Sturm College of Law
NVP, Popular vote, Federalism, Pure democracy, Fourteenth Amendment, Equal protection
The Electoral College is a vital part of the Founders' federalist Constitution. NPV pretends to be in line with this federalist structure, but its claims are disingenuous. In reality, NPV would destroy the federalist nature of the presidential election process. A system that today operates as a combination of democracy and federalism would change: It would instead operate as pure democracy. This change from federalism to pure democracy would be made even if a majority of states disapproved. As a policy matter, eliminating federalism from the presidential election process will have many practical consequences that make such a change inadvisable. However, the disruption of federalism also has several legal ramifications that cannot be ignored. NPV's compact may not withstand scrutiny under Articles II, IV and V of the Constitution. It may also fail the Equal Protection requirements in the Fourteenth Amendment. But assuming it survives these challenges, it will also run into problems with Article I, Section 10 of the Constitution. The Compact Clause's requirement of congressional approval will apply to this compact even under today's lenient U.S. Steel standard. If NPV's compact is eventually presented to Congress for approval, Congress should decline to give its consent. Such radical change should never be made through a simple interstate compact and bare majorities in Congress. If this change is to be made, it should be made with the full cooperation and knowledge of the American people. The constitutional amendment process would require widespread debate and acquiescence before federalism is eliminated from the presidential election system. The Founders would have expected nothing less.
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Tara Ross & Robert M. Hardaway, The Compact Clause and National Popular Vote: Implications for the Federal Structure, 44 N.M. L. REV. 383 (2014).