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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Democracy's Revenge? Bush v. Gore and the National Popular Vote

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May 16, 2006

Bush v. Gore struck many Americans, myself included, as an egregious affront to democracy. The judicial disenfranchisement of potentially thousands of Floridians through the unprecedented application of dubious constitutional doctrine seemed a plainly illegitimate exercise in judicial overreaching. It robbed Florida of the opportunity to rescue its exercise in election administration from ignominy. It insured that the uncontested winner of the 2000 national popular vote would not become President of the United States in 2001.

But democracy may have its revenge. At least, that's the hope of a project called National Popular Vote.

NPV is a non-profit corporation, with a distinguished bi-partisan advisory board of political heavyweights, that believes it has figured out how, without a formal constitutional amendment, we can guarantee that the national popular vote winner will always win the electoral college.

The plan is elegantly simple. It requires a number of states whose collective electoral votes would amount to a majority in the electoral college to form an "interstate compact." Through identical legislation enacted by all of its members, each state would promise - once the requisite number of states signed up - that it would appoint electors in each presidential election committed to voting for the national popular vote winner.

Thus, if the NPV Plan had been in effect in 2000, it would have meant that a number of states with electoral votes amounting to at least 270 would have enacted this legislation. Because Vice President Gore was the clear national popular vote winner, these states would have appointed electors committed to the Gore-Lieberman ticket. They would have done so irrespective of the outcome of the popular vote within any of the individual compact member states. And the electoral college winner would, therefore, have been Al Gore.

Securing sufficient support to bring the NPV Plan into being will entail significant effort, but nothing like the effort required to amend the Constitution. An amendment would require a vote by two-thirds of each House of Congress, including the support of a significant number of Senators and Representatives from states that currently benefit from disproportionate clout under the electoral college system. Their handiwork would then have to be ratified by three-quarters of the states, including yet more of the small ones.

By contrast, NPV could go into effect if adopted by as few as a dozen states. If ratified by a congressional majority, it would even become an "interstate compact" that one state could seek to enforce in the Supreme Court against any other state that neglected to follow the agreement. The Colorado State Senate has already adopted the measure.

In terms of sheer poetic justice, the beauty of NPV is that it takes advantage of what I have urged was a foundational error in Bush v. Gore. In a 2001 law review article, I disputed the majority's assertion that "[t]he individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College." I argued, based on the history of the Fourteenth Amendment, that state voters are entitled under the Privileges and Immunities Clause to have their state's legislative allocation of electoral votes reflect the popular vote in that state.

(Professor Pam Karlan, among the nation's most prominent voting rights scholars, disagreed - but only with regard to the clause. She would attribute the same right to the Due Process Clause instead.)

If either the Karlan or Shane theory is correct, then implementing the NPV plan would entail a violation of the Fourteenth Amendment in any state in which the state popular vote reached a result different from the national popular vote. But, happily for NPV, two law professors' articles probably amount to little against explicit Supreme Court precedent.

There is another constitutional difficulty to be faced. Namely, if the courts regard the NPV plan as depriving small states of influence they are constitutionally entitled to exercise, then NPV could be invalidated as an illegitimate attempt to do an end-run around the constitutional amendment process. On several occasions, including at least one involving an interstate compact, the Supreme Court has overturned legislative innovations that it regarded as tantamount to structural amendments to the Constitution.

Robert Richie, executive director of FairVote - The Center for Voting and Democracy - does not see the matter this way. He believes "the framers gave states the power to decide what's best for their people," including a preference for a President supported by a national plurality. He feels "confident in the legality of a rule change that treats all voters equally and is founded on the power given by the Constitution to the states."

Only time will tell whether such confidence is justified. In the meantime, the lawyer side of me entertains some constitutional doubts. But the citizen side admires a creative effort to make democratic lemonade from the biggest judicial lemon since Korematsu.