Jerry H. Goldfeder, in his December 17, 2018 letter, says it would be “a creative measure to have the winner of the popular vote actually be elected president.”

National Popular Vote envisages a compact, an agreement, among the states to cast their elector ballots for the national popular vote winner, regardless of how the people of their respective states voted.  It would take effect when states with a majority of elector votes join NPV, 270 including the District of Columbia's three elector votes.

There are at least 17 reasons why NPV is unlikely to work.

  1. Only roughly half the states purport to bind electors to vote in accordance with their own state's popular vote. A state law that purports to bind its electors to vote even in accordance with its own popular vote, let alone the nation's, may be unconstitutional under Ray v. Blair.
  2. Could an NPV state elector force a colleague to vote in accordance with NPV? No elector voting enforcement mechanism is provided by NPV.
  3. Could an NPV state sue a withdrawing NPV state or its electors to vote in accordance with NPV? Where?  When?  How quickly?

A recent United States District Court decision rejecting New Jersey's attempt unilaterally to withdraw from a congressionally approved interstate compact with New York might imply that the first question above could be answered negatively.  NPV has never been submitted to Congress for its approval.

  1. Under the Constitution, interstate compacts have to be approved by Congress. The United States Supreme Court held in United States Steel Corp. v. Multistate Tax Commission, that the Multistate Tax Compact did not need congressional approval because it did not increase the political power of the states who are parties by encroaching on that of the non-party states or by encroaching on federal supremacy.  NPV increases the political power of states that are parties as opposed to states that are not by requiring the NPV states to cast their elector votes for the national popular vote winner regardless of how those states voted.  Does NPV also encroach on the United States interest in presidential elections that conform to the intent of the framers and of the Twelfth Amendment?  Professor Derek Muller has argued persuasively that NPV does so encroach.
  2. Congress is unlikely to approve NPV for the same reason that it would not likely approve a constitutional amendment substituting popular vote for the Electoral College.
  3. If a state's electors do not vote in accordance with NPV, will Congress count their votes?

On December 19, 2016, President Trump received 304 elector votes, Clinton 227, Colin Powell 3 (Clinton electors Washington) and one each for John Kasich (Trump elector Texas), Faith Spotted Eagle (Clinton elector Washington), Ron Paul (Trump elector Texas) and Bernie Sanders (Clinton elector Hawaii).