An Electoral College Legal Workaround Not Requiring Constitutional Amendment

The Electoral College has recently been in the public eye for its tendency to elect Presidents who failed to win the national popular vote in presidential elections. This has sparked numerous efforts to remove the entire system, ranging from petitions to proposed constitutional amendments. One of the most creative solutions is known as the National Popular Vote Interstate Compact (NPVIC). As its name suggests, the NPVIC is an agreement among states dictating that they will award their electoral votes to the winner of the national popular vote in presidential elections. This Compact effectively bypasses the Electoral College because, if enough states pass the NPVIC, the winner of the nationwide popular vote will always win the presidential election. In fact, it is within the provisions of the compact that it will have no effect unless it is “enacted in substantially the same form by states cumulatively possessing a majority of the electoral votes” [1]. So the status quo remains unless this critical threshold of 270 electoral votes is reached among the several states. 

In 2001, as a result of the contentious presidential election the year before, two legal scholars (and brothers) —Akhil Amar and Vikram Amar — wrote a series on the Electoral College. In one part of the piece, they propose a plan very similar to the NPVIC as a way to avoid the Electoral College without needing to amend the Constitution [2]. Five years later,  inspired by the Amar brothers, a computer science professor named John Koza drafted the National Popular Vote Interstate Compact [3] based on his belief that the Electoral College was defective, in the sense that it can elect a President who did not win the most votes [4]. Koza cited the fact that this defect has manifested five times since the republic’s inception. This means that for at least two decades, the White House was occupied by a man who — but for the Electoral College — would not have been there at all.

The maximum number of states required to reach 270 electoral votes is 39 plus the District of Columbia, which is just greater than the number of states (38) required to pass a constitutional amendment; the minimum number of states required to reach 270 electoral votes is 11 [5]. Since the number of states required to pass a constitutional amendment is set at three-fourths of the fifty states (38) [6], it would be much easier to find a subset of the country that amounts to a majority (270) of the nation’s 538 electoral votes than to formally amend the Constitution.

Since the NPVIC would clearly change how presidential elections are conducted, it is important to consider whether it is constitutional. There has been no judicial review on the matter because the compact has not yet entered into legal effect; currently only fifteen states and the federal district have entered the NPVIC, amounting to 196 electoral votes [7]. It is likely that there will be some kind of judicial review of the compact if enough states pass it, simply because of the lack of legal precedent on this kind of voting system.

I would argue that the National Popular Vote Interstate Compact is constitutional according to the principles of constitutional originalism and textualism, which advocate for legal interpretation strictly according to the original intent of the Founders and the exact wording of the Constitution. This conclusion is consistent with judicial activism, which advocates for application of the Constitution in a manner accounting for changing circumstances in society.

Originalists and textualists agree that the Electoral College was designed to give the several states the power to decide for themselves how to conduct presidential elections. Since the NPVIC was formed by states and has been enacted by states, it is reasonable to conclude that the compact is consistent with the sentiment of the states party to it.

But the effects of the NPVIC would be equivalent to instituting a national popular presidential electoral system, which an originalist might argue violates the intent of the Founders. However, the exact letter of the Constitution does not prescribe any specific manner or method by which electors are to make their choices for President. Although the Electoral College is based on the principle of federalism, there does not exist any specific constitutional rule proscribing how the states can exercise their electoral authority. Thus, it seems that the Constitution’s text does not explicitly rule out the legal possibility for the NPVIC. 

It is true that the intent of the Constitutional Convention was to provide a suitable alternative to the popular election of the president. To get a glimpse of the intent of the Founders, consider Alexander Hamilton; he argued that “the immediate election [of a president] should be made by men most capable of analyzing the qualities adapted to the station” [8]. This reveals Hamilton’s view that electors must be free to make their own decision on whom to choose for President, since electors would be meaningless were they simply a rubber stamp on any particular electoral outcome. Then Hamilton notes that the system that was chosen was for “a small number of persons, selected by their fellow-citizens… [who] will… possess the information and discernment requisite to such complicated investigations [as the election of President]” [9]. From this, it is reasonable to conclude that the original intent of the Framers was to allow electors to make their own independent decisions about whom they should grant their states’ electoral votes. 

 It is worth noting, however, that it became common practice many years ago for electors to act as a rubber stamp for the voters of their state. So modern America already implicitly rejects the thoughts of Hamilton and other similarly-disposed Founders by all but ensuring that electors do not exercise any independent judgment. In fact, at the time of publication, electors of thirty three states and the District of Columbia are subject to legal prosecution if they do not give their vote to the statewide winner [10] (such laws have been upheld by the U.S. Supreme Court) [11].

So the NPVIC is another version of the status quo, except that electors are pledged to vote for the nationwide popular vote winner. Thus one should not criticize the NPVIC for denying independent authority to electors any more than they should criticize our current system. But now the advantages of the NPVIC relative to the current system must be highlighted: if we already prohibit electors from acting in their own right, and it is legally established that they may be forced to vote in a certain way, why should we prohibit them from being forced to act one reasonable way versus another? It seems that it would be legal to obligate them to vote in accordance with the national popular vote seeing as it is not prohibited by any constitutional provision or court ruling. 

Analyzing this issue from the perspective of a living constitutionalist, the outcome is even clearer: states have the authority to require their electors to agree with the nationwide popular vote. As America has evolved, the style of government and politics has approached pure democratic principles more and more. In the beginning, only a white male property owner had suffrage; currently, almost every adult citizen has the right to vote. To that end, the mandate to govern in modern America can only practically be granted to those who enjoy the consent of a majority (or at the very least a plurality) of voters. The same can and should be said for the American President.

The Supreme Court unanimously held in McPherson v. Blacker (1892) that the Fourteenth Amendment’s Equal Protection Clause does not require a state’s vote in the Electoral College to be aligned with its citizens’ popular vote [12]. While it was established by McPherson that states do not have absolute authority over the actions of their electors [13], this decision, along with more recently established precedent, allows states to mandate that their electors align with the national popular vote, as it is the “will of the people” [14].

The National Popular Vote Interstate Compact is constitutional through the lens of a textualist, an originalist, and even a judicial activist, because the Constitution does not prescribe specific ways in which states’ electors must vote, and the NPVIC reflects the will of the American people. This author holds that the NPVIC is consistent with state laws forcing electors to vote for President based on the result of a particular jurisdiction’s popular vote, and that it advances the ideal of democracy in American society.

References

[1] “National Popular Vote Interstate Compact.” The Council of State Governments, 2019. http://apps.csg.org/ncic/Compact.aspx?id=126.
[2] Amar, Akhil R, and Vikram D Amar. “How To Achieve Direct National Election Of The President Without Amending The Constitution.” Findlaw, December 28, 2001.

[3] Keyssar, Alexander. “Why Do We Still Have the Electoral College?” United Kingdom: Harvard University Press, 2020. 196.

[4] Ibid.

[5] We calculate this simply by starting with the most (or least) advantaged state in the College, and going through the list to the next highest (or lowest) state until the cumulative total is 270 or higher. Data from: “2020 Electoral College Results.” National Archives and Records Administration.

[6] U.S. Const. art. V.

[7] “Agreement Among the States to Elect the President by National Popular Vote.” National Popular Vote Center. https://www.nationalpopularvote.com/written-explanation.

[8] Hamilton, Alexander. Federalist No. 68.

[9] Ibid.

[10] Houghton, Ashley. “Faithless Elector State Laws.” FairVote. July 7, 2020. https://www.fairvote.org/faithless_elector_state_laws.

[11] Ibid.

[12] McPherson v. Blacker, 146 U.S. 1 (1892).

[13] Ibid.

[14] Ibid.