The electoral college vs. the popular vote: Could states do an end-run around the current system?
National Popular Vote Interstate Compact
Amending the constitution to change the way we elect the president would be difficult. It requires require a two-thirds vote by the House and Senate and support from three-fourths of state Legislatures. Since that is a high threshold, advocates for electing the president based on the national popular vote have looked for other paths.
An effort known as The National Popular Vote Interstate Compact is an agreement among several U.S. states and the District of Columbia to award all their respective electoral votes to whichever presidential candidate wins the overall popular vote. Once states totaling 270 electoral votes join the compact -- which only requires passing state laws -- then the next presidential election will be determined the the popular vote, not the Electoral College."
Over a decade, 10 states and the District of Columbia -- which add up to 165 electoral votes -- have passed laws to join the compact. So 105 more electoral votes are needed before it can go into effect.
The current states in the compact are Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, Vermont, California, Rhode Island and New York.
Congressional consent
But that still leaves a key question: If the compact ever got to that 270-threshold, could states award their electoral votes to the national popular vote winner, or would Congress need to sign off?
If the compact ever meets that benchmark, it’s likely that someone would file a challenge. It’s likely the U.S. Supreme Court would have to rule on whether the system is permissible.
The Compact Clause of the Constitution states that "no state shall, without the consent of Congress enter into any agreement or compact with another state, or with a foreign power." The courts have ruled in the past that if federal supremacy is threatened, then congressional consent is required for a compact to be valid.