1.1 MYTH: A federal constitutional amendment is necessary for changing the current method of electing the President.
The U.S. Constitution gives the states the “exclusive” and “plenary” power to choose the method of awarding their electoral votes.
The shortcomings of the current system of electing the President stem from state winner-take-all statutes that award all of a state’s electoral votes to the candidate who receives the most popular votes within each separate state.
The state-by-state winner-take-all method of awarding electoral votes is not in the U.S. Constitution. It was not debated at the Constitutional Convention. It was not discussed in the Federalist Papers.
The winner-take-all rule was used by only three states in the nation’s first presidential election in 1789 (all of which abandoned it by 1800). The Founders were dead for decades before the winner-take-all rule became the predominant method of awarding electoral votes.
Maine and Nebraska currently award electoral votes by congressional district—a reminder that the method of awarding electoral votes is a state decision.
The winner-take-all rule is used today in 48 of the 50 states because it was enacted as a state statute in those states, under the same provision of the U.S. Constitution (empowering the states to choose the method of awarding their electoral votes) being used to enact the National Popular Vote plan.
Winner-take-all statutes may be repealed in the same way they were enacted—namely, through each state’s process for enacting and repealing state laws. Therefore, a federal constitutional amendment is not necessary to change the state-by-state winner-take-all method of awarding electoral votes.
The Constitution’s grant of exclusive power to the states to decide how presidential elections are conducted was not a historical accident or mistake, but was intended as a “check and balance” on a sitting President who, in conjunction with a compliant Congress, might manipulate election rules to perpetuate himself in office.
MORE DETAILED ANSWER:
It is important to recognize what the U.S. Constitution says—and does not say—about electing the President.
Article II, section 1, clause 2 of the U.S. Constitution provides:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”