Npvic: Law Or Not?

The National Popular Vote Interstate Compact (NPVIC) is an agreement between a group of US states and the District of Columbia to award all their electoral votes to whichever presidential candidate wins the popular vote across all 50 states and DC. The compact will only come into effect when it would guarantee that the candidate who receives the most votes nationwide is elected president.

As of December 2024, 17 states and DC have adopted the NPVIC, representing 209 electoral votes, or 38.8% of the Electoral College and 77.4% of the 270 votes needed to give the compact legal force.

The NPVIC has faced legal challenges, with some arguing that it requires congressional consent under the Compact Clause of Article I, Section X, and that it infringes on states' plenary power under the Presidential Electors Clause of Article II, Section I. However, supporters of the NPVIC argue that it is a constitutionally conservative, state-based approach that retains the power of the states to control how the President is elected and retains the Electoral College.

The NPVIC would require congressional consent under the Compact Clause of Article I, Section X

The National Popular Vote Interstate Compact (NPVIC) is an agreement among a group of US states and the District of Columbia to award all their electoral votes to whichever presidential ticket wins the overall popular vote in the 50 states and the District of Columbia. The compact is designed to ensure that the candidate who receives the most votes nationwide is elected president, and it would come into effect only when it would guarantee that outcome.

There is ongoing legal debate about the constitutionality of the NPVIC. At issue are interpretations of the Compact Clause of Article I, Section X, and states' plenary power under the Elections Clause of Article II, Section I.

The Compact Clause of Article I, Section X of the United States Constitution states that "No State shall, without the Consent of Congress ... enter into any Agreement or Compact with another State".

The NPVIC would alter the way elections are run, encouraging candidates to focus on the most populous regions of the country at the expense of rural states. It would also remove the possibility of contingent elections for President being conducted by the US House of Representatives.

The NPVIC would alter the horizontal balance of power between compacting and non-compacting states

The National Popular Vote Interstate Compact (NPVIC) is an agreement among a group of US states and the District of Columbia to award all their electoral votes to whichever presidential ticket wins the overall popular vote in the 50 states and the District of Columbia. The compact would go into effect if states representing at least 270 Electoral College votes adopt legislation committing them to the compact.

University of Colorado Law School professor Jennifer S. Hendricks and labour lawyer Bradley T. Turflinger have argued that the NPVIC would not alter the power of non-compacting state governments because all state governments would retain their right to select the electors of their choosing and their mode of appointment.

However, other legal commentators have argued that the power of non-compacting states would be altered because, under the NPVIC, a state's power in determining the outcomes of presidential elections would be changed from the percentage of electors it has in the Electoral College to the state's percentage of the popular vote, rendering the right of non-compacting state governments to appoint their own electors pro forma as the Electoral College outcome would be decided ex ante rather than ex post.

Also, former Federal Election Commission member Hans von Spakovsky has noted that unlike the interstate compact the Court ruled on in Multistate Tax Commission that allowed compacting states to remain "free to withdraw at any time", the NPVIC precludes compacting states from withdrawing from the compact during the last six months of a presidential term and argues that the withdrawal limitation potentially renders the compact unconstitutional under the Presidential Electors Clause of Article II, Section I.

The NPVIC would alter the vertical balance of power between the federal government and the compacting state governments

The National Popular Vote Interstate Compact (NPVIC) is an agreement between a group of U.S. states and the District of Columbia to award all their electoral votes to whichever presidential ticket wins the overall popular vote in the 50 states and the District of Columbia. The compact would come into effect only when it would guarantee that outcome.

The NPVIC would remove the possibility of contingent elections for President conducted by the U.S. House of Representatives. This would alter the vertical balance of power between the federal government and the compacting state governments. The Supreme Court has held that congressional consent is required for interstate compacts that alter the horizontal balance of power among the states.

There is debate over whether the NPVIC affects the power of non-compacting states with regard to Presidential elections. Ian Drake, a law professor at Montclair State University, has argued that Congress cannot consent to the NPVIC, because Congress has no power to alter the functioning of the Electoral College under Article I, Section VIII. However, a report by the Government Accountability Office suggests congressional authority is not limited in this way.

The NPVIC would violate the Equal Protection Clause

The National Popular Vote Interstate Compact (NPVIC) would violate the Equal Protection Clause of the Fourteenth Amendment. The Clause states that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The NPVIC would condition the weight of a vote in one jurisdiction on the cumulative votes of all other jurisdictions, thereby giving more political relevance to certain states. This would result in dissimilar treatment of similarly situated voters in separate jurisdictions, which is prohibited by the Equal Protection Clause. The Clause permits states to make classifications, but not if they arise from "invidious discrimination".

The NPVIC would also nullify the votes of the winner in a state, as the compact conditions the determination of which slate of electors to certify based on the vote tally within another state. This would violate the Equal Protection Clause, as established in Bush v. Gore, where the Supreme Court ruled that "the right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise."

Furthermore, the Supreme Court has held that an individual citizen has no federal constitutional right to vote for electors for the President unless the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. Thus, a statewide popular vote for President triggers a state requirement to provide equal protection.

The proper remedy to the issues that the NPVIC seeks to address would be a constitutional amendment to eliminate the Electoral College, as the NPVIC would intentionally disregard all votes legally cast for all but one candidate by nationalizing the Electoral College.

The NPVIC would violate the Supremacy Clause

The National Popular Vote Interstate Compact (NPVIC) is an agreement among a group of U.S. states and the District of Columbia to award all their electoral votes to whichever presidential ticket wins the overall popular vote in the 50 states and the District of Columbia. The compact would modify the way participating states implement Article II, Section 1, Clause 2 of the U.S. Constitution, which requires each state legislature to define a method to appoint its electors to vote in the Electoral College.

There is ongoing legal debate about the constitutionality of the NPVIC. At issue are interpretations of the Compact Clause of Article I, Section X, and states' plenary power under the Elections Clause of Article II, Section I.

The Supremacy Clause

The Supremacy Clause of the Constitution of the United States (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the "supreme Law of the Land", and thus take priority over any conflicting state laws.

The Supremacy Clause is essentially a conflict-of-laws rule specifying that certain federal acts take priority over any state acts that conflict with federal law. Some jurists further argue that the clause also nullifies federal law that is in conflict with the Constitution, although this is disputed.

Ian J. Drake, an associate professor of political science and law at Montclair State University, has argued that because Cuyler v. Adams held that congressional approval of interstate compacts makes them federal laws, Congress can only approve interstate compacts without violating the Supremacy Clause of Article VI if it has the enumerated or implied powers to create such laws itself. Drake argues that Congress cannot consent to the NPVIC because Congress has no legislative power to alter the Electoral College under Article I, Section VIII, and citing the Supreme Court's ruling in McPherson v. Blacker (1892), Drake notes that Article II, Section I neither enumerates nor implies any powers to or of Congress to create laws to choose the mode of appointment by which states appoint their presidential electors and only states that Congress may "determine the Time of [choosing] the Electors, and the Day on which they shall give their Votes".

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