On Monday, Gov. Andrew Cuomo signed legislation that adds New York to the roster of states in the National Popular Vote compact.
The law allows New York to award its 29 electoral votes "in any manner it deems appropriate," under Article II of the Constitution. Cuomo has pledged New York to give those votes to the candidate who wins the national popular vote. Currently, New York awards its electoral votes to the candidate who wins the state's popular vote.
So far, nine other states and the District of Columbia have signed on to the National Popular Vote compact. Unfortunately for popular vote advocates, this sort of legislation does not actually take effect until enough states—representing a majority of the Electoral College's 538 votes—pass similar laws. Ironically, popular-vote advocates have to win over the Electoral College before they can dismantle it.At Jurist, William G. Ross writes:
The constitutional foundation of NPVIC is Article II, Section 1 of the Constitution, which provides that states shall appoint electors "in such Manner as the Legislature thereof may direct." Advocates of the compact point out that the plain language of this text appears to provide legislators with plenary authority over the method of selecting electors, an interpretation endorsed by the US Supreme Court more than a century ago in McPherson v. Blacker in 1892 and again in 1969, Williams v. Virginia Board of Elections. Like all provisions of the Constitution, however, this section must be read in context and in conjunction with other provisions of the Constitution.
The principal constitutional impediment to NPVIC probably is the so-called "Compact Clause" in Article I, Section 10 of the Constitution, which provides that "No State shall, without the Consent of Congress ... enter into any Agreement or Compact with another State." Although the US Supreme Court has concluded that the Compact Clause does not require Congress to consent to compacts that affect only the internal affairs of the compacting states, it has indicated in US Steel Corporation v. Multistate Tax Commission that the Compact Clause requires Congress to consent to an agreement that "would enhance the political power of the member States in a way that encroaches upon the supremacy of the United States," or "impairs the sovereign rights of non-member states."
...Many supporters of the measure think that the electoral college has a Republican bias. But the opposite may now be true. Nate Silver wrote last year:
Some opponents of NPVIC also have warned that the compact might violate sections 2 and 5 of the Voting Rights Act of 1965 by diluting the votes of racial minorities and impeding their exercise of the franchise. Since African-Americans and Latinos are concentrated in populous states that have large numbers of electoral votes, these opponents of the compact contend that the election of a president by virtual popular vote would diminish the electoral influence of these racial minorities.
President Obama won the Electoral College fairly decisively last year despite a margin of just 3.8 percentage points in the national popular vote. In fact, Mr. Obama would probably have won the Electoral College even if the popular vote had slightly favored Mitt Romney. The “tipping-point state” in the election — the one that provided Mr. Obama with his decisive 270th electoral vote — was Colorado, which Mr. Obama won by 5.4 percentage points. If all states had shifted toward Mr. Romney by 5.3 percentage points, Mr. Obama would still have won Colorado and therefore the Electoral College — despite losing the national popular vote by 1.5 points.