But advocates of more far-reaching reform say that only a direct popular vote makes sense. At present, the idea of securing a constitutional amendment to abolish the Electoral College seems far-fetched. Advocates of reform, however, see a potential workaround. The National Popular Vote Interstate Compact is an initiative that seeks to commit individual states to binding their electoral votes to the national popular-vote winner; the system would kick in once states with a majority of electoral votes have signed on.
The compact began with Every Vote Equal, a book that argues for the idea, and National Popular Vote, an advocacy group that lobbies states to join the compact. John Koza was the lead author of Every Vote Equal and a co-founder of National Popular Vote. Most states, he argues, are simply ignored politically, with almost all campaigning resources devoted to a handful of swing states at the expense of the rest of the country. A national popular vote would ameliorate the situation and, he believes, circumvent the need for a constitutional amendment.
Read: New York is the latest state to reject the Electoral College
Josephson, an opponent of the National Popular Vote compact, believes the plan would likely be struck down by the Supreme Court as an unconstitutional agreement between states, as it could be argued that the pact benefits its members at the expense of other states. He also contends that electors might break from the agreement when faced with the prospect of voting for candidates they disliked.
Faithless electors, those who do not vote for the candidate to whom they were pledged, are not inherently a hang-up for Josephson, however. He believes that repealing laws that punish faithless electors—28 states currently have such laws—could restore “the situation the Framers envisioned so that electors were not party hacks but could exercise their discretion and vote for who they actually think should be president.” The Electoral College, in this conception, would be a deliberative body that would decide the president largely independent of the outcome of the popular vote.
John Feerick, a professor and former dean at Fordham Law School who advised the American Bar Association during the Bayh hearings and testified before the Subcommittee on Constitutional Amendments, noted that even in the early 1820s, the Framers’ intent was largely understood to be kaput. Political parties undermined the conception of the Electoral College as a deliberative body, resulting first in Adams’s win in 1824 in the House and later in increasing use of the Electoral College as an occasionally disruptive middleman between the electorate and the presidency.
Another problem haunts the Electoral College: There’s no consensus on who benefits from the system. Both opponents and supporters say it’s smaller states. The argument goes like this: Because each state gets a two-vote bonus in the college, relative to its normal allocation of seats in the House of Representatives, voters in smaller states are disproportionately represented, since two extra votes go further in Wyoming (population 579,000) than California (population 39.5 million). But that’s missing the point, according to John F. Banzhaf III, a law professor at George Washington University who pioneered mathematical analysis of the Electoral College’s impact in a major 1968 study.