Blog

By Sean Parnell and Trent England 

For years, the Michigan Legislature has considered various proposals to add the state to the National Popular Vote interstate compact (NPV). This includes an effort in the ongoing lame duck session (which may not wrap up until New Year’s Eve!). An issue with NPV that has received too little attention is how the compact appears to violate state constitutions. The issue is particularly clear in Michigan.

In November 2022, Michigan voters approved Proposal 2, adding language to the Michigan Constitution addressing voting and elections. The new language includes the following: “The outcome of every election in this state shall be determined solely by the vote of electors casting ballots in the election.” Here the term “electors” refers to Michigan voters, who according to other constitutional provisions, must be residents of the state.

Both Michigan’s Constitution and the NPV compact describe the process for selecting presidential electors as an “election.” NPV would require Michigan’s Secretary of State to “determine the number of votes for each presidential slate in each State” (and Washington, DC) and then aggregate those vote totals to determine the “national popular vote winner.” Michigan’s Secretary of State would then be required to appoint Michigan’s presidential electors on that basis.

Because NPV requires the outcome of Michigan’s election for presidential electors be determined by the votes of both residents and non-residents, it violates the Michigan Constitution. And while the NPV compact attempts to limit a state’s power to withdraw close to an election, it cannot limit federal or state courts. If the Michigan Supreme Court held that NPV violates the state Constitution, it would have to remove the state from the compact. This would change the election process in Michigan, but could also cause the compact to lose the requisite number of electoral votes to control the election’s outcome and possibly to remain in effect in any state.

NPV lobbyists sometimes waive away concerns like this by claiming that because the Electoral College is established by the U.S. Constitution, there are no constraints on those state legislative powers. But this is incorrect. State legislatures must still abide by their own state constitutions, so long as those constitutions do not conflict with the U.S. Constitution. Nothing in the U.S. Constitution requires states to allow non-residents to vote for their presidential electors (in fact, doing so may also violate the U.S. Constitution, because the clear purpose of the Electoral College provisions is to give each state its own voice). Thus a state constitutional requirement to limit voting to state residents can constrain a state legislature’s power over “the manner” in which it chooses presidential electors.

Many states have constitutional provisions that limit voting to state residents. The Michigan Constitution is especially clear, stating that the outcome of elections in the state “shall be determined solely” by voters who reside in the state. NPV violates this by using votes from other states to choose Michigan’s slate of presidential electors. A court could strike the compact down during a campaign, resulting in instability and concerns about election integrity. This would have serious consequences not just for Michigan but for the whole nation.