Why the Framers' Electoral College Still Gives Wisconsin, and Every State, a Voice Worth Keeping

A Wisconsin Democrat's promise to scrap the way Americans choose their president deserves a serious answer, and the Constitution, the founders and a century of close elections supply one.

Wisconsin Governor-elect David Crowley, a Democrat, told the Associated Press that his state can leave the Electoral College behind. "We can do away with it," he said, adding that he wants to open those talks with a Legislature his party will control for the first time in 16 years. The Daily Wire reported that Crowley called the current system an outdated way to choose a president and said the office should go to whoever wins the most votes across the country, not the most electoral votes.

Pennsylvania Gov. Josh Shapiro, a possible 2028 contender, said on a podcast over the weekend that he still favors a national popular vote and will work with lawmakers on a way to get there, the AP reported.

The vehicle is the National Popular Vote Interstate Compact. Each member state pledges to give all of its electors to the candidate with the most votes nationwide, no matter how its own voters decide, and the pledge switches on only when members hold the 270 electoral votes that make a majority. According to the AP, 18 Democratic-run states holding 222 electoral votes have joined. Last week's elections gave Democrats full control of six more states with 71 electoral votes among them: Arizona, Michigan, Minnesota, Nevada, Pennsylvania and Wisconsin. Minnesota is already a member, so the AP calculated that crossing the line would take Pennsylvania, Wisconsin, Michigan and either Arizona or Nevada.

Supporters deserve a fair hearing. They argue that every ballot should weigh the same wherever it is cast, that campaigns would court persuadable voters everywhere instead of in a few battlegrounds, and that the plan spares the country the long climb of a constitutional amendment. Patrick Rosenstiel, a Minnesota Republican strategist and senior consultant to the effort, told the AP his own vote has never been a factor in a presidential outcome.

Article II, Section 1 gives every state electors equal to its senators plus its representatives, appointed "in such Manner as the Legislature thereof may direct". The Constitution Annotated notes that the Supreme Court in McPherson v. Blacker (1892) read that clause as giving legislatures plenary power over the appointment of electors, and it describes the design as the framers' compromise between direct election and selection by Congress.

Compact backers rest their legal case on that power, and it is broad. But there is a difference between a state deciding how its own people will speak and a state promising in advance to let the rest of the country speak for it. As the Daily Wire pointed out, under a national popular vote rule Wisconsin's electors would have gone to Hillary Clinton in 2016, even though Wisconsin voters chose Donald Trump.

The Twelfth Amendment keeps the federal shape of the system even in its emergency backup. Electors meet in their own states and cast separate ballots for president and vice president, and if no candidate wins a majority, the House of Representatives chooses, with each state's delegation casting one vote. From first ballot to last resort, the presidency is the choice of a union of states.

Article I, Section 10 says no state may enter into an agreement or compact with another state without the consent of Congress, as a 2019 Congressional Research Service report on the plan lays out. The Supreme Court has not read that literally. In Virginia v. Tennessee (1893), it tied the consent requirement to compacts that could build up state power at the expense of federal supremacy, and in the later Multistate Tax Commission case it asked whether a compact could enhance state power relative to the national government.

Supporters, including legal scholar Akhil Amar, contend the popular vote plan is not a true compact because it creates no new interstate machinery. The CRS analysts concluded it fits a broad definition of a compact anyway: members make reciprocal promises, and a withdrawal in the final six months of a presidential term does not count until after the next election. Scholar Ian Drake, quoted in the report, put the bind sharply: the compact "must be submitted to Congress but cannot be approved by Congress".

Notre Dame law professor Derek Muller flagged more trouble to the AP: states may run their own elections but cannot set the outcome of other states' contests, and ballots differ, with third-party candidates listed in some states and not others, which could invite Fourteenth Amendment equal protection challenges. The AP added that the Supreme Court could insist on congressional approval. Critics also call the plan an end run around Article V and its supermajority requirements for amending the Constitution. If Americans want a different method, the honest path is the amendment process.

The framers considered both a president picked by Congress and a pure national vote, and they settled on electors chosen state by state. Alexander Hamilton defended that choice in Federalist No. 68. He wanted the sense of the people to guide the outcome, through electors chosen for that single task and meeting separately in their own states, where they would be less exposed to sudden passions. He wanted every practical barrier raised against cabal, intrigue, corruption and the ambitions of foreign powers. His verdict: "if the manner of it be not perfect, it is at least excellent".

Christians will recognize in that caution an old truth about human nature: power needs fences, and the wisest fences divide it. The framers' hope of keeping partisanship out proved elusive, the Constitution Annotated concedes, but their state-by-state design has endured.

Common sense points the same way. The two Senate-based electors give less populous states what the CRS calls a small numerical advantage, and critics warn the compact would dilute their influence. That is not merely a Republican worry. Nevada's then-Gov. Steve Sisolak, a Democrat, vetoed a compact bill in 2019, arguing it would weaken small states like his own. Former Wisconsin Gov. Scott Walker made the same point about his state, asking, "Why eliminate the influence of Wisconsin in national elections?" He warned candidates would simply chase the big crowds in places like Los Angeles and New York City.

Then there are recounts. In 2000, Florida's 25 electoral votes decided the presidency by a 537-vote margin, according to the CRS. That fight was bitter, but it stayed inside one state. Under one national tally, critics cited in the report warn of more recounts and more contested results. Even the national number can be murky: the CRS notes that some analysts argued John F. Kennedy's 1960 total from Alabama was overstated and that a different count would have given Richard Nixon a slim national plurality of 58,181 votes.

Nor is the Electoral College a trap for one party. Donald Trump won the popular vote in 2024, the first Republican to do so since 2004, the Daily Wire noted. Enthusiasm for change tends to follow whoever lost last: Gallup found Republican support for direct election fell from 54 percent in 2012 to 19 percent in December 2016, according to the CRS. A nation should not rewrite its founding charter by mood.

In Wisconsin, Assembly Majority Leader Tyler August, a Republican, said the Constitution gives states a voice in electing the president for good reason and warned the compact would disenfranchise Wisconsin voters by letting other states override them. Analysts at the America First Policy Institute argued in September that the plan violates the Constitution and undercuts the founders' intent.

Several newly empowered Democrats are hanging back. Arizona Gov. Katie Hobbs would not say whether she supports joining, Michigan's governor's office declined to comment, and a spokesman for Nevada's incoming governor, Aaron Ford, said Ford is concentrating on the cost of living for now. A 2023 Nevada effort stalled under a Republican governor, and Republican-led chambers that have occasionally passed compact bills, such as the Oklahoma Senate, went no further. Muller told the AP that some supporters may have second thoughts now that a symbolic protest has become a real possibility.

The fight moves to statehouses when the new legislatures convene early next year, with backers' sponsors in place. Expect courtrooms after that: Drake predicted multiple suits in state and federal courts once enough states sign on, and Muller expects the Supreme Court to take an interest.

For citizens in Madison, Harrisburg, Lansing, Phoenix and Carson City, the moment calls for calm, informed engagement with their own legislators. The framers built a system in which each state's voters count on their own terms. Wisconsin should think hard before signing that voice away.