The Constitutionality of the National Popular Vote: Refuting Challenges Based on Article II, Section One

by Elise Helgesen, Rob Richie // Published June 7, 2012

The National Popular Vote (NPV) plan guarantees election of the presidential candidate who earns the greatest number of votes in all 50 states and the District of Columbia. NPV does not dispense with the Electoral College, and is not a constitutional amendment. Rather, the plan is based on two clear powers given to the states under the Constitution: the power under Article 2 Section 1 to choose how to allocate its presidential electors, and the power under Article 1 Section 10 to enter into interstate compacts. 

States in early U.S. history often exercised the power to change rules for allocating electoral votes. While today, 48 states and the District of Columbia award their electoral votes to the winner of that state’s popular vote, the founders did not originally contemplate this type of system, as James Madison explained in 1823.

NPV is an interstate compact, a binding contract entered into by state law. Once the states that enact these NPV laws exceed the threshold of a majority of electoral votes (270 out of 538), the plan will take effect. Even where states choose not to participate in the NPV compact, the votes from those states will be incorporated on an equal basis into the total national popular vote, which in turn determine which candidate earns the electoral votes in NPV states.

Currently eight states and the District of Columbia have enacted laws to join the NPV interstate compact. The states are California, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, and Vermont. The NPV plan is now at its halfway point, meaning that states that have entered into the interstate compact make up 132 electoral votes, or 49% of the 270 electoral votes needed. 

Even with this milestone in sight and polls consistently showing strong support in states across the U.S., the NPV plan faces individual opposition as well as specific legal challenges to its effectiveness. The concerns are answered effectively by the authors of Every Vote Equal, and supportive groups like National Popular Vote, Support Popular Vote, and FairVote.

This analysis addresses one particular challenge raised recently by NPV opponents such as Sean Parnell: that NPV is unconstitutional as based on Article II Section 1 of the Constitution. The second clause of this section states: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . .” 

The issue with this clause is that it is left open to interpretation. Parnell, echoing arguments made by law professors Daniel Lowenstein and Mark Scarberry, claims that this language means that a state’s power to choose electors does not allow persons outside the state to have a role in how those electors are appointed. However, proponents of NPV claim that the clause equates the state and the legislature, as the legislature is an extension of the state’s power. Law professor Vikram Amar summarizes the argument well when writing, “Each state is making a policy choice - with intelligible principles – about the criteria (i.e. national popularity) it wants to use to make its selection of elector” and that “any nondelegation problem is cured by the power each state has to change its mind about the manner of selecting electors in later presidential elections."

The crux of the Parnell and Lowenstein argument is the question of whether the legislature is acting on behalf of the state to appoint electors when it directs the "manner" of their appointment in addition to fulfilling its due to “appoint” electors. The U.S. Supreme Court case of McPherson v. Blacker, 146 U.S. 1 (1892), is instructive for interpreting this aspect of Article II Section 1 of the U.S. Constitution. In McPherson, petitioners challenged Michigan’s law to allocate electoral votes by congressional district. The Court found that though a state is a collection of people, a state acts through its political agencies. The Court stated that “[i]t has never been doubted that the representatives in Congress thus chosen represented the entire people of the State acting in their sovereign capacity.” Thus, the phrase, “as the legislature thereof may direct” is not a limitation of the state’s power, but merely an expression of the state’s action. 

In McPherson v. Blacker, the petitioners’ argument rests on the claim that the duty to "appoint" and the duty to "direct" the manner of appointment are two separate powers: the latter assigned to the legislature by the Constitution and the former to a distinctive body called the "State," meaning the "political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed." 146 U.S. at 24 (quoting Texas v. White, 74 U.S. 700, 721).

The Court accepts (or at least does not contradict) the Texas v. White definition of "State." But far from construing Art. II, Sec. 1 as assigning two separate powers to two separate entities, the Court said that the State acts through its legislature to appoint presidential electors. This interpretation of the decision is supported by the passage:

“The State does not act by its people in their collective capacity, but through such political agencies as are duly constituted and established. The legislative power is the supreme authority except as limited by the constitution of the State, and the sovereignty of the people is exercised through their representatives in the legislature unless by the fundamental law power is elsewhere reposed. . . . What is forbidden or required to be done by a State is forbidden or required of the legislative power under state constitutions as they exist.” 146 U.S. at 25 (emphasis added).

The Court viewed the legislature and the State as interchangeable, unless the power or duty is expressly committed to another political agency of the state, or directly to the citizens of the state. This is further supported by the rest of the passage:

"The clause under consideration [Art. II, Sec. 1, cl. 1] does not read that the people or the citizens shall appoint, but that 'each State shall'; and if the words ‘in such manner as the legislature thereof may direct,’ had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion of those words, while operating as a limitation upon the State in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself." 146 U.S. 25 (emphasis added).

Furthermore, Justice Fuller concluded the historical discussion by saying "the appointment and mode of appointment of electors belong exclusively to the State under the Constitution of the United States." 124 U.S. at 35. If the Court believed that the two powers belong to separate entities – that the power to appoint belongs to the State and power to direct belongs to the legislature – it could have said as much, but it never did. In fact, McPherson supports the argument that there is a presumption that the powers of a State reside with its legislature. So when the legislature acts, that in itself is an exercise of the sovereignty of the people, i.e., the State.

Opponents might try to make the distinction between State and legislature with the McPherson quote that "the act of appointment is none the less the act of the State in its entirety because arrived at by districts, for the act is the act of political agencies duly authorized to speak for the State, and the combined result is the expression of the voice of the State, a result reached by direction of the legislature, to whom the whole subject is committed." 146 U.S. 29. 

But even here the point is that the congressional districts are "duly authorized to speak for the State" by the legislature, not that they themselves are necessarily political agencies of the state. Similarly, under the NPV compact, it is the legislatures of the individual states authorizing that the national popular vote total will determine the appointment of electors. Moreover, the Supreme Court in Bush v. Gore, 531 U.S. 98 (2000), supported the proposition in McPherson, stating that “the state legislature’s power to select the manner for appointing electors is plenary. . . .” 

Some NPV opponents suggest that granting state legislatures plenary power over the rules for appointing electors is a potential slippery slope. For example, the Maine legislature could decide that electors be appointed based on the popular vote winner in Connecticut, or a rock-paper-scissors tournament between the governors of Massachusetts and Rhode Island. But as McPherson makes clear (see 145 U.S. 29), the Constitution establishes a system that depends on the good sense of legislators -- and we can add their need to survive politically. Americans have the power to hold their state leaders accountable. They will applaud their legislators adopting a law guaranteeing the national popular vote winner is elected president, as that policy is backed by more than two-thirds of the American public, but the other scenarios are absurd hypotheticals that would not be popular and need not be taken seriously.

The bottom line is that Supreme Court jurisprudence makes it clear that the legislature acts on behalf of the state and has the power to choose the type of appointment of electors that it desires and that there is no viable constitutional challenge to a state legislature’s enactment of NPV legislation based on Article II Section 1 of the U.S. Constitution. 

* Special thanks to Cynthia Okechukwu for her analysis of McPherson v. Blacker, which was incorporated into this piece.