Any State of the United States and the District of Columbia may become a member of this agreement by enacting this agreement.
Each member state shall conduct a statewide popular election for President and Vice President of the United States.
Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a “national popular vote total” for each presidential slate.
The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the “national popular vote winner.”
The presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.
At least six days before the day fixed by law for the meeting and voting by the presidential electors, each member state shall make a final determination of the number of popular votes cast in the state for each presidential slate and shall communicate an official statement of such determination within 24 hours to the chief election official of each other member state.
The chief election official of each member state shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate made by the day established by federal law for making a state’s final determination conclusive as to the counting of electoral votes by Congress.
In event of a tie for the national popular vote winner, the presidential elector certifying official of each member state shall certify the appointment of the elector slate nominated in association with the presidential slate receiving the largest number of popular votes within that official’s own state.
If, for any reason, the number of presidential electors nominated in a member state in association with the national popular vote winner is less than or greater than that state’s number of electoral votes, the presidential candidate on the presidential slate that has been designated as the national popular vote winner shall have the power to nominate the presidential electors for that state and that state’s presidential elector certifying official shall certify the appointment of such nominees.
The chief election official of each member state shall immediately release to the public all vote counts or statements of votes as they are determined or obtained.
This article shall govern the appointment of presidential electors in each member state in any year in which this agreement is, on July 20, in effect in states cumulatively possessing a majority of the electoral votes.
This agreement shall take effect when states cumulatively possessing a majority of the electoral votes have enacted this agreement in substantially the same form and the enactments by such states have taken effect in each state.
Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.
The chief executive of each member state shall promptly notify the chief executive of all other states of when this agreement has been enacted and has taken effect in that official’s state, when the state has withdrawn from this agreement, and when this agreement takes effect generally.
This agreement shall terminate if the electoral college is abolished.
If any provision of this agreement is held invalid, the remaining provisions shall not be affected.
For purposes of this agreement,
“chief executive” shall mean the Governor of a State of the United States or the Mayor of the District of Columbia;
“elector slate” shall mean a slate of candidates who have been nominated in a state for the position of presidential elector in association with a presidential slate;
“chief election official” shall mean the state official or body that is authorized to certify the total number of popular votes for each presidential slate;
“presidential elector” shall mean an elector for President and Vice President of the United States;
“presidential elector certifying official” shall mean the state official or body that is authorized to certify the appointment of the state’s presidential electors;
“presidential slate” shall mean a slate of two persons, the first of whom has been nominated as a candidate for President of the United States and the second of whom has been nominated as a candidate for Vice President of the United States, or any legal successors to such persons, regardless of whether both names appear on the ballot presented to the voter in a particular state;
“state” shall mean a State of the United States and the District of Columbia; and
“statewide popular election” shall mean a general election in which votes are cast for presidential slates by individual voters and counted on a statewide basis.
Click on each section below for an explanation of each article of the National Popular Vote Compact bill.
+ Explanation of Article I—Membership
Article I of the compact identifies the compact’s prospective parties, namely the 51 jurisdictions that are currently entitled to appoint presidential electors under the U.S. Constitution. These 51 jurisdictions include the 50 states and the District of Columbia (which acquired the right to appoint presidential electors under terms of the 23th Amendment). Elsewhere in the compact, the uncapitalized word “state” (defined in Article V of the compact) refers to any of these 51 jurisdictions. The term “member state” refers to a jurisdiction where the compact has been enacted into law and is in effect.
+ Explanation of Article II—Right of the People in Member States to Vote for President and Vice President
Article II of the compact mandates a popular election for President and Vice President in each member state.
“Each member state shall conduct a statewide popular election for President and Vice President of the United States.”
The term “statewide popular election” is defined in Article V of the compact as
“a general election at which votes are cast for presidential slates by individual voters and counted on a statewide basis.”
From the perspective of the operation of the compact, this clause guarantees that there will be popular votes for President and Vice President to count in each member state. It fortifies the practice of the states (universal since the 1880 election) to permit the people to vote for President. As discussed in detail in section 2.2, the people of the United States have no federal constitutional right to vote for President and Vice President. The people have acquired the privilege to vote for President and Vice President as a consequence of legislative action by their respective states. Moreover, except in Colorado, the people have no state constitutional right to vote for President and Vice President, and the existing privilege may be withdrawn at any time merely by passage of a state law. Indeed, the voters chose the presidential electors in only six states in the nation’s first presidential election (1789). Moreover, state legislatures have occasionally changed the rules for voting for President for purely political reasons. For example, just prior to the 1800 presidential election, the Federalist-controlled legislatures of Massachusetts and New Hampshire—fearing Jeffersonian victories in the popular votes in their states—repealed existing state statutes allowing the people to vote for presidential electors and vested that power in themselves.
Because an interstate compact is a contractual obligation among the member states, the provisions of a compact take precedence over any conflicting law of any member state. This principle applies regardless of when the conflicting law may have been enacted.[1] Thus, once a state enters into an interstate compact and the compact takes effect, the state is bound by the terms of the compact as long as the state remains in the compact. Because a compact is a contract, a state must remain in an interstate compact until the state withdraws from the compact in accordance with the compact’s terms for withdrawal. Thus, in reading each provision of a compact, the reader may find it useful to imagine that every section of the compact is preceded by the words
“Notwithstanding any other provision of law in the member state, whether enacted before or after the effective date of this compact,…”
Thus, as long as a state remains in the compact, Article II of the compact establishes the right of the people in each member state to vote for President and Vice President.
In addition, the wording of Article II of the compact requires continued use by member states of another feature of presidential voting that is currently in universal use by the states, namely the “short presidential ballot.” Under the short presidential ballot (described in detail in section 2.2.6), the voter is presented with a choice among “presidential slates” containing a specifically named presidential nominee and a specifically named vice-presidential nominee.[2] This clause does not prevent states from displaying the names of candidates for presidential elector on the ballot (as a small number of states currently do). It simply requires that the names of the presidential candidates appear on the ballot. The term “presidential slate” is defined in Article V of the compact as
“a slate of two persons, the first of whom has been nominated as a candidate for President of the United States and the second of whom has been nominated as a candidate for Vice President of the United States, or any legal successors to such persons ….”
The continued use of the short presidential ballot permits the aggregation, from state to state, of the popular votes that have been cast for the various presidential slates. If, for example, the voters in a particular state were to cast separate votes for individual presidential electors (say, as they did in 1964 as shown by the Vermont ballot in figure 2.1 and discussed in section 2.2.6 or as they did in 1960 as shown by the Alabama ballot in figure 2.13 and discussed in section 2.11), the winning presidential electors from that state would each inevitably receive a (slightly) different number of votes. Thus, there would not be any single number available to add into the nationwide tally being accumulated by the presidential slates running in the remainder of the country.
[1] Council of State Governments. 2003. Interstate Compacts and Agencies 2003. Lexington, KY: The Council of State Governments. Page 6.
[2] This clause does not prevent a presidential candidate from running with more than one vice-presidential nominee. In 2004, for example, there were two different Nader “presidential slates” in New York. Ralph Nader appeared on the ballot in New York as the presidential nominee of the Independence Party with Jan D. Pierce as his vice-presidential nominee. He simultaneously appeared on the New York ballot as the presidential nominee of the Peace and Justice Party with Peter Miguel Camejo as his vice-presidential nominee. There were, necessarily, two different lists of 31 nominees for presidential elector associated with each of the two Nader “presidential slates” in New York in 2004. Existing New York law treated and counted Nader’s Independence Party votes separately from Nader’s Peace and Justice Party votes.
+ Explanation of Article III—Manner of Appointing Presidential Electors in Member States
Article III of the compact is the heart of the compact. It establishes the mechanics of a nationwide popular election by prescribing the “manner of appointing presidential electors in member states.”
The National Popular Vote compact is state legislation that exercises existing state power under Article II, section 1, clause 2 of the U.S. Constitution:
“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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”[3] [Emphasis added]
The first three clauses of Article III are the main clauses for implementing nationwide popular election of the President and Vice President.
The first clause of Article III of the compact provides:
“Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a ‘national popular vote total’ for each presidential slate.”
The phrase “the time set by law for the meeting and voting by the presidential electors” refers to the federal law (Title 3, chapter 1, section 7 of the United States Code) providing:
“The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.”
For example, the federally designated day for the meeting of the Electoral College in 2012 was Monday, December 17, 2012.
The term “chief election official” used throughout the compact is defined in Article V of the compact as
“the state official or body that is authorized to certify the total number of popular votes cast for each presidential slate.”
In most states, the “chief election official” is the Secretary of State or the state canvassing board. In Alaska, the Lieutenant Governor is the “chief election official.”
The first clause of Article III of the compact requires that the chief election official obtain statements showing the number of popular votes cast for each presidential slate in each state. Then, this clause requires that the popular votes for each presidential slate from all the states be added together to yield a “national popular vote total” for each presidential slate.
Because the purpose of the compact is to achieve a nationwide popular vote for President and Vice President, the popular vote counts from all 50 states and the District of Columbia are included in the “national popular vote total” regardless of whether the jurisdiction is a member of the compact. That is, the compact counts the popular votes from member states on an equal footing with those from non-member states. Votes from all states and the District of Columbia are treated equally in calculating the “national popular vote total.”
Popular votes can, however, only be counted from non-member states if there are popular votes available to count. As previously mentioned, Article II of the compact guarantees that each member state will produce a popular vote count because it requires member states to permit their voters to vote for President and Vice President in a “statewide popular election.” Even though all states have permitted their voters to vote for presidential electors in a “statewide popular election” since the 1880 election, non-member states are, of course, not bound by the compact. In the unlikely event that a non-member state were to take the presidential vote away from its own people, there would be no popular vote count available from such a state.
Similarly, in the unlikely event that a non-member state were to remove the names of the presidential nominees and vice-presidential nominees from the ballot and present the voters only with names of candidates for presidential elector (as was the case in 1960 in Alabama as shown by the ballot in figure 2.13 and discussed in section 2.11), there would be no way to associate the vote counts of the various presidential electors with the nationwide tally being accumulated by any regular “presidential slate” running in the rest of the country.
The compact addresses the above two unlikely possibilities by specifying that the popular votes that are to be aggregated to produce the “national popular vote total” are those that are
“… cast for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election … .” [Emphasis added]
In this way, the first clause of Article III of the compact deals with the unlikely possibility of a “one-state veto” preventing the orderly operation of the compact.
The word “determine” is discussed below in connection with the fourth and fifth clauses of Article III of the compact.
“The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the ‘national popular vote winner.’”
The third clause of Article III of the compact guarantees that the “national popular vote winner” will end up with a majority of the electoral votes in the Electoral College.
“The presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.”
The third clause of Article III of the compact refers to the “presidential elector certifying official” (defined in Article V of the compact) rather than the “chief election official” because these two officials are not necessarily the same in every state.
Because the purpose of the compact is to implement a nationwide popular election of the President and Vice President, it is the national vote total—not each state’s separate statewide vote count—that would determine the national winner. Under the compact, the Electoral College would reflect the nationwide will of the voters—not the voters’ separate statewide choices. Thus, if, for example, the Republican presidential slate is the national popular vote winner, the presidential electors nominated by the Republican Party in all states belonging to the compact would win election as members of the Electoral College in those states.
For purposes of illustration, suppose that the compact had been in effect in 2004, and that California had been a member of the compact in 2004, and that the Republican Bush–Cheney presidential slate received the most popular votes in all 50 states and the District of Columbia (as indeed was the case in the 2004 presidential election). In that event, the California Secretary of State would have declared the 55 presidential electors who had been nominated by the California Republican Party to be elected as California’s members of the Electoral College. Those 55 Republican presidential electors would have gone to Sacramento in mid-December and cast their votes for their own party’s nominees, namely George W. Bush and Dick Cheney.
In fact, 55% of California voters favored the Kerry–Edwards slate in 2004. Nonetheless, all 55 Republican candidates for presidential elector (not the 55 Democrats) would have won election as members of the Electoral College in California in 2004 because the specific purpose of the compact is to guarantee the presidency to the presidential slate (Bush–Cheney in the case of 2004) with the most votes nationwide.
Because the compact becomes effective only when it encompasses states collectively possessing a majority of the electoral votes (i.e., 270 or more of the 538 electoral votes), the presidential slate receiving the most popular votes in all 50 states and the District of Columbia is guaranteed at least 270 electoral votes when the Electoral College meets in mid-December. Given the fact that the Bush–Cheney presidential slate received 3,012,171 more popular votes in the 50 States and the District of Columbia in 2004 than the Kerry–Edwards slate, the compact would have guaranteed the Bush–Cheney slate a majority of the electoral votes in the Electoral College. Under the compact, the Bush–Cheney slate would have received a majority of the electoral votes even if 59,393 Bush–Cheney voters in Ohio had shifted to the Kerry–Edwards slate in 2004 thereby giving Kerry–Edwards the most popular votes in Ohio. In contrast, under the current system, if the Kerry–Edwards slate had carried Ohio, the Democrats would have received all of the state’s 20 electoral votes and the Kerry–Edwards slate would have been elected to office with 272 electoral votes (to Bush’s 266).
The first three clauses of Article III of the compact are the main clauses for implementing nationwide popular election of the President and Vice President. The remaining clauses of Article III of the compact deal with administrative matters, various contingencies, and technical issues.
The fourth clause of Article III of the compact requires the timely issuance by each of the compact’s member states of an “official statement” of the state’s “final determination” of its presidential vote.
“At least six days before the day fixed by law for the meeting and voting by the presidential electors, each member state shall make a final determination of the number of popular votes cast in the state for each presidential slate and shall communicate an official statement of such determination within 24 hours to the chief election official of each other member state.”
The particular deadline in this clause corresponds to the deadline contained in the “safe harbor” provision of federal law (section 5 of Title 3, chapter 1 of the United States Code). The phrase “final determination” in this clause corresponds to the term used in the “safe harbor” provision. Section 5 provides:
“If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.” [Emphasis added]
The federally established “safe harbor” date for the November 6, 2012 presidential election was Monday December 10, 2012.
The fourth clause of Article III of the compact, in effect, mandates each member state to comply with the “safe harbor” deadline. As a practical matter, this clause is merely a backstop because most states already have specific state statutory deadlines for certifying the results of presidential elections, and these existing statutory deadlines generally come considerably earlier than the federal “safe harbor” date (appendix T).
The word “communicated” in the fourth clause of Article III of the compact is intended to permit transmission of the “official statement” by secure electronic means that may become available in the future (rather than, say, physical delivery of the official statement by an overnight courier service).
The fourth clause of Article III of the compact is a backstop for section 5 of Title 3, chapter 1 of the United States Code. The U.S. Supreme Court in Bush v. Gore effectively treated the “safe harbor” date as a deadline for a state’s “final determination” of its presidential election results.[4]
As to the non-compacting states, existing federal law (section 6 of Title 3 of the United States Code) requires that an official count of the popular vote for President from each state be certified and sent to various federal officials in the form of a “Certificate of Ascertainment.”
“It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast….” [Emphasis added]
Figure 1 shows Vermont’s 2008 Certificate of Ascertainment. The Certificate reads:
“Pursuant to the laws of the United States, I, James H. Douglas, Governor of the State of Vermont, certify that the following named persons, residing in the towns indicated, received the number of votes indicated for the office of ELECTORS OF PRESIDENT AND VICE PRESIDENT OF THE UNITED STATES. These votes were cast at the election held on Tuesday November 4, 2008.”
Vermont’s 2008 Certificate of Ascertainment contains the election results for eight political parties and scattered write-ins. The candidates receiving the most votes (219, 262) are listed first on the certificate, and they were:
“For President and Vice President of the United States”
“Barack Obama and Joe Biden, Democratic
“Electors of President and Vice President of the United States
“Claire Ayer, Weybridge
“Euan Bear, Bakersfield
“Kevin B. Christie, Hartford
Vermont’s 2008 Certificate of Ascertainment similarly presents the number of popular votes received by each of the other candidates.
Figure 1 Vermont’s 2008 Certificate of Ascertainment
Appendices E, F, G, H, and I show examples of certificates of ascertainment from Minnesota, Maine, Nebraska, New York, and Mississippi, respectively (each of which has specific features of interest discussed in chapter 2). Figure 9.5 shows North Dakota’s 2008 Certificate of Ascertainment. The certificates of ascertainment from all 50 states and the District of Columbia are available on-line for the 2000, 2004, and 2008 presidential elections.[5]
The Certificate of Ascertainment is not, of course, the only official document existing in a state from which the vote count for presidential elections may be determined. As discussed in chapter 2, the vote counts for all elective offices (including the votes for presidential slates) are already officially recorded and contained in certificates that are created at the local level and then transmitted to the state official or body that is authorized to certify the total number of popular votes for each elective office in the state. Thus, the same information as contained in the Certificate of Ascertainment is available from other sources in the state.
The fifth clause of Article III of the compact provides:
“The chief election official of each member state shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate made by the day established by federal law for making a state’s final determination conclusive as to the counting of electoral votes by Congress.”
When the joint session of Congress counts the electoral votes on January 6 as provided in Title 3, chapter 1, section 15 of the United States Code, each state’s own “final determination” of its vote is considered “conclusive” as to the counting of electoral votes by Congress if it was finalized by the date established in the “safe harbor” provision of federal law (Title 3, chapter 1, section 5). This section makes each state’s (and, in particular, each non-member state’s) final determination of its popular vote similarly “conclusive” when the chief election officials of the compact’s member states add up the national popular vote under the terms of the compact. In other words, the chief election officials of the compact’s member states are bound to honor each state’s “final determination” in the same way that the joint session of Congress is currently bound to honor each state’s “final determination.”
The sixth clause of Article III of the compact deals with the highly unlikely event of a tie in the national popular vote count:
“In event of a tie for the national popular vote winner, the presidential elector certifying official of each member state shall certify the appointment of the elector slate nominated in association with the presidential slate receiving the largest number of popular votes within that official’s own state.”
The purpose of the seventh clause of Article III of the compact is a contingency clause designed to ensure that the presidential slate receiving the most popular votes nationwide gets what it is entitled to—namely 100% of the electoral votes of each member state.
“If, for any reason, the number of presidential electors nominated in a member state in association with the national popular vote winner is less than or greater than that state’s number of electoral votes, the presidential candidate on the presidential slate that has been designated as the national popular vote winner shall have the power to nominate the presidential electors for that state and that state’s presidential elector certifying official shall certify the appointment of such nominees.”
This clause addresses at least six potential situations that might prevent the national popular vote winner from receiving all of the electoral votes from a member state. These situations arise because of gaps and ambiguities in the widely varying language of state election laws concerning presidential elections.
First, the winning presidential slate might not be on the ballot in a particular member state. Generally, serious candidates for President qualify for the ballot in all 50 states. Ross Perot was on the ballot in all 50 states in both 1992 and 1996. John Anderson was on the ballot in all 50 states in 1980. Ralph Nader (who received only about ½% of the national popular vote in 2008) was on the ballot in 45 states. In 2012, Gary Johnson (the nominee of the Libertarian Party) was on the ballot in 48 states.[6] However, third-party presidential candidates sometimes fail to get on the ballot in a particular state because they fail to comply with the state’s ballot-access requirements. In the unlikely event that a third-party presidential candidate were to win the popular vote nationally without having qualified to be on the ballot in a particular state belonging to the compact, there would be no official slate of presidential electors “nominated in association with” the “national popular vote winner” in that particular state. The remedy for this situation (and each of the other situations described below) is to employ the concept behind Pennsylvania’s current law for nominating presidential electors (described in section 2.12). Under current Pennsylvania law, each presidential nominee directly nominates the presidential electors who will run in association with the nominee’s presidential slate in Pennsylvania.[7] The seventh clause of Article III of the compact gives the unrepresented presidential candidate the power to nominate the presidential electors for the state involved. The state’s presidential elector certifying official would then certify the appointment of the candidate’s choices for presidential elector.
Second, no presidential electors may be “nominated in association with” the winning presidential slate in a particular member state because of some unforeseen situation that might arise under the language of state election codes. The Republican National Committee scheduled the 2004 Republican National Convention to be held after Alabama’s statutory deadline for each political party to provide the name of its presidential and vice-presidential nominees to state officials. The scheduling of the convention created the possibility that there would be no Republican presidential slate on the Alabama ballot in 2004. The problem was satisfactorily resolved when the Alabama legislature agreed to pass special legislation in early 2004 to change the state law. Because the 2012 Republican National Convention is in late August and the 2012 Democratic Convention is in early September, similar special legislation will be required in 2012 in several states. In the unlikely event that a problem of this type could not be satisfactorily addressed by emergency state legislation, the seventh clause of Article III of the compact provides the means to ensure that the presidential candidate who received the most popular votes nationwide receives the electoral votes from all compacting states.
Third, a full slate of presidential electors might not be nominated in association with the winning presidential slate in a particular member state. For example, in 2004, then-Congressman Sherrod Brown was nominated as a Democratic presidential elector in Ohio. Brown was ineligible to be a presidential elector because the U.S. Constitution provides:
“No Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”[8]
Although Congressman Brown resigned his nomination as presidential elector and the Ohio Democratic Party nominated a replacement, some contended that Ohio’s procedure for filling a vacancy among the list of nominees for presidential elector did not permit naming a replacement in this situation because there had been no legal nomination for the position in the first place, and hence no vacancy to fill. This contention arose because of ambiguous language in Ohio law. This contention remained unresolved because Kerry did not carry Ohio in 2004.
One of the issues in the disputed presidential election of 1876 concerned the prohibition against federal appointees holding the position of presidential elector.[9] A fourth-class postmaster from Oregon, John W. Watts, had been nominated as one of the state’s Republican elector candidates; however, Watts did send his letter of resignation until the day after Election Day. Moreover, the Postmaster General did not acknowledge Watt’s resignation until a week after Election Day. [10] The Democrats argued that the popular votes cast for Watts should be ignored and the elector candidate receiving the next highest number of popular votes in the state (a Democrat) should be awarded the position. Oregon had a law permitting the filling of a vacancy occurring before the date for meeting of the Electoral College by the state’s remaining presidential electors (two Republicans in the case of Oregon); however, the Democrats contended that there was no vacancy to fill. The result two conflicting sets of electoral votes were sent to Washington (one certificate favoring Republican Hayes by a 3–0 margin and the other favoring Hayes over Democrat Tilden by a 2–1 margin).
Republican Rutherford B. Hayes eventually won the Presidency by a margin of 185–184 electoral votes as a result of a ruling by a special Electoral Commission on March 2, 1877.
Fourth, the possibility exists that more presidential electors might be nominated in association with a presidential candidate than the state is entitled to send to the Electoral College. Fusion voting (section 2.10) creates the possibility that two or more competing slates of presidential electors could be nominated in association with the same presidential slate.
At the present time, fusion voting is routinely and widely used in only one state—New York. Because fusion voting is so routinely used in New York, the procedures for handling fusion voting in connection with presidential elector slates are a settled issue. In 2004, for example, voters in New York had the opportunity to vote for the Bush–Cheney presidential slate on either the Republican Party line or the Conservative Party line (as shown by the voting machine face in figure 2.11). The political parties sharing a presidential nominee in New York nominate a common slate of presidential electors. Thus, the Republican and Conservative parties nominated the same slate of 31 presidential electors for the 2004 presidential election. The popular votes cast for Bush–Cheney on the Republican and Conservative lines were added together and treated as votes for all 31 Republican-Conservative candidates for the position of presidential elector. The popular votes cast for Kerry–Edwards on the Democratic Party line and the Working Families Party line were similarly aggregated and attributed to the common Kerry–Edwards slate of presidential electors. In 2004, the Kerry–Edwards presidential slate received the most popular votes in New York and therefore became entitled to all of New York’s 31 electoral votes. The common Kerry–Edwards slate of 31 presidential electors was therefore declared to be elected to the Electoral College in New York. New York’s 2004 Certificate of Ascertainment (appendix H) shows this aggregation.
Fusion voting is permissible at the present time under the laws of numerous other states under various circumstances (e.g., Vermont). The laws of states where fusion is not routinely used could lead to situations in which two competing elector slates are nominated under the banner of the same presidential slate.
Fifth, there is another way in which more presidential electors might be nominated in association with a particular presidential candidate than the state is entitled to send to the Electoral College. In states permitting advance filing of presidential write-ins (section 2.8), it is possible that different slates of presidential electors might be filed in association with the same write-in presidential slate. In the unlikely event that such a presidential slate were to the national popular vote, the winning presidential candidate would have to pare down his group of presidential electors in that state.
Sixth, in some states permitting presidential write-ins, it is possible that an insufficient number of presidential electors may be nominated in association with a particular presidential slate. For example, the Minnesota election code does not specifically require that a full slate of 10 presidential electors be identified at the time of the advance filing of write-in slates (section 2.8). In fact, it requires advance filing of the name of only one presidential elector, even though Minnesota has 10 electoral votes.[11] Moreover, voters in Minnesota may cast write-in votes for President without advance filing.
The eighth clause of Article III of the compact enables the public, the press, and political parties to closely monitor the implementation of the compact within each member state:
“The chief election official of each member state shall immediately release to the public all vote counts or statements of votes as they are determined or obtained.”
The unmodified term “statements” is intended to refer to both “official statements” of a state’s “final determination” of its presidential vote (the fourth clause of Article III of the compact) and any intermediate statements that the chief election official may obtain or consider at any time during the process of determining a state’s presidential vote. The unmodified term “statement” is also intended to encompass the variety of types of documentation that may arise under the various practices and procedures of the states for officially recording and reporting presidential votes. The Certificate of Ascertainment issued by the state in accordance with federal law,[12] for example, would be considered to be a “statement.” However, the Certificate of Ascertainment is not the only “statement” from which a state’s presidential vote might be determined.
Because time is severely limited prior to the constitutionally mandated meeting of the Electoral College in mid-December, the term “immediately” is intended to eliminate any delays that might otherwise apply to the release of information by a public official under general public-disclosure laws.
The ninth clause of Article III of the compact provides:
“This article shall govern the appointment of presidential electors in each member state in any year in which this agreement is, on July 20, in effect in states cumulatively possessing a majority of the electoral votes.”
This “governing” clause operates in conjunction with the first clause of Article IV of the compact relating to the date when the compact as a whole first comes into effect:
“This agreement shall take effect when states cumulatively possessing a majority of the electoral votes have enacted this agreement in substantially the same form and the enactments by such states have taken effect in each state.”
The ninth clause of Article III—the “governing” clause—employs the date of July 20 of a presidential election year because the six-month period starting on this date contains the following six important events relating to presidential elections:
The ninth clause of Article III of the compact addresses the question of whether Article III governs the conduct of the presidential election in a particular year whereas the first clause of Article V specifies when the compact as a whole initially comes into effect. The importance of this distinction is that it is theoretically possible that the compact could come into effect by virtue of enactment by states possessing a majority of the votes in the Electoral College (i.e., 270 or more of the 538 electoral votes), but that, at some future time, the compacting states might no longer possess a majority of the electoral votes. The situation could arise in any of four ways.
First, a future federal census might reduce the number of electoral votes possessed by the compacting states so that they no longer account for a majority of the electoral votes. This could occur if the compacting states happened to lose population relative to the remainder of the country. In that event, the compact provides that the compact as a whole would remain in effect (because the compact would have come into initial effect under the first clause of Article IV of the compact); however, Article III (the operative Article in the compact) would then not “govern” the next presidential election. If additional state(s) subsequently enacted the compact—thereby raising the number of electoral votes possessed by the compacting states above 270 by July 20 of a subsequent presidential election year—Article III of the compact would then again govern presidential elections.[14]
As a second example, if one or more states withdrew from the compact and thereby reduced the number of electoral votes possessed by the remaining compacting states below 270 by July 20 of a presidential election year, the compact as a whole would remain in effect, but Article III (the operative article in the compact) would not govern the next presidential election.
As a third example, if a new state were admitted to the Union and if the total number of seats in the U.S. House of Representatives (and hence the total number of electoral votes) were permanently or temporarily adjusted upwards, it is conceivable that the compacting states might no longer possess a majority of the new number of electoral votes. If the newly admitted state and/or some combination of pre-existing state(s) subsequently enacted the compact—thereby raising the number of electoral votes possessed by the compacting states above a majority of the new number of electoral votes—Article III of the compact would again govern.
As a fourth example, if the number of U.S. Representatives (set by federal statute) were changed so that the number of electoral votes possessed by the compacting states no longer accounted for a majority of the new number of electoral votes, Article III of the compact would not govern the next presidential election. Proposals to change the number of members of the House are periodically floated for a variety of reasons. For example, in 2005, Representative Tom Davis (R–Virginia) proposed increasing the number of Representatives from 435 to 437 on a temporary basis in connection with his bill to give the District of Columbia voting representation in Congress.[15]
As long as the compacting states possess a majority of the electoral votes on July 20 of a presidential election year, Article III of the compact would govern the presidential election. In practice, the question as to whether the compact would govern a particular presidential election would be known long before July 20 of the presidential election year. Changes resulting from the census are no surprise because the census does not affect congressional reapportionment until two years after the census.[16] A new state enters the Union only after a time-consuming process. Enactment of a state law withdrawing from an interstate compact is a time-consuming, multi-step legislative process involving the introduction of a bill, action on the bill in a committee in each house of the state legislature, debate and voting on the bill on the floor of each house, and presentment of the bill to the state’s Governor for approval or disapproval.[17] In addition, new state laws generally do not take immediate effect but instead, take effect at a particular future time specified by the state constitution.[18] Moreover, a withdrawal from the compact cannot take effect during the six-month period between July 20 of a presidential election year and the subsequent January 20 inauguration date (as discussed below). Finally, enactment of any federal statutory change in the number of U.S. Representatives is a time-consuming, multi-step legislative process.
[3] U.S. Constitution. Article II, section 1, clauses 1 and 2.
[4] Bush v. Gore. 531 U.S. 98. 2000.
