National Popular Vote Agreement Act

Summary: The National Popular Vote Agreement Act is an agreement among the states to elect the President of the United States by national popular vote.

Source of this text: New York AB 4422.

Background

Article II of the United States Constitution says  that for the presidential election, “Each State shall appoint, in such a manner as the Legislature thereof may direct, a Number of Electors, equal to the whole numbers of Senators and Representatives to which the State may be entitled to in the Congress…” Because of the states’ winner-take-all systems of selecting who votes in the Electoral College, the popular vote loser was chosen President in two of the last five elections. This is simply undemocratic.

A federal constitutional amendment is not required to change the state laws that specify use of the winner-take-all rule. Nationwide popular election of the President can be implemented if the states join together to pass identical state laws awarding all of their electoral votes to the presidential candidate receiving the most popular votes in all 50 states and the District of Columbia. The proposed state legislation would come into effect only when it has been enacted, in identical form, by enough states to elect a President—that is, by states possessing a majority (270) of the 538 electoral votes.

As of July 2020, this agreement has been enacted into law in 15 states and the District of Columbia with 196 electoral votes (CA, CO, CT, DE, DC, HI, IL, MA, MD, NJ, NM, NY, OR, RI, VT, WA). It will take effect when enacted by states with 74 more electoral votes. It has passed one house in 9 additional states (AR, AZ, ME, MN, MI, NC, NV, OK, VA).

SECTION 1. SHORT TITLE 

This Act shall be called the “National Popular Vote Agreement Act.”

SECTION 2. NATIONAL POPULAR VOTE

(A) DEFINITIONS—In this section:

  1. “Chief executive” shall mean the governor of a state of the United States or the mayor of the District of Columbia.
  2. “Elector slate” shall mean a slate of candidates who have been nominated in a state for the position of presidential elector in association with a presidential slate.
  3. “Chief election official” shall mean the state official or body that is authorized to certify the total number of popular votes for each presidential slate.
  4. “Presidential elector” shall mean an elector for president and vice president of the United States.
  5. “Presidential elector certifying official” shall mean the state official or body that is authorized to certify the appointment of the state’s presidential electors.
  6. “Presidential slate” shall mean a slate of two persons, the first of whom has been nominated as a candidate for president of the United States and the second of whom has been nominated as a candidate for vice president of the United States, or any legal successors to such persons, regardless of whether both names appear on the ballot presented to the voter in a particular slate.
  7. “State” shall mean a state of the United States and the District of Columbia.
  8. “Statewide popular election” shall mean a general election in which votes are cast for presidential slates by individual voters and counted on a statewide basis.

(B) MEMBER AGREEMENT

Any state of the United States and the District of Columbia may become a member of this agreement by enacting this agreement.

(C) RIGHT OF THE PEOPLE IN MEMBER STATES TO VOTE FOR PRESIDENT AND VICE PRESIDENT

Each member state shall conduct a statewide popular election for president and vice president of the United States.

(D) MANNER OF APPOINTING PRESIDENTIAL ELECTORS IN MEMBER STATES  

Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each state of the United States and in the District of Columbia in which votes have  been cast in a statewide popular election and shall add such votes together to produce a “national popular vote total” for each presidential slate. The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the “national popular vote winner.” The presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.

At least six days before the day fixed by law for the meeting and voting by the presidential electors, each member state shall make a final determination of the number of popular votes cast in the state for each presidential slate and shall communicate an official statement of such determination within twenty-four hours to the chief election official of each other member state. The chief election official of each member state shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate made by the day established by federal law for making a state’s final determination conclusive as to the counting of electoral votes by congress.

In event of a tie for the national popular vote winner, the presidential elector certifying official of each member state shall certify the appointment of the elector slate nominated in association with the presidential slate receiving the largest number of popular votes within that official’s own state. If, for any reason, the number of presidential electors nominated in a member state in association with the national popular vote winner is less than or greater than that state’s number of electoral votes, the presidential candidate on the presidential slate that has been designated as the national popular vote winner shall have the power to nominate the presidential electors for that state and that state’s presidential elector certifying official shall certify the appointment of such nominees. The chief election official of each member state shall immediately release to the public all vote counts or statements of votes as they are determined or obtained.

This agreement shall govern the appointment of presidential electors in each member state in any year in which this agreement is, on July twentieth, in effect in states cumulatively possessing a majority of the electoral votes.

(E) OTHER PROVISIONS

This agreement shall take effect when states cumulatively possessing a majority of the electoral votes have enacted this agreement in substantially the same form and the enactments by such states have taken effect in each state. Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a president’s term shall not become effective until a president or vice president shall have been qualified to serve the next term. The chief executive of each member state shall promptly notify the chief executive of all other states of when this agreement has been enacted and has taken effect in that official’s state, when the state has withdrawn from this agreement, and when this agreement takes effect generally. This agreement shall terminate if the electoral college is abolished. If any provision of this agreement is held invalid, the remaining provisions shall not be affected.

SECTION 3. EFFECTIVE DATE

This Act shall take effect immediately.

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