NPV proponents claim no constitutional amendment is needed because the Constitution leaves the appointment of electors to the states.
This is true, but the U.S. Supreme Court will likely object to this plan because it violates the Compact Clause of the Constitution.
The Compact Clause prohibits states from making interstate agreements without Congress’s approval. NPV enthusiasts concede the plan is an interstate compact, but they claim it does not need congressional approval.
The Supreme Court has allowed some interstate agreements without congressional approval, but only those that do not disadvantage states that have not joined the agreement. For example, the Court has allowed agreements resolving state boundaries or multistate tax commissions to exist without congressional approval. However, these are dramatically different from agreeing to intentionally circumvent how the President is elected. Since the NPV compact proposes such a dramatic change to the constitutional system of electing the President, it must be submitted to Congress.
However, Congress is constitutionally incapable of approving the NPV.
The Supreme Court has held that congressional approval of an interstate agreement makes the agreement federal law. The Supremacy Clause prevents Congress from enacting laws contrary to the Constitution.
Congress could not constitutionally create a popular vote system by itself. How could it enact a state-based plan that does the same?
In short, it cannot. Thus, the dilemma facing NPV proponents: the NPV compact must be submitted to Congress but cannot be approved by Congress. Any effort to change the Electoral College system to a national popular vote system will need a constitutional amendment.
Connect With Us