This is an analysis of the constitutionality of using citizen initiative to enact the national popular vote interstate compact, the voter choice ballot proposal, or other reforms relating to presidential elections. Following a summary of the analysis and an introduction, the paper turns to the following: the plain meaning of relevant constitutional texts (Part I); the development of popular sovereignty from the Founding to 1892 (Part II); the seminal McPherson decision (Part III); case law under Article I, from 1892 to Arizona State Legislature (Part IV); the role of the “Independent Legislature Doctrine” in Bush v. Gore (Part V); the Arizona State Legislature case, with a critique of CJ Roberts’ dissent (Part VI); the Chiafolo faithless electors case (Part VII); and applying the law to specific proposals for reform (Part VIII).
MEVC’s Reed Hundt responded to National Popular Vote’s critique of the Voter Choice Ballot. Read his response here.
The August 13 program may be unique in having begun with an in-depth examination of race and the Electoral College. This was made possible in part because two remarkable books published in 2020 address this topic in depth, and because the authors were able to join the program. In addition, since 2018, co-host and co-organizer Making Every Vote Count has made it a part of its educational mission to bring the topic of Race and the Electoral College to the attention of the American people…
The 2020 election, whatever the outcome, will be a pivotal point in American history in fundamental respects. It will demonstrate for all to see the deep and dangerous defects in our presidential election system. Some citizens may embrace that system because it makes possible that their candidate who earns millions and millions fewer votes nationwide than his opponent will become the chief executive of the country as a whole or come very close. But the majority of Americans, including many Republicans, will feel that the country’s presidential election system has betrayed them and the values our country stands for…
This chronology was compiled by Mark Bohnhorst, Chair, Presidential Elections Team, Minnesota Citizens for Clean Elections (MNCCE).
The index provides brief comments/summaries of substantive statements of participants. A recording of the conference is available at https://www.crowdcast.io/e/electoralcollegereform2020.
National Popular Vote Research Presented to NASS (the National Association of Secretaries of State) by Matt Shapanka, of counsel to Making Every Vote Count.
The 2000 election of George W. Bush on the basis of an electoral college majority, despite his having lost the national popular vote, exposed deep faults in the current system for electing the president. It also gave rise to a renewed movement for election of the president on the basis of the national popular vote—the NPV Movement.
This paper begins with a sketch of the flaws in our current system. It then (i) traces the current movement for a national popular vote from its inception in 2001 to 2018 and (ii) discusses the opportunities created by the election of 2018 for moving to a system under which the president will be elected on the basis of who gets the most votes. It concludes by identifying some objections to a proposed interstate compact, suggesting some practical steps that resolve those objections and offering some thoughts for the future. References and citations are in the Endnotes.
In two of the past five United States Presidential elections, the winner of the national Popular Vote has lost the Electoral College. It can be contended that this dynamic is essentially lightning striking twice in the same place, and that future conflicts between the Electoral College and the Popular Vote are unlikely. However, by simulating future Presidential elections based on current trends, we discover very different results. We determine that if we continue to see close Presidential races, over 30% of elections in the next century are likely to select a President against the will of the majority of voters. As Presidential elections have been getting closer, the probability of an Electoral College / Popular Vote (“EC/PV”) clash has been rising -- this trend is likely to continue. Therefore, unless the electorate becomes less polarized and less lopsided, EC/PV splits will become an ongoing, frequent occurrence in Presidential elections…
The Voter Choice Ballot, if adopted in your state, would allow you to decide how your state should count your individual vote. It would empower you (but not require you) to make the national popular vote relevant to how your state decides which candidates should win your state. In other words, through your individual vote, you would be able to ensure that your state considers the national popular vote when assigning its electoral votes.