The National Popular Vote Compact Is an End Run Around Article II

Somebody has figured out how to abolish the Electoral College without ever asking the country to vote on abolishing the Electoral College. You have to admire the ingenuity. It is the constitutional equivalent of getting out of a lease by convincing the neighbors to stop paying rent.

I'm talking about the National Popular Vote Interstate Compact, and I'd like to treat it fairly, because its backers are not cranks. They believe in majority rule, they have a legal theory, and they have been at it for years. Let me state their case at its strongest, give you the numbers, and then take the idea apart in six numbered points. At the end I will tell you the honest way to get what they want, which, funny enough, they have been reluctant to try.

What the Compact does

Here is the mechanism. Under Article II, Section 1, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." That is a broad grant of power to the states, and the Supreme Court has long read it as such, calling the state legislatures' power over the method of choosing electors plenary. A state may, in principle, choose electors by popular vote, by legislative vote, or by any other method it likes. The Compact uses that power.

A state that joins the Compact passes a law promising to award all its electoral votes to the candidate who wins the national popular vote, not the candidate who wins that state's vote. The Compact takes effect only once states holding at least 270 electoral votes have joined. Why 270? Because there are 538 electoral votes in all: 435 for the House, 100 for the Senate and 3 for the District of Columbia under the Twenty-Third Amendment. And 538 divided by two is 269, so a majority is 270. Once the member states hold 270, they control enough electors to decide any election, and the winner of the national vote wins the presidency regardless of what the voters of any non-member state think. Maryland was the first state to enact the Compact, in 2007, and other states have joined since.

Notice what the Compact is not. It does not amend the Constitution. The Electoral College would continue to exist, on paper. The electors would still meet, still vote and still be counted. But the choice would no longer come from the states' own voters. It would come from the national tally, and the electors of the member states would be mere messengers.

The case for it, at its strongest

Here is how a thoughtful supporter would put it.

"Every American citizen should have an equal voice in choosing the President. In four elections since 1876, the candidate with fewer popular votes has won the presidency. A system that can crown the runner-up is a system that fails its own legitimacy test. Meanwhile, campaigns today ignore most of the country: they spend their time and money in a handful of closely divided states, and voters in the other states are spectators. A national popular vote would make every vote count the same and would force candidates to compete everywhere. The Constitution lets states choose their electors however they please. We are using that power. Nothing in the text forbids it. We are not rewriting the Constitution; we are reading it."

That is a serious argument, and part of it is simply true. The popular-vote loser did win the presidency in 1876, 1888, 2000 and 2016. And the modern campaign map is narrow. If you live in a state that is not competitive, you will see few ads, fewer visits and very little attention. I won't insult you by pretending otherwise.

Now the answers.

Six answers

One: Article I, Section 10 requires the consent of Congress, and that is not a technicality. The Compact Clause says: "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, or with a foreign Power." The Compact is an agreement among states. It is, in its own name, a compact. Supporters answer that the Supreme Court read the clause narrowly in Virginia v. Tennessee (1893) and again in United States Steel Corp. v. Multistate Tax Commission (1978), holding that only compacts that increase the political power of the states in a way that encroaches on federal supremacy need congressional consent. Fine. Now ask what kind of compact this is. It is an agreement among states to change how the national executive is chosen, a decision that affects every state, including those that did not join. It shifts power over the presidency from the states individually to a national majority and gives the member states, collectively, the ability to decide the outcome for everyone else. If a compact like that does not encroach on federal supremacy and the balance of the federal system, I cannot imagine what compact would. The honest reading is that Congress must consent, and the supporters have not asked it to; they say they would seek approval if enough states join.

Two: there is no national recount. The Compact depends on a number that does not exist. Nobody certifies a "national popular vote total." Every state counts its own votes under its own rules and reports its own figure, and the Compact would simply add those figures. But the rules differ: when ballots must arrive, whether late-arriving mail ballots count, who is eligible, how provisional ballots are handled, what triggers a recount. In 2000 the country watched one state, Florida, litigate its recount for more than a month. Now imagine a national race decided by a margin of 50,000 votes. Every state's count becomes relevant, every state's rules become a target, and there is no national authority to run a recount, set standards or resolve disputes. Today a close election has a natural firebreak: the fight stays in the states that are actually close. Under the Compact, the whole country is a single close state. Whatever you think of the current system, it localizes disputes. This one nationalizes them.

Three: the Compact makes one state's choices decide another state's election. Say state A tightens its rules on mail ballots, and state B loosens its rules on eligibility. Under the Compact, A's voters and B's voters are in the same pool, and either state's decisions can move the national total. A state that expands its rolls or its voting period adds votes to the national count, and the member states are bound to treat those votes as their own. The Compact thus turns every state into a stakeholder in every other state's election administration, with no mechanism for any of them to enforce standards on the others. A Founder would call that an invitation to faction, and he'd be right.

Four: it does not end the campaign on a narrow map, it moves the map. The claim that a national vote would make every voter matter is doubtful. A campaign trying to maximize votes at the lowest cost goes where votes are cheapest to find: the largest media markets, the densest populations, the places where one television buy reaches the most people. A voter in a small town in a small state would not be more important under the Compact; she would be less so. Today a state with only three or four electoral votes can, in a close race, matter. Under a national tally, her few hundred neighbors are a rounding error. Whether this is good for rural America is a question the Compact's backers prefer to answer with a slogan.

Five: the Founders' federal design was not an accident. The Constitution is a union of states, and the President is the one officer chosen by both the people and the states. The electors are apportioned by House seats plus two per state, which is the same Connecticut Compromise that structures Congress, as discussed in The Connecticut Compromise Passed by One Vote on July 16, 1787. Hamilton defended the dispersal of the choice in Federalist 68, arguing that it would shield the process from cabal and tumult, which I walk through in Federalist 68 Read Closely, Hamilton's Defense of How America Picks a President. Madison's point in Federalist 39 was that the Constitution is neither wholly national nor wholly federal but a composition of the two. A compact that turns the presidential election into a purely national contest alters the composition without asking anyone, and it does so by using the states' own power against the states' own design. You can read the key arguments in Federalist 39 Shows the Constitution Is Partly National and Partly Federal and in Seven Myths About the Electoral College That Fall Apart Against the Record.

Six: a state can leave, and that matters. The Compact is a deal among legislatures, and a legislature can repeal the law. Suppose the Compact takes effect, and in some election the national vote goes the way a member state's voters did not want. That state's legislature can vote to withdraw, and the Compact has a provision that stops a withdrawal made in the final six months before Inauguration Day from taking effect until the next President is confirmed. Think about what that means: the Compact has a built-in expectation that a state might be tempted to bail out when it dislikes the result. A system that survives only as long as the losing side keeps its promise is a system whose legitimacy depends on the loser's good manners. We have an amendment process for exactly this: an alliance that binds everyone, because it is written into the Constitution.

The honest route

Here is where I stop being critical and start being constructive. If you believe the President should be elected by the national popular vote, there is a constitutional path to it, and it is called Article V. An amendment must be proposed by two-thirds of both houses of Congress, or by a convention called by two-thirds of the states, and ratified by three-fourths of the states, which is 38 of 50. That is hard. It was meant to be hard. The process has produced only twenty-seven amendments in more than two centuries, and the count of attempts runs into the thousands, as Twenty-Seven Amendments Out of Over Eleven Thousand Proposals, by the Numbers explains.

Why do the Compact's backers avoid it? Because they would probably lose. An amendment for a national popular vote would need 38 states to say yes, and many small and medium-sized states, whose electoral weight depends on the current system, would have to vote away their own influence. That's the point of the amendment process. It makes sure that a change in who has power must be approved by the people who currently have it. The Compact tries to reach the same result once member states hold 270 electoral votes, which could be done with far fewer than 38 states, because the big ones carry so many electors.

If the national popular vote is a good idea, it can survive the process that every other structural change in our constitutional history has had to survive. If it cannot, then it should not be adopted by a side door.

Why this matters even if you like the result

Suppose you think the Electoral College is a relic. Fine. Ask yourself a conservative's question: what is the precedent? If a handful of states can change the method for choosing the President by agreement, then a handful of states could agree to do other things that once required an amendment. They could agree to award their electors by some other formula, or to bind themselves to the decision of some outside body. Once we say that the Constitution's structural rules can be rewritten by a deal among whichever states happen to be in the majority at the moment, we have turned the Constitution into an ordinary statute. Statutes, as you may have noticed, get rewritten every two years.

The conservative position, which I'd defend whichever party was benefiting, is that structure protects everyone. A rule you like today will be used by someone you don't like tomorrow. The process of amendment is slow because it protects you when you lose.

Let me also say, so nobody takes this the wrong way, that I'm not claiming the other side acts in bad faith. The people who back the Compact genuinely believe in the principle of one person, one vote, and the 2000 and 2016 outcomes upset a lot of them for reasons I understand. I would just ask them to take their case to the voters and to the legislatures, as the Founders intended, with their name on the amendment.

A few quick objections, answered

"The Constitution gives states plenary power over electors, so it's legal." The power is real. But it does not erase the Compact Clause, and no one has yet tested the combination. The Court has never ruled on this Compact, and when it does, the question of congressional consent will be central.

"The Electoral College is a relic of slavery." It is true that the compromises of 1787 were shaped by the three-fifths clause and the demands of slaveholding states, and Madison himself said as much at the Convention. It is also true that the Electoral College survived the abolition of slavery by a very long time because it served other purposes. The honest response to that history is to read it, and The Committee of Eleven Invented the Electoral College in the Final Weeks is a good place to begin, not to treat it as a conversation-ender in either direction.

"Every other office is chosen by popular vote." True, and each of them is chosen within one jurisdiction. A governor is elected by the people of one state, and a mayor by the people of one city. The President is elected by a union of states. The comparison fails because the unit is different.

The case in brief

1. The Compact would have member states award their electors to the national vote winner once states holding 270 of the 538 electoral votes have joined, and it does so without amending the Constitution.
2. The Compact Clause of Article I, Section 10 requires congressional consent for agreements among states that affect the federal balance, and the Compact's backers have not obtained it.
3. There is no national recount mechanism, one state's rules would change another state's outcome, and a close national race would be litigated in fifty jurisdictions at once.
4. The Founders chose a federal design, with electors apportioned by House and Senate seats, and a change of that magnitude belongs in the Article V process, which requires 38 states.
5. A rule that its supporters would not dare send through the amendment process is a rule that should not be adopted by interstate agreement.

What you can do: look up whether your state legislature has ever voted on the Compact, read the bill's text on your legislature's website, and ask your state senator and representative whether they believe it requires congressional consent.