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Changing the Constitution without amending it: the National Popular Vote story

Reformers are trying to change the way presidents are elected without formally changing the Constitution. It’s not the first time.

Congressional clerks passing around Ohio’s Electoral College certificate.
Congressional clerks passing around Ohio’s Electoral College certificate, January 2013.
Chip Somodevilla/Getty Images

While the Constitution contains procedures to amend it, the bar for doing so has proven quite high. There have been only 10 amendments ratified in the past century, and only two in the past half century. But there are ways to change the manner in which the Constitution is implemented without formally amending it.

One fascinating recent and ongoing example of such a workaround is the National Popular Vote Interstate Compact (NPV), developed as a way of undermining the Electoral College. States that join NPV commit to casting their electoral votes in favor of the presidential candidate who wins the popular vote, which would end the problem of elections in which the candidate who receives fewer votes ends up as president. It goes into effect once enough states have joined to comprise a majority of the Electoral College. Colorado and Delaware just joined the compact within the last few weeks, putting NPV 86 electoral votes short of enactment.

Some critics have complained that this would essentially change the Constitution and violate the founders’ vision without going through the processes of amendment. And, well, yes, it would. But it’s hardly the first movement to do this. Indeed, the way that the Electoral College is currently implemented and has been practiced over the past two centuries bears little similarity to the way the founders originally described it. This is no council of elites carefully deliberating over the ideal president; electors, with very few exceptions, simply vote the way their states’ voters did, in many cases risking legal penalty for not doing so. This was an adaptation of the Constitution, not an amendment to it.

NPV is a bold reform idea, but how would it work in practice? Politically, it may prove to be a minefield should it actually go into effect.

Imagine, for example, that it goes into effect for the 2020 election (highly unlikely), and Donald Trump manages to eke out a national popular vote win (somewhat unlikely), even while a majority of Coloradans vote for the Democratic nominee (pretty likely). Colorado’s Democratic-controlled state legislature has pledged to cast its electoral votes for Trump in this scenario, even though a majority of their constituents preferred the Democrat.

Would state legislators actually follow through with this very high-profile vote that explicitly flouts the wishes of their most passionate supporters? Or would they abandon the interstate compact because it has become politically inconvenient to stick with it, which is basically the entire point of having a compact in the first place? And what would be the penalty for abandoning it? And should the legislature change partisan hands after the next election, would they feel obligated to the NPV? What would prevent them from abandoning it?

Such political ramifications might actually make the NPV unusable. But the movement nonetheless forces a conversation, and even if there’s not sufficient bipartisan support for an amendment, political leaders are recognizing that ignoring this issue is becoming increasingly untenable.