ACADEMIA Letters

Would Forty States Creating Amendments to Their

Constitutions to Direct Their Electoral College Votes to
the Winner of the National Popular Vote Create a
Constitutional Crisis?
Kardelen Ergül, Emory University

While talking about whether forty states creating amendments to their constitutions would
create a constitutional crisis or not, we should first decide what creates a constitutional crisis.
Keith E. Whittington separates constitutional crises into two categories: crises of opera-
tion and crises of fidelity. A crisis of operation would occur when the country’s constitution
doesn’t answer the problem we have at hand or doesn’t lay out specific rules on how to do
something. On the other hand, a crisis of fidelity would occur when the constitution lays out
specific rules on how to do something, but an individual (or individuals) decides not to follow
the rules.
Forty states creating amendments to their state constitutions in order to use national popu-
lar votes for their Electoral College votes doesn’t create a constitutional crisis of operation. To
prove this claim the first thing we should be looking into is what the Constitution says about
the Electoral College.
In the past, states have chosen their electors in various ways: some states appointed their
electors, some let their citizens vote for their electors while some created presidential districts
and conducted a popular election. Today many states choose their electors by holding state
party conventions however, this practice is not the law.
Article II, Section 1, Clause 2 of the U.S. Constitution established the Electoral College
by stating “Each State shall appoint, in such Manner as the Legislature thereof may direct,
a Number of Electors, equal to the whole Number of Senators and Representatives to which

Academia Letters, July 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0

Corresponding Author: Kardelen Ergül, kardelen.ergul@gmail.com

Citation: Ergül, K. (2021). Would Forty States Creating Amendments to Their Constitutions to Direct Their
Electoral College Votes to the Winner of the National Popular Vote Create a Constitutional Crisis? Academia
Letters, Article 1638. https://doi.org/10.20935/AL1638.
1
the State may be entitled in the Congress…” The Constitution establishes the electoral vote
system we call the Electoral College however, it doesn’t specify how the electors should be
selected and how they should vote. The power to decide how electors are selected is left
to the state legislatures and after chosen electors are at the liberty to vote for their desired
candidate. The state legislatures can amend their state constitutions in a way that would require
choosing electors that would vote according to the national popular vote. Thus, it’s apparent
that the Constitution specifically lays out the rules of the Electoral College by giving the choice
to state’s legislatures and this practice of using the national popular votes doesn’t create a
constitutional crisis of operation.
By using its judicial review power, the United States Supreme Court can decide on whether
an action, treaty or regulation contradicts the U.S. Constitution. The Supreme Court ruled
for key cases regarding the Electoral College. One of the most important cases that created
precedent about the constitutionality of state legislature changes for the Electoral College was
McPherson v. Blacker. In that case, the Supreme Court established that state legislatures have
plenary power over how to appoint Electors. This ruling once again strengthens the text of
the Constitution by making state legislatures decide on how to appoint their Electors. Bush v.
Gore also reinforces this idea by stating “in a Presidential election the clearly expressed intent
of the legislature must prevail.” Now many states are using state party conventions to select
Electors but state legislatures can very well change that system to selecting Electors that will
vote according to the national popular vote. As long as it’s the state legislators who choose a
method of appointment, that method is constitutional.
Also, forty states creating amendments to their state constitutions in order to use national
popular votes for their Electoral College votes doesn’t create a constitutional crisis of fidelity.
It is clear that states are not opting to not follow the Constitution, they are precisely following
the Constitution and exercising the power that is given to them by it to choose Electors.
Using national popular votes for the Electoral College also aligns with the constitutional
vision of the United States and its democratic ideas and beliefs. While forming the Electoral
College, the founding fathers feared a powerful executive like a monarch, and they didn’t want
a system that would be similar to the parliament system in which Congress would choose the
president. They created the Electoral College with the assumption that it would not solely
decide the winner but nominate top candidates for the Congress to choose. The founding
fathers were under this assumption because they thought there would be lots of candidates
that would divide up the votes and no one would reach the majority. They didn’t plan a system
in which political parties existed. Many of the founding fathers were against the formation of
political parties. They warned against “the baneful effects of the spirit of the party” and “the
destructive role factions play in breaking the republic apart.” While forming the Electoral

Academia Letters, July 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0

Corresponding Author: Kardelen Ergül, kardelen.ergul@gmail.com

Citation: Ergül, K. (2021). Would Forty States Creating Amendments to Their Constitutions to Direct Their
Electoral College Votes to the Winner of the National Popular Vote Create a Constitutional Crisis? Academia
Letters, Article 1638. https://doi.org/10.20935/AL1638.
2
College they didn’t envision choosing the Electors through state party conventions. Also,
they thought 18th-century voters would not be informed about the candidates, so the Electoral
College was necessary instead of the popular vote. These two assumptions no longer stand.
The United States has one of the most prominent two-party systems in the world and the
Electors are tied to the parties much to the dismay of the founding fathers. Secondly, 21st-
century voters are more informed about the candidates than their 18th-century counterparts.
Moreover, the Constitution establishes the U.S. as a federal democratic republic. Meaning
it values the representation and governing of its people through votes. Throughout history,
voting rights have expanded and now all U.S. citizens over 18 years old can vote. The U.S.’s
constitutional vision lies with democratic ideas which puts an emphasis on voting. Important
amendments were passed to enrich voting rights. The Supreme Court also issued rulings like
the Reynolds v. Sims to strengthen the idea of “one man, one vote.” And what would reflect
“one man, one vote,” idea better than Electors voting in accordance with the national popular
vote? With this system, every vote every citizen casts will count as equal, and the people will
elect a president and a vice-president they really want to elect. This system not only follows
the rules that are set by the Constitution but also reflects the vision of the constitution by
making it more suitable to today’s conditions.
After establishing that this system is constitutional and aligns with the constitutional vi-
sion, some may argue that 10 states not agreeing to use this system might create a constitu-
tional crisis in which we cannot decide a president/vice-president. Firstly, the Constitution
doesn’t state that every state has to use the same system and as we can see even now Maine
and Nebraska use different systems. Thus, 10 states not agreeing to use this system doesn’t
create a constitutional crisis.
Secondly, some may argue that 10 states not agreeing to this system will leave us with
an Electoral College that cannot decide the results of the presidential elections. Even if we
assume that the 10 states not changing their system are the top 10 states with the most elec-
toral votes like California(55), Texas(38), Florida(29), New York(29), Illinois(20), Pennsyl-
vania(20), Ohio(18), Georgia(16), Michigan(16) and North Carolina(15), the total number
would be 256 and the states that are using the national popular vote would be 282, passing the
270 mark. Thus, making the winner of the popular vote also the winner of the election. (Seats
according to 2020 election before the new census.) So the usage of this system with 40 states
doesn’t prevent the Electoral College from choosing a president/vice-president and it doesn’t
leave us in a crisis.
It is not true for this scenario, but even if the 40 states couldn’t pass the 270 mark, the
Article II, Section 1, Clause 3 of the U.S. Constitution, and the 12th Amendment establishes
that in the event that no candidate for both the office of the president and the president wins the

Academia Letters, July 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0

Corresponding Author: Kardelen Ergül, kardelen.ergul@gmail.com

Citation: Ergül, K. (2021). Would Forty States Creating Amendments to Their Constitutions to Direct Their
Electoral College Votes to the Winner of the National Popular Vote Create a Constitutional Crisis? Academia
Letters, Article 1638. https://doi.org/10.20935/AL1638.
3
majority of the Electoral College votes, the House would choose the president while the Senate
would choose the vice-president. This system doesn’t leave us with an Electoral College that
cannot choose a president thus, it doesn’t create a constitutional and a political crisis. Even
if that scenario occurred, it wouldn’t create a constitutional crisis because the Constitution
specifies what to do in that event. (Assuming everyone will accept the results and there won’t
be any questions of fidelity.)
In conclusion, forty states creating amendments to their state constitutions in order to use
national popular votes for their Electoral College votes doesn’t create a constitutional crisis
of operation because the Constitution gives the power of deciding how to select Electors to
the states. As long as it’s the state legislatures that decide on how to select them, the act
is constitutional. This system also doesn’t create a constitutional crisis of fidelity because
state legislatures are not ignoring the rules that are established. They are using the power
that is given to them by the Constitution and further established by the Supreme Court. This
system also aligns with the vision of the U.S. Constitution that establishes a federal democratic
republic and gives importance to voting and the idea of “one man, one vote.” It changes
a system that has become outdated and contrary to the vision of the founding fathers to a
system that is constitutional and in line with the democratic and representative ideas of the
U.S. The usage of this system with 40 states, will not result in Electoral College not being able
to choose a president/vice-president and it will neither result in a constitutional nor political
crisis. It will result in the citizens of the U.S. getting a president/vice-president they really
elected.

Academia Letters, July 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0

Corresponding Author: Kardelen Ergül, kardelen.ergul@gmail.com

Citation: Ergül, K. (2021). Would Forty States Creating Amendments to Their Constitutions to Direct Their
Electoral College Votes to the Winner of the National Popular Vote Create a Constitutional Crisis? Academia
Letters, Article 1638. https://doi.org/10.20935/AL1638.
4