Circumventing the Electoral College: Why the National Popular Vote Interstate Compact Survives Constitutional Scrutiny Under the Compact Clause

It’s Election Night 2016. Brian Williams stands by at NBC, waiting to give the first returns of the night. “Kentucky to Christie,” Williams triumphantly announces to kick off the evening’s festivities. Kentucky turns flush red on NBC’s virtual election map. Williams continues: “Maryland to Clinton.” Now comes the hard part for Williams. Clinton won Maryland by an incredible two-to-one margin. NBC viewers intently watch the map, expecting to see the Old Line State turn blue. Instead, Maryland sits idly in its static grey color. This election has something new. Confused NBC viewers keep watching, waiting for Williams to provide an explanation. “We’d love to tell you who will win Maryland now, but unfortunately we can’t,” Williams says. “We’ll have to wait until all votes nationwide have been counted.” Realizing that many of his viewers are likely perplexed by this new electoral voting system, Williams starts explaining the newly enacted National Popular Vote Interstate Compact (NPVC), in which several states have agreed to allocate their Electoral College delegates to the winner of the national vote, as opposed to the traditional state vote. Debate about the Electoral College has raged through the years, but it came to the forefront of national political attention after the 2000 presidential election produced the fourth electoral “misfire” in United States history. In 2001, law professors Akhil Reed Amar and Vikram David Amar introduced the idea of state legislatures allocating their respective electoral votes to the winner of the national popular vote. Five years later, the organization “National Popular Vote,” consisting of a bipartisan group of prominent current and former congressmen, held its initial press conference in Washington, D.C. to explain the legislation that would soon be introduced in all 50 U.S. states. National Popular Vote introduced the NPVC, which, if adopted by enough states, would essentially replace the constitutionally mandated Electoral College with a direct national popular vote. Significantly, this law would be enacted by a horizontal agreement among the states, not a constitutional amendment. At the time of this writing, California, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Vermont, Washington, and the District of Columbia have enacted the National Popular Vote Compact (NPVC). Cumulatively, these jurisdictions equal 132 of the necessary 270 electoral votes for the NPVC’s provisions to go into effect. If the NPVC is triggered and becomes binding law, the chief election official in each member state will add up the total number of national popular votes for each candidate, and the state’s certifying official will then appoint that state’s slate of electoral votes to the winner of the national popular vote. Member states are permitted to withdraw from the NPVC, but cannot do so after July 20th in the year of a presidential election. As this article will later explain, each state is entitled to choose how it wants to allocate its electoral votes. Thus, constitutional scrutiny of the NPVC centers on the manner in which it will be enacted, not whether each state has the individual power to change its method of electoral vote allocation. Part II of this article will discuss the formation of the Electoral College, the roles that both state and federal governments play in the election of the President, and the emergence of the NPVC as an alternative to a constitutional amendment. Part III surveys the history of the Compact Clause, which would be implicated by enactment of the NPVC. Part IV then takes a detailed look at the principles of federalism that are inherent in the Electoral College, explores the roles of presidential electors, and concludes that under existing Compact Clause precedent, the NPVC does not require Congressional consent in order for it to be effective