Why the National Popular Vote Compact Is Unconstitutional

Unable to secure passage of a federal constitutional amendment abolishing the Electoral College, several opponents of the Electoral College have sought to establish the direct, popular election of the President via an interstate compact according to which individual signatory states agree to appoint their presidential electors in accordance with the nationwide popular vote. Ostensibly designed to prevent elections, such as the one in 2000, in which the Electoral College “misfired” and chose the candidate who received fewer popular votes, the National Popular Vote Compact has been adopted by several states, including California. In this Article, I argue that the National Popular Vote Compact violates the Presidential Elections Clause of Article II of the U.S. Constitution. Although the text of the Clause seems to give states unlimited power to select the manner in which each state’s presidential electors are chosen, a close reading of U.S. history suggests the need and propriety of limiting the scope of state authority under the Clause. Not only did the framers of the Constitution expressly reject the idea of a direct, popular election for President, but also not one state either in the wake of ratification or at any time thereafter has ever sought to appoint its presidential electors on the basis of votes cast outside the state, as the National Popular Vote Compact requires. In the same way that similar historical considerations led the U.S. Supreme Court to limit the scope of state authority with respect to federal legislative elections, this history regarding the Presidential Elections Clause likewise counsels in favor of a more limited understanding of state authority under Article II. As such, if opponents wish to abolish the Electoral College, the sole constitutionally proper mechanism for doing so is a federal constitutional amendment, not an interstate compact negotiated by a handful of states.