Can Nevada Become Part of the National Popular Vote Compact?

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On February 26th the Assembly Legislative Operation and Elections Committee heard Assembly Bill 186, sponsored by Assemblyman Tyrone Thompson.  AB186 proposes that Nevada join the National Popular Vote Interstate Compact, which will align Nevada’s six Electoral College votes with the national popular vote winner for the presidency, but only when states with a combined 270 Electoral College votes join the compact.  This ensures that enough states are in the compact to elect the candidate who receives the most votes nation-wide before the agreement begins.

AB186 does not amend the U.S. Constitution, instead it uses existing Constitutional language and allocated power to change how participating states award their Electoral College votes.  The U.S. Constitution states:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…

Hence, power lays solely with the state legislatures to decide how to allocate their Electoral College votes.

Currently, 48 state legislatures award all their Electoral College votes to their state-wide presidential candidate winner, while two states award their Electoral College votes to the winner of each Congressional district.  The National Popular Vote Interstate Compact, therefore, merely establishes that participating states pledge to allocate their Electoral College votes to the national popular vote winner at a certain point in time.

During the committee hearing, Assemblyman Thompson (above) and co-sponsor Assemblywomen Brittney Miller made all of these points, and others, in their opening testimony to introduce AB186. Kevin Powers, legal counsel for the committee via the Legislative Council Bureau, also advised that the bill was likely to survive a legal challenge.

Supporters of the National Popular Vote Interstate Compact, including the League of Women Voters of Nevada, Reno Indivisible, Paradise Indivisible, and Battle Born Progress all focused on the need to move to direct election of the president.  Proponents argued in favor of leaving behind “electoral math,” that advantage a few swing states over every other voter, by citing the Electoral College’s dark connections to constitutional compromises to protect slavery and by citing the movement toward expanding voting rights since the Civil War.

Some media reports have claimed that proponents have partisan motives even though Nevada could lose its swing state status if the National Popular Vote Interstate Compact passes.

Proponents advocate for both parties being required to compete for every vote.

Opponents raised the issue of Nevada losing its swing-state status and argued for the benefits Nevada gains from presidential candidates visiting as well as from the money campaigns spend in our state. And they highlighted wanting to respect the intent of the nation’s founders when they wrote the Constitution.

Opponents also raised issues connected to disproved claims of massive voter fraud in other states, which included attacks on immigrants. And a few speakers in opposition resorted to attacking the personal character of the LCB’s Mr. Power (above), the bill sponsors, and bill supporters.

Valid questions raised over the National Popular Vote Interstate Compact that opponents failed to raise, despite these issues being included on the nationalpopularvote.com website, should be addressed.

One question is whether states have the power to create an interstate compact without permission from Congress.

On this issue, the U.S. Constitution states:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State…

But a Supreme Court has established that Congress only has authority to weigh in on an interstate compact when states attempt to encroach on a federal sphere of power. Could Congress still try to deny the National Popular Vote Interstate Compact? Yes, but any attempt will send the dispute into the courts for resolution.

 

Another valid question is whether a state can leave the compact. Unlike a constitutional amendment, which establishes new rules and procedures that cannot be changed without a Supreme Court ruling or an additional amendment, a state in an interstate compact can leave with a new vote of its legislature.

And lastly, if AB186 passes, could it impact the 2020 presidential election? No, because not enough legislatures are considering entering the compact before November of 2020.

It’s unfortunate, that the hearing did not include answers to these questions, but we can trust our elected officials will consider these answers through their own due diligence.

Sondra Cosgrove is the president of the League of Women Voters of Nevada. She is also a board member of the Institute for a Progressive Nevada, which publishes the Nevada Forward.