Electoral College Reform: 110th Congress Proposals, The National Popular Vote Campaign, and Other Alternative Developments

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American voters elect the President and Vice President indirectly, through presidential electors.
Established by Article II, Section 1, clause 2 of the U.S. Constitution, this electoral college
system has evolved continuously since the first presidential elections. Despite a number of close
contests, the electoral college system has selected the candidate with the most popular votes in 47 ^th
of 51 presidential elections since the current voting system was established by the 12
Amendment in 1804. In three cases, however, candidates were elected who won fewer popular
votes than their opponents, and in a fourth, four candidates split the popular and electoral vote,
leading to selection of the President by the House of Representatives. These controversial
elections occur because the system requires a majority of electoral, not popular, votes to win the
presidency. This feature, which is original to the U.S. Constitution, has been the object of
persistent criticism and numerous reform plans. In the contemporary context, proposed
constitutional amendments generally fall into two basic categories: those that would eliminate the
electoral college and substitute direct popular election of the President and Vice President, and
those that would retain the existing system in some form, while correcting its perceived defects.
Reform or abolition of the electoral college as an institution would require a constitutional
amendment, so these proposals take the form of House or Senate joint resolutions. Three relevant ^th
amendments have been introduced in the 110 Congress. H.J.Res. 36, (Representative Jesse
Jackson, Jr.) would provide for direct popular election, requiring a majority of votes for election.
H.J.Res. 4, the Every Vote Counts Amendment, (Representative Gene Green et al.) would also
provide for direct popular election, but would require a popular vote plurality, rather than a
majority, for election. It would also confer additional powers to regulate presidential elections on
the states and federal government. The third, S.J.Res. 39 (Senator Bill Nelson of Florida), would
establish direct popular election, as well as authorize congressional authority over certain aspects
of election administration.
Supporters of direct election advanced another option in 2006, the National Popular Vote (NPV)
plan. This would bypass the electoral college system through a multi-state compact enacted by
the states. Relying on the states’ constitutional authority to appoint electors, NPV would commit
participating states to choose electors committed to the candidates who received the most popular
votes nationwide, notwithstanding results within the state. NPV would become effective when
adopted by states that together possess a majority of electoral votes (270). At the present time,
four states with a combined total of 50 electoral votes (Hawaii, 4; Illinois, 21; Maryland, 10; and
New Jersey, 15) have approved the compact.
For additional information on contemporary operation of the system, please consult CRS Report
RL32611, The Electoral College: How It Works in Contemporary Presidential Elections, by
Thomas H. Neale. This report will be updated as legislative action or other developments warrant.

Introduc tion ..................................................................................................................................... 1
Competing Approaches: Direct Popular Election v. Electoral College Reform.............................2
Direct Popular Election...................................................................................................................2
Direct Popular Election: Pro and Con.......................................................................................3
Pro ............................................................................................................................ ........... 3
Con ...................................................................................................................................... 4
Electoral College Reform................................................................................................................4
Electoral College Reform: Pro and Con....................................................................................5
Pro ............................................................................................................................ ........... 5
Con ...................................................................................................................................... 6
110^th Congress Proposals.................................................................................................................7
H.J. Res. 4........................................................................................................................................7
H.J. Res. 36......................................................................................................................................8
S.J.Res. 39.......................................................................................................................................9
Contemporary Activity in the States...............................................................................................11
2004: Colorado Amendment 36—A Proportional Plan State Initiative.........................................11
2007-2008: The Presidential Reform Act (California Counts)—A State District Plan
Initiati ve ..................................................................................................................... ................ 13
2006-Present: National Popular Vote—Direct Popular Election Through An Interstate
Compact ..................................................................................................................................... 15
Origins ..................................................................................................................................... 15
The Plan..................................................................................................................................15
National Popular Vote, Inc......................................................................................................16
Action in the State Legislatures..............................................................................................16
States That Have Approved NPV......................................................................................16
States in Which One Chamber or Both of the Legislature Have Approved NPV in
the Current Session........................................................................................................17
National Popular Vote: Support and Opposition.....................................................................18
National Popular Vote: Legal and Constitutional Issues.........................................................20
Prospects for Change—An Analysis.............................................................................................22
Trends in Congressional Electoral College Reform Proposals......................................................22
Prospects for a Constitutional Amendment...................................................................................24
State Action—A Viable Reform Alternative?................................................................................25
Concluding Observations..............................................................................................................26
The Automatic Plan.......................................................................................................................27
The District Plan............................................................................................................................27
The Proportional Plan....................................................................................................................29

Appendix. Electoral College Reform Proposal Variants...............................................................27
Author Contact Information..........................................................................................................29

American voters elect the President and Vice President of the United States under a complex
arrangement of constitutional provisions, federal and state laws, and political party practices ¹
known as the electoral college system. Despite occasional close elections, this system has ^th
selected the candidate with the most popular votes in 47 of the past 51 elections since the 12 ²
Amendment was ratified in 1804. These other elections have been negatively characterized by
some commentators as electoral college “misfires.” In three instances (1876, 1888 and 2000), the
electoral college awarded the presidency to candidates who won a majority of electoral votes, but
gained fewer popular votes than their principal opponents. In a fourth case (1824), the House of
Representatives decided the contest by contingent election because no candidate had an electoral ³
vote majority. These controversial elections occurred because the system requires a majority of
electoral, not popular, votes to win the presidency, and this feature, which is original to U.S.
Constitution, has been the object of persistent criticism and numerous reform plans.
The most recent instance in which the popular vote runner up received a majority in the electoral
college occurred in 2000, when George W. Bush and Richard B. Cheney were elected over Al
Gore, Jr. and Joseph I. Lieberman, despite having won fewer popular votes.
The 2000 election outcome hinged on the State of Florida, where popular vote totals were
extremely close but uncertain after the polls closed. This was due in part to confusing ballots and
poorly maintained machinery in some Florida counties, which contributed to uncertainties over
which candidate had won the popular vote. Various attempts to conduct recounts or ascertain
individual voters’ intentions led to a bitter and protracted struggle that continued for over a month ⁴
following election day. A Supreme Court decision ended further recounts, leading to certification
of Bush-Cheney electors in Florida, and the Republicans’ subsequent election.
Following the 2000 presidential election, both the electoral college system and the shortcomings
of election administration procedures and voting machinery (the latter two historically a
responsibility of state and local governments) were criticized. While a number of constitutional ^th
amendments were proposed, the 107 Congress addressed the latter element of this issue with the
enactment of the Help America Vote Act, “HAVA” (P.L. 107-252, 116 Stat. 1666), in 2002. This
act, passed with broad bipartisan support, established national standards for voting systems and

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certain election procedures, and included a program of grants to assist state and local ⁵
governments in meeting the act’s goals.
The successful passage of HAVA contrasted with the lack of legislative activity in recent
Congresses on proposed constitutional amendments that would eliminate or reform the electoral
college system. The contrast serves to highlight the comparative difficulties faced by would-be
electoral college reformers. The fundamentals of the electoral college system were established by
the Constitution, and can only be altered by a constitutional amendment, a much more difficult
process than the passage of legislation. Moreover, HAVA’s prospects for enactment were boosted
by the fact that, while few would defend the sometimes embarrassing failures in voting
technology that contributed to passage of the act, efforts to eliminate the electoral college would
arguably be vigorously opposed in Congress and the public forum by its various advocates and
defenders.
Not all approaches to electoral college reform necessarily involve action at the federal level,
however. In 2004, for instance, Colorado voters rejected a proposed amendment to the state
constitution that would have established the proportional system, one variant of electoral college
reform (discussed in the Appendix) in that state. More recently, the National Popular Vote (NPV)
movement is currently coordinating a campaign that would rely on a multi-state compact, in the
form of binding state legislation, to guarantee that the popular vote winners in every election
would also win the electoral vote.
This report examines and analyzes alternative proposals for change, presents pro and con ^th
arguments, and identifies and analyzes 110 Congress proposals and contemporary alternative
reform developments.

A wide range of constitutional proposals to reform presidential election procedures have been
introduced over time. In recent decades, they have fallen into two categories: (1) those that seek
to eliminate the electoral college system entirely and replace it with direct popular election; and
(2) those that seek to repair perceived defects while preserving the existing system.

The direct election alternative would abolish the electoral college, substituting a single
nationwide count of popular votes. The candidates winning a plurality of votes would be elected
President and Vice President. Most direct election proposals would constitutionally mandate
today’s familiar joint tickets of presidential/vice presidential candidates, a feature that is already ⁶
incorporated in state law. Some would require simply that the candidates winning the most

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popular votes be elected. Others, however, would set a minimum threshold of votes necessary to
win election—generally 40% of votes cast; in some proposals a majority would be required.
According to these proposals, if no presidential ticket were to attain the 40% or majority
threshold, then the two tickets with the highest popular vote total would compete in a subsequent
runoff election. Alternatively, some versions would provide for Congress, meeting in joint
session, to elect the President and Vice President if no ticket received 40% of the vote.
Proponents of direct popular election cite a number of factors in support of their proposal. At the
core of their arguments, they assert that the process would be simple, national, and democratic.
• They assert that direct popular election would provide for a single, democratic
choice, allowing all the nation’s voters to choose directly the two highest-ranking
executive branch officials in the United States government, the President and
Vice President.
• Further, the candidates who won the most popular votes would always win the
election. Under some direct election proposals, if no presidential ticket received
at least 40% of the vote, the voters would then choose between the two tickets
that gained the most votes in a runoff election. Other direct election proposals
would substitute election by a joint session of Congress for a runoff if no ticket
received at least 40% of the vote.
• Every vote would carry the same weight in the election, no matter where in the
nation it was cast. No state would be advantaged, nor would any be
disadvantaged.
• Direct election would eliminate the potential complications that could arise under
the current system in the event of a presidential candidate’s death between
election day and the date on which electoral vote results are declared, since the
winning candidates would become President-elect and Vice President-elect as ⁷
soon as the popular returns were certified.
• All the various and complex mechanisms of the existing system, such as
provisions in law for certifying the electoral vote in the states and the contingent
election process, would be supplanted by these comparatively simple ⁸
requirements.

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Electoral college defenders oppose these arguments, pointing to what they assert are flaws in
direct election.
• Direct election proponents claim their plan is more democratic, and provides for
“majority rule,” yet most direct election proposals require that victorious
candidates gain as little as 40% of the vote (less than a majority) in order to be
elected. Others, moreover, include no minimum vote threshold at all. These
critics ask, how could plurality Presidents be reconciled with the requirement for
strict “majority rule” demanded by direct election’s proponents?
• Opponents maintain that direct popular election, without the filtering device of
the electoral college, might result in political fragmentation, as various elements
of the political spectrum form competing parties, and regionalism, as candidates
claiming to champion the particular interests of various parts of the country
entered presidential election contests.
• Further, they assert that direct election would foster acrimonious and protracted
post-election struggles, rather than eliminate them. For instance, as the
presidential election of 2000 demonstrated, close results in a single state in a
close election are likely to be bitterly contested. Under direct election, those
favoring the electoral college argue, every close election might resemble the
post-election contests in 2000, not just in one state, but nationwide, as both
parties seek to gain every possible vote. Such rancorous disputes could have
profound negative effects on political comity in the nation, and, in the worst case,
might undermine the stability and legitimacy of the federal government. To those
who suggest that the struggle over Florida’s popular vote returns in 2000 was
unique, they could cite the example of Ohio in 2004, where multiple legal actions
were pursued even though the popular vote margin for the winning candidates ⁹
exceeded 118,000.

Reform measures that would retain the electoral college in some form have included several
variants; most versions of these plans would eliminate the office of elector, would award electoral
votes directly to the candidates, and would retain the requirement that a majority of electoral
votes is necessary to win the presidency. In common with direct election, most would also require
joint tickets of presidential-vice presidential candidates, a practice currently provided by state
law. The three most popular reform proposals include (1) the automatic plan, which would award
electoral votes automatically and on the current winner-take-all basis in each state; (2) the district
plan, as currently adopted in Maine and Nebraska, which would award one electoral vote to the
winning ticket in each congressional district in each state, and each state’s two additional
electoral votes awarded to the statewide popular vote winners; and (3) the proportional plan,
which would award each state’s electoral votes in proportion to the percentage of the popular vote
gained by each ticket. More detailed explanations of these alternatives are included in the
Appendix to this report.

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Defenders of the electoral college, either as presently structured, or reformed, offer various
arguments in its defense.
• They reject the suggestion that it is undemocratic. Electors are chosen by the
voters in free elections, and have been in nearly all instances since the first half ^th
of the 19 century.
• The electoral college system prescribes a federal election of the President by
which votes are tallied in each state. The United States is a federal republic, in
which the states have a legitimate role in many areas of governance, not the least
of which is presidential elections. The Founders intended that choosing the
President would be an action American voters take both as citizens of the United
States, and as members of their state communities.
• While electoral vote allocation does provide the “constant two,” or “senatorial”
electors for each state, regardless of population, defenders believe this is another
federal element in our constitutional system, and is no less justifiable than equal
representation for all states in the Senate. Moreover, the same formula also
assigns additional electors equal in number to each state’s delegation in the
House of Representatives.
• Further, defenders reject the suggestion that less populous states like Alaska,
Delaware, Montana, North Dakota, South Dakota, Vermont and Wyoming, as
well as the District of Columbia, each of which casts only three electoral votes,
are somehow “advantaged” when compared with California (currently 55
electoral votes). These 55 votes alone, they note, constitute more than 20% of the
electoral votes needed to win the presidency, thus conferring on California
voters, and those of other populous states, a “voting power” advantage that far ¹⁰
outweighs the minimal arithmetical edge conferred on the smaller states.
• The electoral college system promotes political stability, they argue. Parties and
candidates must conduct ideologically broad-based campaigns throughout the
nation in hopes of assembling a majority of electoral votes. The consequent need
to forge national coalitions having a wide appeal has been a contributing factor in
the moderation and stability of the two-party system.
• They find the “faithless elector” phenomenon to be a specious argument.¹¹ Only
nine such electoral votes have been cast against instructions since 1820, and none
has ever influenced the outcome of an election. Moreover, nearly all electoral

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^a^g^eⁿ^ts^{, g}^u^ide^d^,^butⁿ^o^t^bo^un^{d, t}^o^v^o^te^f^o^r^the^c^a^ndi^da^te^s^the^y^w^e^r^e^e^l^e^c^t^e^d^{to s}^u^pp^or^t.^For^f^u^r^t^he^r^inf^o^r^m^a^{tion, ple}^a^s^e
^c^ons^ultC^R^S^R^e^po^r^t^R^L³⁰⁸⁰^4,^T^h^e^Ele^c^t^or^{al C}^o^lle^ge^:^Aⁿ^O^v^e^r^vⁱ^e^w^an^{d A}^naly^s^is^{of Re}^f^o^r^m^Pr^op^os^al^s^{, by}^L^.^P^a^ig^e
^W^hⁱ^t^a^{ker an}^d^T^h^o^m^{as H.}^Ne^al^e,^The^Ele^c^t^or^a^l^C^o^lle^ge^:^Aⁿ^O^v^e^r^vⁱ^e^w^and^Pr^o^pos^a^l^s^for^C^h^a^nge^,^by^L^.^P^a^ig^e^W^h^ita^k^e^r
^an^d^T^h^o^m^{as H.}^Neal^e.

college reform plans would remove even this slim possibility for mischief by
eliminating the office of elector.
Supporters of direct election and critics of the electoral college counter that the existing system is
cumbersome, potentially anti-democratic, and beyond saving. The following asserted failings are
frequently cited.
• The electoral college, direct election supporters assert, is the antithesis of their
simple and democratic proposal. It is, they contend, philosophically obsolete: ^th
indirect election of the President is an 18 century anachronism that dates from a
time when communications were poor, the literacy rate was much lower, and the
nation had yet to develop the durable, sophisticated, and inclusive political
system it now enjoys.
• They find the 12^th Amendment provisions that govern cases in which no
candidate attains an electoral college majority (contingent election) to be even ¹²
less democratic than the primary provisions of Article II, Section 1.
• By providing a fixed number of electoral votes per state that is adjusted only after
each census, they maintain, the electoral college does not accurately reflect state
population changes in intervening elections.
• They assert that the two “constant” or “senatorial” electors assigned to each state
regardless of population give some of the nation’s least populous jurisdictions a
disproportionate advantage over more populous states, from this viewpoint.
• The office of presidential elector itself, they note, and the resultant “faithless
elector” phenomenon (see footnote 10), provide opportunities for political
mischief and deliberate distortion of the voters’ choice.
• They argue that by awarding all electoral votes in each state to the candidates
who win the most popular votes in that state, the winner-take-all system
effectively disenfranchises everyone who voted for other candidates. Moreover,
this same arrangement is the centerpiece of one category of electoral college
reform proposal, the automatic plan. For more on the proportional plan, see the
Appendix to this report.
• Critics further note that, although all states currently provide for choice of
electors by popular vote, state legislatures still retain the constitutional option of
taking this decision out of the voters’ hands, and selecting electors by some other, ¹³
less democratic means. This option was, in fact, discussed in Florida in 2000
during the post-election recounts, when some members of the legislature
proposed to convene in special session and award the state’s electoral votes,

¹²^For^m^o^r^e^de^ta^ile^{d i}ⁿ^f^o^r^m^a^{tion on}^the^c^o^nting^e^{nt e}^l^e^c^tⁱ^on^pr^oc^e^s^s^,^p^l^e^a^s^e^c^ons^ultC^R^S^R^e^p^o^r^t^R^L³²⁶⁹^5,^Ele^c^tⁱ^{on of}
^the^Pre^s^ideⁿ^t^an^{d Vic}^e^Pre^s^ideⁿ^t^by^Con^g^re^{ss: Cont}ⁱⁿ^ge^{nt E}^l^e^c^tion^,^b^y^T^h^o^m^{as H.}^Neal^e,^E^l^ectⁱ^oⁿ^o^f^t^h^{e P}^r^esi^d^en^t^an^d
^Vⁱ^{ce P}^r^esi^d^en^t^b^y^C^o^ng^{ress: Co}ⁿ^tⁱⁿ^g^e^nt^E^l^ectⁱ^oⁿ^,^b^y^T^h^o^m^{as H.}^N^eal^e.
¹³^U^.^{S. C}^ons^tit^uti^on,^A^r^tic^le^I^I^,^Se^c^tion^{1, c}^l^a^u^s^e^{2: “}^E^a^c^h^S^t^a^t^e^s^h^a^ll^a^ppoi^ntⁱⁿ^su^c^h^Maⁿⁿ^{er a}^s^t^h^{e L}^e^gⁱ^sl^a^t^u^r^{e t}^h^ereo^f
^ma^{y d}ⁱ^rect^[^e^m^p^h^a^si^{s ad}^d^e^d]^,^a^nu^m^b^{er o}^f^E^l^ect^o^r^{s eq}^u^a^l^t^o^t^h^{e w}^h^o^l^{e Nu}^m^b^{er o}^f^S^eⁿ^a^t^o^{rs an}^{d Rep}^r^esen^t^a^tⁱ^v^{es t}^o
^w^h^ic^{h the}^Sta^t^e^m^a^y^be^eⁿ^title^{d in}^the^Co^ng^re^{ss.... ”}

regardless of who won the popular contest in the state. The survival of this option
demonstrates that even one of the more “democratic” features of the electoral
college system is not guaranteed, and could be changed arbitrarily by politically ¹⁴
motivated state legislators.
• Finally, the electoral college system has the potential to elect presidential and
vice presidential candidates who obtain an electoral vote majority, but fewer
popular votes than their opponents, as happened in 2000, 1888, and 1876. While
a system that allows such a perceived miscarriage of the popular will might have ^th
been acceptable in the 19 century, opponents maintain that it has no place in the ^st

21.

At the time of this writing, two amendments concerning the electoral college system have been ^th
introduced in the 110 Congress, H.J.Res. 4, and H.J.Res. 36.

This measure, the Every Vote Counts Amendment, was introduced by Representative Gene Green
of Texas on January 4, 2007. Representatives Brian Baird and William D. Delahunt joined as
cosponsors on January 9. On February 2, it was referred to the Subcommittee on the Constitution,
Civil Rights, and Civil Liberties of the House Committee on the Judiciary. No further action has
been taken since that time.
Sections 1, 3, 4, and 5 of the proposed amendment deal with the election process. Section 1
specifies election by “the people of the several States and the district constituting the seat of
government.” This provision recapitulates existing requirements of state residence (or residence ¹⁵
in the District of Columbia), and implicitly excludes Puerto Rico and U.S. territories. Section 3
sets a plurality, rather than a majority requirement for election. Section 4 establishes in the
Constitution the joint candidacies currently provided in state law. Section 5 empowers Congress
to provide by law for: (1) the death of candidates prior to election day; and (2) any tie vote in a
presidential election.
The Section 5 language appears to give Congress broad authority in these situations, arguably
extending to various options in the event of the death of a candidate or candidates. This might
include such options as rescheduling elections and/or the date for casting electoral votes. In the
event of a tie, the amendment would arguably empower Congress to provide for a second round
election to the break the deadlock, or authorize Congress itself to break a tie. It is less clear
whether the amendment would make an implicit grant of authority to Congress to intervene in the
process of replacing party candidates under such circumstances, an eventuality that has

¹⁴
^Conv^e^r^se^l^y^{, the}^Na^tiona^l^Po^pula^r^V^o^te^m^o^v^e^m^e^{nt, e}^x^a^m^ine^d^la^te^{r in th}^{is re}^por^{t, re}^lie^{s o}ⁿ^t^h^e^sta^t^e^s^{’ a}^u^thor^ity^to
^a^ppoi^{nt t}^h^eⁱ^r^e^l^e^c^t^or^s^a^s^t^h^e^y^ple^a^s^e^a^s^the^linc^h^pin^of^theⁱ^r^pr^o^pos^a^l^.
¹⁵^Aⁿ^u^m^b^e^{r o}^f^el^ectⁱ^oⁿ^p^r^op^o^s^al^{s i}ⁿ^recen^t^y^ears,ⁱⁿ^cl^u^dⁱⁿ^g^H.^J.^Res.³⁶ⁱⁿ^t^h^e¹¹⁰^th^Cong^re^{ss, w}^h^ic^{h is e}^x^a^m^ine^d^la^te^r
^{in t}^h^is^r^e^p^o^r^t^,^ha^v^e^s^u^g^g^e^s^t^e^d^tha^t^v^o^te^r^s^{in t}^h^e^ins^u^la^r^a^r^e^a^s^s^houl^d^a^l^s^o^ha^v^e^the^rⁱ^g^h^{t t}^o^v^o^te^f^o^r^P^r^e^s^ideⁿ^{t a}ⁿ^d^Vic^e
^P^r^esi^d^eⁿ^t^,^b^a^sed^l^a^rgel^y^oⁿ^t^h^{e f}^a^ct^t^h^at^t^h^ey^ar^{e U.}^S^.^ci^tⁱ^zen^s.

historically been addressed by the parties through internal procedures.¹⁶ If so, this would
constitute a departure from current practice and political tradition by empowering Congress to
intervene in the internal workings of the political parties.
Section 2 of the proposed amendment contains three elements relating to voter qualifications.
First, it specifies that voters for President and Vice President “shall have the qualifications
requisite for electors of Senators and Representatives.... ” This sentence builds on, and explicitly
extends to the presidential electorate, existing constitutional voter qualifications stated in Article ^th
I, Section 2 (for the House), and the 17 Amendment (for the Senate), and as further defined and ^th^th^th^th^th
guaranteed by the 14, 15, 19, 24, and 26 Amendments. Next, if adopted, it would empower
the states to set “less restrictive qualifications with respect to residence.... ” In contemporary
practice, most states have reduced voting residence requirements to an average of 30 days. Since
the states already possess the power to reduce or eliminate these periods, this section might be
regarded as redundant, or perhaps as providing encouragement, admonishment, or a constitutional
imprimatur, to efforts to adopt shorter residency requirements for voters, or to eliminate them
altogether.
Finally, Section 2 proposes to empower Congress to “establish uniform residence and age
requirements.” Here again, this provision would arguably constitute a mandate for a potential
expansion of federal control over elections. Voting residence requirements, as noted previously,
have been traditionally a state responsibility, but the amendment would vest in Congress authority
to preempt state laws in this area, at least for presidential elections. Similarly, Congress would be
empowered by the amendment to establish a lower (or higher) voting age for presidential ^th¹⁷
elections than is currently provided in the 24 Amendment. Criticisms of both uniform
residence and age requirements might expect to be countered by the argument that federal
elections are a nationwide expression of the public will, for which national voting requirements
are fully justified.
Section 6 of the proposed amendment sets the time when it would come into force if ratified: that
is, for the first presidential election that occurs one year or longer after the date on which the
amendment has been declared to be ratified. For instance, if the amendment were successfully
proposed by Congress, in 2008, and ratified by the states in 2009, it would be effective with the
presidential election of 2012.

This measure was introduced by Representative Jesse Jackson Jr., on February 13, 2007. On
March 1, the resolution was referred to the Subcommittee on the Constitution, Civil Rights and
Civil Liberties of the House Committee on the Judiciary. No further action has been taken since
that time.

¹⁶^F^o^{r i}ⁿ^st^an^ce,ⁱⁿ¹⁹⁷²^,^S^eⁿ^a^t^o^r^T^h^o^m^{as F}^.^E^a^gl^et^oⁿ^resi^gn^ed^{as Dem}^o^cratⁱ^c^P^a^rt^y^vi^{ce p}^r^esi^d^en^tⁱ^a^l^no^mⁱⁿ^{ee o}ⁿ
^A^u^gu^st¹^,¹⁹⁷²^.^{He w}^a^{s rep}^l^aced^b^y^R.^S^a^rgean^t^S^h^ri^ver,^w^h^o^s^{e n}^o^mⁱⁿ^a^tⁱ^oⁿ^w^a^{s ap}^p^r^o^v^ed^b^y^t^h^{e Dem}^o^cratⁱ^c^N^a^tⁱ^oⁿ^a^l
^C^o^m^m^itte^e^,^a^s^pr^ov^ide^d^f^o^rⁱⁿ^pa^r^t^y^r^u^le^s^,^{on A}^u^g^u^s^t^8.
¹⁷^A^lthoug^{h H}^.^J^.^R^e^s^.⁴^did^no^{t s}^p^e^c^if^y^a^v^e^hic^l^e^by^w^h^ic^{h C}^ong^r^e^s^s^c^oul^{d e}^f^f^e^c^t^the^s^e^c^h^aⁿ^g^e^s^,^le^gⁱ^s^l^a^t^{ion s}^e^e^m^s^{to be}
^the^lik^e^l^y^c^a^ndida^te^{. S}ⁱ^nc^e^the^a^m^e^ndm^eⁿ^{t re}^fe^rre^{d e}^x^plic^itly^{to pre}^s^ideⁿ^tia^{l e}^l^e^c^tio^{ns o}ⁿ^ly^{, a}^f^u^rthe^{r c}^onstitu^tio^na^l
^am^e^ndm^eⁿ^{t w}^ould^pr^o^b^a^b^ly^be^r^e^quir^e^d^if^the^s^e^pr^ov^is^io^ns^ha^{d a}^p^p^lie^{d to}^ot^he^r^e^l^e^c^tions^a^s^w^e^{ll, s}^u^c^h^a^s^th^os^e^f^o^r^s^t^a^t^e
^an^d^l^o^cal^el^ect^ed^o^f^fⁱ^ci^al^s.

Section 1 of this measure would establish direct popular election of the President and Vice
President by the citizens of the United States citizens, “without regard to whether the citizens are
residents of a State.” The meaning of this language may be open to differing interpretations. For
instance, it would likely be interpreted as empowering citizens registered in Puerto Rico or U.S.
territories to vote for President. It might, however, also be considered to require state and local
authorities to permit any citizen to vote in a presidential election, without regard to existing
residence or voter registration arrangements. If so, this could lead to complications in vote
counting and registry and increased costs for local authorities. They might arguably feel
constrained to institute one ballot for the presidential vote, and a separate one for “down ballot”
elections in order to ensure that only voters who are registered in the jurisdiction cast votes for
state and local office. Here again, however, the argument may be made that election of the
President and Vice President is of such profound national importance, it must transcend the
convenience of state and local governments.
Section 2 of H.J.Res. 36 declares that “the persons having the greatest number of votes ... shall be
elected, so long as such persons have a majority of the votes cast.” This provision of the proposed
amendment differs from most direct election proposals, which more commonly establish a 40%
plurality or a simple plurality to elect. More problematic, however, is the fact that while it
establishes a majority requirement, H.J.Res. 36 does not incorporate any procedures for elections ¹⁸
in which no candidate wins a majority. Since popular vote plurality elections occur with some
regularity, this omission could be remedied in committee, and might include such procedures as a
runoff election or election by Congress under such circumstances. An additional option would be
to empower Congress to provide by legislation for such events, leaving selection of the vehicle to
the judgment of the legislature.

This measure was introduced by Senator Bill Nelson of Florida on June 6, 2008. It was referred to
the Senate Committee on the Judiciary the same day. No further action has been taken on it since
that time.
Section 1 of this proposed amendment to the Constitution would establish direct election of the
President and Vice President. Unlike some other direct election proposals, it would not require a
majority or plurality threshold of popular votes to elect, but the attainment of some level of
plurality in order to win the presidency is a common sense inference.
A major change proposed by the measure is that Section 1 would also extend participation in
presidential elections beyond the states and the District of Columbia to the territories of the
United States. This expansion could arguably be justified on the grounds that inhabitants of most
U.S. territories are citizens, and therefore deserve the right to vote. Supporters might suggest this
to be the further and logical extension of the right to vote for President, in the same tradition as ^rd
the 23 Amendment, which granted this right to residents of the District of Columbia. Prior to the
amendment’s ratification in 1961, inhabitants of Washington, D. C. had much in common with

¹⁸^S^u^ch^el^ectⁱ^oⁿ^s^o^ccu^{r w}ⁱ^t^h^rel^a^tⁱ^v^{e f}^r^eq^u^eⁿ^c^y^.^F^o^{r i}ⁿ^st^aⁿ^ce,ⁿ^o^candⁱ^d^a^t^e^recei^ved^{a m}^a^j^o^ri^t^y^o^f^t^h^{e p}^o^p^u^l^{ar vo}^t^eⁱⁿ
^fⁱ^ve^of^the^la^s^t¹²^pr^e^s^ideⁿ^tⁱ^a^l^e^l^e^c^tions^:¹⁹^60,¹⁹⁶⁸^,¹⁹^92,¹⁹⁹⁶^aⁿ^{d 2}⁰⁰⁰^{. R}ⁱ^c^h^a^r^{d M}^.^Sc^a^m^m^{on, A}^l^ic^e^V.
^Mc^G^illiv^ra^y^a^{nd Rho}^d^e^s^Co^ok^,^A^m^e^r^ic^{a Vote}^{s 2}⁶⁽^W^a^s^hing^ton^:^C^Q^P^r^e^s^s^,²⁰⁰⁶⁾^,^p^p^.^8-³⁴^.

the current status of residents of the territories: they were also U.S. citizens who did not reside in
a state, and could not vote for President and Vice President.
Opponents might point out that, while the territories are U.S. possessions, and that many of their
inhabitants are citizens, they are not states, and, as a group, are unlikely to be admitted to the
Union at the near future. This amendment, they might argue, would violate the principles of
federalism and devalue the institution of statehood. Nor, they might add, is the situation
analogous to that of the District of Columbia, which was part of the nation since independence. ^th
By comparison, the territories and other U.S. dependencies were largely acquired in the late 19 ^th
and early 20 centuries, generally by treaty or purchase. Moreover, they might add, in the case of
American Samoa, its inhabitants are not U.S. citizens, but rather, American nationals. Additional
questions might be raised as to the precise status of certain entities under U.S. jurisdiction whose
political status remains arguably indefinite and anomalous.
Section 2 of the proposed amendment would expand congressional authority over the presidential
election process in several respects. First, it would empower Congress to determine the “time,
place, and manner of holding the election.” This extends the existing grant of authority over
congressional elections provided in Article I, Section 4, clause 1 of the Constitution. This section
would also authorize Congress to determine “entitlement to inclusion on the ballot.” This
language would potentially supercede existing arrangements on ballot placement and status,
which have traditionally been a state responsibility. Section 2 concludes by proposing further
extension of congressional authority to “the manner in which the results of the election shall be
ascertained and declared.”
Supporters of these elements of Section 2 might argue that they are necessary to ensure that
presidential elections are administered fairly and equitably. With respect to ballot access, they
might assert that existing state requirements are excessive and deliberately stringent, that they
simultaneously guarantee ballot placement for the two major parties and impede access by new
parties and independent candidates. Similarly, they might suggest that congressional power over
vote counting and election ascertainment would guarantee uniform and efficient national
standards for election administration, eliminating a patchwork of existing state requirements, and
providing stronger deterrence to potential vote fraud.
Opponents might assert that these grants of authority, if embodied in legislation, would be a
usurpation of functions long performed at the state level. Such legislation would, they might
assert, constitute a further infringement on state authority, and could lead to duplicative and
needlessly complex election administration systems as state authorities tried to reconcile
competing and possibly conflicting state and federal procedures. They might further assert that
legislation stemming from the provisions of Section 2 would impose heavy costs on the states as
they seek to meet federal requirements. It could be noted, however that precedent exists for
federal assistance in this area. Congress has provided grants financial to the states to help them
meet new voting systems standards mandated in the Help America Vote Act, “HAVA” (P.L. 107-¹⁹
252, 116 Stat. 1666). Opponents might note in rebuttal that HAVA grants are expected to be a
temporary expedient. They might further question the willingness of Congress and the federal
government to assume a permanent responsibility for, and the increased expenses associated with,
greater control over these aspects of the presidential election administration process.

¹⁹^For^a^dditi^ona^l^inf^o^r^m^a^{tion o}ⁿ^H^A^V^A^,^ple^a^s^e^c^ons^{ult C}^R^{S R}^e^p^o^r^t^R^L³²⁶⁸^5,^Ele^c^tion^Re^{form: T}^h^e^He^{lp Ame}^r^ic^a
^Vo^{te Act}^aⁿ^d^Issu^{es fo}^{r C}^o^ng^ress^{, by}^Er^ic^A^.^Fis^c^he^r^a^{nd K}^e^vⁱ^{n J}^.^C^o^le^m^a^n.

While only a constitutional amendment could alter the fundamental arrangements of the electoral
college, some elements of the system could be changed by measures adopted in the states. As
noted previously, the Constitution gives the states plenary power in the ways they choose to pick
presidential electors. The language in Article II, Section 1, clause 2 is notably broad and general:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of
Electors, equal to the whole Number of Senators to which the State may be entitled in
Congress.... ” This breadth of authority was intended by the founders, who sought to provide
considerable discretion to the several states as to how they would choose and allocate presidential ²⁰
electors.
In other words, the states are free to experiment with systems of elector selection and electoral
vote and allocation, up to a point. Indeed, it may be argued that with such experiments the states
fulfill their traditional role as “laboratories” in which potential national policy initiatives can be
developed and tested. This report has previously identified several areas in which the states have
exercised their prerogative in the past. First, all 50 states and the District of Columbia (DC)
currently provide for joint tickets, in which the public casts a single vote for electors pledged to a
single pair of candidates. Next, the states and DC provide for popular election of presidential ²¹
electors. Finally, in all but two jurisdictions, Maine and Nebraska, the electors are chosen en
bloc under the general ticket system; that is, the group or ticket electors pledged to the candidates
who win a plurality of popular votes in the state are elected as a group. Three recent efforts to
effect change by using the power accorded to states in Article II, Section 1, clause 2 are discussed
below.

The proportional plan of awarding electoral votes has been proposed as an alternative to the
winner-take-all or general ticket method dominant today. Although the plan is examined in
greater detail in the Appendix, briefly, it would require electors (and electoral votes) to be
allocated in each state according to the percentage of popular votes won by the competing
candidates. For example, assume State X is allocated 10 electoral votes. Next, assume in the ²²
election, Candidate A receives 60% of the popular vote, Candidate B receives 30%, and
Candidate C, representing a third party or independent candidacy, receives 10%. Under the
winner-take-all plan, Candidate A would win all 10 electoral votes. Under the proportional plan,

²⁰^T^h^is^pow^e^r^is^not^{, h}^o^w^e^v^e^r^,^a^b^s^o^lute^{. Fe}^de^r^a^{l c}^our^t^de^cⁱ^sⁱ^oⁿ^s^ha^v^e^s^t^r^u^c^k^dow^{n s}^t^a^t^e^la^w^s^c^onc^e^rⁿⁱⁿ^g^a^ppoi^ntm^e^{nt of}
^e^l^e^c^t^or^s^tha^t^w^e^r^e^f^ound^to^beⁱⁿ^vⁱ^ola^tioⁿ^of^the¹⁴^th^A^m^e^ndm^eⁿ^t’^s^g^u^a^r^aⁿ^te^e^of^e^qua^{l pr}^o^t^e^c^tion^.^F^o^r^a^dditi^ona^l
^dis^c^us^sⁱ^on^{, s}^e^e^U^.^{S. C}^ong^r^e^s^s^,^Se^na^te^,^The^C^ons^ti^tuti^on^of^the^Uⁿ^it^e^d^St^ate^s^of^Ame^r^ic^{a An}^aly^s^{is a}ⁿ^d^Inte^rpre^tati^on^,^th
^John^ny^{H. Killia}^{n e}^t^a^l^.,^e^d^s.,¹⁰⁸^C^ong^r^e^s^s^,^{S. D}^o^c^.¹^08-¹⁷⁽^W^a^s^h^ing^t^on^{, G}^P^O^:²⁰⁰⁴⁾^,^p^p^.⁴⁵^0-⁴^52.
²¹^S^ee^A^p^pe^nd^ix^f^o^r^f^u^r^t^he^r^inf^o^r^m^a^tion^on^the^dis^t^rⁱ^c^t^plaⁿ^e^s^ta^blis^h^e^{d in}^Ma^ine^aⁿ^{d N}^e^br^a^s^k^a^.
²²^In^t^hⁱ^s^case,^“Can^dⁱ^d^a^t^e^A^”^,^et^c.^,^act^u^a^l^l^y^re^{fers t}^o^t^h^{e j}^oⁱⁿ^t^tⁱ^c^ket^of^can^dⁱ^d^a^t^e^f^o^{r P}^r^esi^d^eⁿ^t^and^Vⁱ^ce^P^r^esi^d^en^t
^nom^ina^t^e^by^P^a^r^t^y^A^.

Candidate A would win six electoral votes, Candidate B would receive three, and Candidate C
would receive one vote.
On November 2, 2004, Colorado voters considered a proposed state constitutional amendment²³
that would have established just such a proportional system in that state. If the amendment had
passed and survived legal challenges, it would have provided proportional allocation of
Colorado’s presidential electors for 2004 and all future presidential elections. This was possible
through citizen action because Colorado is one of the 18 states that provide for the proposal and ²⁴
approval of amendments to their state constitutions by popular vote.
The amendment sought to allocate electoral votes and electors based on the proportional share of
the total statewide popular vote cast for each presidential ticket. The percentage of the vote each
ticket received would have been multiplied by Colorado’s total of nine electoral votes. These
figures would then have been rounded up or down to the nearest whole number of electors and
electoral votes, but any ticket that did not receive at least one electoral vote under this method
would have been eliminated from the total. If the sum of whole electoral votes derived from this
computation were to be greater than nine, then the ticket receiving at least one whole electoral
vote, but fewest popular votes, would have had its electoral vote total reduced by one. This
process would have continued until the computed allocation of votes reached nine. Conversely, if
the sum of whole electoral votes awarded after rounding the percentages of popular votes were
less than nine, then such additional electoral votes as necessary to bring the number up to nine
would have been allocated to the ticket receiving the most popular votes, until all nine electoral
votes were so allocated. In the event of a popular and electoral vote allocation tie (i.e., Candidates
A and B each receiving 4.5 electoral votes), then the Colorado Secretary of State would have ²⁵
determined by lot who would receive the evenly split electoral vote.
At the time, questions were raised as to whether this effort to change the allocation formula for
Colorado’s electoral votes by initiative was constitutional. Specifically, the U.S. Constitution (in
Article II, Section 1, clause 2) provides that, “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.... ” Since the early years of
government under the Constitution, the state legislatures have generally exercised this grant of
power by authorizing the voters to choose electors, and they have usually specified the winner-
take-all or general ticket system as the means by which the voters’ decision is used to allocate
electors and electoral votes.
The fact that Colorado’s proposed Amendment 36 would have altered the formula for awarding
electoral votes by a vote of the people, not the legislature, was the salient issue in contention. The
Colorado legislature’s right under Article II to establish a proportional system was not in dispute;
the question rather, was, did the Colorado legislature have authority to subdelegate its Article II
powers to determine and change the existing method of appointing electors to a popular vote?
Could the voters of Colorado have acted in place of, or as the state legislature? The Colorado
Constitution specifically empowers the people of the state to “to propose laws and amendments to

²³^A^m^e^ndm^eⁿ^{t 36.}
²⁴^F^o^r^d^e^t^aⁱ^l^e^dⁱⁿ^f^o^rm^atⁱ^oⁿ^oⁿ^b^a^l^l^ot^p^l^acem^en^t^req^uⁱ^remen^t^{s i}ⁿ^C^o^l^o^rad^o^,^p^l^{ease co}ⁿ^s^u^l^t^:^Couⁿ^cⁱ^l^o^f^S^t^at^e
^Go^v^e^rⁿ^m^eⁿ^t^s^,^The^B^ook^{of t}^h^e^St^ate^s^{, 2}⁰⁰⁴^e^d^it^io^{n, v}^o^l.³⁶⁽^L^e^x^ing^t^{on, K}^Y^:^T^h^e^C^o^unc^il^of^Sta^t^e^G^o^v^e^rⁿ^m^e^nts^,²⁰⁰⁴⁾^,
^{p. 1}⁴^.
²⁵^P^r^o^pos^e^d^C^o^lor^a^{do A}^m^eⁿ^d^m^eⁿ^{t 36,}^§^2-⁴^.

the constitution and to enact or reject the same at the polls independent of the general assembly.... ²⁶
”
Proponents of Amendment 36 argued that this was sufficient authority to change the allocation of
electoral votes by popular vote. Further, it could have been argued that the U.S. Constitution’s
failure to expressly prohibit this procedure, or others like it, provides an implicit endorsement of
such actions. On the other hand, opponents could have counter-argued that the U.S. Constitution ²⁷
clearly delegates this power to the state legislatures, and only the state legislatures. Moreover, a
commentary on the Colorado process of amendment by initiative noted that, “An amendment is
not valid just because the people voted for it. The initiative gives the people of a state no power to ²⁸
adopt a constitutional amendment which violates the federal constitution.”
On August 13, 2004, Colorado’s Secretary of State announced that the proposed amendment had
gained sufficient voter signatures to qualify for inclusion on the ballot at the November 2 general ²⁹
election. After a spirited campaign that stirred some national interest, Amendment 36 was ³⁰
ultimately defeated by a vote of 1,307,000 to 697,000. For the record, if the amendment had
been in effect for the 2004 election, the Bush-Cheney ticket would have received five electoral
votes, while Kerry-Edwards would have received four. Under the winner-take-all system, the
Republican ticket received all nine Colorado electoral votes.

The district system for awarding electoral votes is unusual among reform proposals in that two
states, Maine and Nebraska, currently have it on the books. Briefly, under the district plan, ³¹
popular votes are tallied twice: first, district by district, and again on a statewide basis. The
presidential ticket (actually elector) who won the most votes in each district would receive one
vote (actually one elector) from that district. The ticket winning the statewide count would be
awarded two additional electors, representing the two additional “senatorial” electors each state
receives. For more detailed information on the district plan, see the Appendix.

²⁶^Consti^tuti^on^of^the^Sta^t^e^of^Color^a^{do, A}^r^tic^le^V^,^se^c^tion^{1, c}^l^a^u^se¹^.
²⁷^S^ee,^e.^g.^,^McP^h^ersoⁿ^v.^B^l^a^cker^,¹⁴⁶^U^.^S.^1,²⁵⁽¹⁸⁹²⁾^hol^ding^t^h^a^t^the^w^o^{rd “}^l^e^g^isla^ture^”^{in A}^r^tic^le^{II, se}^c^tion^1,
^c^l^a^u^se^{2 of}^the^U.S^.^Co^nstit^utioⁿ^ope^ra^te^{s to l}ⁱ^m^{it the}^sta^t^e^s^;^Ha^{wke v.}^S^mⁱ^t^h^{, N}^o^.^1,²^{53 U}^.^S.²²^{1 (}¹⁹²⁰⁾^h^o^ld^ing^tha^t
^the^la^ng^ua^g^e^of^A^r^tic^le^V^{is “}^p^la^in”^,^aⁿ^d^tha^t^the^r^e^{is “}ⁿ^{o d}^o^u^b^t^{in i}^t^{s inte}^rpre^ta^ti^on”^t^h^a^t^ra^tif^ic^a^tion^of^a^m^eⁿ^d^m^eⁿ^{ts is}
^lim^ite^{d to the}^only^tw^{o m}^e^thods^s^p^e^cⁱ^fⁱ^c^a^l^l^y^g^r^aⁿ^te^{d by}^the^C^ons^tit^utio^n;^but^s^e^e^,^Ohⁱ^o^{ex rel}^.^Da^vi^s^v.^Hi^l^d^eb^ran^t^,²⁴¹
^U^.^{S. 5}⁶⁵⁽¹⁹¹⁶⁾^h^o^l^d^ing^t^h^a^t^a^r^e^f^e^r^e^ndum^did^not^vⁱ^ola^t^e^the^us^e^o^f^the^w^o^r^d^“^l^e^g^is^la^tur^e^”^{in A}^r^tic^{le I}^,^s^e^c^tion^4,
^c^l^a^u^s^e^{1 of}^the^C^o^ns^tit^uti^on.
²⁸^C^o^l^o^r^a^do^R^evi^sed^St^a^t^u^t^es,²⁰⁰³^{, vo}^l^.^{1 (}ⁿ^.p^.^:^Lexi^sNe^xⁱ^s^,²⁰⁰³⁾^,^p^.³⁸^0.
²⁹^US^A^T^o^da^y.^co^m^{, “}^C^o^l^or^a^d^{o W}^e^ig^hs^P^r^op^or^ti^ona^{l E}^l^e^c^t^or^a^l^Vote^s^,^A^u^g^u^s^t^16,²⁰^04,
^http:^//www^.usa^toda^y^.^c^o^m^/^ne^w^s^/^p^olitic^se^le^c^tions/^s^ta^te^/c^olora^d^o/²⁰^04-^08-^16-c^o^l^o^-
^el^ect^o^r^al^_^x^.^h^t^m^,^vⁱ^sⁱ^t^e^d^S^ep^t^e^m^b^er³^,²⁰⁰⁴^.
³⁰^Co^l^o^ra^d^o^,^S^ecret^ar^y^o^f^S^t^at^e,^Offic^{ial Pu}^blic^a^tioⁿ^{of t}^h^e^Abstr^a^c^t^of^Vote^{s Cast}^{for t}^h^e²⁰⁰³^C^oordⁱⁿ^a^te^d[^,^]²⁰⁰⁵
^Pr^im^ar^y^[^,^]²⁰^{04 G}^e^ne^r^a^{l [}^E^le^c^tions^]⁽ⁿ^.^p^{., n.}^d.)^,^pp^.¹^38-¹³^9.
³¹^Most^distric^t^plaⁿ^pro^posa^l^{s a}^ssu^m^e^c^ong^re^ssiona^{l distric}^t^s^w^{ill be}^use^d^,^but^{in t}^h^e^pa^st,^som^e^ha^v^e^s^u^g^g^e^ste^d^a^d^hoc
^pre^s^ideⁿ^tia^{l e}^l^e^c^tioⁿ^distric^t^s.

In July, 2007, a group styled “Californians for Equal Representation” filed a legislative ballot
measure with the California Attorney General; the proposed statute, the Presidential Election
Reform Act, incorporated a standard district system for choosing presidential electors, and hence, ³²
awarding electoral votes. The organizers sought sufficient voter petitions to place the item on
statewide ballot at the June 3, 2008, California congressional, state, and local primary.
Supporters of the proposal asserted that the winner-take-all/general ticket system discounted and
disenfranchised millions of California voters in the presidential election. For instance, in 2004,
the Democratic Kerry-Edwards ticket received 54.3% of the popular vote, and all 55 electoral
votes, while the Republican Bush-Cheney ticket, which received 44.4% of the popular vote, ³³
gained none. If, on the other hand, the district system had been in place in California in 2004, ³⁴
Kerry-Edwards would have received 33 electoral votes, and Bush-Cheney, 22.
Opponents claimed that Californians for Equal Representation was a Republican-dominated
group whose goal was to obtain Republican electors in a state that has voted Democratic in
presidential contests since 1992, noting in support of this argument that most of the group’s funds ³⁵
had been contributed by Republican-connected donors. California Counts, the advocacy group
coordinating support for the measure, denied the allegation and countered by releasing lists of ³⁶
Democratic and Independent voters who contributed to the effort.
The proposed measure was also criticized on constitutional grounds. Vik Amar, a legal
commentator, argued that the California Presidential Election Reform Act was a legislative
initiative that would likely be found unconstitutional if challenged. He based his assertion on the
argument, noted previously in discussions of Colorado Amendment 36, that the constitutional
grant of power to the states to appoint electors “in such manner as the Legislature thereof may
direct.... ” ought to be narrowly construed. By this reasoning, a legislative act passed by initiative
would not meet the constitutional standard, because the Constitution requires action by the state ³⁷
legislature, and only the legislature, to change the process.
The proposed California Presidential Election Reform Act thus became an object of political and
constitutional controversy almost from the start. In addition, proponents faced the obstacle of
collecting supporting petitions from a number of registered voters sufficient to meet the
California state initiative threshold, which required signatures of a number of voters equal to 5%

³²^C^a^lif^or^niaⁿ^s^f^o^r^Eq^ua^{l R}^e^pr^e^s^eⁿ^t^a^tion,^Pe^titi^{on t}^o^t^h^e^Att^o^rne^y^Ge^ne^ral^{, J}^u^ly^{17, 2}⁰⁰⁷^,^htt^p^://a^g^.^c^a^.^g^o^v^/^cm^s^_pdf^s^/
^initia^tiv^e^s^/20^07-^07-¹⁷^_0^7-0⁰³^2_I^nitia^tiv^e^.^pdf^.
³³^Ame^r^ic^{a at t}^h^e^P^o^{lls 2}⁶^{, p. 28}^.
³⁴^Ele^c^t^or^{al C}^o^lle^ge^Vote^by^C^o^ngr^e^s^sⁱ^{onal D}ⁱ^s^t^rⁱ^c^t^,¹⁹⁹⁶^-²⁰⁰⁴^{, C}^R^{S Me}^m^o^r^a^ndum^by^K^e^vⁱ^{n J}^.^C^o^le^m^a^{n, R}^o^y^c^e
^C^r^oc^k^e^r^,^D^a^na^Ely^a^{nd T}^e^r^r^e^nc^e^Lⁱ^s^b^e^t^{h, Se}^pte^m^be^r^10,²⁰⁰⁷^{, p}^.³^.
³⁵
^T^e^r^r^y^He^a^t^{h, “}^G^O^P^Se^c^r^e^tly^B^e^hind^Pr^o^pos^a^l^t^o^C^h^aⁿ^g^e^C^a^lif^or^nia^Ele^c^t^or^a^l^Dⁱ^s^bur^s^e^m^e^{nt Sole}^ly^to^B^e^ne^f^{it I}^t^s²⁰⁰⁸
^P^r^e^s^ideⁿ^tia^{l Ca}ⁿ^d^ida^t^e^,^”^Oⁿ^line^J^ourn^a^l^{, A}^u^g^u^s^t³¹^,²⁰⁰⁷^{, h}^ttp:^//w^w^w^.online^j^o^u^rⁿ^a^l^.c^om^/a^r^t^m^a^n/^pu^blis^h/
^a^r^tic^le^_23^68.s^h^tm^.
³⁶^“^D^um^b^f^ounde^{d D}^e^m^s^”^{San J}^o^s^e^M^e^r^c^ur^y^-^N^e^w^s^{, N}^o^v^e^m^b^e^r^{11, 2}⁰^07,
^http:^//nl^.^ne^w^s^ba^nk^.c^om^/ⁿ^l-se^a^r^c^h^/w^e^/
^A^r^c^h^ive^s^?^p_prod^uc^t=^SJ^&^p_t^he^m^e⁼^s^j&^p_a^c^tion=^s^e^a^r^c^h^&^p_m^ax^doc^s⁼^200&^s^_dis^p^s^t^ring⁼^a^llf^ie^lds⁽^e^l^e^c^tion%²⁰ⁱ^nitia^tiv
^e^%²⁰⁾^%^20A^N^D^%^20da^te⁽²⁰⁰⁷⁾^&^p_f^ie^ld_^d^a^t^e^-⁰⁼^Y^M^D^_da^te^&^p^_pa^r^a^m^s^_da^te^-⁰⁼^d^a^t^e^:^B^,^E&^p_te^x^t_^d^a^te^-
⁰⁼²⁰^07&^p^_^fⁱ^e^l^d_a^dv^aⁿ^c^e^d^-⁰⁼^&^p^_^te^x^t^_a^dv^aⁿ^c^e^d^-
⁰⁼^(“^e^l^e^c^tion%²⁰ⁱ^nitia^tiv^e^%^20”⁾^&^x^c^a^l^_num^doc^s⁼^20&^p_pe^rpa^g^e⁼^10&^p^_^s^o^rt=^Y^MD^_^d^a^t^e^:^D^&^x^c^a^l^_us^e^w^eⁱ^g^h^ts⁼^no.
³⁷^Vⁱ^k^r^a^m^Da^vⁱ^{d Am}^a^r^{, “}^T^he^So-Ca^lle^d^P^r^e^s^ideⁿ^tia^l^Re^f^o^r^m^Ac^{t: A}^Cle^a^r^A^buse^of^Ca^li^f^o^rnia^{’s Initia}^tiv^e^P^r^oc^e^ss,”
^Find^Law^Le^gal^N^e^w^s^an^{d C}^o^m^m^e^ntar^y^{, A}^u^g^u^{st 1}⁷^,²⁰^07,^htt^p^://w^rit.ne^w^s^.^f^indla^w^.c^o^m^/a^m^a^r/²⁰⁰⁷⁰⁸¹^7.htm^l^.

of votes cast in the most recent gubernatorial election. Computed from the 2006 gubernatorial
results, this figure in 2007 would have amounted to 433,971 valid signatures of registered ³⁸
voters. Organizers first abandoned their effort to place the initiative on the June 3, 2008 primary
ballot, opting instead for the November 4 general election ballot, but this goal also appeared to be
beyond the means of the measure’s supporters. On February 5, 2008, press reports indicated that
no petitions had been filed with the Elections Division of the Office of the California Secretary of ³⁹
State, and that the California Presidential Reform Act would not be on either ballot in 2008.

The National Popular Vote (NPV) campaign has been advanced by an interest group that draws
support from members of both national parties. The NPV plan would eliminate existing electoral
college arrangements and substitute de facto direct popular election by means of an interstate
agreement or compact. Under the compact’s provisions, legislatures of the 50 states and the
District of Columbia would exercise their constitutional authority to appoint presidential electors
themselves. The key provision of NPV is, however, that the states would then use their power to
chose electors committed to the presidential/vice presidential ticket that gained the most votes
nationwide. This would deliver a unanimous electoral college decision for the candidates winning
a plurality of the popular vote.
The idea for NPV is generally credited to a 2001 article by constitutional scholars Akhil and
Vikram Amar. The authors suggested that a compact by a group of states would be able to achieve
the goal of direct popular election without the need to meet the constitutional requirements ⁴⁰
necessary for a constitutional amendment. This proposal, which became the National Popular
Vote plan, relies on the Constitution’s broad grant of power to each state to “appoint, in such
Manner as the Legislature thereof may direct [emphasis added], a Number of Electors, equal to
the whole Number of Senators and Representatives to which the State may be entitled in the ⁴¹
Congress.... ”
Specifically, the plan calls for an agreement or compact in which the legislatures in each of the
participating states would agree to appoint electors (and hence, electoral votes) pledged to the
candidates who won the nationwide popular vote. The appropriate authority in each state would
tally and certify the “national popular vote total” within the state; the state figures would be

³⁸^Co^m^p^u^t^ed^f^r^o^m^Calⁱ^f^o^rnⁱ^a^,^S^ecret^ar^y^o^f^S^t^at^e,^E^l^ectⁱ^oⁿ^s^Di^vi^si^on^,^State^m^eⁿ^{t of Vote}^{, 20}⁰⁶^G^e^ne^r^a^{l Ele}^c^tion^{, p}^.^x
^http:^//w^w^w^.s^os^.c^a^.^g^o^v^/^e^l^e^c^tions^/^s^ov^/20⁰⁶^_^g^e^ne^r^a^l/c^om^ple^t^e^_^s^o^v^.^pdf^.
³⁹^S^ee,^f^o^{r exa}^m^p^l^e:^S^h^an^{e G}^o^l^d^m^a^ch^er,^“E^l^ect^o^r^al^Co^l^l^e^{ge M}^easu^r^e^F^a^l^l^s^S^h^o^r^t^,^”^Sac^r^a^m^e^nt^{o Be}^e^C^a^pitol^Ale^r^t^,
^Fe^br^ua^r^y^{5, 20}⁰⁸^.
⁴⁰^A^k^hⁱ^l^Reed^{Amar an}^d^Vⁱ^kram^D^a^vi^d^Amar,^“Ho^w^t^o^Ac^hⁱ^{eve d}ⁱ^rect^Natⁱ^oⁿ^a^l^E^l^ectⁱ^oⁿ^o^f^t^h^e^P^r^esi^d^en^t^Wⁱ^t^h^ou^t
^A^m^e^nding^the^C^ons^tit^uti^oⁿ^,^”^Fin^d^{law’s W}^r^it^,^Decem^b^e^{r 2}⁸^,²⁰⁰¹^,^h^t^t^p^:^/^/^w^ri^t^.ⁿ^e^w^s^.^fⁱⁿ^d^l^aw^.^c^o^m^/^a^m^a^r/²⁰⁰¹¹²²⁸^.^h^t^m^l^.
⁴¹^U^.^{S. C}^ons^tit^uti^on,^A^r^tic^le^I^I^,^Se^c^tion^{1, c}^l^a^u^s^e^2.

aggregated and certified nationwide, and in each state the slate of electors pledged to the
“national popular vote winner” would be appointed. Barring unforeseen circumstances, the NPV
would result in a unanimous electoral college vote: 538 electors for the winning candidates for
President and Vice President.
In order to address state concerns about premature commitment to the NPV plan, the process
would come into effect only after approval of the compact by a number of states whose total
electoral votes equal or exceed 270, the current majority required to elect under the Constitution.
In the event the national popular vote were tied, the states would be released from their
commitment under the compact, and would choose electors who represented the presidential
ticket that gained the most votes in each particular state.
States would retain the right to withdraw from the compact, but if a state chose to withdraw
within six months of the end of a presidential term, the withdrawal would not be effective until
after the succeeding President and Vice President had been elected.
One novel provision would enable the presidential candidate who won the national popular vote
to fill any vacancies in the electoral college with electors of his or her own choice, presumably
provided the electors meet constitutional qualifications for that office.
The NPV advocacy effort is managed by National Popular Vote, Inc., a “501(c)(4)” non profit
corporation, established in California in 2006 by Barry Fadem, an attorney specializing in ⁴²
initiative and referendum law, and Stanford University professor John R. Koza. As a 501(c)(4)
entity, it is permitted to engage in political activity in furtherance of its goal, so long as this is not
its primary activity. The organization’s board member include former Senators and
Representatives of both major political parties, which suggests a level of bipartisan support on the
national level. In addition, NPV also claims the support of 1027 state legislators, close to one
seventh of the 7,382 total, and endorsement by the New York Times, Los Angeles Times, Chicago ⁴³
Sun-Times, Minneapolis Star Tribune, Boston Globe, and other newspapers.
The vehicle for NPV, as noted earlier in this report, is the interstate agreement or compact,
“Agreement Among the States to Elect the President by Popular Vote.”
At the time of this writing the compact has been introduced in 45 states, of which four, possessing
a total of 50 electoral votes, have adopted it. They are:
• Hawaii (four electoral votes), enacted over governor’s veto, May 1, 2008;

⁴²^Rⁱ^c^k^Ly^m^a^{n, “}^I^nnov^a^t^or^D^e^vⁱ^s^e^s^W^a^y^A^r^{ound Ele}^c^t^or^a^l^C^o^lle^g^e^,”^{New Yo}^{rk Times}^{, Se}^pte^m^be^r^22,²⁰⁰⁶^,
^http:^//www^.ny^tⁱ^m^e^s^.c^o^m^/²⁰^06/⁰⁹^/22/^us/^politic^s/^22e^le^c^t^ora^l^.^h^tm^l.
⁴³^Na^tiona^l^Po^pula^r^V^o^te^w^e^bsite^{, http://w}^ww^.na^tiona^lpo^p^u^l^a^r^v^o^te^.c^o^m^/ⁱ^nde^x^.^ph^p.

• Illinois (21 electoral votes), approved April 7, 2008;
• Maryland (10 electoral votes), approved March 10, 2008; and
• New Jersey (15 electoral votes), approved January 13, 2008.
The NPV interstate compact has been introduced in 21 states in their current legislative sessions,
but has passed one or both chambers in only seven. They are:
• California (55 electoral votes), passed in both the Senate and Assembly, and ⁴⁴
awaits action by the governor;
• Maine (four electoral votes), passed the Senate, but has been indefinitely ⁴⁵
postponed in the House of Representatives;
• Massachusetts (12 electoral votes), passed the House of Representatives, but ⁴⁶
placed in orders of the day for the next session of the Senate;
• North Carolina (14 electoral votes), where it passed the Senate and is still ⁴⁷
considered active;
• Rhode Island (four electoral votes), where it passed the Senate and the House, ⁴⁸
but was vetoed by the governor. It is unclear at this point whether the legislature
will seek to override the veto;
• Vermont, (three electoral votes) where it was passed by both houses of the
legislature, but was vetoed by the governor. Since the Vermont legislature has
adjourned its current session sine die, there is no opportunity for an override ⁴⁹
effort.
• Washington, (11 electoral votes) where it also passed the Senate, but died in ⁵⁰
committee in the House of Representatives.
In a “best case” scenario for 2008, California, Maine, North Carolina, Rhode Island and
Washington could approve NPV, which would add an additional 88 electoral votes, for a total of

⁴⁴^Na^tiona^{l Po}^pula^r^V^o^te^w^e^bsite^,
^http:^//w^w^w^.na^tiona^lp^op^ula^r^v^o^te^.c^om^/^p^a^g^e^s^/s^ta^te^s^.^php?^s⁼^C^A^.
⁴⁵^Sta^t^e^of^Ma^ine^L^e^gⁱ^s^l^a^t^ur^e^,^“^S^u^m^m^a^r^y^o^f^L^D^1744,”
^http:^//jaⁿ^u^s.sta^t^e^.^m^e^.us/le^gⁱ^s/^L^a^wM^a^k^e^r^W^e^b/sum^m^a^r^y^.a^sp?^I^D=²⁸⁰⁰²⁴⁶⁵^6.
⁴⁶^C^o^m^m^onw^ea^{lth of}^Ma^s^s^a^c^hus^e^tts^G^e^ne^r^a^{l C}^our^{t w}^e^bs^ite^{, “}^H^ous^e^,^N^o^{. 4}⁹⁵²^,”
^http:^//w^w^w^.^m^a^s^s^.^g^o^v^/^le^gⁱ^s^/¹⁸⁵^hi^s^t^or^y^/^h0⁴⁹^52.^htm^.
⁴⁷^N^o^rth^Ca^roli^na^G^e^ne^ra^l^A^s^s^e^m^b^l^y^{, “}^S^eⁿ^a^t^e^{Bill 954,”}
^http:^//www^.nc^g^a^.^sta^t^e^.^nc^.us/^g^a^sc^rⁱ^pts/^BillL^ook^Up/BillL^ook^Up.^p^l?^Se^ssion=²⁰^07&^Bil^l^ID=^s⁹⁵⁴^.
⁴⁸^Rho^d^e^Isla^nd^L^e^gⁱ^sla^t^ure^,^“^L^e^g^is^la^tiv^e^Sta^t^{us Re}^port^,^Se^na^te^Bil^l²¹¹²^,”^ht^tp://^dira^c^.^rili^n.sta^t^e^.^ri.^u^s/^BillSta^tus/
^W^e^bCla^ss1.^A^SP^?^W^CI=^B^illSta^tus^&^W^C^E=ⁱ^f^r^m^BillSta^tus&^WCU.
⁴⁹^V^e^rm^{ont L}^e^gⁱ^sla^tiv^e^{Bill T}^r^a^c^kⁱⁿ^g^Sy^ste^m^{, S. 27}^0,²⁰^07-²⁰^{08 L}^e^gⁱ^sla^tiv^e^Se^{ssion, h}^ttp:^//www^.le^g^.st^a^te^.v^t.us/
^da^ta^ba^se^/sta^tus/sum^m^a^r^y^.^c^f^m^.
⁵⁰^“^W^a^s^hing^{ton Sta}^t^e^{Kills Na}^ti^ona^l^P^o^pula^r^Vote^Bill,”^B^a^l^l^o^t^A^cces^s^News^{, Ma}^r^c^{h 1}²^,²⁰⁰^8,
^h^ttp^:^//www^.b^allo^t-access.o^r^g^/²⁰⁰⁸^/⁰³^/¹²^/^w^a^shⁱⁿ^g^t^oⁿ^-^state-k^ills-n^a^tioⁿ^a^l-^p^o^p^u^l^ar-v^o^t^e-b^ill/.

138, slightly more than 50% of the 270 which would be required for the NPV compact to be
honored by participating states. It appears unlikely, however, that supporters of the measure will
reach this optimistic goal this year. Gauging the plan’s long-term prospects, it is apparent that
NPV has had a relatively successful year in the state legislatures; what remains to be seen is
whether state approvals earlier in 2008 indicated the beginning of a trend toward approval, or a
“high water mark” for the effort. It should be noted that the measure has been vetoed by the
governors of Rhode Island and Vermont, and is pending in California, where Governor
Schwarzenegger vetoed an earlier NPV measure in 2006.
Arguments in support of and opposition to the National Popular Vote proposal embrace points
generally similar to the pros and cons for direct popular election examined earlier in this report.
In most plans to establish direct election of the president, the central issue is a question of “one
big thing” versus “many things”—that is, the simplicity, logic, and democratic attractiveness of
the direct election idea as compared to the more complex array of related but arguably less ⁵¹
compelling factors cited by supporters of the existing system.
The National Popular Vote movement advocates the NPV compact on the grounds of fairness and
respect for the freely expressed voice of the voters which is the cornerstone of all direct popular
election plans. In particular, it advocates a national vote that, de facto, eliminates the role of states
by binding them to support the nationwide vote winners, notwithstanding the results in their own
jurisdictions. According to its own website, the central argument in its favor is that the compact
“would guarantee the Presidency to the candidate who receives the most popular votes in all 50 ⁵²
states (and the District of Columbia).” It would guarantee at least a plurality President and Vice
President, thus eliminating any possibility of Presidents who won fewer votes than their
opponent, one of the most widely criticized aspects of the electoral college system. It would also
reduce the likelihood of other problem areas under the existing system, including the faithless
elector, “disenfranchisement” under the winner-take-all system, arithmetical advantage derived ^th⁵³
by less populous states, and the potential for contingent election under the 12 Amendment. It is
difficult to underestimate the appeal of this simple yet arguably compelling proposal: the
candidates who win the most votes should win the presidency (and vice presidency).
Opponents, by comparison, have cited many of the assertions examined in the pro-con section of
this report. These may be categorized as philosophical and political criticisms of the NPV plan.
Generally, they do not deny the appeal of the argument favoring direct popular election and the
NPV plan. They suggest, however that the various benefits conferred by the electoral college

⁵¹^“^T^he^f^o^x^k^now^s^m^aⁿ^y^thing^s^{, but}^the^he^dg^e^hog^k^now^s^one^bⁱ^g^thiⁿ^g^.^”^T^h^is^quota^tⁱ^oⁿ^of^the^G^r^e^e^k^p^o^e^t^A^r^c^h^iloc^hus
^by^Sir^I^s^aⁱ^a^h^B^e^r^{lin i}ⁿ^his^e^s^s^a^y^“T^he^H^e^dg^e^hog^a^{nd the}^F^o^x^,^”^ha^s^c^o^m^e^{to be}^wⁱ^de^l^y^a^pplie^{d to}^the^c^o^m^p^a^r^a^tive^w^a^y^s
^of^k^now^ing^—^the^c^o^m^p^r^e^he^ns^ion^of^a^sⁱ^ng^le^{, ov}^e^r^a^r^c^h^ing^pr^incⁱ^ple^or^f^a^c^t^{, v}^e^r^s^us^tha^t^of^a^de^ta^ile^{d a}^{nd i}ⁿ^te^r^c^on^ne^c^t^e^d
^a^rra^y^of^re^la^t^e^{d f}^a^c^t^{s, ide}^a^s^{, a}^{nd p}^r^incⁱ^ple^s^{. W}ⁱ^nst^{on C}^hurc^h^{ill, f}^o^{r i}ⁿ^staⁿ^c^e^,^mⁱ^g^h^{t be}^c^h^a^r^a^c^t^e^r^iz^e^d^a^s^a^f^o^x^,^a^nd
^Vla^d^im^ir^L^e^{nin, a}^he^dg^e^hog^.
⁵²^Na^tiona^{l Po}^pula^r^V^o^te^w^e^bsite^,
^http:^//w^w^w^.na^tiona^lp^op^ula^r^v^o^te^.c^om^/^p^a^g^e^s^/e^x^p^la^na^tion.^ph^p.
⁵³^Coⁿ^tⁱⁿ^gen^t^el^ectⁱ^oⁿ^t^a^{kes p}^l^{ace un}^d^e^{r t}^h^{e exi}^s^tⁱⁿ^{g syst}^e^mⁱ^fⁿ^o^candⁱ^d^a^t^e^{s recei}^{ve a}^m^a^j^o^ri^t^y^o^f^el^ect^o^r^al^vo^t^e^s.^F^o^r
^f^u^r^t^he^r^inf^o^r^m^a^{tion, ple}^a^s^e^c^ons^u^l^{t C}^R^S^R^e^p^o^r^t^R^L³²⁶⁹^5,^E^l^ectⁱ^oⁿ^o^f^t^h^{e P}^r^esi^d^en^t^aⁿ^d^Vⁱ^{ce P}^r^esi^d^eⁿ^t^b^y^C^o^ng^ress:
^C^onti^ngeⁿ^t^Ele^c^tioⁿ^,^b^y^T^h^o^m^as^H.^Neal^e.

system, the “many things,” are of such cumulative value that they outweigh the “one big thing”
attractiveness of NPV. Among these are assertions that:
• the current arrangement is a fundamental component of federalism;
• it confers “voting power” not on less populous states, but on residents of more
populous states, and in particular, minority voters in these states;
• it promotes a moderate and geographically inclusive two-party system; and
• it deters post-election strife and controversy by magnifying the winners’ electoral ⁵⁴
vote margin in most elections.
• A further philosophical criticism rests on the grounds of the “concurrent
majorities” tradition. This concept holds that, in order for any policy proposal to
be able to claim legitimacy in a continent-spanning federal republic such as the
United States, it needs to gain broad acceptance by a majority of citizens,
representing a wide range of geographic regions, within a limited period of time.
This concept has never been written into law or the Constitution, but Congress
has historically honored the concurrent majorities idea by requiring that most
constitutional amendments be approved by the states within a seven-year period
following an amendment’s proposal by Congress. Where, critics may ask, is a
similar time limit governing the National Popular Vote proposal? What is the date
certain after which an effort to adopt NPV would expire, or return to “square ⁵⁵
one?” If the NPV approaches its own benchmark of 270 electoral votes on or
before July 20 of a presidential election year (the trigger date set by the proposed
compact), what sort of disruptive effect would this have on the presidential
nominating campaign, or, for that matter, on the measured deliberations of the
legislatures of states that have rejected, the NPV compact, or those in which pro-
NPV legislation was never introduced.
• NPV supporters have also suggested a practical benefit to nearly all “non-
battleground” states from the compact. They maintain that presidential nominees
and their organizations would spread their presence and resources more evenly as
they campaigned for every vote nationwide, rather than concentrate on winning
key states: “candidates have no reason to poll, visit, advertise, organize,
campaign, or worry about the concerns of voters of states that they cannot
possibly win or lose. This means that voters in two thirds of the states are
effectively disenfranchised in presidential elections because candidates
concentrate their attention on a small handful of “battleground” states. In 2004,
candidates concentrated over two-thirds of their money and campaign visits in
just five states; over 80% in nine states; and over 99% of their money in just 16 ⁵⁶
states.” For instance, according to this argument, Californians seldom see the

⁵⁴^For^a^m^o^r^e^de^ta^ile^d^dis^c^us^sⁱ^oⁿ^of^the^s^e^po^ints^,^ple^a^s^e^c^ons^u^{lt C}^R^S^R^e^por^{t R}^L³⁰⁸⁰^4,^The^Ele^c^t^or^{al C}^o^lle^ge^:^Aⁿ
^O^v^e^r^vⁱ^e^w^{and An}^aly^s^is^of^Re^for^m^Pr^op^os^als^,^by^L^.^P^a^ig^e^W^h^ita^k^e^r^a^{nd T}^hom^a^s^H^.^N^e^a^l^e^,^{pp. 7}^-¹⁶^.
⁵⁵^T^h^e^r^e^is^one^e^x^am^ple^of^aⁿ^a^m^e^ndm^eⁿ^{t tha}^t^w^a^s^r^a^ti^fⁱ^e^d^m^aⁿ^y^y^e^a^r^s^a^f^te^r^its^pr^opos^a^l^,^the²⁷^th^Am^en^d^m^en^t^,^w^hⁱ^c^h
^pro^h^ibits^c^h^aⁿ^g^e^{s in c}^o^ng^re^ssiona^{l pa}^y^f^r^om^ta^kⁱ^ng^e^f^f^e^c^t^{until “}^aⁿ^e^l^e^c^{tion of}^Re^pre^s^eⁿ^ta^tiv^e^s^sha^ll^ha^v^e^inte^rv^eⁿ^e^d^.”
^T^h^{is a}^m^en^d^m^en^{t w}^a^{s su}^b^m^ittedⁱⁿ¹⁷⁹¹^{as p}^a^rt^o^f^th^{e p}^ack^ag^{e th}^{at b}^{ecame th}^{e Bill o}^f^Rig^h^ts,^b^u^t^dⁱ^dⁿ^o^{t g}^aⁱⁿ^t^h^e
^ne^c^e^s^s^a^r^y^thr^e^e^f^our^ths^a^p^pr^ov^a^l^am^ong^the^s^t^a^t^e^s^unt^il¹⁹^92.^I^t^is^w^o^r^t^{h not}^ing^,^t^h^a^tⁿ^one^of^the^B^ill^of^Rⁱ^g^h^ts
^a^m^e^ndm^eⁿ^{ts inc}^l^u^d^e^d^t^h^eⁿ^o^w^-^tra^d^itio^na^{l se}^v^e^n-y^e^a^r^lim^ita^tion.
⁵⁶^Na^tiona^{l Po}^pula^r^V^o^te^w^e^bsite^,
^http:^//w^w^w^.na^tiona^lp^op^ula^r^v^o^te^.c^om^/^p^a^g^e^s^/e^x^p^la^na^tion.^ph^p.

presidential or vice presidential nominees or benefit from campaign spending
because even though it controls the largest number of electoral votes, the Golden
State has been regarded in recent elections as being reliably Democratic in its
presidential sympathies. Similar arguments would apply to Texas, a state that has
voted for Republican presidential nominees since 1980.
• Opponents might argue that spreading campaign spending resources in states that
aren’t “battlegrounds” is a questionable goal with which to justify such a
profound change in the presidential election process. Campaign appearances,
spending by campaign organizations, and collateral spending generated by the
attendant media, they might continue, were never intended to be a local economic
stimulus package, nor are the amounts in question sufficient to make much of a
difference in any state, with the possible exception of sparsely-populated New
Hampshire during its quadrennial primary campaign. Moreover, they might
continue, it is equally dubious to assert that nominees will slight the concerns of
citizens of the states from which they draw their greatest support, or that
concentrated campaigning in the “battleground” states somehow
“disenfranchises” voters in others. Writing in the Wall Street Journal, former
Delaware Governor Pete Dupont maintained that, contrary to assertions that NPV
would stimulate more frequent candidate appearances in less populous states, “...
direct election of presidents would lead to geographically narrower campaigns,
for election efforts would be largely urban.... Rural states like Maine, with its

740,00 votes in 2004, wouldn’t matter much compared with New York’s 7.4 ⁵⁷

million or California’s 12.4 million votes.”
Objections to the National Popular Vote plan have also been raised on constitutional grounds. One
observer, Derek T. Muller, writing in Election Law Journal, asserts, first, that NPV is an interstate
compact within the meaning of the Constitution, and as such, it must be approved by Congress ⁵⁸
before it could take effect. The author reviews the history of interstate compacts and their
interpretation over the past two centuries, noting that, under the current interpretation, certain
types of interstate agreements or compacts do not require the explicit consent of Congress; these
“may be entered without the consent of Congress, because they do not affect national sovereignty ⁵⁹
or concern the core meaning of the Compact Clause.” They are, in effect, not compacts in the
constitutional sense. He goes on to assert that the National Popular Vote agreement is, however,
an interstate compact that would require explicit congressional approval, because of the ways it
binds the states to a particular course of action, places time limits on their ability to withdraw
from NPV, and more generally meets or exceeds conditions historically found to define “interstate ⁶⁰
compacts” by the Supreme and other U.S. Courts.

⁵⁷^P^e^t^e^d^u^P^oⁿ^t^,^“T^rash^t^h^{e ‘Co}^m^p^act^,^’^”^W^a^{ll Str}^e^e^t^J^o^ur^na^l^,^A^u^g^u^s^t^{28, 20}⁰⁶^ht^tp:/^/w^w^w^.opini^onj^our^na^l.c^o^m^/
^c^o^lumⁿ^ists/pd^u^p^ont/^?^id=¹¹⁰⁰⁰⁸⁸^55.
⁵⁸^“^N^{o Sta}^t^e^s^h^a^ll,^w^ithout^the^c^ons^eⁿ^{t of}^C^ong^re^s^s^,^...e^nte^rⁱⁿ^{to a}ⁿ^y^A^g^re^em^eⁿ^{t or C}^o^m^p^a^c^t^w^{ith a}^not^he^{r Sta}^t^e^,^o^r^w^ith
^a^f^o^re^ig^{n P}^o^w^e^{r.... ”}^A^r^tic^le^{I, Se}^c^tion¹⁰^{, c}^l^a^u^s^e³^.
⁵⁹^De^re^k^T^.^Mulle^{r, “}^T^he^Com^p^a^c^t^Cla^u^se^a^{nd t}^h^e^Na^tio^na^l^P^o^pu^la^r^V^o^te^Iⁿ^te^rsta^te^Com^p^a^c^t^,”^Ele^c^tio^{n L}^a^w^J^our^nal^,
^v^o^{l. 8,}ⁿ^o^.^{4 (n}^.d.)^{, 2}⁰⁰⁷^,^p.³⁸^2.^Ex^a^m^ple^s^inc^l^ude^t^h^e^m^u^lti-sta^t^e^“^EZ-P^a^ss”^a^u^t^o^to^{ll a}^g^re^e^m^eⁿ^{t, a}^{nd the}^nor^the^a^s^te^rn
^s^t^a^t^e^s^Re^gⁱ^ona^{l G}^r^ee^nhous^e^G^a^s^Initia^tiv^e^.
⁶⁰^I^b^id^.,^pp.³^88-³⁸^9.

Muller goes on, however, to maintain that the NPV concept is inherently unconstitutional unless
specifically approved by Congress. Reviewing the record of federal court decisions concerning
interstate compacts, the author asserts that the NPV compact would enhance the political power
of participating states, but reduce that of those that did not join the compact:
^S^t^at^es^h^a^v^e^anⁱⁿ^t^e^res^tⁱⁿ^appoiⁿ^tⁱⁿ^g^t^h^ei^{r el}^ect^ors^as^t^h^e^y^s^{ee f}ⁱ^t^,^aⁿ^{d t}^h^{e Pres}ⁱ^d^en^tⁱ^a^l
^Electo^r^{s Clau}^{se o}^f^t^h^{e Co}ⁿ^s^tit^u^tioⁿ^g^r^aⁿ^{ts t}^h^is^e^x^cl^u^sⁱ^v^{e a}^u^th^o^r^it^y^{to th}^{e s}^t^ates^{. T}^echⁿⁱ^cal^l^y^,
^th^eⁿ^on-^co^m^p^actiⁿ^{g s}ⁱ^s^t^{er s}^t^ate^s^can^s^{till appoin}^t^e^l^ectors^,^bu^t^th^{e In}^ter^s^tate^C^o^m^p^act^m^a^k^e^s
^s^u^c^h^{an appoi}ⁿ^t^m^eⁿ^t^m^e^aⁿⁱⁿ^g^l^e^s^s^.^T^h^{e ou}^t^c^o^m^{e of}^t^h^e^El^ect^oral^C^o^l^l^e^g^e^w^o^u^l^{d be}
^determⁱⁿ^{ed b}^y^an^arraⁿ^g^e^{d co}^llectiv^{e a}^g^ree^m^en^t^a^m^oⁿ^g^com^p^ac^ting^s^t^ates^,^reg^a^rdles^s^of
^w^h^atⁿ^on-^co^m^p^act^ing^states^d^o^abou^{t it.... T}^h^is^e^v^isceratio^{n of}^political^eff^ecti^v^eⁿ^es^{s i}^s^a⁶¹
^su^f^f^icieⁿ^tⁱⁿ^ter^e^{st to}ⁱⁿ^v^o^k^e^t^h^{e co}ⁿ^s^tit^u^tioⁿ^a^{l sa}^f^e^g^u^ar^d^o^f^coⁿ^g^r^es^sioⁿ^{al co}ⁿ^s^eⁿ^t.
The National Popular Vote movement agrees with Mr. Muller’s thesis as to whether NPV is an
interstate compact: in Every Vote Equal, the movement’s major written source, concludes:
^T^h^{e s}^u^bj^ect^m^a^t^t^e^{r o}^f^t^h^{e propos}^{ed “A}^g^r^ee^m^eⁿ^t^A^m^oⁿ^g^t^h^e^S^t^at^es^t^o^El^ec^t^t^h^{e Pres}ⁱ^d^en^t^b^y
^N^a^tⁱ^o^na^l^P^o^p^u^l^a^r^V^o^t^e^”^c^o^nc^e^r^ns^t^h^e^m^aⁿⁿ^{er of}^appoiⁿ^t^m^eⁿ^t^of^{a s}^t^at^e’s^presⁱ^d^en^tⁱ^a^l^el^ect^ors^.
^T^h^{e U}^.^S^.^C^oⁿ^s^tⁱ^t^u^tⁱ^oⁿ^gⁱ^v^e^s^e^ach^s^t^a^t^{e t}^h^e^po^w^e^{r t}^o^s^e^l^ect^t^h^e^m^aⁿⁿ^{er of appoi}ⁿ^tⁱⁿ^gⁱ^t^s
^presⁱ^d^en^tⁱ^a^l^el^ect^ors^....^T^h^u^s^t^h^{e s}^u^bj^ect^m^a^t^t^e^{r of}^t^h^{e propos}^e^dⁱⁿ^t^e^rs^t^a^t^e^co^m^p^actⁱ^s^{a s}^t^at^e⁶²
^po^w^e^{r an}^{d an}^{appropriate s}^u^{bject f}^o^{r an}ⁱⁿ^ter^s^{tate co}^m^p^act.
Contrary to Mr. Muller, however, Every Vote Equal maintains that the Constitution implicitly
permits valid interstate agreements without the need for congressional approval on any subject ⁶³
that falls within the states’ constitutional authority. The authors further note that since the NPV
compact would concern the manner of appointment of a state’s electors, a power that resides
exclusively with the states, the agreement would therefore be an appropriate subject for an ⁶⁴
interstate compact. They go on to assert that the Supreme Court has twice rejected the argument
that an interstate compact was unconstitutional because “it impaired the sovereign rights of non-
member states or enhanced the political power of the member states at the expense of other ⁶⁵
states,” as has been asserted by NPV opponents.
Other questions have been raised concerning whether the National Popular Vote compact might ⁶⁶
violate the Voting Rights Act. Writing in Columbia Law Review, David Gringer maintains that
NPV may be at variance with several provisions of the act. Specifically, he argues that the plan
conflicts with Section 2 of the act because moving from “a state-based to a national popular vote
dilutes the voting strength of a given state’s minority population by reducing its ability to ⁶⁷
influence the outcome of presidential elections.” Gringer also asserts that the NPV compact may

⁶¹
^M^u^l^l^e^r,^“T^h^e^Co^m^p^act^Cl^au^{se an}^d^t^h^{e Nat}ⁱ^oⁿ^a^l^Po^pula^r^V^o^te^Iⁿ^te^r^s^ta^te^C^o^m^p^a^c^t^{, p. 39}^1.
⁶²^J^o^hⁿ^{R. K}^o^z^a^,^Ba^rry^Fa^de^m^,^e^t^a^l^.^Ev^e^r^y^Vote^Eq^ua^l:^A^Sta^t^e^-^Bas^e^{d Pl}^{an f}^o^r^Ele^c^tⁱ^ng^the^Pr^e^s^ideⁿ^t^by^N^a^ti^on^al
^Pop^u^{lar Vote}⁽^L^os^A^ltos^,^C^A^{: N}^a^tiona^l^Po^pula^r^V^o^te^P^r^e^s^s^,²⁰⁰⁶⁾^,^pp.²⁸^4-²⁸⁵^.
⁶³^Tw^{o e}^x^am^ple^s^a^r^e^EZ^P^a^s^s^a^{nd t}^h^e^R^e^gⁱ^ona^{l G}^r^e^e^nhous^e^G^a^s^Iⁿ^iti^a^tiv^e^,^a^s^note^d^a^t^f^oot^no^te⁵⁷^.
⁶⁴^Ko^za,^F^a^d^e^m^,^et^al^.^,^E^{very V}^o^t^e^E^q^ua^l^{, pp}^.²^84-²⁸^5.
⁶⁵^Ibid^{., c}^iti^ng^U.S.^Ste^e^l^C^o^rp.^V.^M^u^ltistate^T^a^x^Commissioⁿ^,⁴³⁴^U^.^{S. 4}⁵²^,⁴⁹⁴ⁿ^.²³⁽¹⁹⁷⁸⁾⁽^W^hite^dis^s^e^ntiⁿ^g⁾^{, a}ⁿ^d
^N^o^r^t^he^as^t^Ba^nc^or^p,^Iⁿ^c^.^V^.^B^oar^d^{of G}^o^v^e^rⁿ^o^r^s^of^the^Fe^de^r^a^{l Re}^s^e^r^v^e^Sy^s^t^e^m^{, 472 U}^.^S.¹⁵^9,¹⁷^{6 (}¹⁹⁸⁵⁾^.
⁶⁶^T^h^e^Votⁱ^ng^Rⁱ^g^h^ts^A^c^{t, (}⁴²^U^.^S.^C^{., §}¹⁹⁷³^e^t^s^e^q.)^.
⁶⁷^Da^vⁱ^{d G}^r^ing^e^{r, “}^W^h^y^the^Na^tion^a^{l Pop}^u^la^r^V^o^te^P^l^aⁿ^{is the}^W^r^on^g^W^a^y^{to A}^{bolish t}^h^e^Ele^c^t^ora^l^C^o^lle^g^e^,^Colum^b^ia
^L^a^{w R}^evi^ew^{, v}^o^l¹⁰^8,²⁰⁰⁸^{, p}^.²⁰⁸^.

violate Section 5 of the act, which restrains “covered”⁶⁸ jurisdictions from implementing changes
to “any voting qualification or prerequisite to voting, or standard, practice, or procedure with ⁶⁹
respect to voting,” until the law has been reviewed for potential discriminatory intent or effect
by the U.S. Attorney General or a three-judge panel from the U.S. District Court for the District
of Columbia. This process is known as preclearance. He argues that the NPV compact would
qualify as a covered practice under Section 5, and that the legislatures of all the affected states ⁷⁰
would be required to obtain preclearance before implementing the compact. The National
Popular Vote organization has yet to respond to Gringer’s assertions in Columbia Llaw Review.
It is beyond the scope of this report to speculate on the outcome of challenges that might be raised
to the National Popular Vote compact on any of the legal or constitutional questions cited
previously. The fact that these issues have been raised, however, suggests the possibility NPV
might be subject to legal challenges before it could become operational should it meet the 270
electoral vote threshold.

Congressional interest in constitutional amendments to reform or eliminate the electoral college
has declined in recent decades. Despite a brief uptick following the problematic 2000 presidential
election, the trend has continued: only two relevant amendments have been introduced thus far in ^th
the 110 Congress. This arguable lack of congressional interest, and demonstrable lack of
legislative activity, contrast strongly with the period between 1950 and 1979, when electoral
college reform measures were regularly considered in the Senate and House Judiciary
committees, and proposed amendments were debated in the full Senate on five occasions, and in ⁷¹
the House twice.
From those proposals that have been offered, two trends are noticeable to the long term observer.
First, the volume of proposed amendments that would reform the electoral college, as opposed to
those that would eliminate the electoral college and substitute direct popular election, has
declined almost to zero. Second, the scope of proposed direct popular election amendments is
arguably evolving in complexity and detail.
It is unclear whether the first development reflects a decline in support for the electoral college
(either as it exists or reformed), a lack of organized interest in these reform proposals, or simply

⁶⁸^Co^vered^j^u^ri^s^dⁱ^c^tⁱ^oⁿ^s^w^e^{re d}^e^fⁱⁿ^e^dⁱⁿ^t^h^{e act}^{as eff}^ectⁱ^v^el^y^t^h^o^s^{e i}ⁿ^w^hⁱ^c^h^t^h^{ere w}^a^{s evi}^d^en^{ce o}^f^dⁱ^scri^mⁱⁿ^a^tⁱ^oⁿ
^a^g^aⁱ^nst^mⁱ^nority^v^o^ting^rig^h^{ts in}^t^h^e^y^e^a^r^{s prior t}^o^pa^ssa^g^e^of^the^or^ig^ina^l^Voti^ng^Rig^h^{ts A}^c^{t in 1}⁹⁶⁵^.^T^h^e^y^inc^l^ude
^ei^gh^t^st^at^{es an}^d^l^o^cal^j^u^ri^sdi^c^tⁱ^oⁿ^sⁱⁿ^ano^t^h^e^{r ei}^gh^t^,^l^o^cat^ed^l^a^rgel^y^,^t^h^ou^gh^no^t^excl^u^sⁱ^v^el^y^,ⁱⁿ^t^h^{e sout}^h^.
⁶⁹⁴²^U^.^S^.^C^.¹⁹⁷³^c.
⁷⁰^G^r^ing^e^{r, “}^W^h^y^the^Na^tiona^l^Po^p^u^la^{r Vote}^Plaⁿ^{is t}^h^{e W}^r^oⁿ^g^W^a^y^t^o^A^b^o^lⁱ^s^{h t}^h^{e E}^l^ect^o^r^al^Co^l^l^ege,^”^p^.¹⁸^8.
⁷¹^F^o^{r a}^d^e^t^aⁱ^l^e^d^examⁱⁿ^atⁱ^oⁿ^an^{d an}^al^y^sⁱ^s^o^f^t^h^{ese eff}^o^rt^s,^p^l^{ease co}ⁿ^s^u^l^t^Neal^R.^P^eⁱ^r^{ce an}^d^L^a^w^r^en^c^e^P^.^L^oⁿ^g^l^e^y^,^T^h^e
^P^e^o^p^le^{’s P}^r^e^s^ideⁿ^t:^T^h^{e E}^l^ect^o^r^a^l^Co^l^l^e^g^eⁱⁿ^A^m^eri^c^an^Hi^st^o^r^{y an}^{d t}^h^{e Di}^rect^V^o^t^e^A^l^t^e^rn^a^tⁱ^v^e^{, re}^v^.^e^d^{. (N}^e^w^H^a^v^e^n,
^C^T^{: Y}^a^le^Uⁿ^iv^e^r^sⁱ^t^y^P^r^e^s^s^,¹⁹⁸¹⁾^,^pp.¹^31-²⁰^6.

the absence of a sense of urgency on the part of Members who might be inclined to support or
defend the current system in some form. It is likely, that if a direct election amendment gained
broad congressional support and began moving toward congressional approval and proposal to
the states, Members who support the current system in some form would coalesce to defend the
electoral college. Alternatively, they might be spurred by the prospect of action to propose reform
measures that would address problem areas of the current system. This was the case the last time ^th
a direct election amendment came to the floor (in the Senate), during the 95 Congress (1979-⁷²

1980).

Another apparent trend is that recent reform proposals go beyond the concept of simply
substituting direct election for the electoral college. In recent Congresses, these amendments have
been more likely to include provisions that would enhance and extend the power of the federal
government to legislate in such areas as residence standards, definition of citizenship, national
voter registration, inclusion of U.S. territories and associated areas in the presidential election
process, establishment of an election day holiday, ballot access standards for parties and ⁷³
candidates, etc. This trend, it may be posited, reflects frustration on the part of many voters and
their elected representatives over the uncertainties and inconsistencies in local election
administration procedures that were revealed in the 2000 and 2004 presidential elections. If the
amendments in which such provisions have been incorporated were to be proposed and ratified,
they could be used to set broad national election standards (provided Congress chose to exercise
the new authority granted in these proposals) which would supersede many current state practices
and requirements.
This eventuality raises two possible issues. The first is the question of whether such federal
involvement in traditionally state and local practices would impose additional costs on state and
local governments, and thus be regarded as an “unfunded mandate.” Indeed, bills that had the
effect of imposing cost on state and local election authorities might be subject to points of order ⁷⁴
on the floor of both the House and Senate. One response by the state and local governments
might be to call for federal funding to meet the increased expenses imposed on them by federal
requirements. Precedent for this exists in the grant program incorporated in the Help American ⁷⁵
Vote Act (HAVA).
A second issue is related to the consequences of such an amendment, and centers on perceptions
as to whether it might be regarded as constitutionally dubious federal intrusion into state and local
responsibilities. For instance, a more far-reaching scenario might include the gradual assumption
of the entire election administration structure by the federal government. In this hypothetical case,
questions could be raised as to: (1) the costs involved; (2) whether a national election
administration system could efficiently manage all the varying nuances of state and local
conditions; and (3) what would be the long term implications for federalism? Conversely, it could
be asserted that a national election administration structure is appropriate for national elections,
and that state or local concerns are counterbalanced by the urgent requirement that every citizen
be enabled and encouraged to vote, and that every vote should be accurately counted.

⁷²^{For a}ⁿ^a^c^c^oun^{t of}^a^c^tionⁱⁿ^bo^th^t^h^e⁹⁴^th^and⁹⁵^th^C^ong^r^e^s^s^e^s^,^ple^a^s^e^c^ons^ult^ibi^d^.,^p^p¹^97-²⁰^6.
⁷³^S^ee,^f^o^{r in}^stan^ce,^H.^J.^Res.¹⁷^a^{nd S}^.^J.^Res.¹¹^,ⁱⁿ^t^h^{e 10}⁹^th^C^o^ng^r^e^s^s^,^a^{nd H}^.^J^.^R^e^s^.¹⁰^{3 a}ⁿ^{d H}^.^J^.^R^e^s^.¹⁰⁹ⁱⁿ^the¹⁰⁸^th
^C^ong^r^e^s^s^.
⁷⁴^For^a^dditi^ona^l^inf^o^r^m^a^{tion, p}^l^e^a^s^e^c^ons^ult^C^R^S^R^e^p^o^r^t^f^o^r^C^o^ng^r^e^s^s^C^R^S^R^e^por^{t R}^S²⁰⁰⁵^8,^Uⁿ^fu^nde^{d M}^aⁿ^date^s
^Refo^{rm Act Su}^mma^rized^,^by^K^e^it^{h B}^e^a^a^{nd R}ⁱ^c^h^a^r^{d S}^.^B^e^th^.
⁷⁵^H^e^{lp A}^m^e^r^ic^a^V^o^te^A^c^{t -H}^A^V^A^:^P^.^L^.¹⁰^7-2⁵²^;¹¹⁶^Sta^t^.¹⁶⁶⁶^.

Some observers assumed that action of the electoral college in 2000, in which George W. Bush
was elected with a small majority of electoral votes, but fewer popular votes than Al Gore, Jr.,
would lead to serious consideration of proposals to reform or eliminate the electoral college. ^th
Notwithstanding these circumstances, none of the proposals introduced in either the 107 through ^th^th

110 Congresses received more than routine committee referral to date. In the 107 Congress,

attention focused on proposals for election administration reform, resulting in passage of the Help
America Vote Act (HAVA) in 2002. As noted previously, this legislation substantially expanded
the role of the federal government in the field of voting systems and election technology through
the establishment of national standards in these areas and the provision of federal assistance to the ⁷⁶
states to improve their registration and voting procedures and systems. The congressional
response to the 2000 election controversy was incremental, rather than fundamental.
Other factors may also contribute to the endurance of the electoral college system. Perhaps
foremost is the fact that the U.S. Constitution is not easily amended.
Stringent requirements for proposed amendments, including passage by a two-thirds vote in each
chamber of Congress, and approval by three-fourths of the states, generally within a seven-year
time frame, have meant that successful amendments are usually the products of broad national
consensus, a sense that a certain reform is urgently required, or active long-term support by ⁷⁷
congressional leadership. In many cases, all three aforementioned factors contributed to the ⁷⁸
success of an amendment. Further, while the electoral college has always had critics, its
supporters can note that it has selected “the people’s choice” in 47 of 51 presidential elections ^th⁷⁹
held since ratification of the 12 Amendment, a rate of 92.2%.
In the final analysis, given the high hurdles—both constitutional and political—faced by any
proposed amendment, it seems unlikely that the electoral college system will be replaced or
reformed by constitutional amendment unless or until its alleged failings become so compelling
that large concurrent majorities in Congress, the states, and among the public, are disposed to
undertake its reform or abolition.
The presidential election of 2008 may prove to be a bellwether on the future of electoral college
reform in Congress. If the election produces a clear majority in both electoral and popular votes,

⁷⁶^For^a^dditi^ona^l^inf^o^r^m^a^{tion o}ⁿ^t^h^e^H^e^{lp A}^m^e^r^ica^Vote^A^c^{t, ple}^a^s^e^C^R^S^R^e^por^t^R^L³²⁶⁸⁵^,^Ele^c^tio^{n Re}^f^o^{rm: The}^He^lp
^Am^e^r^ic^{a Vote}^Ac^t^an^{d I}^s^s^u^e^s^f^o^r^C^ongr^e^s^s^,^by^Er^ic^A^.^Fis^c^he^r^a^{nd K}^e^vⁱ^{n J}^.^C^o^le^m^a^n.
⁷⁷^A^r^tic^le^V^of^the^Co^nstitu^tio^{n a}^l^so^prov^ide^s^f^o^{r a}^m^e^ndm^eⁿ^{t by}^a^c^onv^eⁿ^tio^{n, w}^h^ic^{h w}^ould^a^sse^m^b^le^{on t}^h^e^a^p^plic^a^tioⁿ
^of^the^le^gⁱ^s^l^a^t^ur^e^s^of^tw^o-^thir^ds^of^the^s^t^a^t^e^s^{. A}ⁿ^y^am^e^ndm^eⁿ^ts^pr^op^os^e^d^by^s^u^c^h^a^c^onv^eⁿ^ti^on^w^ould^a^l^s^o^r^e^quir^e
^a^ppr^ov^a^l^of^thr^e^e^-^f^our^ths^of^the^s^t^a^t^e^s^{. T}^h^is^a^lte^rⁿ^a^tiv^e^m^e^thod,^ho^w^e^v^e^r^,^ha^s^ne^v^e^r^be^eⁿ^us^e^d^.
⁷⁸^T^h^e^s^e^c^onditi^ons^ha^v^e^be^eⁿ^m^e^{t i}ⁿ^s^o^m^e^c^a^s^es^only^af^te^r^a^long^pe^rⁱ^od^of^na^tio^na^{l de}^ba^te^{; f}^o^r^e^x^am^ple^,^the¹⁹^th
^Amen^d^m^en^t^,^w^hⁱ^c^h^ext^eⁿ^d^e^d^t^h^e^ri^gh^t^t^o^vot^{e t}^o^w^o^men^,^w^a^{s t}^h^{e c}^u^l^mⁱⁿ^atⁱ^oⁿ^o^f^d^ecad^{es o}^f^dⁱ^scu^ssi^oⁿ^and^p^o^p^u^l^ar
^a^g^ita^{tion. I}ⁿ^ot^he^rⁱⁿ^s^t^aⁿ^c^e^s^{, a}^m^endm^eⁿ^ts^ha^v^e^be^eⁿ^pr^o^pos^e^d^aⁿ^d^r^a^tif^ie^{d in the}^w^a^k^e^of^a^s^udde^{n g}^a^lv^aⁿ^iz^ing^e^v^eⁿ^{t or}^th
^s^e^rⁱ^e^s^of^ev^eⁿ^ts^{. A}ⁿ^e^x^am^ple^o^f^this^m^a^y^be^f^{ound i}ⁿ^t^h^e²⁵^A^m^e^ndm^eⁿ^{t, pr}^ov^idiⁿ^g^f^o^r^pr^e^s^ideⁿ^tⁱ^a^l^s^u^c^c^e^s^sⁱ^{on a}^nd
^dⁱ^sab^ility^{, w}^h^ich^receiv^e^d^wⁱ^d^e^sp^readⁿ^a^tioⁿ^a^{l su}^p^p^o^r^{t f}^o^llo^wⁱⁿ^g^th^{e 1}⁹⁶³^assassin^a^tioⁿ^o^f^P^r^esid^en^t^Jo^hⁿ^{F. Ken}ⁿ^ed^y^.
⁷⁹^T^h^{e excep}^tⁱ^oⁿ^s^,^{as n}^o^t^e^d^earlⁱ^e^r,^w^e^r^e^t^h^{e el}^ectⁱ^oⁿ^s^o^f¹⁸⁷⁶^,¹⁸⁸⁸^,^an^d²⁰⁰⁰^,^w^h^en^candⁱ^d^a^t^e^{s w}^e^re^el^ect^ed^w^h^o^h^a^d
^{a maj}^o^ri^t^y^o^f^el^ect^o^r^al^vo^t^e^s,^b^u^t^f^e^{wer p}^o^p^u^l^{ar vo}^t^e^{s t}^h^{an t}^h^ei^{r m}^a^j^o^{r op}^poⁿ^e^nt^s.^T^h^{e on}^{e case i}ⁿ^w^hⁱ^c^h^t^h^{e el}^ect^o^r^al
^v^o^te^w^a^s^hope^le^s^s^l^y^f^r^a^g^m^e^nte^d^a^m^ong^f^our^c^a^ndi^da^te^s^oc^c^u^r^r^e^{d i}ⁿ¹⁸^24,^w^h^eⁿ^c^ont^ing^e^{nt e}^l^e^c^tio^{n r}^e^s^o^lv^e^d^the
^el^ect^o^r^al^co^l^l^e^{ge d}^ead^l^o^ck.^E^v^enⁱⁿ^t^hⁱ^s^case,^t^h^e^P^r^esi^d^ent^,^Johⁿ^Quⁱⁿ^cy^A^d^a^m^s,^w^a^{s ab}^l^e^t^o^go^vern^su^ccess^f^u^l^l^y^,
^de^spite^c^r^itic^ism^tha^t^he^w^a^{s se}^le^c^t^e^dⁱⁿ^the^Ho^use^of^Re^pre^s^eⁿ^ta^tiv^e^s^.

the electoral college will have functioned as expected by contemporary standards, and there will
likely be little congressional interest in devoting the high levels of time and energy demanded to
consideration of a constitutional amendment. A close election—again, in either popular or
electoral votes—that leads to a bitterly contested post-election struggle, or even more damaging
to the nation’s political comity, the election of a President who received fewer votes than his
major opponent, might galvanize Congress and the nation, and propel the question of presidential
election reform to the front rank of current legislative issues.

For at least a century, American tradition has enshrined the role of the states as “laboratories of
reform,” in which innovative policy experiments could be tested on a limited scale, and, if
successful, ultimately adopted at the federal level. In the question of electoral college reform, at
least some of the states appear to have assumed their classic role by implementing policy
alternatives. Maine and Nebraska, for instance, have followed the district system for decades.
Regrettably perhaps from the “laboratory” standpoint, neither state has yet split its electoral vote
by congressional district.
Arguably, the most compelling recent developments in the field of electoral college reform have
emerged at the state level. Two of these, Colorado Amendment 36 in 2004 and “California
Counts” in 2006-2007, were unsuccessful, but both aroused interest and support and criticism for
their attempts to reform the electoral college, within the two respective states. Perhaps more
noteworthy, or at least better publicized, has been the National Popular Vote campaign, a well-
organized nationwide initiative that has drawn bipartisan support from a wide range of state and
local office holders. Moreover, its advisory board includes seven former U.S. Senators and
Representatives representing both parties. As noted earlier in this report, the legislatures of four
states disposing a total of 50 electoral votes have approved the NPV compact to date, with final
action pending in one more. Although many state legislative sessions for 2008 have ended at the
time of this writing, action remains theoretically possible in California, Maine, North Carolina,
Rhode Island and Washington, whose formal agreement to the compact would provide an
additional 88 electoral votes to the tally of participating states.
It is difficult to foresee the ultimate course of the NPV movement at the time of this writing. Its
future, like that of constitutional reform, arguably depends on the results of the 2008 presidential
election. As noted earlier in this report, a clear-cut decision in 2008, resulting in the election of a
President and Vice President who clearly are “the people’s choice,” might lead to a loss of
momentum by the National Popular Vote scheme. Without a compelling reason to proceed, the
effort might stall. On the other hand, if 2008 produces a closely contested election—in either the
electoral or popular vote, or both—or if it produces a second non-plurality President in eight
years, then it is much more likely that the NPV movement would be energized and gain additional
accessions in the 2009 state legislative sessions. Indeed, a “problem” election might stimulate a
surge of action, as state legislatures seek to approve the compact, leading to an atmosphere not
unlike the competition to hold the earliest presidential primaries and caucuses. It is also possible
under these circumstances that Congress could simultaneously pursue constitutional reform of the
electoral college system with renewed interest and energy, thus overshadowing the NPV
campaign. In these circumstances, supporters might continue to argue in favor of NPV on the
grounds that it could achieve the desired results—direct election of the President and Vice
President—sooner than would be possible under a constitutional amendment, provided it survived
any challenges to its legality or constitutionality.

John F. Kennedy, while serving in the Senate, was a leading defender of the electoral college
against proposals to establish a district plan variant in place of the current (then and now) general
ticket or winner-take-all system of allocating electoral votes. In the course of Senate floor debate ^th
on this question in 1956, he paraphrased a comment by Viscount Falkland, a 17 century English
statesman, declaring of the electoral college, “It seems to me that Falkland’s definition of
conservatism is quite appropriate [in this instance]—’When it is not necessary to change, it is ⁸⁰
necessary not to change.... ’” This aphorism may offer a key to the future prospects of the
electoral college. To date, policymakers have generally concluded that it has not been necessary
to change the existing system, or perhaps more accurately, there has been no compelling call for
change.
The first and only major constitutional overhaul of the electoral college system to date, the 12^th
Amendment, was a direct response to turmoil accompanying the presidential election of 1800.
This was a fundamental “crisis of regime” that, once surmounted, motivated Congress to propose
a major reform in very short time. As long as the electoral college system functions well enough
to avoid provoking a national crisis of similar scale, it may remain unchanged, if not
unchallenged.

⁸⁰^Se^{n. J}^o^hⁿ^F.^K^e^nne^dy^{, R}^e^m^a^r^k^sⁱⁿ^the^Se^na^te^,^C^o^ngr^e^s^sⁱ^o^nal^Re^c^o^r^d^{, v}^o^l.¹⁰^2,^Ma^r^c^{h 2}⁰^,¹⁹⁵⁶^{, p}^.⁵¹⁵⁶^.

This Appendix presents more detailed descriptions of the three most frequently proposed plans to
reform the electoral college.
One criticism leveled at each of the electoral college reform plans reviewed below is that the
decennial reassignment of electoral votes provides for no adjustment in electoral votes to would
reflect variations in population growth among states between censuses. For instance, the
allocation of electoral votes following the 2010 census will remain in effect for the 2012, 2016
and 2020 presidential election.

This reform proposal would award all electoral votes in each state directly to the winning
candidates who obtained the most votes statewide. In almost all versions, a plurality would be
sufficient in individual states to win the state’s electoral votes; most versions provide for some
form of contingent election in Congress in the event no candidate wins a nationwide majority of
electoral votes. This alternative would constitutionally mandate the “general ticket” or “winner-
take-all system” currently used to award electoral votes in 48 states and the District of Columbia.
Proponents of the automatic plan argue that it would maintain the present electoral college
system’s balance between federal and state power, and between large and small states. Proponents ⁸¹
note that the automatic plan would eliminate the possibility of “faithless electors” Further, the
automatic plan would help preserve the present two-party system, under a state-by-state, winner-
take-all method of allocating electoral votes. This, they assert, is a strength of the existing
arrangement, because it tends to reward parties that incorporate a broad range of viewpoints and
embrace large areas of the nation.
Opponents, on the other hand, note presidential elections are still indirect under the automatic ⁸²
system. They further assert that “minority” Presidents could still be elected under the automatic
system, and it still provides no electoral vote recognition of the views and opinions of voters who
choose the losing candidates.

This reform proposal would continue the current allocation of electoral votes by state, and, in
common with most reform plans, would eliminate the office of presidential elector. It would

⁸¹^F^aⁱ^t^h^l^e^{ss el}^ect^o^r^{s are t}^h^o^s^{e w}^h^o^vo^t^e^f^o^{r a can}^dⁱ^d^a^t^e^o^t^h^e^{r t}^h^an^t^h^{e o}ⁿ^e^t^o^w^h^o^m^t^h^e^y^{are p}^l^ed^ged^.^F^o^{r i}ⁿ^st^an^ce,ⁱⁿ
²⁰⁰⁰^,^{a Di}^st^rⁱ^ct^o^f^Co^l^u^m^bⁱ^a^De^m^o^cratⁱ^c^el^ect^o^r^p^l^ed^ged^t^o^t^h^{e G}^o^re-Lⁱ^e^b^e^r^m^an^tⁱ^c^ket^cast^{a b}^l^an^k^b^a^l^l^o^t^{as a}^p^r^o^t^est
^agaiⁿ^s^t^t^h^{e el}^ectⁱ^oⁿ^resu^l^t^{s i}ⁿ^gen^e^ral^.^In¹⁹⁸⁸^,^{a W}^e^st^Vⁱ^rgiⁿⁱ^a^Dem^o^cratⁱ^c^el^ect^o^r^reversed^t^h^{e o}^r^d^e^{r o}^f^can^dⁱ^d^a^t^e^s,
^vo^tⁱⁿ^{g f}^o^{r L}^l^o^y^d^Ben^t^sen^f^o^{r P}^r^esⁱ^d^en^t^and^Mⁱ^ch^ael^Du^kaki^{s f}^o^{r vi}^{ce P}^r^esi^d^ent^.
⁸²^P^r^e^s^ideⁿ^ts^aⁿ^d^Vic^e^P^r^e^s^ideⁿ^ts^e^l^e^c^t^e^d^w^{ith a}ⁿ^e^l^e^c^t^or^a^l^v^o^te^m^a^jor^ity^{, but f}^e^w^e^r^popula^r^v^o^t^e^s^thaⁿ^t^h^eⁱ^r^m^a^jor
^opp^one^nts^.

award one electoral vote to the winning candidates in each congressional district (or other, ad hoc,
presidential election district) of each state. Two electoral votes, reflecting the two additional
“constant” or “senatorial” electoral votes assigned to each state by the Constitution, would be
awarded to the statewide vote winners. This alternative would constitutionally mandate the ⁸³
system currently used to award electoral votes in Maine and Nebraska.
Proponents of the district plan argue that it would more accurately reflect the popular vote results
for presidential and vice presidential candidates than the winner- take-all method, or the
automatic plan, because, by allocating electoral votes according to popular vote results in ⁸⁴
congressional districts, it would take into account political differences within states. They also
suggest that in states dominated by one party, the district plan might provide an incentive for
greater voter involvement and party vitality, because it would be possible for the less dominant
party to win electoral votes in districts where it enjoys a higher level of support, e.g. “Upstate”
New York versus the New York City metropolitan area, or northern California vs. the Los Angeles
and San Francisco metropolitan areas.
Opponents would note that the district plan retains indirect election of the nation’s chief
executive, that the potential for “minority” Presidents would continue, and that it might actually
weaken the two-party system by encouraging parties that promote narrow geographical or
ideological interests and that may be concentrated in certain areas. In fact, they might suggest that
adoption of the district plan would encourage gerrymandering, as the parties maneuvered for
advantage in presidential elections.
Nebraska split its district votes presidential election for the first time in the 2008, awarding four
electors to Republican candidate Senator John McCain, who won two congressional districts and
the statewide vote, and one to the Democratic nominee, Senator Barack Obama, who received the ⁸⁵
most popular votes in state’s second congressional district. Maine has yet to split its electoral
votes under the district plan.

⁸³^T^h^e^dis^t^rⁱ^c^t^plaⁿ^is^a^pe^r^m^is^sⁱ^ble^s^t^a^t^e^opti^on^un^de^r^the^C^ons^t^itutⁱ^oⁿ^{, w}^h^ic^{h d}^o^e^sⁿ^o^{t s}^p^e^cⁱ^f^y^aⁿ^y^pa^r^tic^ula^r^m^e^thod
^f^o^{r a}^w^ardⁱⁿ^g^el^ect^o^r^al^vo^t^e^s.^In^f^act^,^t^h^{e di}^st^ri^ct^pl^an^w^a^s^wⁱ^d^e^l^y^u^s^edⁱⁿ^t^h^{e 19}^th^cen^t^u^ry^.
⁸⁴^T^h^{e q}^u^e^stⁱ^oⁿ^o^f^w^h^at^dⁱ^st^ri^ct^{s w}^o^u^l^d^b^e^u^s^{ed un}^d^e^{r a}^dⁱ^st^ri^ct^pl^an^{has b}^een^coⁿ^sⁱ^d^ered^o^v^{er t}ⁱ^m^e.^T^h^{e u}^s^{e o}^f^ei^t^h^{er ad}
^hoc^pr^e^sⁱ^d^eⁿ^tia^{l e}^l^e^c^tioⁿ^dis^t^rⁱ^c^t^s^,^or^e^x^is^ting^c^ong^r^e^s^sⁱ^ona^l^dis^t^rⁱ^c^t^s^c^ould^be^m^a^nda^te^d,^or^s^t^a^t^e^s^c^o^uld^be^of^f^e^r^e^{d the}
^opti^oⁿ^of^us^ing^eⁱ^t^h^e^r^m^e^{thod. T}^h^e^a^d^hoc^dis^t^rⁱ^c^t^v^a^rⁱ^aⁿ^t^of^the^dis^t^rⁱ^c^t^plaⁿ^w^oul^{d e}^m^pow^e^r^the^s^t^a^t^es^{to c}^r^e^a^t^e^s^p^e^cⁱ^a^l
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⁸⁵^R^obi^{n T}^y^v^s^e^r^{, “}^O^bam^a^Wⁱ^ns^Ele^c^t^or^a^l^V^o^teⁱⁿ^N^e^br^a^s^k^a^,”^O^m^aha^W^o^r^l^d-^H^e^r^a^ld^,^No^vem^b^{er 8}^,²⁰⁰⁸^.^A^v^ai^l^a^b^l^{e at}
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This reform proposal would award electoral votes in each state in proportion to the percentage of
the popular vote gained by each ticket. Some versions, known as “strict” proportional plans,
would award electoral votes in proportions as small as thousandths of one vote, that is, to the
third decimal point, while others, known as “rounded” proportional plans, would use various
methods of rounding to award only whole numbers of electoral votes to competing candidates. As
noted in the main body of this report, voters in Colorado rejected a proposed state constitutional
amendment (Amendment 36) at the November 2, 2004, general election that would have ⁸⁶
established a rounded proportional system in that state. For further information on this proposal,
please consult CRS Report RL32611, The Electoral College: How It Works in Contemporary
Presidential Elections, by Thomas H. Neale.
Proponents of the proportional plan argue that it comes closer than other reform plans to electing
the President and Vice President by popular vote, while still preserving the state role in
presidential elections. They also assert that the proportional plan reduces the likelihood of
“minority” presidents—those who win with a majority of electoral votes, but fewer popular votes
than their chief opponent. They also suggest that this option would more fairly account for public
preferences, by allocating electoral votes within the states to reflect the actual support attained by
various candidates, particularly in the strict, as opposed to rounded, version of the proportional
plan, while still retaining the role of the states.
Opponents again suggest that it retains indirect election of the President, which they assert is
inherently less democratic than direct popular election. They also note that the proportional plan
could still result in “minority” Presidents and Vice Presidents, and by eliminating the magnifier
effect of the automatic and district plans, might actually result in more frequent electoral college
deadlocks, situations in which no candidate receives the requisite majority of electoral votes.
^T^h^om^as^H.^Neale
^Sp^{ecialist i}ⁿ^Am^er^ican^Natioⁿ^a^{l Go}^v^e^rⁿ^m^eⁿ^t
^tⁿ^eal^e^@^crs^.^l^o^c.g^o^v^,^7-⁷⁸⁸³

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^w^{ould r}^e^qu^ir^e^a^c^ons^ti^tuti^ona^{l a}^m^e^ndm^eⁿ^{t. Sinc}^e^a^r^o^un^de^d^pr^o^por^tⁱ^ona^l^plaⁿ^or^s^y^s^t^em^w^{ould a}^w^a^r^{d w}^hole^e^l^e^c^t^or^a^l
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