CONSTITUTIONAL ISSUES
Constitutional Power. Because the U.S. Constitution gives a state legislature the power to determine how a state’s electors are chosen, there could be legal challenges to a compact between several states on selection of electors.
Political Compacts. According to opponents a political compact - one that tends to enlarge the political power of compacting states at the expense of either the federal government or non-conforming sister states - may function differently from other types of interstate compacts that cover subjects such as boundaries or economics issues.
Constitutionally, political compacts are permitted between states, but all require congressional approval. Under the Constitution’s Compact Clause any changes that create a shift in political power require congressional consent. Therefore, without congressional consent the NPV Compact may not be enforceable. Congressional approval has not always been sought for previous state compacts, and the four states that have adopted the NPV Compact have not sought Congressional approval.
The NPV Compact is perceived as a way to circumvent a national stalemate on election reform but the impasse could continue if congressional approval is necessary and difficult to obtain. Senators, who are elected statewide, could be as reluctant as some governors have been to support the NPV Compact if they perceive it as disenfranchising a significant portion of their own state constituency.
The U.S. Supreme Court declined to hear a case about the impact of one state’s method of appointing its presidential electors on another state (1966). However, the current Court mightdecide to hear a case on the NPV Compact, and could decide against a group of state legislatures introducing a new system of electing a president without an amendment to the Constitution.
Non-Compacting States. States not endorsing the Compact could become a fundamental concern constitutionally because the interests of states which have not signed the Compact could be greatly diminished. Opponents say that the electors from states not part of the Compact would have little influence on selection of the President.
Constitutional Protections. The U.S. Constitution is written to protect the interests of the states in order that all states will play a role in the electoral process. The NPV Compact allows as few as 11 states to determine a presidential election and could shift political power between states that are and are not party to the Compact. There is good reason to believe that effective governance would benefit from a broad geographic basis of support. Whether there is a broad geographic base for the Compact won’t be known until we know which states enter the compact.