The National Popular Vote: A Lawless End-Run Around the Constitution

The National Popular Vote compact is often sold as a neat, modern fix for a supposedly broken system. But its cheerleaders rarely talk about the constitutional wreckage it would leave behind. This is not a plan to make elections fairer. It's a plan to make the Constitution optional - a compact among states to gut the Electoral College without the trouble of actually amending the document the Founders gave us. It is, in a word, lawlessness dressed up as democratic reform.

Most people who fight about the Electoral College argue on the merits: big states versus small states, urban versus rural, swing versus safe. Those debates matter, but they miss the deeper offense. The National Popular Vote compact is a frontal assault on the way we change our fundamental law. It's a constitutional shortcut, and shortcuts in a republic are how you end up with tyranny. I am not interested in defending the Electoral College because it is quaint tradition or because my side happens to benefit in recent cycles. I defend it because it is part of the architecture of a constitutional republic, not a pure democracy, and because the people pushing to abolish it by compact are willing to shred the rule of law to get what they want.

The Compact and the Con

Here is how it works. States pass identical laws agreeing that, once enough states totaling at least 270 electoral votes join the compact, all of them will award their electors to the winner of the national popular vote - regardless of how their own citizens voted. On paper, each state is simply exercising its Article II power to decide how to appoint electors. In reality, they are banding together to rewrite the rules of presidential elections for the entire country. So far seventeen states and the District of Columbia, representing 209 electoral votes, have signed on. They are just 61 votes short of the trigger.

Strip away the legalese and the consequence is clear: the compact would nullify the Electoral College as a functioning institution, substituting a direct national popular election. It would do so without a single word of the Constitution being repealed or amended under Article V. That is the cheat, and it is breathtaking. The Founders knew that changing the fundamental compact between the people and their government required more than a simple majority of moment. Article V demands a supermajority in Congress and the states. The National Popular Vote spits on that process. Justice Scalia captured the spirit of this nonsense best: the Constitution means what it says until we decide it is inconvenient; at that point, we just pretend it says something else.

The Compact Clause and the Missing Consent

There is another problem even most NPV opponents underplay. Article I, Section 10 says flatly: "No State shall, without the Consent of Congress, … enter into any Agreement or Compact with another State." The NPV compact is plainly an agreement among states to pool their electoral votes and neutralize the voting choices of non-compacting states. It is exactly the sort of interstate political collaboration the Compact Clause was written to check - a combination that would fundamentally alter the balance of power within the federal system.

The Supreme Court has long required congressional consent for compacts that encroach on national authority or shift political power among the states. In U.S. Steel Corp. v. Multistate Tax Commission, the Court clarified that any compact which enhances the political power of the member states at the expense of the federal union demands congressional approval. The NPV compact, by effectively nationalizing the presidential election, does precisely that. Yet its advocates openly plan to activate it the moment they hit 270 electoral votes, regardless of whether Congress says a word. That is not federalism. That is an unlawful end-run.

But let us be honest: even with congressional consent, this compact would still be unconstitutional. You cannot use an agreement among states to effectively repeal a constitutional provision. If states formed a compact to select U.S. Senators by national popular vote instead of by state legislatures as the Constitution originally provided, or to mandate a national popular referendum for constitutional amendments, everyone would instantly recognize it as an illegal circumvention of Article V. The NPV is no different. It reorders the presidential election system laid out in Article II without a constitutional amendment. No state law, no matter how many states pass it, can override the supreme law of the land.

The Founders Knew What They Were Doing

The Electoral College is not a glitch. It is a deliberate feature of a federal republic. In the Constitutional Convention, the delegates wrestled with how to select a chief executive who would be both accountable and independent. Direct popular election would leave the presidency in the hands of a few large, densely populated regions - exactly the sort of majority faction Madison warned about in Federalist 10. Selection by Congress would make the executive a creature of the legislature. The Electoral College split the difference: it gave states a role proportionate to their representation in Congress, blending population with state sovereignty. It tasked electors, as Hamilton wrote in Federalist 68, with ensuring "that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications."

That state-by-state process forces candidates to build broad, geographically diverse coalitions. It makes the president answerable not to a few big-city machines but to a cross-section of the whole country - farmers in Iowa, factory workers in Michigan, retirees in Florida. The National Popular Vote would demolish that incentive structure overnight. Campaigns would focus overwhelmingly on the largest media markets, the dense urban corridors, the places where a dollar spent per vote goes farthest. Small states, rural America, flyover country would cease to matter politically. Hamilton's "moral certainty" would be replaced by the certainty that the presidency is for sale in a handful of zip codes. The candidate who wins Manhattan, Los Angeles, and Chicago by enormous margins could lose every other county in America and still claim the White House. That is not how a continental republic keeps itself together.

The Unconstrained Vision and the Seen and Unseen

Thomas Sowell's distinction between the constrained and unconstrained visions of human nature explains why the NPV movement is so dangerous. The unconstrained vision - call it the progressive mind - believes that if we only get the process right, wise experts and fair majorities can produce just outcomes. In that view, the Electoral College is an unreasonable obstacle because it sometimes frustrates the will of the numerical majority. But the constrained vision sees the Constitution's hurdles as protection against concentrated power and majority tyranny. It understands that a simple national head count may satisfy an abstract emotional demand for "fairness," but it tramples the concrete liberty of millions whose voice would be swallowed.

The seen benefit is that the person with the most raw votes wins; the unseen destruction includes the permanent disenfranchisement of small and rural states, the erosion of federalism, the nationalization of election fraud risks, and the eventual demand to scrub every other anti-majoritarian safeguard from the Constitution - the Senate, the separation of powers, the Bill of Rights, the judiciary.

Let me illustrate the knowledge problem that Hayek would instantly recognize. The Electoral College disperses the vote count across fifty-one separate jurisdictions. Suspect results in one state do not taint the whole. A recount is manageable, and the pressure to find a certain number of votes is contained. A national popular vote creates a single gigantic electoral pool with no state boundaries to contain error or fraud. Every late ballot dump, every ambiguous signature, every voting-machine glitch anywhere becomes a battle over the single national total. The incentive to cheat - and the difficulty of auditing - skyrockets. Sore losers would have every reason to challenge results not just in one county but nationwide, dragging the entire country into a legal swamp after every close election. The man who thinks a national popular vote will bring finality is dreaming; it would bring perpetual legal war with the presidency as the prize.

The Shortcut That Ends the Republic

Everything about the National Popular Vote movement is of a piece with a century-long progressive project to dismantle the constitutional republic in favor of raw majority power. The Seventeenth Amendment stripped state legislatures of their Senate voice, centralizing power in Washington and hollowing out federalism. Now it is the Electoral College's turn. And when that falls, what is left? The Senate itself, the separation of powers, the entire system of checks and balances that makes individual liberty possible? These are not "arcane relics." They are the barriers that keep us from sliding into what the Founders called a tyranny of the majority - fifty-one percent voting away the rights of the other forty-nine.

I have no doubt the NPV compact is popular in some quarters. So is the idea that we can spend our way to prosperity or print money without consequence. But popularity does not make a policy constitutional, and it does not make it wise. Our Republic was deliberately designed not to be a simple democracy, because the Founders knew that majorities are just as capable of oppression as monarchs. As John Adams put it, we are "a government of laws, and not of men."

If the American people truly want a direct national popular vote for president, the Constitution provides the way: amend it. Win the argument in Congress and in three-quarters of the states. That is the legitimate, constitutional path. Anything else - any compact, any clever state-law workaround - is an act of contempt for the document that binds this union together. I, for one, am not willing to live under a government that feels free to bypass its own founding charter when it becomes inconvenient. And you should not be either. Defend the Electoral College. Defend the amendment process. Defend the Republic. The shortcut the National Popular Vote represents does not lead to a more democratic America; it leads to a lawless one.