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Defending the Electoral College and the Constitution since 2009

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NPV founder having second thoughts?
Trent England • Nov 18, 2019

Fifteen states have joined an agreement that would fundamentally change how the President of the United States is elected. Under the terms of the National Popular Vote interstate compact (NPV), state governments would ignore their own state voters and instead give away their electoral votes based on the national vote. While the Constitution was written to prevent a direct election of the President, NPV would hijack the Electoral College to do exactly that.

This is no pie-in-the-sky idea: NPV is 73 percent of the way to taking effect. This happens if states worth a majority of electoral votes (270) join the compact. Right now, the 15 states plus DC that have joined NPV control 196 electoral votes (Coloradans will vote next year on whether to stay in the compact or not).

The idea of NPV was developed after Al Gore’s loss in 2000 by law-professor brothers Akhil Reed Amar and Vikram David Amar. But one of these anti-constitutional founding fathers is having cold feet. At a recent event in Florida, Vikram Amar admitted that, under current federal and state laws, NPV would not produce “a reliable national total.” Because, in his view, many states would need to change all kinds of other laws to allow NPV to function, Vikram Amar called for states to pass his plan only with a long delay before it could take effect (he suggested until to 2032).

In truth, one thing NPV cannot do is produce an actual national popular vote. That is because the American system of states was designed to keep election power at the state level. There is no federal agency, run by a presidential appointee, in charge of presidential elections. That power is instead spread out across the country. States, in this case, literally are “laboratories of democracy.”

NPV would need every state within the compact certify, for itself, what it believed to be the national vote totals. To do this, each compacting state would have to accept every other state’s election results with no ability to supervise or verify the accuracy or fairness of those elections. In other words, for the first time, a state would hold an election where most of the votes cast were outside of its own jurisdiction.

Perhaps Vikram Amar really believes that states would, over a dozen years, enact identical voting laws to reduce the chaos that would result from NPV. More realistic observers, like Sen. Elizabeth Warren, have other ideas. Warren has called for abolishing the Electoral College outright (she also supports NPV) as a step toward “national voting.” In other words, she wants a full federal takeover of elections. If NPV were to take effect, that would be the only way to avoid policy differences and political distrust among states from spiraling out of control.