Now that the 2012 election is in the rear-view mirror and the 2016 election is still somewhat distant on the horizon, this is an appropriate time to return to the question of presidential election reform. As I have written about many times (including here) on this and other websites, and in academic journals, one important and prominent reform effort, known as the National Popular Vote (NPV) Compact, seeks to move the country in the direction of making it ever more likely that the President who is elected is the candidate who obtains the most voter support nationwide. The essential idea (elaborated by me, my brother Akhil Amar and, independently also by Professor Robert Bennett over a decade ago) is to get various states to sign onto an agreement that would require each signatory state to cast its electoral college votes not for the candidate who garners a plurality of popular votes in that state, but rather for the candidate who wins the most popular votes nationally.
This system, with enough states as signatories, would generally mean that the winner of the Presidential contest would be the person who had won the largest number of votes from individual voters nationwide. In that way, the plan would ensure that every voter—regardless of the state in which she lives—would have her vote count equally to that of every other voter in the country. Importantly, the agreement, by its own terms, would not go into effect until a sufficient number of states to comprise a majority of the electoral college—that is, states whose electoral college allotments collectively total 270 or more—ratify it.
To date, eight states (Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, Vermont and California) and the District of Columbia—comprising 132 electoral college votes altogether (almost half the needed 270 votes)—have adopted the plan.
Various policy arguments have been raised against the NPV idea, and in favor of the status quo. More importantly for present purposes, however, in the past few years some analysts have raised constitutional objections to the NPV plan. In the balance of this column and in a subsequent column, I will address some of these arguments. Many of the constitutional criticisms that have been advanced relate to the compact aspect of the NPV plan, and focus on whether or not Congress would have to approve the coordinated interstate action before the current NPV plan being adopted were implemented. I have touched on some of these criticisms before, and will return to others in a later writing.