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15 Harv. L. & Pol'y Rev. 129 (2020-2021)
The Electoral College and the Federal Popular Vote

handle is hein.journals/harlpolrv15 and id is 135 raw text is: The Electoral College and the Federal Popular Vote Derek T. Muller* The notion of holding a popular vote for the President of the United States is 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, in which 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. States individually pledge to award their electoral votes to the candidate who receives the most aggregated votes in the fifty states and the District of Columbia. When at least 270 electo- ral votes' worth of states join the pledge, the compact takes effect. The NPV shifts our system to that ofa popular presidential election without the need to go through the onerous constitutional amendment process, which requires two-thirds of both houses of Congress plus legislative approval in thirty-eight states. The NPV Compact allows us to skip all that, for proponents of the NPV have a shortcut-just get 270 electo- ral votes' worth of states to sign on. 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 now authorize. While piecemeal efforts might bring about some greater uniformity, a fed- eral constitutional amendment is the only means to determine a national popular vote. I. PARTLY NATIONAL, PARTLY FEDERAL ..................... II. ARTIFICIAL NATIONAL POPULAR VOTE TOTALS ............ . 131 III. STATE DIFFERENCES IN HOLDING ELECTIONS ............. . 132 IV. CHALLENGES TO ESTABLISHING UNIFORMITY .............. . 136 A Uniform State Legislation................................ 137 B. Existing Federal Constitutional Authority .................. 138 C. Federal Constitutional Amendment ........................ 141 C ONCLUSION ................................................... 142 I. PARTLY NATIONAL, PARTLY FEDERAL The NPV would turn the existing decentralized presidential election system into a single aggregate popular vote total. But the NPV's framework does not adequately consider how deeply this decentralization is embedded in our constitutional structure. Consider the framing in Federalist 39. * Professor of Law, University of Iowa College of Law. Special thanks to Margaret Mattes, Kyra Ziesk-Socolov, Larry Lessig, and the Harvard Law & Policy Review for the excellent symposium and for the important discussion that took place. My deep thanks to Professor Norman Williams for his reflections in a conversation on this topic at Willamette University College of Law.

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