End around the electoral college

[WhaTHellsgoingonhere]

19. The Constitutionality of the National Popular Vote

Eeek! You are right. Likely requires Congress's approval... :\

The U.S. Supreme Court has held that, without congressional consent, agreements that increase states' political power by encroaching on federal power violate the Compact Clause of the U.S. Constitution. However, whether the National Popular Vote Interstate Compact could withstand a constitutional challenge is an open question; we found no case challenging the proposal. According to the analysis in U. S. Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978), a court would first decide whether the proposal constitutes a compact. The court would then consider if the compact was political, specifically whether it encroached on federal power or the power of non-compacting states.

The National Popular Vote bill awards all of a compacting state's electoral votes to the presidential candidate receiving the most popular votes in all 50 states and the District of Columbia. The bill takes effect only when enacted by states possessing a majority of the electoral votes, enough to elect a president. Under the U.S. Constitution, Article 2, Section 1, states have exclusive authority to allocate their electoral votes, leading proponents of the bill to argue the compact is within states' constitutional rights.

CONSTITUTIONALITY OF THE NATIONAL POPULAR VOTE

Advocates of the National Popular Vote Interstate Compact point to the constitutional right of states to choose their electors to demonstrate the constitutionality of the proposal. The manner of conducting presidential elections is covered in the U.S. Constitution: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . ” (U.S. Const., Article II, Section 1, Clause 2). This standard has been reinforced by the U.S. Supreme Court, which held that the clause “cannot be held to operate as a limitation on” the power to appoint electors, assuring that the mode of appointment belongs exclusively to the states by the Constitution (McPherson v. Blacker, 146 U.S. 1, 25 (1892)).

Critics, however, see the Compact Clause as a roadblock to the proposal. If the National Popular Vote Interstate Compact is considered a “political compact” under the Compact Clause, then the Constitution requires congressional consent, and the compact would need to receive federal approval. The power to appoint electors is exclusively granted to the states, but that power is still subject to other provisions of the Constitution. Accordingly, the court must analyze the appointment of electors under other provisions of the Constitution, including the Compact Clause (McPherson v. Blacker, 146 U.S. 1 (1892)).

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Does the Compact Violate the Compact Clause?

...To date, every case arising under the Compact Clause has concerned boundary, commercial, or regulatory compacts (Robert W. Bennett, State Coordination in Popular Election of the President Without a Constitutional Amendment, 5 Green Bag 2d 141, 141 n.2 (2002)). Because no compacts challenged for want of congressional consent have ever been found to touch upon “political” matters, by treading either on federal interests or non-compacting states' interests, the Supreme Court has never invalidated a compact under the Compact Clause (David E. Engdahl, Characterization of Interstate Arrangements: When Is a Compact Not a Compact?, 64 Mich. L. Rev. 63, 81 (1965)). Thus, it is unclear how a court would decide this issue.

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Federal Sovereignty Interest. ...Although the stability of the Electoral College or the preservation of the traditional amendment process may be important, it is unlikely that they rise to actual interference with federal power (Derek T. Muller, The Compact Clause and the National Popular Vote Interstate Compact, 6 Election L.J. 372 (2007)).

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Sister State Interest. The non-compacting sister state interest may apply to the National Popular Vote Interstate Compact. States have an interest in and exclusive authority to appoint their electors as they see fit. While the non-compacting sister states would still appoint electors, opponents argue that the Interstate Compact makes that appointment meaningless. The outcome of the Electoral College would be determined by an arranged collective agreement among compacting states, regardless of non-compacting states' action. Once states constituting a majority of the Electoral College have compacted to allocate their votes as a group, non-compacting states' electoral votes are politically ineffective. Opponents believe this constitutes a sufficient interest to invoke the constitutional safeguard of congressional consent (Derek T. Muller, The Compact Clause and the National Popular Vote Interstate Compact, 6 Election L.J. 372 (2007)).

more here

http://www.cga.ct.gov/2008/rpt/2008-R-0221.htm