its giving Congress a veto over state laws governing congressional elections (while denying Congress a similar veto over state laws governing presidential elections) does not qualify as a “finely wrought procedure,” what would?

Article II, section 1 was the procedure that the states used to enact their existing winner-take-all statutes.

Ross claims:

“NPV thumbs its nose at the Founders and the painstaking process that they went through.”[159]

Why does Tara Ross think that the procedure that the states used to enact their winner-take-all laws (Article II, section 1) is legitimate and constitutional, while repealing these same winner-take-all laws using Article II, section 1 would constitute “thumbing its nose at the Founders”?

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

Footnotes

Except for purely advisory compacts, the raison d’être for interstate compacts is, as Marian Ridgeway wrote in Interstate Compacts: A Question of Federalism:

“[to] shift a part of a state’s authority to another state or states.”[160]

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

“Upon entering into an interstate compact, a state effectively surrenders a portion of its sovereignty; the compact governs the relations of the parties with respect to the subject matter of the agreement and is superior to both prior and subsequent law. Further, when enacted, a compact constitutes not only law, but a contract which may not be amended, modified, or otherwise altered without the consent of all parties.”[161] [Emphasis added]

In 2023, the U.S. Supreme Court noted that interstate compacts enable a state to allow a mutually agreed portion of its sovereignty to be exercised jointly with other states. In referring to the New York–New Jersey Waterfront Commission Compact, the Court said:

“Here, the States delegated their sovereign authority to the Commission on an ongoing and indefinite basis.”[162] [Emphasis added]

The question arises as to whether the National Popular Vote Compact would be an impermissible delegation of a state’s sovereign power.

This inquiry requires an examination of whether the appointment of a state’s presidential electors is one of the state’s sovereign powers and, if it is, whether that power can be shared with other states by means of an interstate compact.

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

The sovereign authority of a state is not easily defined. The federal courts have not defined sovereignty, although they have attempted to describe it on various occasions.

In Hinderlider v. La Plata River & Cherry Creek Ditch Co. in 1938, the U.S. Supreme Court traced the history of compacts during the colonial period and immediately thereafter and viewed them as a corollary to the ability of independent nations to enter into treaties with one another.

“The compact … adapts to our Union of sovereign States the age-old treaty making power of sovereign nations.”[163]

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

“The power to tax, the power of eminent domain, and the police power are the generally acknowledged sovereign powers.”[164] [Emphasis added]

The filling of public offices that are central to the operation of state government (including legislative, executive, or judicial offices and the position of delegate to a state constitutional convention) is regarded as a sovereign state power.[165], [166]

The historical practice of the states, the long history of approval of interstate compacts by Congress, and court decisions all support the view that a state’s sovereign powers may be granted to a group of states acting through an interstate compact.

Let’s consider the three powers mentioned above—taxation, eminent domain, and police power.

Concerning the power to tax, New York and New Jersey granted this sovereign power to the New York–New Jersey Waterfront Commission in certain specified matters in 1953.[167]

Concerning the power of eminent domain and the power to exempt property from taxation, New York and New Jersey delegated these sovereign powers to the Port Authority of New York and New Jersey in certain specified matters. This delegation was upheld in 1944 in Commissioner of Internal Revenue v. Shamberg’s Estate.[168]

The Port Authority of New York and New Jersey has a police force numbering over 1,600 officers. The New York–New Jersey Waterfront Commission also has a police force.

The Columbia River Compact[169] provides a particularly clear example of the surrender of sovereignty inherent in interstate compacts.

This compact concerns fish in the Columbia River. It was enacted by the states of Washington[170] and Oregon[171] in 1915, and it received congressional consent in 1918.[172]

By entering into this compact, each state agreed to make the other state’s approval necessary for it to exercise what otherwise would have been its separate and independent legislative power over fish in the Columbia River.

The entire compact follows:

“There exists between the states of Washington and Oregon a definite compact and agreement as follows:

“All laws and regulations now existing or which may be necessary for regulating, protecting or preserving fish in the waters of the Columbia river, or its tributaries, over which the states of Washington and Oregon have concurrent jurisdiction, or which would be affected by said concurrent jurisdiction, shall be made, changed, altered and amended in whole or in part, only with the mutual consent and approbation of both states.” [Emphasis added]

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

The Ohio River Valley Water Sanitation Compact provides:

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

In West Virginia ex rel. Dyer v. Sims, the U.S. Supreme Court upheld the delegation of West Virginia’s appropriation power and wrote in 1950:

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

“That a legislature may delegate to an administrative body the power to make rules and decide particular cases is one of the axioms of modern government. The West Virginia court does not challenge the general proposition but objects to the delegation here involved because it is to a body outside the State and because its Legislature may not be free, at any time, to withdraw the power delegated. … Whatis 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.”[173] [Emphasis added]

The right to vote for a presidential elector is not beyond the reach of an interstate compact. In the 1970 U.S. Supreme Court case of Oregon v. Mitchell, Justice Potter Stewart (concurring in part and dissenting in part) pointed out that if Congress had not acted to bring about uniformity among state durational residency requirements for voters casting ballots in presidential elections, then the states could have adopted an interstate compact to do so.[174]

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

As Marian Ridgeway wrote:

“If the state chooses to inaugurate some new pattern of local government [by means of an interstate compact] that is not in conflict with the state’s constitution, it can do so, as long as the people lose none of their ultimate power to control the state itself.”[175] [Emphasis added]

This statement reflects various court decisions that emphasize the ability of a sovereign entity to operate independently of any other.[176]

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

“The state does not act by its people in their collective capacity, but through such political agencies as are duly constituted and established. The legislative power is the supreme authority, except as limited by the constitution of the state, and the sovereignty of the people is exercised through their representatives in the legislature, unless by the fundamental law power is elsewhere reposed. The constitution of the United States frequently refers to the state as a political community, and also in terms to the people of the several states and the citizens of each state. What is forbidden or required to be done by a state is forbidden or required of the legislative power under state constitutions as they exist. The clause under consideration does not read that the people or the citizens shall appoint, but that ‘each state shall;’ and if the words, ‘in such manner as the legislature thereof may direct,’ had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion of those words, while operating as a limitation upon the state in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself.”[177] [Emphasis added]

The Court rejected a specific argument about what constitutes an appointment by the state:

“The manner of the appointment of electors directed by the act of Michigan is the election of an elector and an alternate elector in each of the twelve congressional districts into which the state of Michigan is divided, and of an elector and an alternate elector at large in each of two districts defined by the act. It is insisted that it was not competent for the legislature to direct this manner of appointment, because the state is to appoint as a body politic and corporate, and so must act as a unit, and cannot delegate the authority to subdivisions created for the purpose; and it is argued that the appointment of electors by districts is not an appointment by the state, because all its citizens otherwise qualified are not permitted to vote for all the presidential electors.”[178] [Emphasis added]

The Court answered this argument by ruling:

“The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object.[179] [Emphasis added]

As far as we are aware, no court has ever invalidated an interstate compact on the grounds that it impermissibly delegated a state’s sovereign power.

The National Popular Vote Compact does not delegate a sovereign state power.

There is no authority from any court regarding whether presidential electors exercise a sovereign power of their state.

Given the temporary nature of the function of presidential electors, it is doubtful that a court would rule that presidential electors exercise inherent governmental authority.

In contrast to members of the legislative, executive, or judicial branches of state government or members of a state constitutional convention, the function that presidential electors perform is not one that addresses the sovereign governance of the state. Instead, presidential electors decide the identity of the chief executive of the federal government. That is, the selection of electors is not a manifestation of the way in which the state itself is governed.

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

“binding upon the citizens of each State and all water claimants, even where the State had granted the water rights before it entered into the compact.”[180]

Given the exclusive role of the states to determine the manner of appointing its presidential electors,[181] if the determination of a state’s electors is a sovereign power, and its delegation would shift political power to the group of compacting states, the National Popular Vote Compact will not be deemed to compromise federal supremacy.[182] The fact of the delegation would not, in and of itself, violate the U.S. Constitution.

Footnotes

Tara Ross, a lobbyist against the National Popular Vote Compact who works closely with Save Our States, has argued:

“Even assuming that the Electoral College should be eliminated, respect for the Constitution demands that we go through the formal amendment process.”[183]

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

The winner-take-all method is not in the U.S. Constitution. It was not created by means of a federal constitutional amendment. Therefore, the winner-take-all method may be repealed in the same manner it was originally adopted, namely by passage of state-level legislation under the authority of Article II, section 1 of the Constitution.

One does not show respect for the Founding Fathers by ignoring the specific method they built into the U.S. Constitution for changing the method of electing the President.

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

One does not show respect for the Constitution by unnecessarily amending it.

Amending the Constitution should be the last resort.

Existing state winner-take-all laws were enacted by state legislatures (rather than a federal constitutional amendment). No one argues that enactment of these existing winner-take-all laws showed disrespect to the Constitution.

Footnotes

In her book Enlightened Democracy: The Case for the Electoral College, Tara Ross, a lobbyist against the National Popular Vote Compact who works closely with Save Our States, characterizes a federal constitutional amendment as being a fairer and more democratic means for replacing state winner-take-all laws than the Compact—because it turns the question of how to elect the President over to “the people.”

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

The winner-take-all rule is not part of the U.S. Constitution. State winner-take-all laws were not adopted by means of a federal constitutional amendment. Therefore, it is difficult to see why the repeal of the existing state winner-take-all laws would require a constitutional amendment—much less why an amendment should be considered a more democratic way to make the change.

While opposing the National Popular Vote Compact in the Connecticut legislature in 2018, State Representative Craig Fishbein said during the House floor debate:

“What particular Supreme Court case says that this body can deliberate and perhaps vote on this particular compact? … This compact has not been brought before the U.S. Supreme Court.”[184]

Representative Charles Ferraro added:

“I think Representative Fishbein very clearly pointed out that the Supreme Court has not weighed in on this compact.”[185]

The U.S. Supreme Court does not give advisory opinions or advance approvals to proposals pending in legislative bodies.

Footnotes

The claim that the National Popular Vote Compact is related to—or would somehow lead to—a federal constitutional convention is a recurring and puzzling urban legend.

A posting on Reddit says:

“The reason [National Popular Vote] exists is to try to get two-thirds of the states to adopt it. If two-thirds of the states adopt it, the constitution forces congress to call a constitutional convention to discuss an amendment to the constitution.”[186]

According to Article V of the U.S. Constitution, a constitutional convention can be called either by Congress or by a petition from two-thirds of the states.

A federal constitutional convention would be a meeting whose purpose would be to propose amendments to the U.S. Constitution—or perhaps write an entirely new constitution.

The National Popular Vote Compact is state legislation that specifies how presidential electors are to be chosen. The Compact is not an amendment to the U.S. Constitution. It has nothing to do with the movement to call a federal constitutional convention by getting state legislatures to petition Congress for one.

States enact the National Popular Vote Compact into law under the authority of Article II, section 1, clause 2 of the U.S. Constitution:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

Footnotes

John Samples of the Cato Institute argues that the National Popular Vote Compact:

“circumvent[s] the Constitution’s amendment procedures.”[187]

John Samples’ observation that a state legislative body enacted a law without employing the federal Constitution’s amendment procedure cannot serve as a substitute for a specific legal argument as to why that law violates the Constitution.

Indeed, it is a truism that every law enacted by every state legislature circumvents the U.S. Constitution’s amendment procedures.

However, if a piece of legislation is a valid exercise of a state legislature’s power, then there is no requirement that it be enacted using the federal Constitution’s amendment procedures.

On the other hand, if the piece of legislation is not a valid exercise of powers granted by the Constitution (that is, if the proposed legislation is unconstitutional), then the constitutional amendment procedure becomes the only way to implement the policy involved.

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

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

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[188] [Emphasis added]

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

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

“In short, the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States.”[189] [Emphasis added]

Ultimately, John Samples makes a circular argument that uses his desired conclusion (namely that the National Popular Vote Compact is unconstitutional) as the justification for his claim that the goal of the Compact can only be achieved by means of a constitutional amendment.

Footnotes

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

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

Second, the National Popular Vote Compact leaves untouched existing state control over presidential elections. Many of the constitutional amendments concerning the Electoral College that have been introduced and debated in Congress over the years would have reduced or eliminated state control over presidential elections (as discussed in chapter 4).

The Constitution’s delegation of power over presidential elections (Article II, section 1) is not a historical accident or mistake. It was intended as a “check and balance” on a sitting President who, with a compliant Congress, might be inclined to manipulate election rules to stay in office.[190] The Founders dispersed the power to control presidential elections among the states, knowing that no single “faction” would likely be in power simultaneously in all states.

Third, under the National Popular Vote Compact, states would retain their power to change the method of awarding their electoral votes in the future. A federal constitutional amendment would eliminate this existing state power.

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

Fifth, passing a constitutional amendment requires an enormous head of steam at the front-end of the process (i.e., getting a two-thirds vote in both houses of Congress). Only 17 constitutional amendments have been ratified since passage of the Bill of Rights by Congress. The last time Congress successfully proposed a federal constitutional amendment that was ratified by the states was the 26^th Amendment (voting by 18-year-olds) in 1971. The last constitutional amendment to be ratified was the 27^th Amendment (congressional salaries) in 1992.[191] In contrast, state action permits support to bubble up from the people through the state legislative process. The genius of the U.S. Constitution is that it provides a way for both the central government and state governments to initiate change. Building support from the bottom-up is more likely to yield success than a top-down approach.

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

Footnotes