It is important to recognize what the U.S. Constitution says, and does not say, about the method of electing the President. The Founding Fathers never reached a conclusion as to how the President would be elected. Instead, the U.S. Constitution grants the states exclusive and plenary (i.e., complete) control over the manner of awarding their electoral votes.

Article II of the U.S. Constitution says:

The winner-take-all rule (i.e., awarding all of a state's electoral votes to the candidate who receives the most popular votes in each individual state) is not set forth in the U.S. Constitution. It is entirely a matter of state law. When the Founding Fathers returned from the Constitutional Convention to their states to organize the nation's first presidential election in 1789, only three states chose to employ the winner-take-all rule for awarding their electoral votes. So, it is incorrect to say that our current system of electing the President was the choice of the Founding Fathers or that our current system was endorsed by the Founding Fathers.

The winner-take-all rule is a state law that was adopted on a state-by-state basis. It became prevalent with the emergence of strong political parties seeking to maximize regional power in the run-up to the Civil War. More importantly, the winner-take-all rule did not come into widespread use by means of an amendment to the U.S. Constitution. Accordingly, changing the winner-take-all rule does not require an amendment to the U.S. Constitution. The winner-take-all rule may be changed in the same way that it was adopted, namely through the enactment by state legislatures of state laws on a state-by-state basis.

The wording "as the Legislature … may direct" in Article II of the U.S. Constitution is an unqualified grant of plenary and exclusive power to the states. This constitutional provision does not encourage, discourage, require, or prohibit the use of any particular method for awarding the state's electoral votes. This wording certainly does not require the use of the winner-take-all rule. States may exercise this grant of power in any way they see fit, provided only that they do not violate other specific provisions of the U.S. Constitution. As the U.S. Supreme Court stated in the 1893 case of McPherson v. Blacker:

The winner-take-all rule has been adopted and repealed by various states at various times. All three of the states that used the winner-take-all rule in the first presidential election in 1789 repealed it by 1800 (and each later re-adopted it).

As recently as 1992, Nebraska switched from the winner-take-all rule to a congressional-district system of awarding electoral votes. Maine did so in 1969.

The North Carolina legislature has exercised its power to change the method of awarding the state's electoral votes on four occasions. In 1792, the legislature chose the presidential electors. The people then voted for electors from presidential-elector districts between 1796 and 1808. Then, the Legislature chose the electors in 1812. In 1816, the legislature changed to the statewide winner-take-all rule.⁴

Massachusetts has exercised its power to change its system of awarding its electoral votes on 10 different occasions. In 1789, the Massachusetts legislature, in effect, chose the state's presidential electors. In 1792, the voters were allowed to elect presidential electors in four multi-member regional districts. Then, the voters picked electors by congressional districts (with the legislature choosing the state's remaining two electors). Shortly thereafter, the legislature took back the power to pick all the presidential electors (excluding the voters entirely). Later, the voters picked electors on a statewide basis using the winner-take-all rule. Then, the legislature again decided to pick the electors itself, followed by the voters using districts, followed by another return to legislative choice, followed again by the voters using districts, and, finally, the present-day statewide winner-take-all rule. None of these 10 changes required an amendment to the U.S. Constitution because the Founding Fathers and U.S. Constitution gave Massachusetts (and all the other states) exclusive and plenary power to award their electoral votes.

In short, there is nothing in the U.S. Constitution that needs to be amended in order for states to change from the current system of awarding all of a state's electoral votes to the candidate who receives the most popular votes in each individual state (the winner-take-all rule) to a system in which the states award their electoral votes to the candidate who receives the most popular votes in all 50 states and the District of Columbia. The states already have the power, under the U.S. Constitution, to make this change. As a result, a federal constitutional amendment is not required.

For additional information, see section 1.1 and chapter 2 of this book.

Nearly all the major reforms for conducting U.S. presidential elections have been initiated by action at the state level—not by action at the federal level.

Let's start by discussing the most significant change that has ever been made in the way the President of the United States is elected, namely allowing the people to vote for President. There is nothing in the U.S. Constitution that gives the people the right to vote for President. The Founding Fathers gave the states plenary and exclusive power to specify the manner of conducting presidential elections. In the nation's first presidential election in 1789, only five states permitted the people to vote for their state's presidential electors. In the remaining states, the state legislatures (or, in New Jersey, the governor and his council) appointed the electors. The people acquired the vote for President by the enactment by state legislatures of state laws. The states exercised their role, under the U.S. Constitution, as the "laboratories of democracy."⁵

With the passage of time, more and more states observed that permitting the people to vote for President did not produce any disastrous consequences. By 1824, three-quarters of the states had adopted the idea that the people should be permitted to vote for President. The state-by-state process of empowering the people to vote for President was completed by the time of the 1880 election.

This fundamental change in the manner of electing the President was not accomplished by means of a federal constitutional amendment. Instead, it was accomplished through state-by-state changes in state law. Permitting the people to vote for President was not an "end run" around the U.S. Constitution but, instead, an exercise of a power that the Founding Fathers explicitly assigned to state legislatures in the Constitution. We have not encountered a single person who argues that the state legislatures did anything improper, inappropriate, or unconstitutional when they made this fundamental change in the way the President is elected.

When the U.S. Constitution came into effect in 1789, only wealthy property holders were entitled to vote in most states. At that time, there were only about 100,000 eligible voters in a nation of over 3,000,000 people. By 1800, three states permitted universal white male suffrage. By 1830, this number had increased to 10 (of the 24 states at the time).

Today, there are no property qualifications for voting in any state. The elimination of property qualifications was not accomplished by means of a federal constitutional amendment. This very substantial 10-to-1 expansion of the electorate was an example of the use by state legislatures of a power explicitly granted to them by the U.S. Constitution to decide the manner of conducting elections. Eliminating property qualifications for voting was not improper, inappropriate, or unconstitutional. It was not an "end run" around the U.S. Constitution, but an exercise of power explicitly granted by the Constitution.

In several instances, a major reform initiated at the state level led to a subsequent federal constitutional amendment. For example, women did not have the right to vote when the U.S. Constitution came into effect in 1789 (except in New Jersey, where that right was withdrawn in 1807). Wyoming gave women the right to vote in 1869. By the time (50 years later) the 19th Amendment was passed by Congress, women already had the vote in 30 of the then-48 states.

The decision by 30 separate states to permit women to vote in the 50-year period between 1869 and 1919 was not an "end run" around the U.S. Constitution. We have not encountered a single person who argues that state legislatures did anything improper, inappropriate, or unconstitutional when they made this very substantial 2-to-1 expansion of their electorates. This major change was simply another example of the state legislatures using a power that the U.S. Constitution explicitly granted to the states concerning the conduct of elections. It should be remembered that the only effect of the 19th Amendment was to extend women's suffrage to the minority of states (18) that had not already acted at the state level to permit women to vote. Women's suffrage was achieved because 30 states exercised their power as the "laboratories of democracy" to change the manner of conducting their own elections. Indeed, the 19th Amendment only passed Congress in 1919 because women already constituted half the electorate in 30 states (and because the members of Congress from the remaining states knew that it was only a matter of time before women would obtain the right to vote in the remaining states, with or without the federal constitutional amendment).

The direct election of U.S. Senators is another example of a major change initiated at the state level. The original U.S. Constitution specified that U.S. Senators were to be elected by state legislatures. Starting with the "Oregon Plan" in 1907, states passed laws establishing "advisory" elections for U.S. Senator. Under the Oregon plan, the people cast their votes for U.S. Senator in a statewide "advisory" election, and the state legislature then dutifully rubberstamped the people's choice. By the time the 17th Amendment passed the U.S. Senate in 1912, the voters were, for all practical purposes, electing U.S. Senators in a majority of the states.

African Americans had the right to vote in New York in the 1820s and in five states by the 1850s. Black suffrage was later extended to all states by the 15th Amendment (ratified in 1870).

Persons under the age of 21 first acquired the right to vote in various states (e.g., Georgia, Kentucky, Alaska, Hawaii, and New Hampshire). Later, the 26th Amendment extended this practice to all states in 1971.

In terms of electing the President, state control is precisely what the Founding Fathers intended, and it is precisely what the U.S. Constitution specifies. The Founding Fathers created an open-ended system with built-in flexibility concerning the manner of electing the President.

Professor Joseph Pika (author of The Politics of the Presidency) described the National Popular Vote bill by saying:

The Founders did something similar, but different, concerning congressional elections. The U.S. Constitution gives the states primary control over the manner of electing Congress. However, in the case of congressional elections, the U.S. Constitution gave Congress the power to review and override state decisions. This override power has been used on only rare and minor occasions. In contrast, state power over the manner of electing the President is plenary (i.e., complete), and Congress does not have the power to override a state's decision.

The Founding Fathers did not create or anticipate—much less favor—our current system of electing the President.

In the debates of the Constitutional Convention and the Federalist Papers, there is no mention of the winner-take-all rule (i.e., awarding all of a state's electoral votes to the presidential candidate who receives the most votes in an individual state). When the Founding Fathers went back to their states in 1789 to organize the nation's first presidential election, only three state legislatures chose to employ the winner-take-all rule for awarding their electoral votes. Each of the three states that used the winner-take-all rule in the first presidential election in 1789 repealed it by 1800 (and later re-adopted it).

The Founding Fathers intended that the Electoral College would consist of "wise men" who would deliberate on the choice of the President and select the best candidate. The Electoral College was patterned after ecclesiastical elections. For example, cardinals of the Roman Catholic Church (with lifetime appointments) deliberated in the College of Cardinals to choose the Pope. The Holy Roman Emperor was elected by a similar small and distinguished group of "electors." In many kingdoms in Europe, a small group of "electors" would, on the death of the king, choose a new king from a pool consisting of designated members of the royal family.

The Founding Fathers did not, however, anticipate the emergence of political parties. In the debates of the Constitutional Convention and the Federalist Papers, there is no mention of a state's presidential electors being mere "rubberstamps" for a pre-announced choice. Nonetheless, when George Washington declined to run for a third term in 1796, political parties immediately emerged. In 1796, both the Federalist and anti-Federalist parties nominated their candidates for President and Vice President at a national meeting (a caucus of the party's members of Congress). As soon as there were national nominees, virtually all the candidates for presidential elector made it known that they would be willing "rubberstamps" who would vote for their party's nominee when the Electoral College met. All but one of the presidential electors who participated in the Electoral College for the 1796 election dutifully voted for their party's nominees. The expectation that presidential electors should "act," and not "think," was thus established in the 1796 election⁷ and has persisted to this day. Of the 21,915 electoral votes cast for President in the nation's 55 presidential elections, only 11 were cast in an unexpected way.⁸

The delegates to the Constitutional Convention in 1787 debated the method of electing the President on 22 separate days and held 30 votes on the topic. During those debates, the Convention considered election by state governors, Congress, state legislatures, nationwide popular vote (which lost by one vote), and presidential electors. In the end, the Founding Fathers could not agree on a method for electing the President. The Founding Fathers left the matter to the states.

The Founding Fathers did not anticipate, much less favor, our current system of electing the President (as discussed in section 10.1.3 of this book).

In any event, one does not show respect for the Founding Fathers by ignoring the specific method that they built into the U.S. Constitution for changing the method of electing the President, namely state action. Moreover, one does not show respect for the Constitution by unnecessarily amending it. The method that is built into the Constitution should be used first. Amending the Constitution should be the method of last resort.

There is nothing in the Constitution that needs to be amended in order for states to switch from their current practice of awarding their electoral votes to the candidate who receives the most popular votes inside their individual states (the winner-take-all rule) to a system in which they award their electoral votes to the candidate who receives the most popular votes in all 50 states and the District of Columbia (the National Popular Vote bill). The Founding Fathers gave the states exclusive and plenary control over the manner of awarding their electoral votes. Before contemplating a change in the U.S. Constitution, the states should be given the chance to exercise the power that the Founding Fathers specifically gave to the states in the Constitution.

Tara Ross (author of a book⁹ defending the current system of electing the President) characterizes a federal constitutional amendment as being more democratic and as turning the matter over to "the people." However, a federal constitutional amendment favored by states representing 97% of the nation's population can be blocked by states representing only 3% of the population (i.e., the 13 smallest states).

Tara Ross (author of a book¹⁰ defending the current system of electing the President) has criticized the National Popular Vote bill on the grounds that "11 colluding states" could, if they acted in concert, impose a national popular vote on the country.

The 11 most populous states contain 56% of the U.S. population and a majority of the electoral votes. In fact, these 11 states could theoretically elect a President in every presidential election under the current system. However, reality is that the 11 largest states have little in common politically with one another and rarely act in concert on any issue. In terms of the 2000 and 2004 presidential elections, five of the 11 largest states (Texas, Florida, Ohio, North Carolina, and Georgia) were Republican, and six of them (California, New York, Illinois, Pennsylvania, Michigan, and New Jersey) were Democratic.

The National Popular Vote bill will become effective when states cumulatively possessing a majority of the electoral votes have enacted it. As of 2008, the National Popular Vote bill has been enacted by four states possessing 50 electoral votes (that is, 19% of the 270 electoral votes needed to elect a President or to bring the compact into effect). The four states are Hawaii (a small state), Maryland (an average-sized state), and New Jersey and Illinois (large states). An extrapolation from these initial numbers suggests that about half of the states (certainly not 11) would be needed to bring the National Popular Vote compact into effect. Such a group of states would represent a majority of the American people.

Ross's argument is apparently based on the belief that support for the National Popular Vote bill is limited to large states. However, the National Popular Vote bill has considerable support in small states. It has been enacted by Hawai and has passed the Maine Senate and both houses of the Vermont and Rhode Island legislatures. Polls in 2008 showed a high level of support for a nationwide election for President in Vermont (75%), Maine (71%), New Hampshire (69%), and Rhode Island (74%).¹¹ In fact, public support for a national popular vote is slightly higher than the national average in many of the smallest states. The reason may be that small states are the most disadvantaged group of states under the current system (as discussed in section 10.2 of this book).

State action offers several advantages over a federal constitutional amendment.

First, it is far easier to amend state legislation than to repeal a constitutional amendment if some "unintended consequence" materializes or some adjustment becomes advisable.

Second, the National Popular Vote compact leaves untouched the states' existing power to control presidential elections. Most of the constitutional amendments that have been debated in Congress over the years have taken away state control over presidential elections and given it to Congress. The Founders were suspicious of an over-reaching President who might, in conjunction with a compliant legislative branch, try to alter the method of conducting presidential elections in a politically advantageous manner.¹² As a "check and balance" on the central government, the Founders dispersed the power to control federal elections among the states, knowing that no single "faction" would simultaneously be in power in all the states.

Third, passing a constitutional amendment requires an enormous head of steam at the front-end of the process (i.e., getting a two-thirds vote in both houses of Congress). In contrast, state action permits support to bubble up from the people through their state legislatures. The genius of the U.S. Constitution is that it provides a way for both the central government and the state governments to initiate action. There have been only 17 amendments since passage of the Bill of Rights. The last time that Congress successfully launched a federal constitutional amendment (voting by 18-year-olds) was in 1971. Thus, experience indicates that building support locally is more likely to yield success.

Divisive debates over the process to be employed to achieve a particular objective have frequently delayed achievement of that objective. The passage of women's suffrage, for example, was delayed by decades as a result of a long-running argument within the women's suffrage movement over whether to pursue changes at the state level versus a federal constitutional amendment. Women's suffrage was first adopted by individual states using the state's power, under the U.S. Constitution, to conduct elections. It was 50 years between the time when the first state permitted women to vote (Wyoming in 1869) and the passage of the 19th Amendment by Congress (1919). By the time Congress finally passed the 19th Amendment, women had already won the right to vote in 30 of the then-48 states. Indeed, the 19th Amendment was able to get through Congress largely because women already had the vote in 30 states (and because members of Congress from the remaining 18 states knew that women would likely get the right to vote in the remaining states, by state action, in the very near future, with or without the amendment).

The Founding Fathers specifically gave the state legislatures the exclusive power to choose the manner of awarding the state's electoral votes. Article II of the U.S. Constitution provides:

The Founding Fathers had good reason to give the states the power to control the conduct of presidential elections. They specifically wanted to thwart the possibility that an over-reaching President, in conjunction with a possibly compliant Congress, could manipulate the manner of conducting presidential elections in a politically advantageous way. For similar reasons, the U.S. Constitution gives the states primary power over the manner of conducting congressional elections. ¹⁴ Control over elections is a state power under the U.S. Constitution.

For additional information, see section 1.1 and chapter 2 of this book.

A successful challenge to the National Popular Vote compact on constitutional grounds is unlikely, given the fact that constitutional law concerning interstate compacts is well settled and given the fact that the National Popular Vote compact is based on the exclusive and plenary (i.e., complete) power of the states to award their electoral votes as they see fit.

First, the U.S. Constitution says:

The wording "as the Legislature … may direct" in the Constitution is an unqualified grant of plenary and exclusive power to the states. This constitutional provision does not encourage, discourage, require, or prohibit the use of any particular method for awarding a state's electoral votes. States may exercise this grant of power in any way they see fit, provided only that they do not violate other specific provisions of the Constitution. As the U.S. Supreme Court stated in the 1892 case of McPherson v. Blacker:

The Court continued:

In Bush v. Gore in 2000, the Court called article II, section 1, clause 2:

In short, the U.S. Supreme Court has repeatedly characterized the authority of the states over the manner of awarding their electoral votes as "plenary" and "exclusive."

Second, there are no restrictions in the U.S. Constitution on the subject matter of interstate compacts, other than the implicit limitation that a compact's subject matter must be among the powers that the states are permitted to exercise. As just mentioned, the states possess the exclusive power to choose the manner of awarding their electoral votes.

Third, we are not aware of any case in which the courts have invalidated an interstate compact.¹⁹ Given the recent tendencies of the courts to accord even greater deference to states' rights and even freer use of interstate compacts by the states, it is unlikely that the courts would invalidate the National Popular Vote compact. The National Popular Vote compact is an example of states' rights in action.

Fourth, there is no argument that the winner-take-all rule is entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The winner-take-all rule (i.e., awarding all of a state's electoral votes to the candidate who receives the most popular votes in a particular state) is not mentioned in the U.S. Constitution, the debates of the Constitutional Convention, or the Federalist Papers. The actions taken by the Founding Fathers in organizing the nation's first presidential election in 1789 (in particular, the fact that only three states used the winner-take-all rule) make it clear that the Founding Fathers never gave their imprimatur to the winner-take-all rule.