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Expert Brief

So Goes the Nation

The Constitution, the compact, and what the American West can tell us about how we’ll choose the president in 2020 and beyond.

Published: April 7, 2020

Introduction

The Elect­oral College has resul­ted in the loser of the national popu­lar vote winning the pres­id­ency five times in our history, includ­ing twice in the past two decades. Over the course of more than two centur­ies, it has become one of the two most popu­lar subjects for consti­tu­tional amend­ment propos­als. But because of the diffi­culty involved in amend­ing the U.S. Consti­tu­tion, many of those opposed to the way we choose the Pres­id­ent have become resigned to the status quo. However, others have been persuaded to pursue reform without resort­ing to the amend­ment process set forth in Article V. Specific­ally, reformers have rallied around the National Popu­lar Vote Inter­state Compact, a plan that seeks to elect the pres­id­en­tial candid­ate receiv­ing the most votes nation­wide by lever­aging states’ power over the Elect­oral College. This Piece describes the National Popu­lar Vote Inter­state Compact (NPVC) move­ment, partic­u­larly in light of recent polit­ical victor­ies in the west­ern states that have brought success within advoc­ates’ reach. It then puts the campaign in a histor­ical context, compar­ing it to an earlier effort to secure demo­cracy reform, also popular­ized in the Amer­ican West: the direct elec­tion of U.S. senat­ors.

This Piece then discusses three poten­tial chal­lenges facing the NPVC: two recent decisions issued by courts in west­ern states, which may impact the oper­a­tion of the Elect­oral College; a mount­ing polit­ical campaign to have one west­ern state with­draw its support for the plan; and an attack from conser­vat­ive legal comment­at­ors arguing that the plan is uncon­sti­tu­tional. This Piece concludes with a brief note of cautious optim­ism for advoc­ates of the plan, namely that they can prevail if they build on the campaign’s present momentum while heed­ing the afore­men­tioned obstacles, which I believe to be surmount­able.