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

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.