National Popular Vote and the Electoral College

On April 15, New York Governor Andrew M. Cuomo signed the National Popular Vote bill, making New York, with its 29 electoral votes, the 10th state along with the District of Columbia to enact the interstate agreement. The bill (S.3149) seeks to elect the president by national popular vote and creates a compact between the states and the District of Columbia. Assemblyman Jeffrey Dinowitz (D-Bronx) helped the Assembly pass legislation he sponsored to permit New York to award its electoral votes to the presidential candidate who wins the national popular vote (A.4422-A). The bill had bipartisan support passing by a 102-33 vote in the New York State Assembly and a 57-4 vote in favor in the New York State Senate.

The total number of electoral votes of states that have adopted the National Popular Vote agreement is now 165 electoral votes, 61% of the 270 electoral votes needed to activate it. If passed, the plan would guarantee that the presidency would be won by the candidate who receives the most popular votes in all 50 states and D.C. Under the compact, as soon as states having a total of the 270 electoral votes join in, the National Popular Vote becomes effective, and all the member states will cast all their Electoral College votes in accordance with the national popular vote instead of the state’s popular vote. This procedure allows the president to be elected by a simple, nationwide majority vote, without having to change the Constitution.

Before New York’s adoption of the National Popular Vote law, 10 other jurisdictions adopted the measure: the District of Columbia (3 electoral votes); Hawaii (4 electoral votes); Illinois (20 electoral votes); Maryland (10 electoral votes); Massachusetts (11 electoral votes); New Jersey (14 electoral votes); Washington (12 electoral votes); Vermont (3 electoral votes); California (55 electoral votes); and Rhode Island (4 electoral votes). The bill has now passed in 33 legislative chambers in 22 states and has been introduced in all 50 states.

The National Popular Vote plan, even if adopted by enough states, faces legal challenges regarding its constitutionality.  A number of law review articles have addressed the issue. See, for example, Norman R. Williams, Why the National Popular Vote Compact is Unconstitutional, 2012 Brigham Young University Law Review 1523 (2012) and Michael Brody, Circumventing the Electoral College: Why the national Popular Vote Interstate Compact Survives Constitutional Scrutiny under the Compact Clause, 5 Legislation & Policy Brief 33 (2013).