The debate over the National Popular Vote Interstate Compact is often framed as a question of whether state legislatures possess plenary authority under Article II to determine the manner in which presidential electors are appointed. They do. But that is not the constitutional question The question is whether states may combine their Article II authority through a binding interstate agreement that fundamentally alters the operation of the presidential election process without obtaining congressional consent. Those are two very different questions.
If California, Texas, or any other state independently decided to award its electoral votes to the winner of the national popular vote, I see no constitutional obstacle under Article II. Each state possesses broad discretion in determining how its electors are appointed. But the National Popular Vote Interstate Compact is not a collection of independent state decisions; it is a coordinated agreement. Each participating state agrees to adopt the same rule, but only upon the condition that enough other states join the compact to reach 270 electoral votes. The agreement is therefore not merely parallel legislation; it is interdependent legislation. Each state’s obligation is conditioned upon the actions of the others. That distinction cannot be overstressed.
The Compact Clause exists because the Framers understood that states acting collectively possess a power that individual states do not. A state acting alone exercises its own constitutional authority. States acting together may effectively create a new institutional arrangement capable of altering the operation of the federal government itself. That is precisely what this compact seeks to accomplish.
Its defenders often respond that Congress has no authority over the appointment of presidential electors. That observation misses the point entirely. The issue is not whether Congress may dictate how states appoint electors. The issue is whether states may pool their constitutional authority through an interstate compact that effectively determines the outcome of a federal election without congressional approval.
The Supreme Court has long recognized that not every interstate agreement requires congressional consent. But agreements that enhance the collective power of states in ways affecting the federal structure stand on different constitutional footing. Presidential elections are not merely state concerns. They are federal institutions established by the Constitution itself.
Nor is this simply a dispute over election policy. Reasonable people may prefer the Electoral College or the national popular vote. The Constitution permits citizens to advocate either position. What it does not permit is changing the constitutional structure through means other than those the Constitution itself provides.
The National Popular Vote Interstate Compact does not formally abolish the Electoral College, but it renders its existing operation largely academic. Once the compact reaches the required threshold, participating states act as a single electoral bloc whose collective action determines the presidency. In substance, the compact substitutes a national popular vote for the state-based electoral system established by the Constitution, while avoiding the amendment process required by Article V. That should concern constitutionalists regardless of their preferred method of electing presidents.
If states may collectively accomplish this through an interstate compact, it becomes difficult to articulate a principled limiting principle. Why could states not employ similar agreements to reshape other structural features of our constitutional order? The issue is not this compact alone, but the precedent it establishes. The Constitution was deliberately designed to make structural changes difficult.
Those who favor a national popular vote are entirely free to pursue that objective through the amendment process. But if the Constitution may be effectively revised whenever enough states coordinate their powers through interstate agreement, then Article V becomes increasingly unnecessary, and the Compact Clause increasingly meaningless.
The constitutional question, therefore, is not whether the National Popular Vote is good policy. It is whether states may accomplish through coordinated agreement what the Constitution requires to be accomplished through constitutional amendment. In my judgment, the answer is no.
