You asked about the constitutionality of interstate compacts, specifically in terms of the National Popular Vote Interstate Compact.

This office is not authorized to issue legal opinions and this report should not be construed as such.

SUMMARY

The U.S. Supreme Court has held that, without congressional consent, agreements that increase states' political power by encroaching on federal power violate the Compact Clause of the U.S. Constitution. However, whether the National Popular Vote Interstate Compact could withstand a constitutional challenge is an open question; we found no case challenging the proposal. According to the analysis in U. S. Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978), a court would first decide whether the proposal constitutes a compact. The court would then consider if the compact was political, specifically whether it encroached on federal power or the power of non-compacting states.

The National Popular Vote bill awards all of a compacting state's electoral votes to the presidential candidate receiving the most popular votes in all 50 states and the District of Columbia. The bill takes effect only when enacted by states possessing a majority of the electoral votes, enough to elect a president. Under the U.S. Constitution, Article 2, Section 1, states have exclusive authority to allocate their electoral votes, leading proponents of the bill to argue the compact is within states' constitutional rights.

COMPACT CLAUSE OF THE CONSTITUTION

Article I, Section 10, Clause 3 of the Constitution reads: “No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State, or with a foreign Power.”

The Compact Clause applies to agreements directed to the formation of any unit that may increase states' political power encroaching on federal power (Northeast Bancorp, Inc. v. Board of Governors of Federal Reserve System, 472 U.S. 159 (1985)). Congressional consent is not required for joint state activity not affecting federal authority (Seattle Master Builders Ass'n v. Pacific Northwest Elec. Power and Conservation Planning Council, 786 F.2d 1359 (9th Cir. 1986)).

The federal Compact Clause reaches both “agreements” and “compacts,” whether formal or informal. The form of an agreement is not dispositive, nor is the existence of a federal interest or concern. The relevant inquiry is to the potential impact on the federal structure and the threat of encroachment or interference through enhanced state power (U. S. Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978)).

NATIONAL POPULAR VOTE INTERSTATE COMPACT

The National Popular Vote bill is a state-based way to implement nationwide popular election of the president. The current system of electing the president in 48 states has a winner-take-all rule, awarding all of a state's electoral votes to the presidential candidate who receives the most popular votes in each state. Under the present system, a candidate can win the presidency without winning the most popular votes nationwide.

Under the proposed state legislation, the popular votes from all 50 states and the District of Columbia would be added together to obtain a national grand total for each presidential candidate. Then, state election officials in all states participating in the plan would award their electoral votes to the presidential candidate who received the largest number of popular votes nationwide. The compact would take effect only when enacted by states collectively possessing 270 of the 538 electoral votes. This guarantees that the presidential candidate receiving the most popular votes nationwide would win enough electoral votes in the Electoral College to become president. The 270-vote threshold

represents a majority of the people of the United States, ensuring that every vote in all 50 states and the District of Columbia is equally important in presidential elections.

The compact contains a six-month blackout period from July 20 of each presidential year through the inauguration. During this period, states may not withdraw from the compact (http://www.nationalpopularvote.com/pages/explanation.php).

CONSTITUTIONALITY OF THE NATIONAL POPULAR VOTE

Advocates of the National Popular Vote Interstate Compact point to the constitutional right of states to choose their electors to demonstrate the constitutionality of the proposal. The manner of conducting presidential elections is covered in the U.S. Constitution: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . ” (U.S. Const., Article II, Section 1, Clause 2). This standard has been reinforced by the U.S. Supreme Court, which held that the clause “cannot be held to operate as a limitation on” the power to appoint electors, assuring that the mode of appointment belongs exclusively to the states by the Constitution (McPherson v. Blacker, 146 U.S. 1, 25 (1892)).

Critics, however, see the Compact Clause as a roadblock to the proposal. If the National Popular Vote Interstate Compact is considered a “political compact” under the Compact Clause, then the Constitution requires congressional consent, and the compact would need to receive federal approval. The power to appoint electors is exclusively granted to the states, but that power is still subject to other provisions of the Constitution. Accordingly, the court must analyze the appointment of electors under other provisions of the Constitution, including the Compact Clause (McPherson v. Blacker, 146 U.S. 1 (1892)).

Is the National Popular Vote Really a Compact?

The first question is whether the National Popular Vote Interstate Compact is an “interstate compact” as defined by the Constitution. The U.S. Supreme Court has construed the meaning of “compact” broadly: “The legislative declaration will take the form of an agreement or compact when it recites some consideration for it from the other party affected by it” (Virginia v. Tennessee, 148 U.S. 503, 520 (1893)). The term “compact” includes “all forms of stipulation, written or verbal, and relating to all kinds of subjects; to those to which the United States can have no possible objection . . . as well as to those which may tend to increase and build up the political influence of the contracting states” (Id. at 517-8).

The National Popular Vote Interstate Compact is conditioned on the actions of other states agreeing to appoint electors to the winner of the national popular vote, constituting consideration. Furthermore, a state does not have unilateral freedom to repeal the law. Compacting states are bound to maintain their electoral pledge to the winner of the national popular vote, preventing last-minute alterations in the nature of the presidential race. The compact meets and surpasses the threshold of consideration from other affected states and is therefore a “compact” (Derek T. Muller, The Compact Clause and the National Popular Vote Interstate Compact, 6 Election L.J. 372 (2007)). Muller is law clerk to the Honorable Raymond W. Gruender, United States Court of Appeals for the Eighth Circuit.

Does the Compact Violate the Compact Clause?

Since the National Popular Vote Interstate Compact is a compact, a court would then consider whether it would require congressional consent. Not all compacts require congressional consent under the Compact Clause. The Supreme Court has allowed interstate compacts to stand without congressional consent if they are non-political and fall outside the scope of the Compact Clause (Seattle Master Builders Ass'n v. Pacific Northwest Elec. Power and Conservation Planning Council, 786 F.2d 1359 (9th Cir. 1986)).

To date, every case arising under the Compact Clause has concerned boundary, commercial, or regulatory compacts (Robert W. Bennett, State Coordination in Popular Election of the President Without a Constitutional Amendment, 5 Green Bag 2d 141, 141 n.2 (2002)). Because no compacts challenged for want of congressional consent have ever been found to touch upon “political” matters, by treading either on federal interests or non-compacting states' interests, the Supreme Court has never invalidated a compact under the Compact Clause (David E. Engdahl, Characterization of Interstate Arrangements: When Is a Compact Not a Compact?, 64 Mich. L. Rev. 63, 81 (1965)). Thus, it is unclear how a court would decide this issue.

Political Consent Theory. The Supreme Court would likely consider the compact under the “Political Consent” Compact Clause theory. This reasoning evaluates whether the compact contains a political subject affecting federal interests or the interests of non-compacting sister states, in which case congressional consent is required (U. S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 477 (1978)).

Proponents of the Interstate Compact argue that the compact does not actually interfere with non-compacting states and therefore may be formed without congressional approval. Opponents argue that the Interstate Compact impairs the effectiveness of non-compacting states' electoral votes, and thus requires congressional consent (Derek T. Muller, The Compact Clause and the National Popular Vote Interstate Compact, 6 Election L.J. 372 (2007)).

Federal Sovereignty Interest. Of the two possible interests making compacts “political,” the federal sovereignty interest and the non-compacting sister state interest, even opponents of the proposal admit it is doubtful that the federal interest component of the political compact theory would apply to the National Popular Vote Interstate Compact.

The U.S. Supreme Court has held that while “group action in itself may be more influential than independent actions by the states . . . the test is whether the Compact enhances state power quoad the National Government” (U. S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 472-3 (1978)). In that case, a multistate tax compact aiming to properly allocate tax liability, promote uniformity, provide taxpayer convenience, and avoid double taxation was upheld because the pact did not “purport to authorize the member States to exercise any powers they could not exercise in its absence” (Id. at 473).

Although the stability of the Electoral College or the preservation of the traditional amendment process may be important, it is unlikely that they rise to actual interference with federal power (Derek T. Muller, The Compact Clause and the National Popular Vote Interstate Compact, 6 Election L.J. 372 (2007)).

Sister State Interest. The non-compacting sister state interest may apply to the National Popular Vote Interstate Compact. States have an interest in and exclusive authority to appoint their electors as they see fit. While the non-compacting sister states would still appoint electors, opponents argue that the Interstate Compact makes that appointment meaningless. The outcome of the Electoral College would be determined by an arranged collective agreement among compacting states, regardless of non-compacting states' action. Once states constituting a majority of the Electoral College have compacted to allocate their votes as a group, non-compacting states' electoral votes are politically ineffective. Opponents believe this constitutes a sufficient interest to invoke the constitutional safeguard of congressional consent (Derek T. Muller, The Compact Clause and the National Popular Vote Interstate Compact, 6 Election L.J. 372 (2007)).

Critics of the National Popular Vote Interstate Compact suggest that if several states compact to appoint their electors as a collective group, they effectively remove the ability of non-compacting sister states to appoint their electors as they see fit. Because the Interstate Compact goes into effect only when a majority of the electors have been pledged to the winner of the national popular vote, non-compacting states in the minority become irrelevant in pledging electors. The compact “guarantees” a presidential winner by the national popular vote, regardless of whether non-compacting states wish to participate. Critics assert that the non-compacting minority states effectively lose their appointment of electors by the agreement of as few as 11 states (Derek T. Muller, The Compact Clause and the National Popular Vote Interstate Compact, 6 Election L.J. 372 (2007)).

Advocates argue that member and non-member states' voters are treated equally in determining the national popular vote. Some proponents even say the compacting states would not enhance their political power but diminish it. These statements are met with criticism that the Presidential Electors Clause does not guarantee equal treatment of individual voters, but the right of states to appoint electors. Because the Interstate Compact undercuts the rights of non-compacting states, the infringement upon their sovereignty implicates the Compact Clause. With this compact, a non-compacting state loses political influence under the Presidential Electors Clause at the expense of compacting states (Derek T. Muller, The Compact Clause and the National Popular Vote Interstate Compact, 6 Election L.J. 372 (2007)).

Proponents of the compact also point out that the Supreme Court has never rejected a compact on the basis of the sister state interest. However, in both U.S. Steel and Northeast Bancorp, the Supreme Court applied a sister state interest analysis, suggesting that the sister state interest is in force despite being rejected as a justification for overturning the compacts in those particular cases. Neither case involved an actual political compact, so the Court's decision to not invalidate a compact under the sister state interest does not mean that it does not apply in this instance (Northeast Bancorp, Inc. v. Board of Governors of Federal Reserve System, 472 U.S. 159 (1985); U. S. Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978)).

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