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on cases and developments in law and the legal system.
By Justin Yang
Justin Yang is a freshman at the University of Pennsylvania studying Politics, Philosophy, and Economics.
Another presidential election has passed by. There were times during the campaign when the polls were close enough to trigger traumatic memories of the 2000 election – recounts, legal battles, uncertainty. The root of the problem, and our fears, is the Electoral College, a fundamentally flawed system that allows for undemocratic results by counting some people’s votes more than others.
For most people, the simple and obvious answer would be to abolish the Electoral College and institute a popular vote for president, but that would require major electoral reform through an amendment to the Constitution. This isn’t easy – two-thirds of both houses of Congress or two-thirds of the states would need to propose the amendment, and three-fourths of the states need to ratify it. However, people have offered an alternative way that wouldn’t add a single drop of ink to the Constitution: The National Popular Vote Interstate Compact.  However, because it would enact major electoral reform and allegedly subvert the Constitution, its legality and constitutionality is under question. I believe that such a compact would pass constitutional scrutiny.
The National Popular Vote Interstate Compact is, as its name suggests, an agreement between states. This particular compact utilizes the state’s power to award their electoral votes to a candidate in an ingenious way: it binds states to meet after the election and give all their electoral votes to the presidential candidate who won the national popular vote. However, the Compact only comes into effect once enough states have adopted it to control a majority of votes in the Electoral College: 270 votes.  This is so that it will be guaranteed that the popular vote winner will win the Electoral College and become President. As of right now, ten states and the District of Columbia have adopted the Compact. It’s working its way through the Pennsylvania state legislature right now, making an examination of its constitutionality all the more pertinent. 
The Constitution allows for states to enter into agreements with one another, with the consent of Congress. This is seen in Article One, Section Ten: “No State shall, without the Consent of Congress… enter into any Agreement or Compact with another State…”  Therefore, the very act of creating an interstate compact in and of itself is not prohibited by the Constitution, as long as there is congressional approval.
However, the Supreme Court ruled in Virginia v. Tennessee (1893) that a compact or agreement between states only requires congressional approval if it would “encroach upon or impair the supremacy of the United States.”  Justice Field would further write, “Looking at the clause in which the terms 'compact' or 'agreement' appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.”  It is clear here that the proper reading of this clause would be that congressional approval is only necessary and required if an interstate compact infringes upon the powers of the federal government.
The Constitution vests the power of choosing electors for the Electoral College entirely in the states; Article Two, Section Two reads, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…”  A state can allocate their electoral votes however they want – most states do it in a winner-takes-all system, where all their electoral votes go the winner of their own state, but Maine and Nebraska do it differently, as is within their power. The Compact is simply the agreement of a state to appoint electors who would vote for the national popular vote winner. This is a state power, and it does not challenge the supremacy of the federal government. Therefore, in accordance to Virginia v. Tennessee, this Compact does not require congressional approval – the states are entirely allowed to do it themselves.
Although the National Popular Vote Interstate Compact appears to subvert the Constitution by essentially changing the way we elect the President without changing the Constitution, an examination of the law says otherwise. The Constitution grants states the power to enter into an agreement or compact with other states, as long as there is congressional approval. However, the Supreme Court has ruled that congressional approval is only required if the compact infringes on the powers of the federal government. Since the Constitution vests in states the power to award electoral votes to a candidate as they chose, this particular Compact is not encroaching on federal power in any way, and is therefore not prohibited by the Constitution.
 Delaware House of Representatives. “Agreements Among the States to Elect the President by National Popular Vote.” 146th Delaware General Assembly, House Bill No. 55. Accessed November 3, 2016. http://legis.delaware.gov/LIS/lis146.nsf/vwLegislation/HB+55/$file/legis.html?open
 “Bill Information (History) – House Bill 1542; Regular Session 2015-2016.” Pennsylvania General Assembly. Accessed November 3, 2016. http://www.legis.state.pa.us/cfdocs/billInfo/bill_history.cfm?syear=2015&sind=0&body=H&type=B&bn=1542
 “The Constitution of the United States of America.” US Government Publishing Office. Accessed November 3, 2016. https://www.gpo.gov/fdsys/pkg/GPO-CONAN-REV-2016/pdf/GPO-CONAN-REV-2016-6.pdf
 “Virginia v. Tennessee” Findlaw.com. Accessed November 3, 2016. http://caselaw.findlaw.com/us-supreme-court/148/503.html
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
2/14/2019 09:49:14 am
"a fundamentally flawed system that allows for undemocratic results." Since when was the United States a democracy? This is a Republic.
12/23/2019 04:06:42 pm
Seems to me that making agreements to subvert the Constitution would "encroach upon the supremacy of the United States (aka the federal government as defined by the constitution)" in extremely obvious ways. There's no way this works without the approval of Congress, and there's no way it gets that, currently.
5/4/2019 02:09:00 pm
I am not a lawyer so maybe I am looking at this all wrong and I 'get' that you are suggesting that it would pass muster as not violating the specifics of the Constitution but it surely violates the spirit of it, "...this particular Compact is not encroaching on federal power in any way,"
5/29/2019 03:24:44 am
Thank you for your elucidation of the Constitutional issue raised by the compact. The manner of choosing electors would seem to be vested unambiguously in the states. But expect the compact to be challenged in the courts — by states’ rights conservatives. And expect the challenge to be upheld by the United States Supreme Court — by the court’s majority of states’ rights conservatives. And if you think such an outcome implausible, remember the majority opinion in Bush v Gore, which overturned the ruling by the Florida Supreme Court that a recount was could go ahead. — again, written by states’ rights conservatives.
6/30/2019 06:47:44 pm
In the upcoming 2020 election cycle, I am going to assume the candidates could be Donald Trump against Democrat Elizabeth Warren, and I will further assume Pennsylvania adopts the Popular vote Interstate Compact. In this case, it is very probable Sen Warren could win the popular vote in Pennsylvania, and Donald Trump could win the popular vote nationally, thereby winning all of Pa's 20 electoral votes. Warren voters would then,undoubtedly appeal to the courts claiming Pennsylvania had effectively disenfranchised them. This could happen in multiple states, calling into question the validity of the election and the legitimacy of the administration, much as now, only worse. A battle fought on numerous fronts.
7/20/2019 11:23:45 am
The piece does a fine job of describing the machinery of working around the ectoral college. Unfortunately the conslcuoon is reached based on the unlikeliness that the Supreme Court (and that's where this case will end up) would rule that the compact does not "infringe on the powers of the federal government." It absolutely does. The electoral college resides under the power of the United States Constitution, not the individual states. A state compact would not get to jump that caveat and go straight to the electors clause. The court will.most assuredly see it that way.
2/12/2020 07:05:48 pm
The article by Mr. Yang was well written, but he displays a fundamental misunderstanding of how our political system was designed, when he states:
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