The Prospects for Presidential Election Reform as the 2016 Campaign Season Gets Underway

Posted in: Election Law

For many folks, next week’s Republican presidential debate in Cleveland—sponsored by Fox News and Facebook and scheduled to air on the Fox News Channel—fully kicks off the 2016 presidential election season. As has been true with past presidential debates, some candidates (those who may be left out of the debate) have complained about the criteria that Fox will use—which include national poll popularity—to determine participation eligibility. The Supreme Court has held that even publicly sponsored debates need not allow all candidates to participate, and (since Fox and Facebook are private rather than governmental actors) there may be even less room to legally challenge the eligibility criteria for this event. But the controversy does remind us, as we enter another presidential election contest, that there are many aspects of the process we use to pick a president that might benefit from reform. In my column today, I provide an update on one very important reform movement—the so-called National Popular Vote (“NPV”) interstate compact plan.

Understanding Where the National Popular Vote Interstate Compact Plan Stands Today and How Partisan Roadblocks May Impede Its Continued Progress

As I have written in a number of columns analyzing different nuances of this concept, the NPV plan—a version of which was seriously floated by a small number of people including me, my older brother Akhil Amar, and also (separately) by Professor Robert Bennett over a decade ago—seeks to permit and encourage various states to sign onto an agreement that would require each signatory state to cast its electoral college votes not for the candidate who garners a plurality of popular votes in that state, but for the candidate who wins the most popular votes nationally. This system, with enough states as signatories, would generally mean that the winner of the presidential contest would be the person who had won the largest number of votes from individual voters nationwide. In that way, the plan would ensure that every voter—regardless of the state in which she lives—would have her vote count equally to that of every other voter in the country. Importantly, the agreement, by its own terms, would not go into effect until a sufficient number of states to comprise a majority of the electoral college—that is, states whose electoral college allotments collectively total 270 or more—ratify it.

When last I wrote on this website about the plan, around two years ago, elected legislatures in eight states (Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, Vermont and California) and the District of Columbia—comprising 132 electoral college votes altogether (almost half the needed 270 votes)—had adopted the idea. Since then, there has been significant, albeit gradual, progress. Two more elected state legislatures, New York and Rhode Island, have adopted the plan, bringing the total number of electoral votes in states committed to the plan to 165, which is over 60 percent of the number needed to bring the proposal into effect. Crossing the halfway mark is a big development. But an even bigger development (that I shall elaborate in the space below) turns out to be an action not by an elected state legislature, but instead by the Supreme Court in last month’s ruling in Arizona Legislature v. Arizona Independent Redistricting Commission. (AIRC).

Understanding the importance of the AIRC case to the NPV plan begins by appreciating that, as I have written a number of times over the years (and as Nate Silver echoed last year), to date only predictably blue (Democratic party) states have joined the movement, and until a red (Republican party) or purple (swing) state joins, it will (as I put the point four years ago) “become increasingly hard to debunk the fear that red state folks have that the National Popular Vote bill is a Democratic scheme rather than a democratic idea.” In fact, people in red states like Texas should want to consider the NPV plan, since under the current system predictably red states get ignored in the election campaign just as surely as predictably blue states do. Moreover, we are at a moment in history in which the traditional operation of the electoral college doesn’t really favor either major political party over the other one very much. (Mr. Silver asserts that the electoral college has actually helped Democrats in the last two elections, even though it hurt them in 2000.) I would add that even if there were reason to believe that a move towards a national popular vote would aid one political party right now, that still would allow for adoption of the plan with an effective date set far in the future—when demographics cannot easily be predicted—if national voter equality is, as I believe, a compelling idea.

But given the hyper-partisan mindsets of many elected officials today, to get red state elected legislatures and governors to see that NPV won’t necessarily hurt their party (and to get blue state elected legislatures and governors to stay committed to the plan if red states do join on) may be hard.

How the Supreme Court’s Recent Ruling About the Use of the Initiative in Redistricting May Suggest a Way Around those Roadblocks: The Textual Meaning of the Word “Legislature”

That is where the Supreme Court’s recent decision comes in: because the Court’s AIRC ruling opens the door to presidential election reform through direct democracy, e.g., the initiative device, the chances for enactment of the NPV plan go up. (I should note that I believed and had written that a state could permissibly join the NPV by initiative even before the AIRC decision, but the majority opinion in that case greatly increases the chances such an action by a state would be allowed by the Court.) In short, the Supreme Court’s decision to uphold initiative power to deal with the problem of partisan gerrymandering for federal legislative districts ought also to mean that initiatives can be used to overcome partisan decisions by elected state officials concerning the electoral college.

I say this because the two reasons Justice Ginsburg’s majority opinion gave to explain why the initiative device was permissible in congressional election regulations apply to presidential election regulations as well. The first deals with the meaning of the word “Legislature” in the relevant provisions of the Constitution. In the AIRC case, the textual question presented was whether the word “Legislature” in Article I, section 4, (the so-called Elections Clause) can mean the people making law directly, or was instead limited to the elected legislature adopting a measure. The AIRC Court said that when, as in Article I, section 4, the Constitution refers to “Legislature” as a body that regulates or makes policy—rather than a body that makes an up-or-down ratification decision (as it does for federal constitutional amendments under Article V of the Constitution) or chooses among particular candidates themselves (as state legislatures did before the 17th Amendment required “direct” election of U.S. Senators) – then “Legislature” includes direct democracy that a state might choose to employ.

The key point is that when Article II (the part of the Constitution dealing with presidential elections) mentions state “Legislatures” in connection with the process for picking electors to the electoral college, it similarly calls upon state “Legislatures” to make laws or regulations. We can see that most easily by comparing the text of Article I, section 4, and of Article II, section 2:

Article I, section 4 provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .” We could reorder the subject and verb of the (crucial) first part of that sentence (without changing its meaning at all) to say: “The Legislature in each State shall prescribe the . . . manner. . . of electing members of Congress . . . .”

Now consider Article II, section 2, which says: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors [to the electoral college]. . .” We could reorder the subject and verb of the (crucial) first part of this sentence (also without changing its meaning in any way) to say: “The Legislature in each State may direct the manner of appointing members of the electoral college.”

When we lay the two reformulations (which, again, consist of no more than resequencing the words in the two clauses without changing their meaning) side-by-side, the similarity is obvious. The two reformulations are:

“The Legislature in each State shall prescribe the . . . manner. . . of electing members of Congress. . . . ”


“The Legislature in each State may direct the manner of appointing members of the electoral college. . . .”

There are only a few textual differences between these two constitutional authorizations/duties, and neither is consequential. One is the use of the word “prescribe” vs. “direct.” But “prescribe” and “direct” are synonyms (and the AIRC Court actually used them interchangeably.) Another difference is the reference to “elect[ing” members of Congress vs. “appoint[ing]” members of the electoral college. But this difference simply tells us that members of the electoral college need not be elected. Yet in both settings, the constitutionally created role of the “Legislature” is to decide upon the “manner” of the particular selection process. That means deciding upon a policy to regulate a process of picking certain individuals.

Indeed, the textual reading in favor of allowing popular democracy under Article II is even stronger than under the Elections Clause of Article I, since the sentence in Article II, section 2 begins not with “the Legislature” of each state, but rather with “[e]ach State”—and there can be no question that the people of a state are that state. Relatedly, Article II says the legislature of each state may direct, not shall direct, the manner. “May” is often a permissive verb (suggesting the possibility but not the inevitability of something), whereas “shall” is more often construed as a mandate.

It is true that a state could decide to have its presidential electors (i.e., that state’s contingent in the electoral college) chosen by the elected legislature itself instead of (as is the current practice in all 50 states) by the voters of the state. But this simply means the actual selection of electoral college members by an elected state legislature is one permissible “manner” that may be used; textually, the federal Constitution neither requires nor prohibits that. In any event (and this is the crux), Article II’s empowerment of state “Legislatures” is limited to the authority to pick the manner, not the authority to pick the electors themselves. If a state (by its elected legislature or by the people directly) were to decide to authorize its elected legislature to handpick the presidential electors, that selection would take place by virtue of state law made pursuant to state lawmaking procedures; it would not be made directly under the power Article II creates for state “Legislatures,” because that power speaks only to setting up a selection process, just as the Elections Clause’s empowerment of “Legislatures” speaks only to setting up a congressional election process.

For those Justices (and the dissenters in AIRC purported to be among them) who think the meaning of the term “Legislature” at various points in the Constitution should be informed by the interpretation that word has been given elsewhere in the document, it would be hard to reject the use of initiatives in the Article II elector-selection process without overruling AIRC.

The Essentially Similar Purpose (Structuring State-Federal Relations) of the Two Clauses

The second reason the AIRC Court gave for permitting direct democracy is that the history of the Elections Clause did not suggest any aversion to it. The Court said the overriding purpose of the Elections Clause was to distribute power between states and the federal government (and ultimately to give the federal government the power to redo whatever states do). The history and purpose behind the Elections Clause did not suggest any intent to regulate the intra-state relationship between a People and its elected legislature.

The same is true with Article II, section 2. It too was designed primarily to distribute power between state and federal governments (this time to make clear that the federal government could not redo what states do). But, importantly, the history and purpose behind this Clause also does not suggest a primary intent to regulate the intra-state relationship between a People and its elected legislature.

To repeat, many of us thought that Article II presidential-elector-selection processes could properly be adopted via direct democracy initiatives even before the AIRC case. But some language in an opinion joined by Justices Scalia and Thomas in Bush v. Gore gave other thoughtful analysts some pause. Justice Kennedy did not join that concurring opinion in Bush v. Gore, and his decision to join Justice Ginsburg’s opinion in AIRC (which adopted a very different interpretive approach to the meaning of the word “Legislature” at various places in the Constitution) suggests that his decision not to join the Bush v. Gore concurring opinion was quite intentional. In light of the AIRC result and (more importantly) reasoning, initiated reform of presidential elections is on much firmer ground.

Nor is the selection of presidential electors in November the only aspect of the presidential election process that might benefit by initiated reform. Many people lament the timing, sequence and delegate allocations used in presidential primary elections. While those contests are, in some sense, conducted by the political parties themselves, it is ultimately state law that decides what use to make of primary results in the larger presidential selection regime. In later columns during this presidential election cycle, I hope to take up some aspects of the primary process, and suggest how initiatives might be useful to address partisan entrenchment by party officials and elected leaders (and also to coordinate among states the way the NPV plan seeks to do) there as well.