Why the National Popular Vote Compact Is Unconstitutional
Williams, Norman R., Brigham Young University Law Review
Unable to secure passage of a federal constitutional amendment abolishing the Electoral College, several opponents of the Electoral College have sought to establish the direct, popular election of the President via an interstate compact according to which individual signatory states agree to appoint their presidential electors in accordance with the nationwide popular vote. Ostensibly designed to prevent elections, such as the one in 2000, in which the Electoral College "misfired" and chose the candidate who received fewer popular votes, the National Popular Vote Compact has been adopted by several states, including California. In this Article, I argue that the National Popular Vote Compact violates the Presidential Elections Clause of Article II of the U.S. Constitution. Although the text of the Clause seems to give states unlimited power to select the manner in which each state's presidential electors are chosen, a close reading of U.S. history suggests the need and propriety of limiting the scope of state authority under the Clause. Not only did the framers of the Constitution expressly reject the idea of a direct, popular election for President, but also not one state either in the wake of ratification or at any time thereafter has ever sought to appoint its presidential electors on the basis of votes cast outside the state, as the National Popular Vote Compact requires. In the same way that similar historical considerations led the U.S. Supreme Court to limit the scope of state authority with respect to federal legislative elections, this history regarding the Presidential Elections Clause likewise counsels in favor of a more limited understanding of state authority under Article II. As such, if opponents wish to abolish the Electoral College, the sole constitutionally proper mechanism for doing so is a federal constitutional amendment, not an interstate compact negotiated by a handful of states.
The 2000 presidential election was an eye opener for many Americans. To the consternation of many, the candidate who won the most popular votes nationwide actually lost the contest.1 In the election's wake, popular attention centered upon the Electoral College and its role in the presidential election. Under the U.S. Constitution, the people do not directly vote for the President in a nationwide election; rather, the people in each state vote for electors from that state, who in turn cast the constitutionally decisive votes for President and Vice President. Moreover, not only is the people's influence indirect, the Electoral College's voting pattern does not necessarily track the national popular vote. The allocation of electors to each state based on their representation in Congress, coupled with the use of winner-take-all voting in forty-eight of the fifty states, has produced an electoral system in which the electoral vote for the winning candidate may differ significantly from the nationwide popular vote.2 In rare instances, such as in 2000, this process may produce a President who received fewer popular votes nationwide than the losing candidate. The New York Ti mes presumably spoke for many when, in the wake of the 2000 election, it labeled the Electoral College an "antidemocratic relic."3
To be sure, the Electoral College has long been the target of criticism. Of the 11,000 constitutional amendments proposed in Congress in its history, over 1,000 have dealt with the Electoral College, and many of those have sought to implement a direct popular election of the President. In fact, bills proposing a constitutional amendment to abolish the Electoral College are routinely introduced in every Congress. Nevertheless, these proposals have all failed to pass Congress. In fact, over forty years have passed since Congress seriously considered a constitutional amendment abolishing the College.4 Popular support for constitutional reform, it seems, is widespread but too shallow to overcome the high hurdle of Article V.
Dissatisfied with the failure of Congress to pass a constitutional amendment abolishing the Electoral College, several reform-minded citizens, including law professors Akhil Amar, Vikram Amar, and Robert Bennett, came up with a novel way to transform the manner in which the nation elects its President that avoided the timeconsuming and daunting process required for a constitutional amendment. …