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Adam Schleifer

Abstract

This Article will consider how an interstate agreement pursuant to Article I, Section 10 of the U.S. Constitution could provide a subconstitutional legal alternative to the much-debated and oft-maligned political mechanics of the Electoral College system. The current gloss on the Compacts Clause and the Supreme Court jurisprudence relating to interstate agreements may make it possible for a number of states to come together to obviate the Electoral College without resort to constitutional amendment. More modestly, investigating how this might be so provides an opportunity for applied analysis of the underscrutinized field of interstate agreements, which may prove useful as states employ experimentalist and cooperative strategies to meet challenges that span state lines. Before exploring this legal terrain, it serves to explore the political and strategic preconditions for such an effort...Part II treats briefly the background strategic effects and trends of the current Electoral College system before outlining and detailing the contours of the proposed interstate compact. While this Article proceeds largely from the standpoint of an assumption that electoral reform is desired, a brief treatment of the relevant strategic insights is of considerable help in understanding the viability of the plan from the standpoint of political economy and likely congressional response. Part III reviews the history and shape of the current law surrounding the Interstate Compact Clause, tracing the major case developments of recent decades. Part IV considers how the current proposal might interact with the law and scholarship of interstate agreements, particularly under the assumption of congressional silence. It also considers potential legal responses to the plan and the substantial obstacles, both with respect to enforcement and external challenges.

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