I wonder what we could learn about the constitutionality of the National Popular Vote Compact by thinking about a variation on it.

Suppose states controlling 270 or more electoral votes entered into a compact requiring each of the compacting states to choose electors who would support the presidential candidate who received the most votes in the compacting states. Call this the Compacting States Popular Vote Compact (CSPVC).

The CSPVC, if followed, would render the choice of electors in the other states irrelevant, and thus would render voting in presidential elections in those other states pointless.

Is it clear that there are constitutionally relevant differences between the hypothetical CSPVC scheme and the actual NPVC scheme?

Even if we treat the CSPVC as the kind of compact that requires congressional approval, should congressional approval be sufficient to make enforceable a compact that would make such a basic change in how we choose presidents?

Again, is it clear that there are constitutionally relevant differences that would require treatment of the CSPVC differently from the NPVC with regard to whether congressional approval is or is not needed, and with regard to whether congressional approval would be sufficient to validate the compact?

If the CSPVC would make so basic a structural change that it could only be implemented by constitutional amendment, where is the line between structural changes that require constitutional amendment and those that (at least according to NPVC supporters) do not? 

Perhaps these points (or something like them) have already been discussed somewhere. If so, cites would be appreciated.

Mark Scarberry
Pepperdine 

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