Legislative Memo: Statement in Support of the Agreement Among the States to Elect the President by National Popular Vote

S.3149-A/A.4422-A would add New York as a signatory to the “Agreement Among the States to Elect the President by National Popular Vote.” The NYCLU supports this bill.

Under Article II, Section 1 to the Constitution, the President is elected by an Electoral College. Under this provision each State is entitled to cast votes “equal to the number of Senators and Representatives” of that State.

The Constitution further authorizes each State to decide how their electors will vote. There are 538 total electors, representing 535 voting members of Congress and three for the District of Columbia.

Currently, all but two states pledge their electors to the candidate that receives the most votes in that state. (Maine and Nebraska split their electors.) This proposed legislation would have New York enter into a National Popular Vote Compact of states that would instead pledge their electoral votes to the winner of the national popular vote.

If 270 electoral votes are pledged in this manner, the winner of the popular vote will be elected President. The compact would not take effect until enough states have signed on to account for the necessary 270 electors.

The Electoral College, as a method of electing the President, is said to have rested upon several considerations. First, it has been suggested that the Electoral College is one of the several mechanisms, devised by the framers, to achieve a system of checks and balances as a limitation upon the excesses of pure majoritarianism.

Second, it has been suggested that the Electoral College was devised not so much out of concern about “democracy per se” but out of concern about “democracy based on inadequate voter information.”

In this regard, Professor Akhil Reed Amar has observed that “[t]he Founders believed that although voters in a given state would know enough to choose between leading state candidates for House races and for the governorship, these voters might well lack information about which out-of-state figure would be best for the presidency.”

So understood, the Electoral College was seen as an institution of informed and knowledgeable voters. Third, it seems clear that the Electoral College was proposed, instead of the direct election of President, out of concern among slaveholding states that direct democracy would allow the more populous Northern States to out-vote the South in the election of President.

Over the years, the Electoral College has been much criticized. The primary criticism flows from the fact that the system allows for the election of a candidate who receives fewer votes than his or her opponent.

In the presidential election of 2000, 500,000 more votes were cast for Al Gore than for George W. Bush; but Bush won the Electoral College vote and became President. Divergence between the popular vote and the Electoral College vote has occurred three times before: in 1824, 1876 and 1888. Out of 55 total Presidential elections, there has been an electoral failure rate of 1 in 14 elections.

There have been other close calls as well. In 2004, President Bush won the popular vote, but Senator Kerry lost Ohio by only 118,000 votes. Had 118,000 votes been cast differently in Ohio, President Bush would have lost an election that he deserved to win, despite that difference being less than 0.1% of the greater than 120 million votes cast.

The Electoral College has also been criticized for reinforcing low voter turnout. The argument is that, since each State enjoys the same number of Electoral College votes regardless of how many voters actually vote within each State, the States have no incentive to promote voter registration and participation.

Finally the Electoral College system has been criticized for allowing a handful of states to command far more than their fair share of attention and political influence. The states of Florida, Ohio and Pennsylvania come to mind in connection with recent elections.

For these reasons, the NYCLU supports a compact that would seek to ensure the election of President on the basis of the total national vote. New York’s participation in this compact would strongly enhance its chances of success nationally. New York’s 29 electoral votes would significantly increase the number of electors pledged to the compact.

As of July 2013, nine states and the District of Columbia have joined the compact bringing the total of electoral votes now pledged to the compact to 136 or 50% of the 270 votes needed for the compact to go into effect.

The addition of New York’s 29 electoral votes would bring the total to 165, which is 2/3 of the total number needed. Second, New York would be the second largest state after California to adopt the measure, generating publicity and providing political cover for other states that might otherwise be more cautious in adopting this new approach to electoral politics.

Some opponents of the measure have raised concerns about the agreement’s constitutionality on the grounds that it conflicts with the constitutional commitment to the Electoral College.

But, the compact does not present a direct conflict with the provisions calling for the election of the President by an Electoral College. While the Constitution states that electors must elect the President, it gives states no guidance or requirements on how electors must be chosen.

In fact, the Supreme Court has decided that the federal government may not interfere with the states’ choice of how to appoint their electors. Accordingly, the compact which simply instructs electors how they should vote as members of the Electoral College presents no direct constitutional conflict.

The other potential constitutional hurdle is the Compacts Clause, requiring congressional consent for certain types of interstate agreements. The law interpreting the Compacts clause is sparse, but the Supreme Court has made clear that the clause applies to compacts that seek to increase states’ political influence to the point of “interfer[ing] with the just supremacy of the United States.”

The compact would pose no conflict with federal “supremacy” and, therefore, would not violate the Compacts Clause as it is generally interpreted.

However, the argument has been made that the compact would advantage compacting states’ electoral power at the expense of non-compacting states, and run afoul of the Compacts Clause in this way. The use of interstate compacts to allow states to advantage themselves at the expense of states that are not parties to the compacts may well be a matter of political concern.

It is unclear, however, whether it is a matter of constitutional concern because the case law is unclear as to whether the Compacts Clause was intended to reach practices that privilege some states over others.

Moreover, any constitutional concern that might be raised could be cured by congressional approval of the compact. Accordingly, because a national popular vote is a desirable public policy, New York and other states should move forward in concluding an interstate compact, and should then secure congressional approval to avoid any questions regarding the application of the Compacts Clause.

This bill puts New York on the path to making United States presidential elections more fair. The NYCLU urges its enactment.

* Revised March 25, 2014.