9.39 Myth about States Gaming the Compact

Sean Parnell, Senior Legislative Director of Save Our States, stated in written testimony to the Maine Veterans and Legal Affairs Committee on January 8, 2024:

“The Compact can be easily gamed or manipulated. One fairly simple way for a state to increase its influence in the final outcome would be … allowing parents to cast votes on behalf of their minor children.”[1025] [Emphasis added]

The partisan impact of child voting is freely acknowledged by its proponents. For example, Professor Joshua Kleinfeld of the Antonin Scalia Law School and Professor Stephen E. Sachs, the Antonin Scalia Professor of Law at Harvard Law School, have said that there is a:

“two-percentage-point increase in the Republican advantage as between nonparents and parents of children under 18.”[1026]

The two-percentage-point advantage cited in their article entitled “Let Parents Vote” was based on a 2022 CNN exit poll that asked: “Have any children under 18?”[1027]

Senator J.D. Vance has also advocated child voting.[1028]

There is, of course, no shortage of state-level schemes for manipulating the electorate for partisan advantage.

Giving extra votes to better-educated voters would skew politics in favor of left-of-center policies.

The 2024 Texas Republican Party’s platform advocates settling statewide elections based on the number of counties that a candidate won[1029] even though the U.S. Supreme Court ruled in Gray v. Sanders in 1963 that the “country unit rule” system was unconstitutional.[1030]

The current winner-take-all system is more susceptible to state-level manipulation than a national popular vote for President.

Given the outsized impact of the very small number of battleground states, the current system is arguably more susceptible to the effects of politically motivated state-level laws than a nationwide vote for President.

In fact, there is nothing new about attempts to skew the outcome of presidential elections under the current system.

As a result of the 2010 elections, Republicans controlled both houses of the legislature and the Governor’s office in Pennsylvania and several other closely divided states that were likely to decide the outcome of the 2012 presidential election.

In June 2012, Pennsylvania state House Republican Leader Mike Turzai told a Republican State Committee meeting:

“Pro-Second Amendment? The Castle Doctrine, it’s done. First pro-life legislation—abortion facility regulations—in 22 years, done. Voter ID, which is gonna allow Governor Romney to win the state of Pennsylvania, done.”[1031] [Emphasis added]

Voter ID laws have been enacted in other presidential battleground states, such as Ohio, Wisconsin, Michigan, North Carolina, Florida, and Georgia.

Problems with the child-voting proposal

There are several problems with Parnell’s claim that child-voting provides a way by which the National Popular Vote Compact can be “easily gamed.”

A state law that gives certain voters extra votes based on their number of underage children would violate the Equal Protection Clause of the 14^th Amendment.

Plaintiffs in a lawsuit challenging child-voting would include:

• married couples with no children (and particularly infertile couples);
• married couples with only one child (who would be less influential than those with two or more children);
• married couples with only two children (who would be less influential than those with three children), and so forth;
• single parents (whose children would be less influential than children in households with two parents);
• divorcees who do not have child custody;
• single persons; and
• members of the United Society of Believers in Christ’s Second Appearing (commonly known as Shakers), who believe in celibacy and would therefore add religious discrimination to the proposal’s constitutional vulnerability.

Religious favoritism would be argued in addition to religious discrimination, because of the greater voting advantage that would be conferred upon adherents of religions that oppose birth control.

In addition, the child-voting proposal presents numerous operational difficulties, such as verifying the current accuracy of the number of additional votes that a particular adult is to receive.

Federalism ameliorates the effect of partisan manipulation.

As just mentioned, the courts can provide some protection against some politically motivated state laws.

For the sake of argument, suppose it were constitutional to give extra votes to parents with minor children (advantaging Republicans) or extra votes to better-educated adults (advantaging Democrats).

In that case, our nation’s federal system would reduce the net national political impact of such partisan manipulation, because no one political party is ever in control of every state government. For example, as of July 2024, there were 23 states in which the Republicans control both houses of the legislature and Governor’s office (a so-called “trifecta”) and 17 such Democratic states.[1032]

Admittedly, federalism cannot guarantee a perfect balance between competing political parties. However, it can reduce the net national impact of state-level partisanship.

After each census, congressional districts are typically gerrymandered in states where one party controls the legislature and Governor’s office. Although one party usually controls more state governments at any particular moment then the other, federalism reduces the net national impact of state-level partisanship.

Footnotes