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Let’s Not Overthink the National Popular Vote Compact Which is Clever but Cannot Work
Andrew Hyman

This is a very late reply to a blog post here by Michael Ramsey about the proposed National Popular Vote Compact (“NPV Compact”).  This compact would oblige each state to choose presidential electors based entirely upon who wins the national popular vote.

Many provisions of the U.S. Constitution are elegantly simple and straightforward, and that includes this one: “Each State shall appoint…a Number of Electors….”  It seems straightforward, and it is what it seems.  No combination of states can appoint the electors of another state.  Each state establishes who its electors are, the word “appoint” meaning to establish.

Even if the Constitution did not mention any role for a state’s legislature, such a role would be fine, because a state legislature is part of the state.  Likewise, a state’s citizens are part of the state.  Perhaps a legislature may also consider anyone lawfully within its borders to be part of the state.  But one state is obviously not part of another state, just as the United Nations General Assembly is obviously not part of any U.S. state, and so each state must decide by itself who to appoint as electors.  The state decides the manner of appointment, the state decides who to appoint, and the state carries out the appointment.  Simple.

It doesn’t matter whether Congress approves the NPV Compact.  It doesn’t matter whether the compact says state legislatures are free to withdraw from it at any time.  It doesn’t matter whether the compact is a “treaty” versus a mere “agreement.”  It doesn’t matter whether the NPV Compact would allow each state to appoint electors based upon votes cast nationwide under a patchwork of unequal voting procedures.  It doesn’t matter whether the NPV Compact tramples upon protection given to smaller states.  All of that is perhaps worth pondering a little bit, but none of it is really important here.  

The NPV Compact violates these plain words: “Each State shall appoint…a Number of Electors….”  If those words are not empty or trivial, then each state has the power and responsibility to decide who to appoint.  The Constitution elaborates upon that appointment power, but in doing so never involves any other states or nations.

The appointment power of a U.S. president is instructive.  The Constitution involves the U.S. Senate in that process, but once the Senate has confirmed a nominee, then the appointment power allows the president complete power to either appoint the confirmed nominee, or else not appoint the confirmed nominee and instead nominate someone else.  No federal statute (or treaty or executive agreement or congressional-executive agreement) could require the president to do one or the other, much less to do one or the other based upon what the U.N. General Assembly or some other entity wants.

The appointment power is not merely ministerial, and it cannot be made ministerial by any compact. Yet that is exactly what would happen if the NPV Compact requires a state to robotically name electors based upon a choice made outside the state. Let’s not overthink this.

When the Constitution was being drafted and ratified, it was understood that appointment did not merely refer to the ultimate presidential designation of a nominee for a particular office, but rather appointment included as well the broader process leading up to that designation.  For example, Thomas McKean in the Pennsylvania Ratification Convention, on 10 December 1787, said “The Senators have a share in the appointment of certain officers….”  Likewise, the writer known as the Federal Farmer wrote on 17 January 1788  that the Senate will “share in the appointment of officers….”  So, when the Constitution says each state will appoint its electors, that refers to more than the ultimate designation of particular people, and includes the selection of those people.