Is the National Popular Vote Compact a better way to elect the next president?

“The National Popular Vote Compact would bring every state and every voter into play. National candidates would be incentivized to campaign all over the nation, not just in today’s ‘battleground’ states.” — Karen Hobert Flynn, A Better Way to Pick the Next President: The National Popular Vote Compact, The Daily Beast, Nov. 25, 2016.

In More states consider working around the Electoral College (Dec. 23, 2016), AP’s Susan Haigh wrote “Frustrated after seeing another candidate secure the presidency without winning the national popular vote, mostly Democratic lawmakers in several capitols want their states to join a 10-year-old movement to work around the Electoral College.” That movement centers on the National Popular Vote Compact (NPVC). The NPVC is an interstate compact in which member states will allocate all of their electoral votes to the winner of the national vote, as opposed to the traditional state vote. It relies on the Constitution’s grant of authority to the states in Article II, Section 1, to appoint presidential electors “in such Manner as the Legislature thereof may direct…. ”

Here’s how it would work. Any state that joins the NPV compact pledges to award all its electoral votes to the winner of the national popular vote in all 50 states and the District of Columbia, regardless of who wins in that particular state. The compact would, however, come into effect only if its success has been assured; that is, only if states controlling a majority of electoral votes (270 or more) join the compact. If enacted by enough states, the NPVC would all but put an end to the Electoral College, and we might be able move to a direct national vote for president, without a constitutional amendment. See generally, the CRS report, The National Popular Vote Initiative: Direct Election of the President by Interstate Compact (Dec. 12, 2014, R43823).

Ten states (CA, HI, IL, MA, MD, NJ, NY, RI, VT, WA) and the District of Columbia, which jointly control 165 electoral votes, have enacted into law the Compact. It has passed at least one house in 12 additional states with 96 electoral votes (AR, AZ, CO, CT, DE, ME, MI, NC, NM, NV, OK, OR)  and been approved unanimously by committee votes in two additional states with 27 electoral votes (GA, MO). See the National Public Vote website. This tally has led Salon’s Maegan Carberry to conclude “Optimistically, we’re 23 new electoral votes away from ridding ourselves of the Electoral College. It’s something that could be managed through strategically pressuring a handful of state representatives.” Quoting from Why doesn’t anyone know we’re incredibly close to replacing the Electoral College with the popular vote? Salon, May 7, 2017. See also, Chris Bowers, The surprisingly realistic path to electing the president by national popular vote by 2020, Daily Kos, Nov. 9, 2016. But see, Mark Joseph Stern, Yes, We Could Effectively Abolish the Electoral College Soon. But We Probably Won’t, Slate, Nov. 10, 2016.

Realistic? Hell if I know. Certainly the Founding Fathers opposed the direct election of the president. But Vikram D. Amar’s The Case for Reforming Presidential Elections by Subconstitutional Means: The Electoral College, the National Popular Vote Compact, and Congressional Power, __ Georgetown Law Journal ___  addresses and debunks various criticisms of the National Popular Vote Compact movement. The essay then “turns to the key question of whether a national popular vote with different voting rules in each state is workable, and in particular the sources of power Congress has to remedy any problems with the design of the current National Popular Vote Compact plan being adopted by many states. There are good arguments in favor of Congressional power to iron out difficulties, especially once a compact is up and running. For this reason, the idea floated by some that only a constitutional amendment can bring about a national popular vote is misguided.” Quoting from the abstract. See also, Michael Brody’s Circumventing the Electoral College: Why the National Popular Vote Interstate Compact Survives Constitutional Scrutiny Under the Compact Clause. But see, Norman R. Williams’ Why the National Popular Vote Compact Is Unconstitutional, 2012 BYU L. Rev. 1523 and John Samples’ A Critique of the National Popular Vote Plan for Electing the President, Cato Policy Analysis Series, No. 622, Oct. 13, 2008.

Good idea? Doable? For an example of the legislative enactment of the NPVC, see the text of Maryland’s legislation. — Joe

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