On Tuesday, February 11th, the Virginia House of Delegates voted to join the National Popular Vote Interstate Compact (NPVIC). The NPVIC is a compact that requires participating states to award their electors to the winner of the national popular vote regardless of state election results, effectively nullifying the electoral college. NPVIC will go into effect once states with a combined total of 270 electoral votes join the compact. Is the NPVIC a legitimate exercise of a state’s plenary power to appoint electors “as the Legislature thereof may direct,” or is it an unconstitutional end run around the electoral college?
In order to answer that question, it’s important to understand something of the origin and historical purpose of the Electoral College. The question of how we should select our executive was one of the most debated issues of the Constitutional Convention of 1787, and its solution, the Electoral College system, was one of the Founders proudest achievements. Hamilton called the Electoral College, “excellent.”
A Republican Check against Direct Democracy.
The Founders rejected the idea of selecting the president through a national popular vote. They knew from history the evils that accompanied direct democracies. Direct democracies always devolved into mob rule where the 51% could trample the rights of the 49%; this tended to lead to tyranny. Nevertheless, the Framers believed that the majority voice was essential to determining the will of the people, but that their voice must be filtered and constrained through civic devices so that the rights and interests of the minority were protected. The Electoral College is just such a device.
The Electoral College system requires an absolute majority of votes to win the presidency. If no candidate receives an absolute majority, the House of Representatives selects the president with each state casting one vote, requiring at least 26 votes to win. Before the advent of organized, political parties, political interests were mostly defined by state interests, not party platforms. The Founders expected each state to vote for their favorite sons; for this reason, each elector was required to cast two votes with one being for an out-of-state candidate. The Founders believed that most elections would fail to produce a winner and would be resolved by Congress. Not only did the Founders reject a national popular vote, they didn’t even require a state popular vote. In some states, the electors were appointed by the state’s legislature.
The Federalist Nature of the Electoral College.
The United States is a federation of 50 sovereign states; hence, we are the United States, not the United Peoples, of America. It is clear from the Founders’ back and forth discourse at the convention that they intended the principle of federalism to be preserved in the process of choosing the president. The Electoral College preserves federalism in the electoral process by allowing the individual states to select the president and ensuring each state is given fair representation. Notice I said fair, not equal. The Fathers already wrestled with the dilemma of how to represent states of different sizes and populations in the fairest way possible. In the end, they settled on Madison’s Virginia Plan in which each state received representation in the House of Representatives, a.k.a. “The People’s House,” based on their population size but equal representation in the Senate. The same logic was applied to the allocation of electors. Each state receives one elector for each of their representatives in the House and one for each of their senators.
The EC requires coalition building.
In order for a candidate to win an absolute majority, they must gain the support of many different groups of people across many states. The Founders wanted to ensure that just a few states could not dictate the choice of president to the rest of the country. Remember, the Founders believed that the “will of the people” must not come only from the majority, but must also respect the rights and interests of the minority, and this is accomplished through broad coalition building. NPVIC would make campaigns focus on popularity rather than the needs and interests of a broad spectrum of Americans. There would be no need for grassroots efforts, only slick, national ad campaigns that would take on the character of a late-night, ShamWoW infomercial.
The importance of “finely wrought” Constitutional procedures.
The phrase, “finely wrought” is a legal term of art defined in INS v. Chadha(1983). A “finely wrought” Constitutional procedure is one that was developed through much debate and deliberation. In INS v. Chadha, the Supreme Court ruled that the one-house legislative veto enacted by the House of Representatives was unconstitutional and unenforceable because it violated fundamental elements of the legislative process prescribed in the Constitution, namely bicameralism and the requirements of the Presentment Clause. SCOTUS ruled that such “finely wrought and carefully considered” constitutional procedures could only be altered through the Article V amendment process. Every facet of the EC clearly meets the definition of “finely wrought and carefully considered” procedures (Patrick C. Valencia).
The proponents of the NPVIC argue that the compact does not alter the constitutionally prescribed procedures since the Constitution grants plenary power to the states to appoint electors as they see fit. However, this ignores a basic principle of Constitutional law. There are two basic kinds of powers in the Constitution: reserved powers and delegated powers. The power to appoint electors is a delegated power. SCOTUS has repeatedly ruled against the exercise of delegated powers where the scope and historical purpose of the power is violated, even when it superficially conforms to the constitutional text.
As we’ve already seen, a national popular vote is fundamentally opposed to both the scope and historical purpose of the EC. The NPVIC destroys the federalist nature of the EC, shifts the focus of the EC from interests and values to simple popularity, and eliminates the need for broad coalition building. In addition, the NPVIC violates the clear intent of the Founders that electors should serve the interests of the people of their state and be insulated from the influence of electors of other states. This is why the Constitution requires that the electors of each state should meet in their respective states and on the same day. Not only does the NPVIC allow electors to be influenced by other states, but to be determined by them.
To compact or not to compact.
Article I, Section 10 of the U.S. Constitution prohibits states from forming compacts with each other unless approved by Congress. Proponents of the NPVIC claim that their compact does not require congressional approval, citing U.S. Steel v. Multistate Tax Comm’n (1978) in which SCOTUS ruled that interstate compacts only need congressional approval if they increase state power at the expense of federal power. Constitutional law professor, Rob Natelson, questions whether or not SCOTUS would rule the same way today as they did in 1978. He notes that, “The Constitution’s language requiring congressional approval is crystal clear, and the court today is much more respectful of the Constitution’s text and historical meaning than it was in 1978.” Natelson goes on to say that even following the 1978 ruling, the NPVIC would need approval by Congress as it weakens federal institutions by eliminating the role of the House of Representatives in the electoral process and it substantially alters the presidential election process without involving Congress.
Even if NPVIC was submitted to Congress for approval, Congress can’t approve a compact to do something that Congress is unable to enact on its own. Since Congress can’t replace the EC with national popular vote without going through the Article V amendment process, it can’t approve a compact for the states to do the same.
NPVIC is unconstitutional for the following reasons: it (1) violates the scope and historical purpose of the state’s delegated power to appoint electors. (2) It seeks to effectively alter the Electoral College’s “finely wrought” constitutional procedures without the Article V amendment process. And, (3) it violates the Interstate Compact Clause by creating a compact without the requisite congressional approval. At its present momentum, NPVIC may gain enough states in time for the 2024 election when it will certainly face legal challenges. While SCOTUS has gotten things horrifically wrong at times, I think that that the current bench leans sufficiently toward a conservative, originalist view that they should get this one right. Given a Trump victory in November and one or two additional SCOTUS appointments there should be no doubt that NPVIC should be shot down by SCOTUS.