NPV—The National Popular Vote Initiative: Proposing Direct Election of the President Through an Interstate Compact

NPV—The National Popular Vote Initiative: Proposing Direct Election of the President Through an Interstate Compact

Updated October 29, 2019
NPV—The National Popular Vote Initiative: Proposing Direct
Election of the President Through an Interstate Compact
Origins
electoral college, but none of the proposals met the
The National Popular Vote (NPV) Initiative is a
constitutional requirement for proposal. Amendments must
nongovernmental advocacy campaign that promotes direct
be approved by a two-thirds vote in both houses of
popular election of the President and Vice President
Congress and then be submitted to the states for ratification
through an agreement among states, the National Popular
(for additional information, see CRS Report R43824,
Vote Interstate Compact (for additional information, see
Electoral College Reform: Contemporary Issues for
CRS Report R43823, The National Popular Vote (NPV)
Congress). Dissatisfaction with the 2000 election prompted
Initiative: Direct Election of the President by Interstate
exploration by public interest groups and nongovernmental
Compact).
organizations into potential alternative procedures that
could establish effective direct popular election without
NPV’s origins have been traced to the 2000 presidential
having to meet the rigorous constitutional requirements for
election. In that contest, Republican nominee George W.
an amendment. These efforts ultimately led to the NPV,
Bush won the presidency with a majority of 271 electoral
which its supporters introduced in 2006.
votes to his Democratic opponent Al Gore Jr.’s 266, but
Gore received 537,209 more popular votes nationwide than
How the NPV Would Work
his opponent. This outcome, sometimes referred to as an
The NPV Initiative proposes an interstate compact, an
electoral college “misfire,” particularly by opponents of the
agreement among the states that would effectively achieve
system, occurred because (1) the Constitution requires a
direct popular election of the President and Vice President
majority of electoral votes, not popular votes, to win; and
without a constitutional amendment. Each state that joins
(2) most states award electoral votes on a “winner-take-all”
the NPV agrees to appoint electors pledged to the
basis—the popular vote winner takes all the state’s electoral
candidates who won the nationwide popular vote. Election
votes, while none are allocated to the runner-up. It is
authorities in the member states would count and certify the
therefore possible to win the presidency by winning in
vote, which would be aggregated and certified as “the
states that control an electoral vote majority, while the
nationwide popular vote.” Member state legislatures would
opposing candidate wins more popular votes nationwide,
then appoint the slate of electors pledged to the nationwide
but fewer votes in the electoral college. A second such
popular vote winner. They would do this regardless of who
election occurred in 2016, when Republican candidate
won the popular vote in their state. The compact would
Donald J. Trump won the presidency with an electoral
come into effect only if its success were assured—that is,
college majority of 304 votes to his Democratic opponent,
only after states controlling a majority of electoral votes
Hillary Rodham Clinton’s 227, although Clinton received
(270 or more) had joined the compact. States could
2,869,686 more popular votes nationwide.
withdraw from the compact, but if they did so within six
months of a presidential election, the withdrawal would not
While the potential for a candidate to be elected with a
take effect until after that election.
majority of electoral votes but fewer popular votes than his
or her opponent is an inherent characteristic of the electoral
The NPV Initiative relies on the Constitution’s grant of
college system as it exists today, the 2000 and 2016
broad authority over presidential electors to the states.
presidential elections were the first such occurrences since
Article II, Section 1, authorizes them to appoint presidential
1888. Particularly in 2000, a contentious legal struggle over
electors “in such Manner as the Legislature thereof may
results in the electorally decisive state of Florida revived
direct.... ” Although presidential electors in every state have
criticism of, and concerns about, the existing procedures.
been chosen by popular vote since 1864, this practice is not
Critics argued the electoral college system was
expressly required by Article II. As a result, NPV advocates
fundamentally undemocratic because it could elect a
maintain that changing the mode of election from the voters
President who won fewer popular votes than his or her
to the state legislatures, based on the national popular vote,
opponent (for additional information, see CRS Report
complies with the Constitution.
RL32611, The Electoral College: How It Works in
Contemporary Presidential Elections). It should, they
National Popular Vote Inc., a California-based nonprofit
asserted, be replaced by direct popular election, which they
corporation established in 2006, publicizes the NPV and
claim guarantees the candidate who wins the most popular
promotes and manages a nationwide campaign to gain state
votes also wins the presidency. Defenders countered with
participation.
arguments based on tradition, federalism, and the
moderating influence of the electoral college system. In the
Debate Over the NPV
late 20th century, Congress considered constitutional
In addition to guaranteeing that the candidates winning the
amendments to establish direct election or reform the
most popular votes would always win the presidency,
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NPV—The National Popular Vote Initiative: Proposing Direct Election of the President Through an Interstate Compact
proponents claim that under NPV, candidates would
In addition to the four states identified above, the National
campaign more widely, instead of focusing resources and
Conference of State Legislatures’ State Elections
candidate time on “battleground” states, and would direct
Legislation Database identified 16 others in which the
greater attention to issues relevant to other parts of the
compact was introduced in 2019.
country. Opponents assert that NPV would diminish the
As of October 2019, NPV-related measures were still
role of states and eliminate the combined federal and
“live,” or “pending,” in two states where the legislature
national aspect of presidential elections, that it would
continued in session: North Carolina (15 electoral votes)
circumvent the founders’ intentions for use of the
and Wisconsin (10). They remain the only states with the
amendment process, and that it might lead to more, rather
potential to join the NPV Compact in 2019. In nine other
than fewer, disputed elections.
states, proposals to join the compact were introduced but
NPV has also been subject to scrutiny on legal grounds (for
not enacted or carried over to future legislative sessions:
additional information, see CRS Report R43823, The
Arizona (11 electoral votes), Florida (29), Idaho (4),
National Popular Vote (NPV) Initiative: Direct Election of
Indiana (11), Maine (4), Mississippi (6), Nevada (6), Ohio
the President by Interstate Compact, specifically pp. 20-
(18), and Virginia (13).
30). Some observers maintain that in order for the NPV to
The legislatures of the five remaining states with NPV
take legal effect, it must be approved by Congress, in
Compact legislation introduced in 2019—Georgia (16
accordance with Article I, Section 10, clause 3, of the
electoral votes), Kansas (6), Minnesota (10), New
Constitution. Others question whether the NPV might
Hampshire (4), and South Carolina (9)—have adjourned
unconstitutionally infringe on the role of the electoral
their 2019 sessions at the time of this writing. These states,
college or conflict with the Voting Rights Act by diluting
however, provide that measures not addressed are “carried
the voting strength of state minority populations.
over” to the next session. NPV-related proposals before
Progress and Prospects
these legislatures will therefore remain eligible for
consideration in their 2020 sessions.
Since its 2006 debut, the NPV Initiative has been
introduced at various times in all 50 state legislatures and
NPV opponents have countered by introducing measures to
the Council of the District of Columbia. Since 2007, 15
repeal acts joining the compact passed by the legislatures of
states and the District of Columbia have joined the NPV
Connecticut, Hawaii, Maryland, Massachusetts, New
Compact. They are listed (1) by the year of adoption and
Jersey, and Washington. To date, none of these has been
the order in which they adopted for years in which multiple
approved, although as of October 2019, repeal legislation in
states joined; and (2) by the current number of electoral
New Jersey was “live,” since that state’s legislature was
votes per state. Together, they account for a total of 196
still in session, while a repeal bill in Washington will “carry
electoral votes, 72.6 % of an electoral college majority, but
over” to the 2020 session.
74 fewer than the 270 or more required by the compact
before the NPV could be implemented.
In a recent development, “Protect Colorado’s Vote” (PCV),
an advocacy group established to oppose the NPV Initiative
 Maryland (10), 2007;
in that state, launched a campaign in early 2019 to place the
 New Jersey (14), 2008;
legislature’s action joining the initiative on the 2020 ballot

as a referendum item. On August 29, Colorado’s Secretary
Illinois (20), 2008;
of State reported that more than the necessary 124,632
 Hawaii (4), 2008;
registered voters had signed the referendum petition. The

legislation will therefore appear on the November 5, 2020,
Washington (12), 2009;
ballot. A vote in favor would sustain the legislation, while a
 Massachusetts (11), 2010;
vote against would repeal it and terminate Colorado’s

membership in the NPV Compact.
District of Columbia (3), 2010;
 Vermont (3), 2011;
Concluding Observations

The decision of four states to join the NPV Compact in
California (55), 2011;
2019 marks the most activity in a single year since 2008. It
 Rhode Island (4), 2013;
remains to be seen whether their actions generate additional

support or momentum in others. If so, this could lead to
New York (29), 2014;
further progress toward the implementation threshold of
 Connecticut (7), 2018;
states controlling 270 electoral votes. This current progress,

however, has arguably stimulated the first organized
Colorado (9), 2019;
opposition to NPV, as evidenced by efforts in Colorado to
 Delaware (3), 2019;
repeal the state’s accession to the compact. If NPV

continues its current momentum, opposition may continue
New Mexico (5), 2019; and
to grow, while additional challenges could be raised on
 Oregon (7), 2019.
constitutional grounds, as noted earlier in this report.
In 2018, Connecticut joined the NPV Compact, followed by
Colorado, Delaware, New Mexico, and Oregon in 2019.
Thomas H. Neale, Specialist in American National
Accession by these states marks the most sizable advance
Government
for the compact in several years.
IF11191
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NPV—The National Popular Vote Initiative: Proposing Direct Election of the President Through an Interstate Compact

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