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Circumventing the Electoral College: Why the National Popular Vote Interstate Compact Survives Constitutional Scrutiny Under the Compact Clause


Michael Brody


George Mason University, School of Law, Student/Alumni

March 30, 2012

Legislation and Policy Brief: Vol. 5: Iss. 1, Article 2.

Abstract:     
The National Popular Vote Interstate Compact (NPVC) presents an emerging legal issue that straddles the line between political science and law. The NPVC is an interstate compact in which member states will allocate all of their electoral votes to the winner of the national vote, as opposed to the traditional state vote. The bill would not be effective until states possessing a majority of the nation's electoral votes (270) have become members. If enacted by enough states, the NPVC would all but put an end to the Electoral College, and the United States would essentially move to a direct national vote for president, without a constitutional amendment. The most hotly contested legal issue surrounding the NPVC will likely be whether Congressional consent is required for the NPVC's member states to validly enter into the compact.

This article ultimately concludes that Congressional consent would not be required for the NPVC to be effective, because member states would not be encroaching on the powers of non-member states. Additionally, I offer an alternative argument about "faithless electors" that breaks new ground in NPVC literature. The Supreme Court has said that one of the most relevant inquiries into the Congressional consent requirement is whether compacting states can unilaterally withdraw from the compact. I conclude that even though member states cannot withdraw from the NPVC after July 20 of a presidential election year, the individual electors can withdraw on behalf of the states. The Constitution does not bind electors to vote for a particular candidate, but only mandates that state legislatures commit to a method of allocation. Thus, compacting states can still compel their pledged electors to change their vote.

Number of Pages in PDF File: 44

Keywords: Electoral College, President, national, popular, vote, national popular vote, direct vote, National Popular Vote Interstate Compact, Compact Clause, interstate, Constitution, election, federalism, horizontal federalism, Calabresi, property, faithless electors, Founding Fathers, Article II, Article I

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Date posted: April 1, 2012 ; Last revised: March 27, 2013

Suggested Citation

Brody, Michael, Circumventing the Electoral College: Why the National Popular Vote Interstate Compact Survives Constitutional Scrutiny Under the Compact Clause (March 30, 2012). Legislation and Policy Brief: Vol. 5: Iss. 1, Article 2. . Available at SSRN: http://ssrn.com/abstract=2031752 or http://dx.doi.org/10.2139/ssrn.2031752

Contact Information

Michael Brody (Contact Author)
George Mason University, School of Law, Student/Alumni ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
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