More Thoughts on the Compact Clause and the National Popular Vote: A Response to Professor Hendricks

Abstract

This article briefly responds to three of the more salient issues noted by Professor Hendricks in her article Election of the President: Using or Abusing the Electoral College?, 7 ELECTION L.J. 218 (2008). First, I establish that the Supreme Court actually would enforce the requirement of congressional consent for the Compact under its current jurisprudence according to the Political Consent Compact Clause. Second, I define a not merely in terms of the topic or type of the compact, but in terms of its function as a compact that tends to enlarge the power of some states at the expense of others. Under this definition, the National Popular Vote (NPV) is a political compact because it shifts political power among presidential electors across states. Third, I conclude that the Compact, which ostensibly designates the procedure that participating states will use to appoint their presidential electors, actually affects the political power of non-compacting states.