Oregon May Become the First State to Use Direct Democracy to Join the Presidential National Popular Vote Agreement Plan

Updated:
Posted in: Election Law

Last week saw a very important development in the election reform movement known as the National Popular Vote (“NPV”) interstate compact plan.  As I have written in a number of columns analyzing various aspects of the NPV movement, the essential idea—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.

If enough states join as signatories, this system would (assuming presidential electors live up to their promises and do not act “faithlessly”) essentially guarantee that the winner of the presidential contest would be the person who had won the largest number of votes from individual voters nationwide. In this 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.  It would also mean that candidates would have incentives to campaign in (and tailor policies to) all places where there were significant numbers of undecided voters, not just so-called swing states where the median voter is in play.

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 I discussed the NPV plan for this website about two years ago, elected legislatures in ten states (Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, Vermont, California, New York and Rhode Island) and the District of Columbia—comprising 165 electoral college votes altogether (well more than half the needed 270 votes)—had adopted the idea.  Importantly (and sadly), to date only predictably blue (Democratic dominated) states have joined the movement, fueling the misguided notion that the electoral college system today necessarily helps Republicans and hurts Democrats.  (In fact, in 2000, George W. Bush could easily have won the popular vote and lost the electoral college to Al Gore, and in 2004, John Kerry almost won the electoral college even though he trailed George W. Bush by about 3 million nationwide popular votes.)

Over the last couple of years, there have not been additional adoptions by states, but there has been increased interest in moving the plan forward, perhaps because the 2016 presidential election was the second one this century in which the electoral college winner lost the national popular vote.  (I should note, as I have in the past, that we cannot know with any certainty which candidate would have won the national popular vote if the NPV plan had been in effect in 2016, because the candidates would have campaigned differently; for example, it is at least possible that Mr. Trump could have run up the margin of victory in some solidly red states—and narrowed the margin of loss in some deep blue ones—had every vote counted equally.)

Oregon Signals Likelihood of Joining the NPV Agreement

The big development last week was that the lower legislative chamber in Oregon (the house) voted to join the NPV agreement, and that the president of the senate has for the first to time agreed not to block the plan—he had blocked it thrice before when the Oregon house voted for it—and is willing to allow it go forward under certain circumstances.

Why is this such a big development, given that Oregon has only seven electors, and given that Oregon is just yet another blue state?  After all, 172/270 isn’t that much more than 165/270.  And—as I have suggested before—until a red state joins the mix, it will be “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. (Nate Silver asserts that the electoral college has actually helped Democrats in the 2008 and 2012 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 legislators and governors to see that NPV won’t necessarily hurt their party (and to get blue state elected legislators and governors to stay committed to the plan if red states do join on) may be hard.

That is why the Oregon development last week is so important.  The Oregon senate leader Peter Courtney has—for the first time—indicated a willingness to allow the NPV plan to move forward, but only if Oregon voters have the final say by means of a plebiscite to approve or reject the idea, most likely in November 2018.  Direct democracy is key to the NPV’s chances going forward not just in Oregon, because initiatives can be used to overcome partisan resistance by elected state officials concerning electoral college reform.  Key is the fact that Republican voters in red states are not as skeptical of NPV as are Republican legislative officials in these states. So Oregon’s using direct democracy to adopt NPV—which will be the first time NPV will have been adopted that way—opens the door to other red states that, under their state constitutions, have robust initiative and other direct democracy devices.  And once a red state or two joins the NPV agreement, the non-partisan nature of the plan will be more clear, and attainment of the 270-vote goal will be much more realistic.

But is the use of direct democracy to adopt something like NPV permissible under the federal Constitution?  The answer is yes, and the Supreme Court effectively made that clear two years ago in its important ruling in Arizona Legislature v. Arizona Independent Redistricting Commission (AIRC).  In deciding that the initiative device was a permissible way for a state to adopt congressional time, place and manner regulations under Article I of the Constitution, the Court adopted reasoning that makes clear that the initiative device is a similarly permissible way for states to undertake presidential election regulations under Article II as well.  In both settings, the word “Legislature” as used in the Constitution refers not just to ordinary elected legislatures, but also to the people acting under direct democracy.  (For a full explanation of why the AIRC ruling means direct democracy is permissible in electoral college reform, see my Justia essay written in the wake of the ruling.)

Finally, I should note how fitting it is that Oregon’s use of direct democracy should figure prominently in the success of the country’s most important election reform movement today.  About a century ago, reformers throughout the nation were in the thick of a contentious national movement to bring about popular election not of presidents, but of United States senators. And quite instructively, that movement (although it culminated in a formal constitutional amendment—the Seventeenth—introduced in Congress in 1912) was driven and accomplished largely by direct democracy by creative and energetic people acting first in state, and only later in national, arenas. And Oregon took the lead there as well.

Oregon’s Pioneering Role in the Seventeenth Amendment

Every law student learns that the original Constitution assigned the power and duty to select U.S. senators to the state legislatures, and that the Seventeenth Amendment—codifying direct election of senators—was a product of the Progressive Era. But the story of the Seventeenth Amendment is one primarily about state-level innovation. Beginning in the mid-1800s, state-level political parties and organizations sought ways to involve the people more directly in selecting electors. The famous Lincoln-Douglas debates were designed to allow voters to consider whom state legislators would, if elected, likely select for the U.S. Senate. But because voters must consider many different issues—not just Senate selection—when they elect state legislatures, more focused mechanisms were needed.

An important step in this journey was the advent of a statewide preference poll to be conducted in connection with the statewide election. Oregon was a pioneer in this regard in the early 1900s; under the Oregon Plan (as it came to be known), state voters participated in, as part of a regular election, a preference poll that would not legally elect senators but rather inform the choice to be made by state legislators.  Individual state lawmakers could, if they chose, officially pledge to support the winner of the poll. Later versions of the Plan featured a state initiative that bound (as a matter of state law) state legislators to elect as senator the person who gained the greatest electoral support from the state‘s general electorate.  Other states followed suit, and by 1911 over half the states had adopted the Oregon system or something like it. As I have previously written, “[i]n reality then, the Seventeenth Amendment was a formalizing final step in an evolutionary process.”

The parallel between the movement to popular election of senators and popular election for a president is striking.  And Oregon’s use of direct democracy might, as it did a century ago with direct election of senators, highlight a path forward in an NPV process that (if successful) could ultimately ripen, after successful implementation and national acceptance, into a constitutional amendment, just as was true for senate elections.

  • EvanRavitz

    This is good news. Thanks for the history lesson. Here in Colorado almost all advances Statewide have come by ballot initiative not from state representatives, constituting a recent record far better than that of ANY state legislature:

    In 2000 we passed Amendment 20, medical marijuana, Amendment 22, closing the gun-show loophole and Amendment 23, raising K-12 spending. In 2002 we passed Amendment 27, campaign finance reform. In 2004 we passed Amendment 37, the country’s first renewable energy mandate for utilities. In 2006 we passed Amendment 41, the country’s strongest Ethics in Government law. In 2008 we passed amendment 54, which prohibits government contractors from making campaign donations. In 2012 we passed Amendment 64, the country’s first legal marijuana, and we voted 3 to 1 for Amendment 65, asking our Congressional Representatives to work to end Citizens United. (Only 1 of 7 did anything, showing how poorly they represent us.) And in 2016 we passed Amendment 70 for a $12/hr. minimum wage. (You can find details of each at ballotpedia.org.)

    My friend Dan Marks got the House of Representatives to start counting state applications for an Article V Constitutional Convention: http://clerk.house.gov/legislative/memorials.aspx. As you can see, several more than the 34 States required have applied!

    My friend and Congressman Jared Polis is now pursuing a restoration of the long neglected bicameral rules that will allow Congress to finally call a convention.

    The three of us have National direct democracy at the top of our list of desired amendments that could come out of the convention. Expect more progress from this convention than in the last century of gridlock and infighting mad what I call “government against the people.”

  • This road takes us down the road of federal government over state. Not sure if these people understand the state rights issue for small or lesser populated states. If states are not independent entities this system would work but if states of different sizes and populations are to have an essence of equality our system as set up by the framers is best that I have seen. Again as I stated in another post this morning Party over country seem to be the DNC way. This stands to reason as it was the socialist way and 3rd Reich way.

    • toto

      The National Popular Vote bill retains the Electoral College and state control of elections. It again changes the way electoral votes are awarded in the Electoral College.

      Under National Popular Vote, every voter, everywhere, would be politically relevant and equal in every presidential election. Every vote would matter in the state counts and national count.

      When states with a combined total of at least 270 electoral votes enact the bill, the candidate with the most popular votes in all 50 states and DC would get the needed majority of 270+ Electoral College votes from the enacting states. The bill would thus guarantee the Presidency to the candidate who receives the most popular votes and the majority of Electoral College votes.

      States have the responsibility and constitutional power to make all of their voters relevant in every presidential election and beyond. Now 38 states and their voters are politically irrelevant in presidential elections.

      Unable to agree on any particular method, the Founding Fathers left the choice of method for selecting presidential electors exclusively to the states by adopting the language contained in section 1 of Article II of the U.S. Constitution– “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .” The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

      Federalism concerns the allocation of power between state governments and the national government. The National Popular Vote bill concerns how votes are tallied, not how much power state governments possess relative to the national government. The powers of state governments are neither increased nor decreased based on whether presidential electors are selected along the state boundary lines, or national lines (as with the National Popular Vote).

    • Mike H

      Can you explain how a small state being awarded the same amount of electoral votes as a state with a larger population encourages equality? Perhaps it makes the state itself more equal compared to it’s 49 peers, but if that’s the case, it does so by making the individual citizens votes in the larger state count less. Let’s look at Wyoming vs. Delaware. The former has a population of ~586k, while the latter has a population of ~945k. Both get 3 electoral votes. Why should Wyoming get an equal say in choosing the nations’ president when Delaware has almost 60% more people? Personally I’d rather have individual citizens votes be counted equally across the nation versus trying to have a weighted system which gives extra votes to smaller states and takes away votes from larger states.

  • LoneTree, WY

    This is simply an end run around the electoral college rather than going through the process of an amendment. Certainly not a lazy way, simply sneaky. A state pushes for NPV locally, avoiding the risk of a national debate, and joins this NPV compact. When enough states join this, the electoral college has been whisked away with no real debate or care for the consequences. Frankly this is simply because Democrats are pissed about HRC losing last November.

    • Mike H

      It’s clear that in the past 20 years at least at least, the electoral college heavily favors the right due to the extra power it awards to small, mostly red states. While a constitutional amendment would be the best way to change this, there is simply no incentive for officials in solidly red states to support it, as they will essentially be taking away power from themselves. And you’re right, Democrats are definitely pissed that HRC won 3 million more votes but lost the election. Just like they were pissed when Gore won half a million more votes than W. but lost the election.

  • Edward Tomchin

    Doesn’t such a plan dismantle the idea of a representative government and turn elections over to a popular vote? This idea was discarded by the Founders by Constitutionally allowing only the House to be elected directly by the people, supporting the proposal that it is too easy for the masses to become confused and misled by the unscrupulous. I think getting rid of such asininity as gerrymandering would go a long way to ensuring a rational and stable election of our officials.

  • Dash Riprock

    Why don’t you just admit that the ultimate goal of the proposed NPV is to ensure that no Republican will ever win a national election?

    • Mike H

      And your point is? If Republicans can’t muster enough votes to actually become president (assuming everyone knows and is campaigning around the fact that the popular vote wins), maybe they shouldn’t be allowed to keep using their electoral college handicap.

  • J Roth

    What a terrible idea and I am not sure it is constitutional under any State’s own constitution. The State would in fact be abrogating each of its citizens rights to determine where its electoral votes would go. A better solution would be to divide the votes by each congressional district and then have the two votes representing the Senators determined by the state votes. Why should the voters of Oregon be forced to cast their electoral votes for someone who was not endorsed by their own citizens. For a moment, think what that would mean if in the last election Trump won the popular vote and Clinton won the electoral vote. Moreover, I think the compact is an attempt to circumvent the need for a federal constitutional amendment. if we had an election that became a popularity contest, then only the states with the largest populations or where one side or the other could engender the largest margins in real votes would matter. This would lead to what the founders had tried to stop, a tyranny of the majority.Protection of minority rights politically would end. In essence, if you took CA out of the vote count, Trump won the national vote. In essence, CA would become the ultimate determination of who became President and that is not a good thing for CA or the Country. This act would only widen the division in the country and is the worst idea I have heard in the last 40 years.

  • John Stevenson

    This is simply a bald-faced attempt to subvert the Constitution, and would do nothing less than guarantee leftist domination of national elections. It betrays either a lack of understanding of the reasons for the electoral college, or a politically motivated disregard of it’s importance. Instead of trying to rewrite the Constitution to guarantee your party wins elections, how about performing an honest analysis of the reasons behind your losses?

  • Darrell Tallent

    Just a bunch of butthurt libtards.You dont like losing,so yu will try whatever it takes.

  • trooper4truth

    That is how communist countries hold elections.

  • Steve Langdon

    Beyond ridiculous.

  • Gorthaur Eternus

    Leftist moves from a leftist state…..Hopefully I will be out by the time People’ Republic of Oregon implements this to try and silence my vote.

    Conservatives better be ready to fight. We cannot allow manipulating low-lives (or fascist censoring moderators) to use the law to silence us.

  • The reason only blue states are going for this is the same reason that when you break down those blue states, you see a ton of red counties and very few blue counties.

    The split is NOT liberal/conservative, the deepest divide is urban/rural. And demographically, urban just passed 51%.

    Which means that this plan will overwhelmingly support Democrats and move the United States a bit closer to the civil war that is already on its way- the one which will start with farmers refusing to ship food into the cities and will end with nukes going off.

  • shokami

    This is disasterous… for Oregon the whole freaking state is controlled by portland, eugene and salem. Thats where the dems mainly congregate. Look at the country voting map during the election. The whole state was red with the exception of very small areas of blue… im tired of being controlled by a group and cities who think they know whats good for the rest of us… no!