Three states have joined the National Popular Vote Interstate Compact in 2019
Last month, New Mexico Gov. Michelle Lujan Grisham (D) signed House Bill 55, entering the state into the National Popular Vote Interstate Compact. New Mexico joins Colorado and Delaware as states which have joined the compact so far this year. All three states are Democratic trifectas - Colorado and New Mexico became trifectas as a result of the 2018 elections.
According to the Council of State Governments, an interstate compact is a contractual arrangement made between two or more states in which the parties agree on a specific policy issue and either adopt a set of standards or cooperate with one another on a particular regional or national matter. These may be in regard to a variety of topics, such as transportation, environmental protection, or civil defense.
One example of an interstate compact is the New York-New Jersey Port Authority Compact of 1921 which was created to improve the coordination of transit and transportation between the two states. The Port Authority of New York and New Jersey, a joint venture made possible by the compact, currently manages airports, seaports, bridges, and tunnels in both states. Another well-known compact is the Multistate Lottery Agreement among 31 states, the District of Columbia, and the U.S. Virgin Islands. This agreement led to the formation of the Multi-State Lottery Association, which facilitates multi-jurisdictional lotteries such as Powerball and Mega Millions.
The National Popular Vote Interstate Compact (NPVIC) is an interstate agreement to award each member state's presidential electors to the winner of the national popular vote. The NPVIC would go into effect if states representing at least 270 electoral college votes adopt the legislation. This compact does not abolish the electoral college system; rather, it is designed to award all of the electoral votes from the member states to whichever presidential candidate receives the most votes nationwide. To date, 14 states and Washington, D.C.—representing 189 electoral votes—have joined.
Most states currently use a winner-take-all system for awarding their electoral votes in the Electoral College. Under this method, the presidential candidate that receives a plurality of the popular vote in a state receives all of that state's electoral votes. In five of 58 presidential elections, the winner of the electoral college did not receive the most popular votes. This occurred most recently in the 2016 presidential election as Donald Trump received 304 electoral votes and Hillary Clinton had more total votes nationwide.
Supporters and opponents of the NPVIC disagree about whether the agreement is constitutional under the U.S. Constitution’s Compact Clause. Article 1, Section 10 of the U.S. Constitution states, “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
Jessica Heller, a legal writer at FairVote, said that the U.S. Supreme Court has interpreted the Compact Clause to allow agreements between states that do not “infringe upon federal supremacy.” She wrote in a 2012 article on FairVote.org: “On its face, the Compact Clause does ostensibly prohibit any compact between states lacking congressional consent. However, the Supreme Court has definitively stated that ‘not all agreements between States are subject to the strictures of the Compact clause.’”
William G. Ross, a law professor at Samford University, disagrees, stating in a 2012 commentary at Jurist, “Although the compact would not violate the letter of the Constitution since it would retain the Electoral College and would not alter the method by which electoral votes are assigned or change the number of electoral votes that any state has, it would jettison the federalist structure of the Electoral College to the extent that the popular vote rather than the votes of individual states would determine the outcome.”
Maryland was the first state to join the NPVIC in 2007. Of the 14 states which have entered into the compact so far, 12 were Democratic trifectas and two had divided government at the time the legislation was signed.
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