The Electoral College and the Federal Popular Vote

15 Pages Posted: 25 Feb 2020 Last revised: 2 Apr 2020

See all articles by Derek T. Muller

Derek T. Muller

University of Iowa - College of Law

Date Written: January 30, 2020

Abstract

The notion of holding a popular vote for the president of the United States is, in theory, an intuitively simple idea. We hold popular elections for the governor of each state. We hold popular direct elections for basically every other office, from United States Senator to local dog catcher. We even elect judges in many states.

The National Popular Vote, or NPV, would change our existing system, where the winner of the Electoral College wins the presidency, to a system that more closely resembles these other elections. The NPV turns the Electoral College into a mechanism by which the winner of the aggregate total of the popular vote in the fifty states and the District of Columbia becomes the winner of a majority of the electors in the Electoral College. And its purported virtue is that it does so without the onerous need to go through the constitutional amendment process.

But any talk of a "national" popular vote is a misnomer at best, and an outright lie at worst. The only existing mechanism we have to compile voting preferences is federal, not national, in nature. In contrast, the only way to create a national popular vote is through nationwide regulation at the congressional level, which the Constitution does not presently authorize. While piecemeal efforts might bring about some greater uniformity, a federal constitutional amendment is the only means to determine a national popular vote.

Keywords: electoral college, national popular vote, npv, national popular vote compact, presidential elections, federal elections, bush v. gore, congressional elections, elections clause, constitutional law, election law, voting rights

JEL Classification: K00, K1, K10, K19, K34, K4, K40

Suggested Citation

Muller, Derek T., The Electoral College and the Federal Popular Vote (January 30, 2020). Harvard Law & Policy Review, Forthcoming, Pepperdine University Legal Studies Research Paper No. 2020/7, Available at SSRN: https://ssrn.com/abstract=3528268

Derek T. Muller (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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