Combination Among the States: Why the National Popular Vote Interstate Compact is an Unconstitutional Attempt to Reform the Electoral College
Patrick C. Valencia[*]
“In all, the invisible federalism that has gone largely unnoticed in present presidential election debates serves a valuable purpose. It accounts for nonvoters, it maximizes enfranchisement, and it discourages interstate meddling. Federalism is not simply an impediment to Electoral College reform—it is a foundational element of its defense, one that precludes reform.”[1]
Abstract
Since the 2000 election “misfire” produced a President who won the Electoral College but lost the national popular vote, the National Popular Vote Interstate Compact (“the Compact”) has garnered support across the nation. Under the terms of the Compact, the states would thereafter pledge their electoral votes to the winner of the national popular vote, regardless of the outcome of the election within their own state. The Compact, already successfully approved by eleven states and the District of Columbia, needs its signatories to possess at least 270 electoral votes before it takes full effect and converts the Electoral College into a de facto direct popular election of the President. The current compacting states possess 165 electoral votes, and therefore need only 105 more before the Compact takes effect, a total that can be reached with the consent of as few as four more states. This article argues that this possibility makes the Compact a constitutional crisis–in–waiting. Although this crisis is not yet upon us, it lurks in the shadows and must be addressed before it has the chance to alter a presidential election and take away any and all effective electoral power from as many as thirty–nine states.
This article explains that the Compact is unconstitutional because it promotes combination among the states and effectively creates a direct popular election. Because these results are precisely what the Framers deliberately sought to avoid when they carefully detailed the “finely wrought” electoral procedures in Article II, Section 1, the Compact makes an impermissible fundamental alteration to the Electoral College. This Note examines the historical evidence of the Federal Convention, ratification debates, and writings of the Founding era and, in doing so, concludes that the Framers specified these procedures to prevent combination among the states and allow each individual state to vote according to its distinct interests. The Compact would force a state’s electors to disregard their state’s unique interests and, instead, vote for whomever secures a plurality of the national popular vote, regardless of that candidate’s performance in that specific state. To prevent this crisis-in-waiting from occurring, this Note concludes that if states ever attempt to enforce the Compact, a court should apply the “finely wrought” standard from Chadha and City of New York and strike down the deal, thereby preventing supporters of the Compact from passing a de facto constitutional amendment that deprives the non–compacting states of their current political power in presidential elections.
Introduction
Imagine, if you will, this chain of events:
“Good evening. This is NBC News Election Central.”[2] It is Tuesday, November 8, 1960—election night—and millions of Americans crowd their television sets as NBC’s flagship nightly news program, the Huntley-Brinkley Report, begins.[3] These Americans, most of them voters, hope the wait for the final results does not drag late into the night. After the first commercial break, anchor Chet Huntley tells Americans watching that it will be an early night—not because there is a clear winner, but because nothing will be decided that night. Returns have begun to pour in, and it is clear that the popular vote will be as close as it has ever been. In fact, Huntley reports there are already two lawsuits set to be filed the next day in New York City and Chicago by voters contesting the counting of the votes in local precincts. Reminding voters of the new electoral system, under which a minority of states possessing over 269 electoral votes will decide the election by binding their electors to the winner of the national popular vote, Huntley predicts that, as votes are counted and recounted and lawsuits are litigated and relitigated, this election will not be decided until mid-to-late December.
Indeed, he would prove to be correct as the election was not decided until almost Christmas Day. Just 0.17% separated Richard Nixon from the winner, President John F. Kennedy, in the national popular vote, meaning that miscounts or voting irregularities in any major city could have swung the election for the Democrats.[4] As they wait for a record number of lawsuits to be resolved before the final vote could be tallied, voters worry that this may be the new normal for American presidential elections. Moreover, voters in states like Iowa and New Hampshire, who never had even one candidate step foot in their state, feel they are neither heard nor represented in this new system of presidential elections, one which they did not condone and explicitly voted down in their own legislatures. Other voters are upset because their own electors voted for someone that did not come close to winning their own state’s popular vote. The atmosphere is chaotic. There is a constitutional crisis at hand.
***
In reality, the 1960 presidential election was decided easily. Despite the razor-thin 0.17% margin in the national popular vote, President Kennedy defeated Nixon in a landslide Electoral College victory, 303-219.[5] (The same cannot be said for the 2000 election, in which the Electoral College turned on a single state.) But, if the National Popular Vote Interstate Compact (“the Compact”) had been in effect in 1960, this fictional account could have been reality.
The Compact, whether achieved through state statute or congressional approval, is unconstitutional because it alters provisions of the Constitution that detail the “finely wrought” procedures,[6] a term of art as defined in INS v. Chadha,[7] of the Electoral College. This does not mean that the Compact’s ultimate goal is unachievable. What it does mean is that, like other important changes to the electoral process like universal suffrage and the lowering of the voting age to eighteen, such a result must come through the Article V amendment process.[8] Supporters of the Compact, who in theory could push through their idea with just eleven states—far fewer than the thirty-eight required by Article V—hope to usurp the constitutionally required electoral procedures by keeping the technical procedure of the Electoral College in place, while in reality creating a de facto direct popular election of the President. Passed in eleven states and the District of Columbia, but not yet in effect because the compacting states first need to possess at least 270 electoral votes,[9] the Compact is a movement lurking in the halls of our electoral system, waiting to thrust the electoral system into constitutional crisis.
Proponents of the Compact are open about their desire to make that exact end run around the Framers’ design.[10] The Compact creates a situation where a state’s electors are required to vote for a candidate that the very same state’s voters might have rejected drastically. Unless passed by Constitutional amendment, the Compact cannot be allowed to take effect because, amongst other reasons, the Constitution’s finely wrought electoral procedures were meant to (1) prevent combination among the states of the exact sort which is the foundation of the Compact,[11] and (2) inject our potentially top-heavy system with an additional federalism safeguard—which the Compact explicitly and purposefully undermines.[12]
This article critiques the Compact on both functionalist and formalist grounds. The Compact goes against the spirit of the Constitution and the intentions of the Framers because it creates combination among the states, a result which the Framers explicitly sought to prevent by detailing clear, finely wrought electoral procedures.[13] Additionally, the Compact effectively results in a direct popular election of the President, a direction the Framers explicitly intended to avoid. The Framers focused great energy on the election of the national executive, had extensive debate, and voted on numerous different electoral proposals.[14] What is clear from this historical evidence, as well as subsequent ratification debates and early congressional debates, is that the Framers feared combination among the states and they strongly opposed a direct popular vote.[15] Yet, once states that possess at least 270 electoral votes pass the Compact, they will effectively impose a direct popular election on the rest of the country facilitated by explicit combination among the states, and will have extinguished any effective political power of the non-compacting states in the national election, despite the guarantees of protection to the small states that the Constitution formalized.[16]
Part I recounts the origins and development of the Electoral College, specifically analyzing what the Founding era, Federal Convention, and Constitutional structure reveal about the original meaning of the Electoral College. Part II provides background on the Compact by giving a brief history of the movement, detailing the mechanics of the legislation, and then discussing some of the reasons it has been passed to help give the reader context as to the motivations of Compact supporters. Part III discusses cases in which the Supreme Court has analyzed modifications of electoral procedure, before discussing Supreme Court cases striking down legislation (that is, not Constitutional amendments)) for fundamentally altering finely wrought constitutional procedures similar to the Electoral College. Part IV analyzes how the Compact fundamentally alters finely wrought procedures detailed by the Framers, then demonstrates that the Compact, unless passed by Article V procedure, is repugnant to the purpose and original meaning of these finely wrought electoral procedures, and should be struck down by courts once it enters into force by its own terms.
I. Origins, Development, and Federalist Purpose of the Electoral College
Along with the threat of political division between the states, the threat of combination among the states was a major impetus for the Federal Convention—and eventual adoption of the Electoral College—and thus is an important contextual point when analyzing the Convention debates on the electoral process.[17] In the period leading up to the Convention, when the Articles of Confederation still governed, the mid-Atlantic states—Maryland, Virginia, Pennsylvania, and Delaware—were about to enter into a commercial alliance.[18] With the Confederation Congress lacking the power to block states from entering trade wars, raise its own revenue, enforce national laws, or even supersede states’ own printed currency, the threat of the American economic heartland joining forces at the other states’ expense prompted the states south of Virginia to counter with a commercial alliance of their own. Contemporaries assumed that the Southern pact would then lead to a combination of the Northern states into a third commercial alliance.[19] Thus, without intervention by the Convention, the states were at risk of becoming disorganized, quasi-national rivals under these regional commercial alliances.[20] To avoid this and the other pitfalls precipitated by the Articles of Confederation, James Madison and others sought a stronger, albeit limited, federal government that would provide the alliance and organization the states needed.[21] Thus, against the historical background of weak states forming separate commercial alliances to counter the strength of larger states’ alliances, the Framers set out to draft a constitution at the Convention that, in addition to giving the Federal government more power, prevented internal combinations among the states that could ultimately fracture the Republic.
In drafting the Constitution, the Framers extensively debated numerous proposals for the selection of the national executive before reaching a compromise—the Electoral College—that gave states an important role in the selection.[22] To understand the underpinnings of this debate, it helps to conceptualize the Electoral College within the context of the larger debate at the Convention— a debate between supporters of the Virginia Plan and those of the New Jersey Plan, which had pitted the large states against small states. This led to the foundational compromise that created the federal structure and the Electoral College as it is exists today, and without which there would likely be no Constitution.[23] The Framers abandoned the idea of a purely majoritarian system at the outset (in the Articles of Confederation) and, faced with the opportunity to adopt one at the Convention, nevertheless preserved large elements of the state-based framework. This federalism-based compromise gave states an important role in the government, and small states a disproportionate role in comparison to that of large states, by providing for political safeguards of federalism.[24] Although these safeguards have been somewhat diluted since the Founding, one that remains today is the Electoral College.[25]
A. The Debate at the Federal Convention
The Framers debated numerous methods for electing the executive before settling on the Electoral College.[26] Three proposals received serious consideration, beginning with selection by the national legislature, which was proposed on June 2, 1787, and, after limited debate, was preliminarily approved by eight states.[27] The two other seriously debated proposals were selection by state legislatures and, the method which ended up in the Constitution, an electoral college system.[28]
Although these other methods of selection were seriously debated and preliminarily approved at certain points in the Convention, direct national popular election neither gained traction nor received extensive consideration among the Framers at the Convention.[29] Initially proposed by Gouverneur Morris on July 17, 1787, Morris himself even understood direct election had serious flaws, conceding that such a method would result in cabal, intrigue, and combination.[30] But, Morris felt selection by the national legislature would lead to the executive becoming a creature of the national legislature, and was thus equally as flawed as his proposal.[31] Many at the convention shared Morris’s worries, as reflected in the debate and votes—direct national popular election was put to vote twice, first on July 17, 1787, when it was voted against 9–1, and again on August 24, 1787, when it was voted against 9–2.[32] Direct popular election was, therefore, the least favored method of selection of the executive, as reflected in the table below.[33]
Finally, on September 6, 1787, by a vote of 9–2, selection by electors appointed by state legislatures—the Electoral College—passed as a compromise, allowing both the people and the states to participate while preserving the separation of powers inherent in the federal structure by keeping the national legislature out of the initial selection process.[34]
| Selected history of proposals and votes at the Federal Convention on selection of the Executive | ||
| Date of Vote | Details | Vote Result |
| June 2 | The first action on selection of the national executive was to give preliminary approval to a proposal stating: “To be chosen by the national legislature.” James Madison, Notes on the Constitutional Convention, in 1 Farrand, supra note 27, at 81–89. | Ayes 8; noes 2. |
| July 17 | Direct election of the executive opposed. James Madison, Notes on the Constitutional Convention, in 2 Farrand, supra note 27, at 22. | Ayes 1; noes 9. |
| July 17 | The Convention struck down a method using electors appointed by the state legislatures. Id. | Ayes 2; noes 8. |
| July 17 | The Convention reached a consensus on the proposal that the Executive was “to be chosen by the national Legislature.” Id. | Ayes 10; noes 0. |
| July 19 | Swayed by Gouverneur Morris, the Convention approved selection by electors appointed by the state legislatures. Id. at 50. | Ayes 6; noes 3; 1 state divided. |
| July 19 | A second vote on the same proposal as above. Id. | Ayes 8; noes 2. |
| July 24 | The Convention, for the third time, approved selection by the national legislature. Id. at 97. Note, the New Hampshire delegation arrived to the Convention on July 23. Id. at 87. | Ayes 7; noes 4. |
| July 26 | On July 25, debate on selection of the Executive occurred, followed by a fourth approval of the proposal providing for selection by the national legislature. Id. at 108–15, 121. | Ayes 6; noes 3; divided 1; absent 1. |
| August 24 | The Committee of Detail proposed selecting the Executive through direct election by the people; the Convention struck it down for the second time. Id. at 402. | Ayes 2; noes 9. |
| September 6 | The Convention sent tabled issues to the Committee of Eleven (of which Rufus King (MA), James Madison (VA), and Gouverneur Morris (PA) were members) to address difficult issues, including election of the executive. Id. at 481. On September 4, the Electoral College, as it is known today, began to take shape when the Eleven recommended to the Whole a method of election by electors chosen by the state legislatures, which the Whole then approved. Id. at 525–26. | Ayes 9; noes 2. |
| September 6 | The Convention voted to move the contingent election from the Senate to the House. Id. at 527. This would be the final action at the Convention focused on the Electoral College alone. | Ayes 10; noes 1. |
| September 17 | After the Committee of Style and Arrangement finalized the document, all eleven states approved the Constitution. Id. at 644. | Ayes 11; noes 0. |
B. Outcome of the Convention—the Finely Wrought Electoral Procedure
Although the text of Article II does not explicitly address the prevention of combination among the states, the text reveals that part of the original understanding of the Electoral College was to prevent both domestic and foreign powers from intervening in the electoral process through the electors. Thus, despite debating numerous proposals for selection of the Executive at the Convention, the Framers rested upon the Electoral College because, not only did it produce the product they sought to achieve,[35] but it also created the political safeguards they found imperative.[36] Article II, Section 1 states that “[t]he Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”[37] Moreover, the Twelfth Amendment states:
The Electors shall meet in their respective states and vote by ballot for President and Vice–President . . . which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted . . . and if no person have such majority . . . the House of Representatives shall choose immediately, by ballot, the President.[38]
The Framers specified that Electors were to meet in their “respective states” for the same reason they required electors to meet on the same day throughout the United States: “for the express purpose of preventing combinations.”[39] The Framers wanted to prevent one state’s electors from influencing another state’s electors—specifically keeping the large (in population) states from influencing the small states.[40] Hamilton, in Federalist No. 68, noted that
this detached and divided situation will expose [electors] much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place. Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.[41]
Later comments in the U.S. Senate during debates on possible electoral reform by Charles Pinckney and Rufus King, both of whom were present at the Convention, confirmed Hamilton’s suggestion that the Framers were worried about improper domestic combination, and thus responded by crafting the electoral process to prevent such activity.[42]
Understanding that separating the electors out into their respective states to vote on the same day could not, on its own, sufficiently prevent improper domestic and foreign influence, the Framers added the requirement of voting by sealed ballot—one that would only be opened during the actual vote-counting itself, and in front of both Houses of Congress.[43] “Vote by ballot” is a term of art that, at the time of the Founding, meant to vote secretly.[44] These secret ballots were then to be sealed and left unopened until they were counted by the President of the Senate in the presence of both Houses.[45] This procedure gave the electors discretion and allowed for them to vote without being improperly swayed by others, while also ensuring the votes would not be tampered with.[46]
Furthermore, even if each of these procedures would prevent improper combination at the elector voting level, the Framers recognized the need to detail additional procedures in the event of a contingent election in the House of Representatives, where the possibility of combination might still be present.[47] The Framers felt that holding the contingent election immediately upon the finding of no Electoral College majority, in addition to the secret, sealed balloting process, would sufficiently address these fears.[48] Because the literal meaning of the word “immediately” is instantly without delay,[49] it is clear that the Framers desired a contingent election to be held instantly upon a finding of no majority, “without leaving the House in which they are then assembled, and without adjournment, to choose . . . who is to be Executive.”[50] By paying such close attention to these procedures, the Framers unwaveringly sought to stamp out any improper combination that would affect the product they desired from the electoral process: an impartial executive and an untainted government whose selections were based on federalist principles. These envisioned advantages of the Electoral College, as gleaned from the text of Article II, Section 1 and the Twelfth Amendment, demonstrate the Framers’ commitment to their ultimate proposal.
C. Federalist Principles Underlying the Finely Wrought Electoral Procedure
The back-and-forth history of Convention proposals for selection of the executive shows the Framers intended the selection to be federalist at its core, and thus made the states essential parts of the electoral process. They envisioned that through electors and Congressional delegations, states would represent their own distinct interests without any combination that could improperly affect such representation.[51] Created in the context of the federalism-based compromises that led to the bicameral structure of Congress, the resolution of the Electoral College debate was likewise a compromise between the large and small states. This compromise, which left a strong federalist imprint on the Electoral College, “was the means and price of the formation of the Union,”[52] “without which no Constitution or Union could have been formed.”[53] Thus, when evaluating whether an electoral reform proposal fundamentally alters the Electoral College, principles of 1790s federalism should weigh heavily in any modern analysis.[54]
Despite extensive debate at the Convention over the manner of selection of the executive, the Framers understood that, to achieve the type of executive they desired, the selection process must be federalist in nature; they balanced the process with the desired product.[55] Because “the true test of a good government is its aptitude and tendency to produce a good administration,”[56] the Framers conceded that the Electoral College may not have been appealing and perfect on its own right but, when compared to the other options available, debated, and rejected, was nevertheless the best means to achieve a strong, independent executive selected by states across the nation, who would represent each state’s distinct interests.[57]
It is true that the Constitution allows state legislatures to bind their own slate of electors,[58] but such action still must be compatible with the historical understanding of the electoral procedures in the Constitution, and thus must be consistent with the principles of process and product federalism. One example of this flexibility is state regulation of faithless electors. As a default rule, electors have discretion to be “faithless”—that is, to vote for whomever they choose, regardless of the vote of their state—because nothing in the Constitution, nor its history or spirit, prevents them from doing so.[59] This notion was first suggested by Hamilton in Federalist No. 68 when he described electors as “men most capable of [independently] analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation” who “will be most likely to possess the information and discernment requisite to such complicated investigations.”[60] However, as confirmed by the Supreme Court, states have the authority to take away a potentially faithless elector’s discretion and force her to vote for the candidate the state favored, which is a federalism-based power allowing the states to exert influence on the federal government.[61] As the political safeguards of federalism have weakened, a state’s ability to bind its electors asserts itself as another safeguard, thereby allowing states to exert influence on the federal government[62] because, after all, states are constituent parts of the federal government and “have a great share in [the President’s] appointment . . . .”[63]
States exercising their federalism-based authority to effect a constitutional change is not unprecedented, as seen by the movement that eventually led to the 1913 ratification of the Seventeenth Amendment.[64] However, the Seventeenth Amendment was not a violation of any “finely crafted” electoral procedure. Rather, it was consistent with the Framers’ federalist Constitutional understanding, as well as prior state practice. The Constitution originally provided for selection of senators through state legislatures.[65] The movement for direct popular election of senators began when states reasserted their traditional authority, and in doing so moved towards de facto statewide popular election of senators through nonbinding senatorial primaries or even general elections; this included various forms of pressure on the legislature to act accordingly—similar to the current state laws that bind electors to a state’s popular vote and threaten both civil and criminal penalties for doing otherwise.[66] Then, in 1913, the Seventeenth Amendment, providing for direct election of senators, was ratified.[67]
However, there is a very important distinction to note when applying the federalist principles of the Constitution to review a state’s attempt to effect a particular change in federal election procedures. Unlike the proponents of the NPVIC, the proponents of the Seventeenth Amendment changed how states elected their Senators, but not the fundamentally federalist nature of the Senate. The Seventeenth Amendment movement was effected by forcing state legislatures to look to their statewide elections, similar to how binding of electors occurs today; the Compact would require states’ own electors to disregard statewide elections in favor of the nationwide election, in many cases requiring their electors to contradict the state vote. Moreover, the movement for direct popular election of senators ended with a formal constitutional amendment, and not an interstate compact that bypassed the Constitution’s amendment procedures. For these reasons, although the Constitution, and federalism more generally, may allow state legislatures to bind their electors, how states go about binding their electors must still conform to the Framers’ purpose and principles followed in creating the Electoral College, as revealed through the history and text of both the Convention and the Constitution. After all, “as [the Electoral College] is one of the most important, so it is one of the most intricate provisions of the Constitution . . . .”[68]
II. The National Popular Vote Interstate Compact
The Compact was developed by critics of the Electoral College following the contentious election of 2000, and although its purpose is to create a common–sense approach to presidential elections, the rationales behind its creation, in light of the original understanding of the Electoral College as a finely wrought procedure intended to prevent combination, demonstrate that this approach has unconstitutional implications.
A. Origins and Development of the National Popular Vote Interstate Compact
In the days and months following the chaotic 2000 presidential election, many voters called for electoral reform.[69] Critics of the Electoral College took advantage of the public outrage over the Electoral College and offered several proposals to directly or indirectly eliminate it.[70] One idea these critics came up with was the National Popular Vote Interstate Compact (“the Compact”).[71] Supporters of the Compact lobby state legislatures to pass legislation that would award that state’s electoral votes to the winner of the overall national popular vote; once states possessing an absolute majority of electoral votes (currently at least 270) have passed such legislation, the theory goes, they will effectively create direct popular election of the President.[72] However, the Compact will not go into effect in the compacting states until enacted into law by states with such an absolute majority because no state would voluntarily abdicate its electoral influence without an assurance that the winner of the national popular vote would win in the Electoral College.[73]
First passed by the Maryland General Assembly in 2007, the Compact bill has become law in a total of eleven states plus the District of Columbia,[74] and has been introduced in all 50 states.[75] These states possess 172 electoral votes, thereby needing pledges of an additional 98 electoral votes before the Compact will take effect.[76] Theoretically—although unlikely due to the political makeup of these states—it would take just four more states (Florida, New York, Pennsylvania, and Texas, totaling 116 votes) for the Compact to go into effect, thus illustrating both how minimal state participation needs to be in order to fundamentally alter the federal electoral system, and how close to a constitutional crisis we may be.
B. Arguments for and Against the National Popular Vote Interstate Compact
Compact supporters advance numerous arguments in support of adoption,[77] but three of these arguments in particular are based on faulty rationales that ignore the intentional intricacies of the electoral process.
The main argument made by supporters of the Compact is that the national executive represents a singular constituency, and thus having a direct national popular election where only one vote, as opposed to fifty-one, matters is an intuitive and more common-sense approach to election of the national executive.[78]
Another argument claims that the Electoral College is inherently supposed to mirror the popular vote, and therefore the Compact will prevent “misfires”, in which a President wins the Electoral College, and the Presidency, while losing the national popular vote.[79]
Finally, supporters of the Compact argue that the Compact is consistent with federalism because it is an extension of a state’s “plenary power” to appoint electors and needs no approval, thereby circumventing any constitutional procedures like the Article I, Section 10 Compact Clause or the Article V amendment procedure.[80]
The problems with these arguments are manifold. First, the President explicitly represents not one set of voters, but fifty-one separate groups. Because of the numerous and distinct constituencies that elect the President, some of which have disproportionately greater influence in national affairs due to their size and location, the Framers established a process that was “manifestly nonmajoritarian” to allow for each state’s distinct interests to be represented.[81] The Framers crafted the appropriate process to achieve this product because they understood the importance of that product—an executive who represents the will of the states and not just regional interests.[82] The Framers’ allocation of disproportionate power for small (in population) states confirms their intention for the executive to also represent the small states, not just the large urban centers, whose voters are inherently easier to market to due to their densely packed nature.[83] The Compact would disrupt this delicate balance by urbanizing the presidential election, resulting in an electoral process not focused on a national campaign—still a hallmark of American elections.[84] Without the Electoral College, the federalist compromise achieved at the Convention would be subverted because all that citizens of the less populous states would “see [of the election] is the underside of [the presidential candidate’s] plane on his way to New York or California—if you have a set of binoculars.”[85]
While the state’s power to regulate elections has been described as “plenary,” this one-word descriptor does not resolve the matter because the Compact, like all interstate compacts, is required by the Constitution to be submitted to Congress for approval.[86] But even if Compact supporters went ahead and submitted the Compact for approval to Congress, Congress does not have the legal authority to approve the Compact because Congress cannot approve a compact that accomplishes something that Congress does not otherwise have the power to do.[87] Thus, although the arguments for the Compact may seem compelling on their face, the responses demonstrate how intricate and detailed the electoral procedures are in the Constitution and that, in the end, it is remarkably, and purposefully, difficult to alter procedures of the Electoral College.
Finally, although these previous arguments against the Compact may be compelling and are likely correct, they fail to address one important argument: by promoting combination among the states and effectively resulting in a direct popular vote, the Compact fundamentally alters the Constitution’s finely wrought electoral procedures and thus may only be put into effect through formal Article V amendment procedure.
III. The Court, the Electoral College, and Finely Wrought Constitutional Procedures
The Supreme Court has not had many opportunities to rule on issues relating to attempted state alterations of the electoral process, but in three cases where it reviewed state attempts to alter federal election procedures, the Court noted that both elector discretion and federalism were central pillars to the electoral process, and any alterations going beyond those powers must be effectuated through Article V and not state law. One area the Supreme Court has decisively addressed is legislative alterations of “finely wrought” constitutional procedures, and, although the Supreme Court has never articulated a specific rule or standard to review federal election procedures, this Note argues that because of the intricate nature of election procedures in the Constitution, “finely wrought” is the proper standard. In addition, understanding the Court’s approach to such alterations can be helpful in analyzing the constitutionality of similar alterations to finely wrought procedures such as the Compact.
A. The Court’s (Limited) Treatment of Federal Elections
When states attempt to alter federal election procedures, the Supreme Court reviews “fundamental” changes closely. While it has had trouble in the past defining what “fundamental” means, if a state attempting to transform the electoral system into a national direct election is not fundamental, then nothing is. In this section, I outline the leading Supreme Court cases to analyze what is and is not a justifiable use of state power.
The most notable case is U.S. Term Limits, Inc. v. Thornton,[88] in which Court struck down a state legislative attempt to alter electoral procedures because the legislation went beyond the scope of traditional state powers.[89] The Term Limits Court was reviewing an Arkansas constitutional amendment that altered the electoral process by imposing term limits on Arkansas’ congressional delegation, even though the Constitution imposed no such qualification.[90] The Court held that Arkansas overstepped its traditional power over the electoral process because to “argue otherwise is to suggest that the Framers spent significant time and energy debating and crafting Clauses that could be easily evaded.”[91] Significantly, the Court took note that the electoral process was carefully prescribed by the Framers.[92] Convinced that upholding the legislation “would effect a fundamental change in the constitutional framework”—namely, the electoral process—the Court held that such an alteration must come not by a state law or constitutional amendment, but as other important changes in the electoral process have come—through Article V amendment procedure.[93]
Over a hundred years previously in McPherson v. Blacker,[94] the Court upheld Michigan legislation altering electoral procedures because Michigan’s choice to shift allocation of its electoral votes to a district-based method was within traditional state power.[95] The difference in result here can be attributed to one main distinction: while the changes in Term Limits attempted to change something beyond what is left to state discretion, here the Michigan legislature acted both within its plenary power and consistent with historical practice. The Court found this to be a proper exercise of state power because Michigan’s proposal was not incongruent with the Framers’ explicit intention in designing the Electoral College: many states divided their electoral votes in the Founding era.[96] Moreover, the Court said that the original expectation of the Framers, even if different from actual experience, was that “the electors would exercise a reasonable independence and fair judgment in the selection of the Chief Executive.”[97] In exercising their plenary power to prescribe the method of choosing electors, state legislatures may influence this discretion, but the discretion nevertheless exists and does not disappear because of disuse over time.[98]
Finally, sixty years later in Ray v. Blair,[99] the Court upheld Alabama legislation authorizing state parties to select their nominees for elector in a party primary because, in addition to being a primary and not a general election, such an action was within the state’s traditional power to prescribe electors.[100] Acting on the grant of authority by the new legislation at issue, the Alabama Democratic Party required candidates for elector to pledge that they would support the party’s nominee at the Democratic National Convention.[101] In upholding the pledge in the presidential primary context (and declining to explicitly extend the holding to a general presidential election), the Court reaffirmed the notion that states can remove electors’ discretion as an exercise of state power to select electors as the state sees fit.[102]
In sum, although federal courts have not given extensive treatment to the question of how to treat state legislative attempts to alter finely wrought electoral procedures beyond allocation and appointment of electors, the Supreme Court has disfavored attempts by legislatures to go beyond their traditional state powers to alter the electoral process in general, just as it has employed equal skepticism towards attempted legislative changes to other finely wrought constitutional procedures.[103]
B. The Court’s Treatment of Alterations to Similar and Analogous Finely Wrought Constitutional Procedures
In regard to procedures analogous to the Electoral College, where the Framers took similarly great pains to craft detailed procedures in the Constitution, the Supreme Court has repeatedly defended the Constitutional text and its “finely wrought and exhaustively considered” procedures, and held that they may only be altered through formal Article V amendment.[104]
In INS v. Chadha, the Court relied on the finely wrought bicameralism and presentment requirements of Article I, Section 7, Clause 2 of the Constitution in striking down the one-house legislative veto.[105] Before the Court was federal legislation—in fact, a legislative procedure that was repeated in myriad federal statutes—allowing for the House or Senate, on its own, to veto an executive determination by the Attorney General not to deport a deportable alien.[106] Congress had delegated this authority to the Attorney General, but did not relinquish all of its authority, instead reserving the one-house veto for itself.[107] Respect for the finely wrought Constitutional procedures of bicameralism and presentment—which require every bill to pass both the House and Senate and be presented to the President before becoming law—led the Court to strike down the one-house veto because these requirements represented the significant and carefully-thought-out considerations of the Framers.[108]
In reviewing the constitutionality of the one-house veto, the Court relied heavily on the records of the Convention and the Federalist Papers[109] to reach the conclusion that, because the “Framers were acutely conscious that the bicameral requirement and the Presentment Clauses would serve essential constitutional functions,” the one-house veto could not pass constitutional muster.[110] The Framers “single, finely wrought and exhaustively considered[] procedure” is an integral part of the separation of powers, and may only be changed by Article V amendment of the Constitution.[111] “In purely practical terms, it is obviously easier for action to be taken by one House without submission to the President; but it is crystal clear from the records of the Convention, contemporaneous writings and debates, that the Framers ranked other values higher than efficiency.”[112]
Similarly, in Clinton v. City of New York, which again presented the question of whether to defer to detailed constitutional procedures over efficiency, the Court struck down the Line Item Veto Act of 1996 as inconsistent with legislative procedures detailed by the Framers.[113] The Act gave the President the authority to cancel individual provisions in bills passed by Congress when signing the rest of the bill into law.[114] Citing to Chadha, the Court found the line item veto disrupted a “finely wrought” procedure (the Presentment Clause) because the line item veto, however efficient, evaded the Framers’ design—as evidenced by the debates and compromises of the Convention—by allowing the President to sign a bill into law in a form never voted on by either house.[115] The Court said that “f there is to be a new procedure in which the President will play a different role in determining the final text of what may ‘become a law,’ such change must come not by legislation but through the amendment procedures set forth in Article V.”[116]
In conclusion, Chadha and City of New York demonstrate that the Supreme Court strongly disfavors state and federal attempts to modify constitutionally required procedures because such actions circumvent the Constitution’s Article V amendment process. In these cases, the Court found that although some legislation may seem more common-sense in its efficiency, efficiency or, for that matter, one state’s view of common sense does not allow for fundamental alterations to procedures the Framers carefully crafted in their effort to produce a strong and principled government. “With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.”[117]
IV. The Compact Is a Constitutional Crisis in Waiting
The states that have joined the National Popular Vote Interstate Compact may only accomplish their objective through a formal constitutional amendment because the Compact subverts the electoral system by undermining the finely wrought procedures of the Electoral College. In doing so, it alters the very essence of the compromise that precipitated the Constitution itself. Even though state legislatures have the power to bind their electors to the winner of that individual state’s popular vote, they must do so in a constitutionally permissible manner.[118] By binding a state’s electors to the winner of the national popular vote, the Compact promotes combination among the states, rather than within today’s party systems, and effectively results in a direct popular election that can be decided by as little as eleven states.[119] In doing so, the Compact fundamentally alters the Constitution’s finely wrought electoral procedures, and results in a product directly contrary to what the Framers intended the Electoral College to produce. When viewing the Compact against the background of the historical evidence from both the Convention and the subsequent ratification debates, the evidence of the Framers’ intent strongly supports this conclusion.
A. The Compact Promotes Combination Among the States, Running Counter to the Deeply Federalist Product Intended by the Framers
Although it pays lip service to prior delineations of state authority, the Compact fundamentally alters the product the Framers intended in the design of the Electoral College because it requires combination among the states. For the Compact to succeed in its explicit goal to create a direct national popular election,[120] the compacting states must agree to ignore the interests of their own state and voters. These states must abdicate their responsibility to actively participate in the electoral process and surrender complete and total control of their electors to the control of the national polity, thereby voting for whomever secures a plurality of votes in the national popular vote total, even if that candidate did not win the popular vote in that individual state. This is the epitome of combination among the states: under the Compact’s terms, electors will look not at their own state’s distinct interests, nor the will of their own state’s voters, but instead to the national polity to decide who to vote for, even if their state dramatically rejected that candidate. This alternative design flagrantly contradicts the will of the Framers, who—unlike the proponents of the NPVIC—pushed through their Constitution with a broad base of support that the NPVIC’s drafters would envy. At the Convention, the Framers rejected both a direct popular election and election by the national legislature in favor of an electoral system that reflects the overall federalism-focused compromise essential to achieving the final constitutional framework. Thus, the Compact’s requirement of combination is constitutionally troublesome as it produces precisely the product and precisely the type of executive the Framers explicitly and deliberately sought to avoid.
The Compact, by focusing strictly on the means to justify the ends—in sharp contrast to the Framers, who valued product over process[121]—is directly contrary to the Framers’ intentions and, had it been proposed at the Convention, would most likely have been rejected nearly unanimously. The Framers deliberately crafted an electoral system that would allow states, especially small states, to exert influence on the election of the executive; after all, a foundation of the entire constitutional structure, and one of the political safeguards of federalism entrenched in the Constitution, is the disproportionate influence small states have on the federal level.[122] As has been discussed at length above, the Framers envisioned that states, through their electors, would cast electoral votes for the candidate best suited to their state interests on the same day through secret ballot, thus ensuring a national executive elected without combination of foreign or domestic powers: one who would be responsive to all states and not just the densely populated cities.[123] Instead, the Compact not only allows for but in fact requires electors to disregard their state’s interests, binding them to the will of a national plurality. This is counter to the Framers’ intent because, as with the structure of the national legislature, the evidence from the Convention shows the Framers wanted each individual state to have influence and input on the federal government as a safeguard of federalism—this time through electors of their own who would represent the distinct views of their individual state.[124]
Some may argue that combination among the states was not one of the Framers’ central fears—or that even if it was, it is no longer relevant today because of the rise of frequently regional political parties.[125] However, the historical context of the adoption of the Constitution demonstrates why fear of combination was a strong motivation at the Framing and remains so today. Even within the modern party system, presidential elections are run at the state level. State parties organize their state’s slate of electors through the primary system, and when the time comes to vote in the Electoral College, most electors—out of either trust or compliance with state law—vote as a unit in accordance with the outcome of the popular vote within their own state—paying no regard to the popular vote of voters beyond their own state’s borders.[126] If this political party action is combination, it is expressly within the state, whereas the Framers were worried about long-term combination among the states that surrendered sovereignty to some authority besides the United States. These disfavored combinations resembled diplomatic alliances, as opposed to today’s working arrangements. The Framers’ Constitution incentivizes cooperation, but not combination. If state preferences frequently do not change, it is merely an incidental outgrowth of states making rational decisions on their own, based on their own local priorities and challenges. Therefore, even though political parties and the political machine did not exist at the Founding,[127] the combination argument still governs because the Framers were worried about combination among the states, not within a state.
It is axiomatic that the Framers crafted the Constitution in light of their experience under the Articles of Confederation, which threatened to pit the nation into divided and competing rivals through interstate alliances.[128] They hoped to eliminate any possible domestic combination by crafting intricate electoral procedures. It was the threat of interstate alliances, not intrastate alliances, that was a major impetus for the Convention and the ensuing procedural safeguards drafted into the Electoral College. Thus, there is a fundamental flaw in the argument that the Electoral College’s role in preventing combination is somehow anachronistic.
Furthermore, even if today’s political party context has given rise to genuine combination, the Compact, as even its supporters admit,[129] takes combination to an entirely new level and still attempts to convert the Electoral College into a direct national popular election.[130] There is no question that this is unconstitutional and completely against the Framers’ intent, or for that matter any conceivable public meaning of the Constitution. The Framers discussed this proposal twice and almost unanimously struck it down each time as troublesome because it would not produce the “good government” they sought to achieve.[131] Thus, it is clear that the Compact would then be a fundamental alteration of the electoral procedures beyond a state’s traditional powers.
B. The Compact Exceeds Traditional State Electoral Powers, As Outlined by Supreme Court Precedent
The authority exercised under the Compact is beyond a state’s power to alter the electoral process because it fundamentally alters the procedures and result intended by the Framers, similar to the state constitutional provision struck down in Term Limits. Moreover, unlike the Compact, the actions upheld in McPherson and Ray dealt with the allocation and appointment of electors, powers traditionally within a state’s authority as confirmed through historical practice.
As in Term Limits, when the state legislatures passed legislation imposing term limits on members of the U.S. House and Senate. The Court there struck down the legislation because it resulted in a “fundamental change in the constitutional framework” that the Framers had carefully prescribed.[132] Because the Compact achieves the same fundamental change in the carefully prescribed electoral process as in U.S. Term Limits, it too must be effectuated using Article V and not state law.
The Compact runs counter to the holdings in McPherson and Ray because in those cases, even when affirming the state alterations at issue, the Court identified consistent historical practice and traditional state powers. The Supreme Court in McPherson upheld electoral reform because Michigan’s proposal to shift allocation of electoral votes to a district method was consistent with the Framers’ intentions, as shown through identical historical practice in the Founding era.[133] Here, the movement for a Compact, while retaining the façade of the traditional Electoral College framework, explicitly moves to contradict the Framers’ intent while also upending the compromise that was necessary for an agreement to be reached and a nation to formed. The Framers intended for a federalism-based electoral process made of states as unique constituent parts of the nation, where electors would cast their votes individually, on behalf of their state’s distinct interests, for one federal Executive who necessarily must be viewed favorably by enough of the states across the nation so as to garner the support of a majority of the distinct constituencies that make up the republic.[134] Thus, the Compact is inconsistent with historical practice because it envisions the polity as one unified constituency with essentially identical interests in all relevant respects, disregards our federal structure, and results in an executive who is unrepresentative of all but the densely populated urban areas of the country, thereby exercising power beyond a state’s constitutional grant of authority.
C. The Framework for Courts to Prevent the Compact from Taking Effect
Should a federal court be faced with litigation challenging the Compact after 270 electoral votes are pledged and the Compact takes effect, the court should strike down the Compact as unconstitutional by applying analysis similar to that applied in INS v. Chadha and Clinton v. City of New York—also known as the finely wrought standard. The Compact is the epitome of a fundamental alteration of the finely wrought electoral procedures laid out by the Framers—it promotes combination among the states and not within a state, effectively resulting in a direct popular election, both of which are results the Framers deliberately sought to avoid by prescribing detailed electoral procedures. A federal court should not take such an audacious encroachment on the Constitution lightly.
The Electoral College procedure, which “is one of the most important” and “most intricate provisions of the Constitution,”[135] is as “finely wrought and exhaustively considered”[136] as the constitutional procedure at issue in Chadha and City of New York—the Bicameralism and Presentment Clauses—and thus must be defended by the courts with equal skepticism to any attempted modifications. As this Note demonstrates, the Framers paid a great deal of attention at the Convention and closely detailed the procedures in both the Bicameralism and Presentment Clause and the electoral provisions. Additionally, the Bicameralism and Presentment Clause ensures the proper deliberation on bills as well as separation of powers.[137] The Electoral College procedures ensure the proper product is produced such that the Executive represents each individual state’s interests and not just the interests of the national legislature or the densely populated areas of the nation. Thus, both procedures are important structural pillars to the federal system and must be scrupulously followed.
For these reasons, if the Compact receives 270 pledged electoral votes and is set to take effect, courts must follow the Constitution and apply the standard set forth in Chadha and City of New York to strike down the Compact, thereby preventing the Compact from fundamentally altering the Electoral College, “a finely wrought and exhaustively considered”[138] provision of the Constitution. Courts faced with such a challenge, by applying the finely wrought analysis, should find that, because the Compact attempts to impose a “fundamental change in the constitutional framework,”[139] it must not be effectuated by a state legislature but instead by formal Article V amendment procedure. “To argue otherwise is to suggest that the Framers spent significant time and energy debating and crafting Clauses that could be easily evaded.”[140]
Conclusion
The National Popular Vote Interstate Compact is a threat to our electoral system that must be stopped. Although it will not become an active threat until the compacting states possess 270 electoral votes, at that point the judiciary should prevent the supporters of this movement from exerting their influence over the rest of the states through this de facto amendment to the Constitution. States cannot be allowed to bind electors as the Compact envisions, even though they have the general authority to bind electors. Article II and the Twelfth Amendment contain finely wrought electoral procedures that were given exhaustive consideration by the Framers, and these procedures can only be altered by Article V procedure—the nature of which was also something the Framers took extremely seriously. Instead, the Compact promotes combination among the states and effectively creates a direct popular election, each of which were results considered and strongly disfavored by the Framers. In fact, the Framers sought to prevent such results from happening at all costs. Instead, they aimed to produce a more desirable product in a national executive who would represent the interests of states, both large and small, from across the nation. The broader federalism-based compromise, which allowed for the Constitution to be adopted, hinged on agreements like the Electoral College, and supporters of the Compact seek to scrap this compromise in direct opposition to what the Framers deliberately intended. A constitutional crisis lurks in the shadows of future presidential elections, and the potential power to avert it lies in the hands of the judiciary.
[*] J.D. with high honors 2018, George Washington University Law School. B.A. 2015, University of Notre Dame. The author would like to thank Bradford Clark, William Cranch Research Professor of Law at the George Washington University Law School, and the Harvard Journal on Legislation staff, particularly Winston Shi, for their helpful comments during the developmental stages and editing process of this Note.
[1] Derek T. Muller, Invisible Federalism and the Electoral College, 44 Ariz. St. L.J. 1237, 1292 (2012).
[2] David Von Pein’s JFK Channel, ELECTION NIGHT 1960 (NBC–TV COVERAGE), YouTube (Aug. 20, 2013), http://www.youtube.com/watch?v=XtOuIqHi8ns [https://perma.cc/L3SW-ENJZ].
[3] William Whitworth, An Accident of Casting, The New Yorker, Aug. 3, 1968, at 34, 34.
[4] See 1960 Presidential Election Returns, John F. Kennedy Presidential Library and Museum (last visited Apr. 11, 2017), http://www.jfklibrary.org/Asset-Viewer/ipKAdxZ-bECxT2SMX3VolA.aspx [https://perma.cc/KQW7-XJXG]. (counting 34,226,731 popular votes for Kennedy to 34,108,157 votes for Nixon).
[5] Id.
[6] This is a term of art used repeatedly in this Note, and it is derived from two Supreme Court cases in particular: INS v. Chadha, 462 U.S. 919, 951 (1983) and Clinton v. City of New York, 524 U.S. 417, 439 (1998). Although the Supreme Court’s concept of “finely wrought” will be addressed in greater detail later, it is important for the reader to understand at the outset the importance of the standard the Court required when it found the provisions were “finely wrought.” “Finely wrought” are Constitutional provisions that were “the product of the great debates and compromises that produced the Constitution itself,” and thus were specifically detailed in the Constitution. City of New York, 524 U.S. at 439. Fundamental alterations of such closely detailed, finely wrought provisions, the Court found, must be made through the Article V amendment process, not legislation. Id. at 449.
[8] See, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 837–38 (1995).
[9] Status of National Popular Vote Bill in Each State, National Popular Vote, http://www.nationalpopularvote.com/state-status [https://perma.cc/BH58-CRWJ] (last visited July 22, 2018).
[10] See Akhil Reed Amar and Vikram David Amar, How to Achieve Direct National Election of the President without Amending the Constitution, FindLaw (Dec. 28, 2001), http://supreme.findlaw.com/legal-commentary/how-to-achieve-direct-national-election-of-the-president-without-amending-the-constitution.html [https://perma.cc/HGJ6-LZSW].
[11] See discussion infra Sections I.A and I.B. (discussion on combination among the states).
[12] See discussion infra Section I.C. (discussion on federalist principles underlying the Electoral College).
[13] This Note is not a policy paper arguing for or against the Electoral College, or for or against direct popular election of the President. This Note simply focuses on the constitutional implications of reform sought through the channel of the Compact, as opposed to the Article V process. Although this Note will touch upon arguments previously advanced for and against the Compact, it is not a critique of them because the thesis of this paper is that even if all the current arguments for the Compact are right, the Compact would still be unconstitutional.
Currently existing arguments against the Compact include: it violates the Article IV Guarantee Clause; violates the Article I, Section 10 Compact Clause; and would violate the Constitution if Congress gives the Compact approval because they cannot do through Compact Clause approval what they cannot do through legislation. For a broader discussion of these other arguments against the Compact, see Tara Ross & Robert M. Hardaway, The Compact Clause and National Popular Vote: Implications for the “Federal Structure,” 44 N.M.L. Rev. 383, 422–432 (2014).
[14] See Norman R. Williams, 2012 BYU L. Rev. 1523, 1539–1559 (providing a more in-depth description of the evolution of the Electoral College at the Federal Convention).
[15] See infra Sections I.A and I.B.
[16] See Amar, supra note 10.
[17] See Robert M. Hardaway, The Electoral College and the Constitution: The Case for Preserving Federalism 69–70 (1994).
[18] See id.
[19] See id.
[20] See id. at 70–71 (noting that at that time, the British were also undermining the Confederation Congress’ trade talks in the hope that the Americans would fall apart economically and rejoin the Empire).
[21] See id. at 70 (quoting George Washington’s apt description: “Thirteen sovereignties pulling against each other.”).
[22] See Williams, supra note 14, at 1539–59.
[23] See Letter from James Madison to Henry Lee (Jan. 14, 1825), in 9 The Writings of James Madison 215, 217 (Gaillard Hunt ed., 1910).
[24] See generally Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 543–44 (1954) (“They preserved the states as separate sources of authority and organs of administration—a point on which they hardly had a choice. They gave the states a role of great importance in the composition and selection of the central government. They undertook to formulate a distribution of authority between the nation and the states, in terms which gave some scope at least to legal processes for its enforcement.”).
[25] For a discussion on changes in the law that have somewhat depleted the original political safeguards of federalism, see Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex. L. Rev. 1321, 1367–72 (2001).
[26] See infra note 28 (general overview of the proposals and votes at the Convention).
[27] James Madison, Notes on the Constitutional Convention, in 1 The Records of the Federal Convention of 1787, at 81 (Max Farrand ed., 1911) (“Farrand”).
[28] The proposals and votes at the Federal Convention that led to the adoption of the Electoral College demonstrate that the mode of selection of the national executive was one of the Framers’ most hotly contested and highly considered decisions. See infra note 34 and accompanying text and table.
[29] See James Madison, Notes on the Constitutional Convention, in 2 Farrand, supra note 27, at 22 (nine states voted against direct popular election on July 17, 1787); James Madison, Notes on the Constitutional Convention, in 2 Farrand, supra note 27, at 402 (another nine states voted against direct popular election on August 24, 1787).
[30] Id. at 29–31 (remarks of Gouverneur Morris).
[31] See id.
[32] See supra note 29.
[33] See supra notes 28–29; see also infra note 34 and accompanying text and table.
[34] James Madison, Notes on the Constitutional Convention, in 2 Farrand, supra note 27, at 497–98 (September 4, 1787, proposal from Committee of Eleven); id. at 525–26 (September 6, 1787, vote on the Committee of Eleven’s proposal).
[35] See infra Section I.C (discussion on the focus of the Framers).
[36] See Wechsler, supra note 24, at 553–57.
[37] U.S. Const. art. II, § 1 (emphases added to the portions most important to this discussion).
[38] U.S. Const. amend. XII (emphases added to the portions most important to this discussion). Although some of the language in the Twelfth Amendment is different than the original text of the Constitution, for all purposes relevant to this discussion the Twelfth Amendment mirrors the text of U.S. Const. art. II, § 1.
[39] Rufus King in the Senate of the United States (Mar. 18, 1824), 3 Farrand, supra note 27, at 462 (“The election is directed to be made in all the different States on the same day, and the Electors are permitted to make but one attempt at a choice. These provisions of the Constitution were adopted for the express purpose of preventing combinations . . . .”).
[40] See id.
[41] Federalist No. 68, at 190 (Alexander Hamilton) (Michael A. Genovese ed., 2009).
[42] Charles Pinckney in the United States Senate (Mar. 28, 1800), 3 Farrand, supra note 27, at 386 (“the vote should be taken in such manner, and on the same day, as to make it impossible for the different States to know who the Electors are for, or for improper domestic, or, what is of much more consequence, foreign influence and gold to interfere . . . .”); see also Rufus King in the United States Senate (Mar. 20, 1816), 3 Farrand, supra note 27, at 422 (“[T]he men selected by the people from their own body would give their votes in such a manner as that no opportunity would be afforded for a combination, to change the freedom and popular character which naturally belonged to the electoral bodies.”); Rufus King in the United States Senate (Mar. 18, 1824), 3 Farrand, supra note 27, at 461 (“[B]y apportioning, limiting, and confining the Electors within their respective states, and by the guarded manner of giving and transmitting the ballots of the Electors to the Seat of Government, that intrigue, combination, and corruption, would be effectively shut out, and a free and pure election of the President of the United States made perpetual.”).
[43] The Framers also extended this concern about improper combination to contingent House elections, see U.S. Const. amend. XII., when the Electoral College produced no victor. As Charles Pinckney explained with respect to the Constitutional safeguards for the contingent House election, where the members of Congress could be swayed be improper interests, both foreign and domestic:
the question then arose, how was this election to be guarded to prevent, as far as human prudence could, improper domestic combinations, or, what is infinitely worse, foreign interference? . . . It is expected and required by the Constitution, that the votes shall be secret and unknown, until opened in the presence of both Houses.
Charles Pinckney in the United States Senate (Mar. 28, 1800), 3 Farrand, supra note 27, at 389–90. The Framers understood this possibility, and addressed it in the Constitution through ballot secrecy and the temporal immediacy of the contingent election, id. at 390:
Wisely foreseeing this, the Constitution expressly orders that the Electors shall vote by ballot; and we all know, that to vote by ballot is to vote secretly; that the votes shall be sealed up, and not opened until the day appointed by law, and that if no election has been made by the Electors, an immediate one shall take place by the House of Representatives . . . that they [Congress] shall not have authority to adjourn for one moment, but shall instantly and on the spot, in case of no election by the Electors, proceed to the choice of a President, and not separate until it is determined.
[44] See supra note 43.
[45] U.S. Const. art. II, § 1; U.S. Const. amend. XII.
[46] See supra note 43 (excerpted Pinckney text).
[47] See id.
[48] See id.
[49] Immediately is defined as: “Without the intervention of any other cause or event; opposed to mediately.” Immediately, Webster’s Dictionary (1st ed. 1828). Conversely, mediately is defined as “By means or by a secondary cause, acting between the first cause and the effect.” Mediately, Webster’s Dictionary (1st ed. 1828).
[50] Statement of Charles Pinckney, present at the Federal Convention:
The best and most generally admired expounders of the English language, give this explanation of the word immediately; they say it means “instantly”– at the present time– without delay. This is the meaning the framers of the Constitution intended to give it, and it admits of no other. The plain, express, literal direction of that instrument therefore is, that in case of no election, the House of Representatives, voting by States, are immediately, that is instantly, and on the spot, without leaving the House in which they are then assembled, and without adjournment, to choose . . . who is to be the Executive.”
Charles Pinckney in the United States Senate (Mar. 28, 1800), 3 Farrand, supra note 27, at 389.
[51] See The Federalist No. 45, at 98 (James Madison) (Michael A. Genovese ed., 2009) (“The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. . . . Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment . . . .”).
[52] Wechsler, supra note 24, at 543.
[53] Rufus King in the United States Senate (Mar. 18, 1824), 3 Farrand, supra note 27, at 462.
[54] Over 700 proposals to reform or eliminate the Electoral College have been introduced in Congress. Thomas H. Neale, Cong. Research Serv., R43823, The National Popular Vote Initiative: Direct Election of the President by Interstate Compact 1 (Dec. 12, 2014). Of those 700, over 100 proposed direct election of the President as the alternative. Hardaway, supra note 17, at 156.
[55] See Gary L. Gregg II, The Origins and Meaning of the Electoral College, in Securing Democracy: Why We Have an Electoral College, at 15–16 (Gary L. Gregg II ed., 2001).
[56] The Federalist No. 68 (Alexander Hamilton), at 191 (Michael A. Genovese ed., 2009).
[57] See Gregg, supra note 55, at 15–16.
[58] See Bush v. Gore, 531 U.S. 98, 104 (2000) (finding that state legislature have “plenary” power to choose the manner of elector appointment because an “individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college.”) (citing McPherson v. Blacker, 146 U.S. 1, 35 (1892))
[59] This Note is not meant to argue for or against faithless electors, as this could be an entire law review article in and of itself. Instead, this Note accepts this conclusion—that absent state regulation, electors could be faithless—as a necessary premise, because the Compact requires states to bind their electors. For an example of an argument for faithless electors, see Stephen M. Sheppard, A Case for the Electoral College and for Its Faithless Elector, 2015 Wisc. L. Rev. Online 1, 7–11 (2015).
[60] The Federalist No. 68 (Alexander Hamilton), at 189 (Michael A. Genovese ed., 2009).
[61] In fact, many states currently have laws binding their electors to the winner of that individual state’s popular vote.
See State Control of Electors, FairVote, (last visited Apr. 11, 2017), http://archive.fairvote.org/?page=967 [https://perma.cc/4CR7-USE7]. See generally Ray v. Blair, 343 U.S. 214, 230–31 (1952), infra note 99–102 and associated text (confirming Alabama’s authority—at least for presidential primaries—to, through the Alabama Democratic Party, force electors to pledge to vote for the party’s nominees before being certified for the Democratic National Convention).
[62] See generally Wechsler, supra note 24; Clark, supra note 25.
[63] The Federalist No. 45 (James Madison), at 98 (Michael A. Genovese ed., 2009). (“The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the state legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it.”).
[64] For a highlight of the movement, see George H. Haynes, The Election Of Senators 133–48 (1906) (detailing past examples where voters brought their weight to bear on senatorial elections through states).
[65] U.S. Const. art. I, § 3, cl. 1 (previously reading “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof . . .”).
[66] See Haynes, supra note 64.
[67] U.S. Const. amend. XVII.
[68] Rufus King in the United States Senate (Mar. 18, 1824), 3 Farrand, supra note 27, at 462. In further support of this argument, see generally Ross & Hardaway, supra note 13, at 430; Tara Ross, Legal and Logistical Ramifications of the National Popular Vote Plan, 11 Engage 37, 37–43 (Sept. 2010).
[69] See, e.g., Tom Hamburger and Joni James, Electoral College Picks Bush, Faces an Uncertain Future, Wall St. J., Dec. 19, 2000, http://www.wsj.com/articles/SB977159215541437555 [https://perma.cc/44RV-8T8K] (detailing proposal of Sen. Dick Durbin and Rep. Ray LaHood); John Harwood, Fixing the Electoral System: Lessons From States Hold Hope for Reform, Wall St. J., Dec. 22, 2000, http://www.wsj.com/articles/SB97743802252037601 [https://perma.cc/5TAH-AB92]. But see Editorial, The Case for the Electoral College, N.Y. Times, Dec. 19, 2000, http://www.nytimes.com/2000/12/19/opinion/the-case-for-the-electoral-college.html [https://perma.cc/L789-454W]. Electoral reform fervor again reached fever pitch following the 2016 election, which saw President Donald J. Trump win the election with a deficit in the national popular vote of nearly three million votes, see, e.g., Editorial, Time to End the Electoral College, N.Y. Times, Dec. 19, 2016, https://www.nytimes.com/2016/12/19/opinion/time-to-end-the-electoral-college.html [https://perma.cc/8V82-EPPW], but it is still too early to tell whether support of the Compact will grow in enough states to put the Compact into effect, see, e.g., Jonathan Mahler and Steve Eder, The Electoral College Is Hated by Many. So Why Does It Endure?, N.Y. Times, Nov. 10, 2016, http://www.nytimes.com/2016/11/11/us/politics/the-electoral-college-is-hated-by-many-so-why-does-it-endure.html [https://perma.cc/DYD9-2XEZ].
[70] See discussion supra note 54; Williams, supra note 14, at 1535.
[71] The Compact was first suggested by Robert Bennett in 2000, who elaborated on his proposal in 2006, see Robert Bennett, Taming the Electoral College (2006). The Amar brothers, both law professors, are the other intellectual founders of this idea. See generally Amar & Amar, supra note 10.
[72] For the text of the Compact, see National Popular Vote, supra note 9.
[73] See id.
[74] These states are: California, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, Vermont, and Washington, in addition to the District of Columbia. National Popular Vote, supra note 9.
[75] See Neale, supra note 54, at 9.
[76] See National Popular Vote, supra note 9.
[77] For reasons in support of the Compact, see Bennett, supra note 71. For an article highlighting the failings of the Compact, see Williams, supra note 14, at 1540–62.
[78] See Explanation, National Popular Vote, supra note 9.
[79] See National Popular Vote, supra note 9. Such “misfires” occurred in the 2000 election of President George W. Bush and the 2016 election of President Donald J. Trump, leading to calls to abandon the Electoral College in some way. See supra note 69 (citing articles on the 2000 and 2016 election reactions).
[80] For a more in depth discussion of arguments in support of the Compact, see John R. Koza et al., Every Vote Equal: A State-based Plan for Electing the President by National Popular Vote (3d ed. 2011).
[81] See Williams, supra note 14, at 1573.
[82] See supra Section I.C. (on the Framers’ emphasis on product over process)
[83] For a discussion of states’ nature as distinct political communities, which then necessitates that presidential candidates be supported for national, not regional, reasons, see James R. Stoner Jr., Federalism, the States, and the Electoral College, in Securing Democracy: Why We Have an Electoral College, supra note 55, at 43–54.
[84] See Hans von Spakovsky, Destroying the Electoral College: The Anti–Federalist National Popular Vote Scheme, The Heritage Foundation (October 27, 2011), http://www.heritage.org/election-integrity/report/destroying-the-electoral-college-the-anti-federalist-national-popular [https://perma.cc/MDX8-TWJY]; Williams, supra note 14, at 1578–79.
[85] Robert M. Alexander, Presidential Electors and the Electoral College: An Examination of Lobbying, Wavering Electors, and Campaigns for Faithless Votes 171 (2012) (describing interview with elector, Apr. 16, 2004).
[86] For the “plenary” descriptor, see Bush v. Gore, 531 U.S. 98, 104 (2000) (describing the state’s power to regulate elections in comparison to the individual voter). See also U.S. Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452, 472–73 (1978) (outlining three factors for evaluating whether a multistate compact violates federalism: (1) whether the compact gives a member state new political power; (2) whether the compact delegates sovereign power; and (3) whether the compact allows states to withdraw at any time); Ross & Hardaway, supra note 13, at 422–29 (arguing that the NPVIC implicates the first and third U.S. Steel factors).
[87] For a discussion of numerous critiques of the Compact, see Ian J. Drake, Federal Roadblocks: The Constitution and the National Popular Vote Interstate Compact, 44 Publius: The Journal of Federalism 681, 681–82, 692–93, which argues that approval of an interstate compact “transforms an interstate compact within [the Compact] Clause into a law of the United States,” and thus Congress can only approve an interstate compact if it already possesses the power to enact the agreement on its own initiative under the Constitution.). And with regard to the Electoral College, Congress is only allowed to set the date and time of the initial vote. See McPherson v. Blacker, 146 U.S. 1, 35 (1892).
[88] 514 U.S. 779 (1996).
[89] See id. at 831.
[90] See id. at 783.
[91] Id. at 831.
[92] See id. at 832 (“Petitioners would have us believe, however, that even as the Framers carefully circumscribed congressional power to set qualifications, they intended to allow Congress to achieve the same result . . . .”).
[93] Id. at 837.
[94] 146 U.S. 1 (1892); see also id. at 26 (emphasizing that district-based election was still “the expression of the voice of the state”)
[95] See id. at 24.
[96] See id. at 26 (noting that the validity of district-based apportionment, once “usual[],” “has never been doubted”).
[97] Id. at 36.
[98] See id. at 35.
[99] 343 U.S. 214 (1952).
[100] See id. at 214–15.
[101] See id. at 215.
[102] See id. at 227–30.
[103] See, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1996); Clinton v. City of New York, 524 U.S. 417, 439 (1998); INS v. Chadha, 462 U.S. 919, 951 (1983).
[104] See City of New York, 524 U.S. 417, 439; Chadha, 462 U.S. at 951.
[105] Chadha, 462 U.S. at 952.
[106] See id. at 919.
[107] See id. at 923.
[108] See id. at 959.
[109] See id. at 946–51 (citing, 1 Farrand, supra note 27, at 99–104 (debate concerning override of Presidential veto); 1 Farrand, supra note 27, at 176–77 (debate concerning election of the President); 1 Farrand, supra note 27, at 484–91 (debate concerning equal allotment of Senators); 1 Farrand, supra note 27, at 254 (speech of James Wilson); 2 Farrand, supra note 27, at 301–02 (speech of James Madison); The Federalist Nos. 22 (Alexander Hamilton); 51 (James Madison), 62 (James Madison), 73 (Alexander Hamilton).
[110] Id. at 951.
[111] Id.
[112] Id. at 958–59.
[113] Clinton v. City of New York, 524 U.S. 417, 421 (1998).
[114] See id. at 421.
[115] See id. at 439–40.
[116] Id. at 449.
[117] INS v. Chadha, 462 U.S. 919, 959 (1983).
[118] See supra Section I.C.
[119] See Amar, supra note 10.
[120] See Explanation, National Popular Vote, supra note 9.
[121] See supra Section I.C.
[122] See supra notes 22–24 and accompanying text for a discussion on the disproportionate influence of small states.
[123] See supra Section I.C.
[124] See id.
[125] For an argument on how the rise of political parties, which were not in existence at the Founding, intrudes upon traditional federalism, see James A. Gardner, The Myth of State Autonomy: Federalism, Political Parties, and the National Colonization of State Politics, 29 J.L. & Pol. 1, 68 (2013).
[126] See supra note 59 (for a discussion on elector voting discretion, especially faithless electors).
[127] See supra note 125.
[128] See supra notes 17–25 and accompanying text (discussion of the historical context pre–Convention, specifically the commercial alliances).
[129] See Explanation, National Popular Vote, supra note 9.
[130] While it is beyond the scope of this Note to argue for or against a general direct popular vote as a matter of policy, whether achieved through the Compact or constitutional amendment, there are a few legal issues that such a manner of election could present. A direct popular election could implicate the Guarantee Clause of Article IV, Section 4, which guarantees a “Republican Form of Government.” See U.S. Const. art. IV, § 4. Additionally, because of varying voter qualifications and voting systems throughout the states, a direct popular election could violate the Equal Protection Clause of the Fourteenth Amendment. See U.S. Const. amend. XIV. For a broader discussion of these other arguments against the Compact, see Ross & Hardaway, supra note 13, at 422–30.
Most relevant to this Note’s discussion, a direct popular vote would establish what even the Framers, when they addressed the proposal just twice and struck it down with near unanimous support both times, found to be a troubling mode of selection of the executive. See supra note 29 and accompanying text (noting that direct popular vote was the least favored mode of selection of the executive, as seen by the 9-1 and 9-2 votes rejecting it).
[131] See supra Section I.C; supra note 29 and accompanying text (noting that direct popular vote was the least favored mode of selection of the executive); supra note 28 (detailing the back and forth debate at the Convention on the manner of selection of the executive).
[132] See U.S. Term Limits v. Thornton, 514 U.S. 779, 837 (1996).
[133] See McPherson v. Blacker, 146 U.S. 1, 26 (1892).
[134] See Gregg, supra note 55, at 15–16; supra Section I.C.
[135] Rufus King in the Senate of the United States (Mar. 18, 1824), 3 Farrand, supra note 27, at 462. In further support of this argument, see generally Ross & Hardaway, supra note 13, at 430; Ross, supra note 68.
[136] See Clinton v. City of New York, 524 U.S. 439 (1998); INS v. Chadha, 462 U.S. 919, 951 (1983).
[137] Chadha, 462 U.S. at 946, 959.
[138] See; id. at 951; City of New York, 524 U.S. at 439.
[139] U.S. Term Limits v. Thornton, 514 U.S. 779, 837 (1996).
[140] Id. at 831.