A Backdoor to Electoral College Reform Sees New Hope

By Francis Northwood (PO ’21)

On March 15th, Governor Jared Polis of Colorado signed onto the National Popular Vote Interstate Compact (NPVIC), making the state the 12th member-state of the compact, and the first “purple” member (that is, a state not solidly Democrat or Republican). Proponents of the National Popular Vote Interstate Compact argue that too many presidents are elected without the mandate of a popular vote, meaning that the electoral college needs to be reworked. Since eliminating the electoral college—which requires a constitutional amendment—seems political infeasible, the Interstate Compact solution came into being.

An Interstate Compact, simply put, is an agreement between two or more states. The interstate compact’s legal legitimacy, however, is more complicated. Article 1, Section 10 of the Constitution dictates that: “No State shall, without the Consent of Congress… enter into any Agreement or Compact with another State.” The consent of congress can be secured three different ways:

  1. There can be a model compact, approved by congress, in which any state wishing to join can automatically do so with pre-approval.
  2. The states wishing to enter a compact can submit it for congressional approval. If approved, they would then enter the compact.
  3. States can enter a compact and then submit it for congressional approval, which sometimes would let the compact go into effect prior to approval. In the Supreme Court case, Virginia v. Tennessee, where Tennessee and Virginia were attempting to shift their shared borders, it was decided that interstate compacts only needed congressional approval if they were increasing the power of the states at the expense of the federal government.  

Supporters of the NPVIC say that it lies in the 3rd group, and that it does not need congressional pre-approval, while others dispute this. The debate surrounds whether or not the compact would encroach on the federal government’s power, and whether or not Article II overrides this encroachment. Article II of the U.S. Constitution says that, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” Advocates of the NPVIC believe that this constitutionally gives states the freedom to appoint their electors however they see fit.

The NPVIC’s roots are not in the political world, but in academia. In 2006, John Koza, a computer science professor at Stanford, and a few others formed an NGO, National Popular Vote, whose sole purpose was to promote legislation similar to the NPVIC. Shortly after, NPVIC legislation was brought to 42 states, and Maryland became the first state to adopt it. Currently, twelve states and the District of Columbia are members of the compact, two other states are awaiting their respective Governor’s signature, and eight other states have had NPVIC legislation pass by one of their respective houses of congress. There have been three attempts at repealing NPVIC legislation, one in Maryland, New Jersey, and Washington, but each attempt failed. In total, the NPVIC member states hold 181 electoral votes, more than halfway to the 270 mark.

Before Colorado, every state that had signed on was overwhelmingly blue. This made sense, as the electoral college map tends to favor Republicans. (Both Donald Trump and George W. Bush won their respective presidencies on electoral victories that did not coincide with the popular vote.) While this of course is constitutional, it carries certain political burdens with it: first, how much political legitimacy does a president have if more people voted for their opponent? Second, why should a citizen in California have less political say in a a federal election than an Alaskan?

The electoral college is consistently unpopular—polling has had it in the negative for as long as there have been accurate polls—but, the procedures for eliminating it are often either too unpopular, or not politically expedient for whomever is in power. If the electoral college is so unwanted by the American people, then there are few answers to reform short of a Constitutional amendment, and the NPVIC looks to be the only reasonable alternative. With Colorado signed on, the ideals of the NPVIC cross the political aisle, and make it more than a mere possible remedy—it’s now a truly viable one.

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