In March, the New York Legislature overwhelmingly passed and, last month, Gov. Andrew Cuomo signed into law the National Popular Vote bill, which aims to create a system that elects the president by a nationwide popular vote. With this law, the governor has added New York to a growing list of states that are violating the U.S. Constitution.
Under the current Electoral College system, the president is elected through a two-step voting process. First, individuals vote for their preferred candidate in their state of residence. Next, groups of electors are designated by each state, except Maine and Nebraska, to reflect the outcome of the popular vote in the state. (Maine and Nebraska allocate their electoral votes to the candidate who wins the popular vote in each congressional district.)
Under the system signed into law last month, New York's electoral votes will be awarded to the winner of the national popular vote. However, this plan is unconstitutional, because it seeks to overturn the Electoral College system without a constitutional amendment.
There have been no lawsuits challenging the National Popular Vote plan, because it does not legally go into effect until a number of states equal to the 270 electoral votes needed to win the presidency have enacted it. To date, nine states and the District of Columbia have enacted the plan, totaling 136 electoral votes, which is just over halfway to the magic number of 270. New York's 29 electoral votes bring the total to 165 electoral votes.
Proponents of the National Popular Vote plan claim it will reflect the democratic preferences of the voters much better than the allegedly antiquated Electoral College. However, there are several constitutional roadblocks that will prevent this law from being implemented.
Under the Constitution's Compact Clause, "No state shall, without the Consent of Congress ... enter into any Agreement or Compact with another state." Supporters of the National Popular Vote plan concede the state laws form an interstate compact, but they claim congressional approval is unnecessary.
Although the Supreme Court has held that not all interstate agreements need congressional approval, it has only allowed agreements that do not penalize non-joining states and do not threaten federal interests or institutions. For example, the court has allowed agreements resolving state boundaries or multistate tax commissions to exist without congressional approval.
However, states that do not enact the National Popular Vote bill, such as low-population states, will be disadvantaged by the high-population states. Also, the express purpose of the compact is to change a federal institution: the Electoral College. For these reasons, the compact needs to be submitted to Congress.
Yet, in an ironic twist, even if the National Popular Vote plan were submitted to Congress for review, Congress would be constitutionally prohibited from approving it. This is because the Supreme Court has held that Congress' approval of an interstate agreement converts the agreement into federal law. Although the Constitution leaves the appointment of electors up to the states, submission of the agreement to Congress puts Congress in the position of approving an interstate agreement that Congress is otherwise prohibited from enacting on its own. Congress could not constitutionally create a popular vote system on its own initiative. How could it enact a state-based plan that does the same?
The National Popular Vote interstate compact is manifestly unconstitutional.
New York state has now contributed to this constitutional problem, and the U.S. Supreme Court will have to correct it.