End the electoral college

[Nye Bevan]

14. There are all kinds of constitutional problems with National Popular Vote.

The Electoral College works, in conjunction with other constitutional institutions such as the enumeration of federal powers and the bicameral Congress, to maintain the Framers' anticipated balance between state and federal authority. Together, these institutions form a coherent federalist system. And this system poses considerable-and likely fatal-legal and practical barriers to the NPV's efforts to institutionalize majoritarian elections.

The most significant constitutional challenges to the NPV will likely arise under the Compact Clause, which forbids states from entering into "any Agreement or Compact with another State" without the "Consent of Congress." NPV supporters highlight that this Clause is interpreted loosely, and that current jurisprudence, as represented by U.S. Steel v. Multistate Tax Commission (1978), forbids only those compacts that "enhance[] state power quoad the National Government." Accordingly, NPV supporters presume their anticipated compact effects a horizontal shift in power among states rather than affecting the vertical relationship between federal and state power. But this argument is patently thin. There are few subjects likely to upset U.S. Steel's vertical balance more than the means by which states select a federal executive. The NPV compact would take effect once the combined electoral votes of the participating states could determine the election's outcome. The ability of a few states to determine election outcomes would give "the states" a unified face and an important advantage in bargaining with the federal government. As Adam Schleifer points out in his article Interstate Agreement for Electoral Reform, the NPV compact would also prevent the House of Representatives from acting as an Electoral College tiebreaker in the way the Twelfth Amendment anticipates. Predictable state voting prevents ties and nullifies this potential federal presence, further disrupting the vertical balance.

The NPV also faces a number of other significant constitutional obstacles. In New York v. United States (1992), the Supreme Court instructed that "[a] departure from the Constitution's plan for the intergovernmental allocation of authority cannot be ratified by the ‘consent' of state officials" because "the Constitution divides authority between federal and state governments for the protection of individuals" (emphasis added). While New York dealt with the specific issue of anti-commandeering, the Court conveyed a broader concern for the preservation of federalism. This discredits the NPV movement's claim that the constitutional freedom of states to allocate electoral votes allows them to allocate by reference to the national majority alone. And the NPV compact's form is independently objectionable. As the Supreme Court has objected to the Line Item Veto Act and other circum-constitutional shortcuts, the Court would presumably take issue with the NPV compact, which, as The New York Times has pointed out, blatantly advertises itself as an "end run."

Yet even if the NPV overcomes the challenges to its constitutionality, it will fail to eliminate states' federalist participation in presidential elections. The process it envisions is not truly majoritarian. Though the NPV hinges its arguments upon the supposed vestigiality of the Electoral College, it leaves the Electoral College in place, depending upon its state-centric system in a fundamental way to facilitate the NPV's goals. The states' uneven electoral weights make the NPV compact easier to effectuate than a constitutional amendment. Because of these weights, as few as eleven pro-NPV states could reconfigure the country's electoral process. And highlighting this fact is more than a formalistic endeavor. Allowing the states to institutionalize majoritarianism ignores that citizens have made a substantive choice to temper their majority interests through the reigning constitutional order. It also denies that majoritarianism is an ideology, that a state's choice to vote in line with the national majority is still a choice, and that a state's agency in this choice is irremediably federalist. Also, as Schleifer highlights, the perceived unfairness of an NPV-initiated majoritarian system could generate a pro-federalist backlash among states not party to the agreement. Since states currently tally their own votes, non-participating states could purposefully obfuscate to prevent NPV states from discerning the national tally or from effectuating the compact more generally.

http://www.michiganlawreview.org/articles/ideological-endowment-the-staying-power-of-the-electoral-college-and-the-weaknesses-of-the-national-popular-vote-interstate-compact

You really need a Constitutional Amendment to end the Electoral College.