June 18, 2022

Fifteen states have passed similar legislation known as the National Popular Vote Interstate Compact (NPVIC).  The compact will require each member state to award its electoral votes to the presidential candidate who receives the greatest number of popular votes in all 50 states and the District of Columbia.  Within each of those states, the compact will have no binding legal effect until any number of states whose sum equals 270 electoral votes enacts the legislation. 

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The Equal Protection Clause of the Fourteenth Amendment invalidates the NPVIC because the compact treats similarly situated voters of separate jurisdictions differently when both cast votes for presidential electors in winner-take-all jurisdictions.  Specifically, the NPVIC conditions the weight accorded a vote in one jurisdiction exclusively on the cumulative votes of all other jurisdictions to effect more political relevance to certain states.

No Legal Basis for Political Objectives

The case Williams v. Rhodes states intentionally dissimilar treatment occurs “…only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective.” Though the U.S. Constitution has granted explicitly to the states the power to appoint electors for President under Article II, Section I, Williams established that “these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution.”

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Advocates of the NPVIC contend the “winner-take-all” system of electing the President in 48 of the 50 states and the District of Columbia provides a voter “with a direct voice in electing only the small number of presidential electors to which their state is entitled.” These systems manufacture “artificial electoral crises even when the nationwide popular vote is not particularly close.”  The adverse impact leads candidates for President to campaign only in states “where the outcome is a foregone conclusion.” 

Though persuasive, these arguments bear no legal relationship to a vote cast for the election of President.  The political relevance of a presidential candidacy in the context of political realignments, public policy prognostications, or voting patterns should remain the province of campaign managers and political scientists.  The NPVIC denies to each vote cast for President, regardless of jurisdiction, the equal legal value and protection guaranteed under the U.S. Constitution regardless of the jurisdiction’s present political designation as a battleground state.

Invidious Discrimination: Legal Standard

The standard established by the Supreme Court for Equal Protection under the Fourteenth Amendment regarding the right to vote permits the States to make classifications and does not require them to treat different groups uniformly. Classifications, however, must not arise from “invidious discrimination.”

NPVIC advocates contend that the decision by the Supreme Court in Williams v. Virginia State Board of Elections precludes interstate inequality as the basis for any suit regarding voting rights.  In that case, the Court ruled that a winner-take-all allocation of presidential electors did not constitute interstate inequality.  For purposes of election of the President, the decision merely acknowledges an unevenness in apportionment that is inherent to the Electoral College.

Bush v. Gore