The National Popular Vote (NPV) Interstate Compact Poses a Direct Threat to the Electoral College

The National Popular Vote (NPV) interstate compact is a deft attempt to superimpose a popular vote system over the Electoral College in order to “guarantee the Presidency to the candidate who receives the most votes in all 50 states and the District of Columbia.” This idea is not new – America’s Constitutional Framers considered and roundly rejected the direct election of US presidents. Their concerns ranged from avoiding a “tyranny of the majority” to a desire to ensure that the interests of sparsely populated states were not eclipsed by the population juggernauts of their day. James Madison also observed that “turbulence and contention” plague democracies and that they are “incompatible with personal security [and] the rights of property.” For these reasons, our Founding Fathers entrusted to us a republic rather than a direct democracy.

NPV may be unconstitutional.

The instructions for the establishment of the Electoral College are contained in Article II, Section 1 of the US Constitution and amending the document should be the only way to change how Americans elect their president. However, instead of pursuing a constitutional amendment, NPV attempts an end run around the Electoral College bypassing our most hallowed body of law, the US Constitution, and effectively instituting a popular vote method via legislative fiat. The results of the first “NPV election” would undoubtedly face legal challenges stoking public suspicion at a time when political polarization is historically high and trust in our electoral processes is historically low. In addition to being the legal way to realize direct election of American presidents, the process of advancing a constitutional amendment that supports a popular vote construct, if successful, would build national consensus conferring legitimacy on what would be one of the most consequential changes in electoral procedures in US history. Rejection of such a constitutional amendment would definitively demonstrate the Electoral College’s endurance and quiet popularity.

Implementation of an NPV construct is particularly daunting for states with unique election features.

For example, it is almost impossible to reconcile NPV with Maine’s Ranked Choice Voting (RCV) system and the state’s assignment of two electors to the winner of the state’s popular vote and the remaining electors designated based on the plurality of votes in each Congressional district.

If adopted by enough states, NPV could:

• Undermine the principle of federalism by diminishing the importance of individual states in presidential elections;
• Lead to chaotic nationwide recounts;
• Strengthen the influence of large metropolitan areas at the expense of rural voters and lower-population states; and
• Make it unnecessary for presidential candidates to attract a genuine cross-section of the American people to prevail.

The list of states joining the NPV compact has been growing steadily highlighting that this is no longer an academic question but a clear threat to the Electoral College. With enough states to equal 205 of the 270 electoral votes needed to elect the United States’ Chief Executive, NPV is more than 75% of the way to their goal. Paradoxically, while Americans consider eroding the Electoral College, countries with politically diverse populations look to the institutions that underpin US federalism for ideas on how to ensure that their states are adequately represented.

While imperfect, the Electoral College is a crucial bulwark designed to safeguard American federalism and the best way for our nation to select the president. Members of the ALEC Federalism and International Relations Task Force adopted a Statement of Principles on Presidential Elections to underscore this point. It is ingenious, illustrating our Founding Fathers’ wisdom and foresight and has been instrumental in preserving our country’s 220-year history of peaceful transfers of power. It deserves our protection and support, for as Alexander Hamilton observed of the Electoral College, “If the manner of it be not perfect, it is at least excellent.”