9.29 Myth about Unequal Treatment of Voters in Member and Non-Member States

U.S. Senator Mitch McConnell (R–Kentucky) has stated that the National Popular Vote compact:

“violates the equal protection of voters. The Equal Protection Clause of the 14th Amendment, ensures that every voter is treated equally. Yet under NPV, voters in states that haven’t signed onto the compact will be treated differently than voters in states that have.”[550] [Emphasis added]

The National Popular Vote compact would not treat voters in non-member states differently than voters in member states.

Voters in all 50 states and the District of Columbia would be treated equally by the National Popular Vote compact—regardless of whether their state belongs to the compact. The first clause of Article III of the compact provides:

“… the chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a ‘national popular vote total’ for each presidential slate.” [Emphasis added]

The popular-vote counts from all 50 states and the District of Columbia are included in the “national popular vote total” regardless of whether the jurisdiction is a member of the compact. That is, the compact counts the popular votes from member states on equal footing with those from non-member states. Votes from all states and the District of Columbia are treated equally in calculating the “national popular vote total.”

Although the National Popular Vote compact would treat all voters equally, it should be noted that the Equal Protection Clause of the 14^th Amendment does not apply to interstate matters. The Equal Protection Clause of the 14^th Amendment reads:

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

As Jennings 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.”[551] [Emphasis added]

The Equal Protection Clause of the 14^th Amendment restricts a particular state in the manner in which it treats persons “within its jurisdiction.” The Equal Protection Clause imposes no obligation on a given state concerning a “person” in another state who is not “within its [the first state’s] jurisdiction.”

On the other hand, the current state-by-state winner-take-all system treats voters unequally in several ways:

• Four out of five voters are ignored by presidential campaigns (as discussed in section 1.2.1);
• The current system does not reliably reflect the nationwide popular vote (as discussed in section 1.2.2); and
• Every vote is not equal under the current system (as discussed in section 1.2.3).

Footnotes