National Popular Vote is based on Article II, Section 1 of the U.S. Constitution, which gives each state legislature the right to decide how to appoint its own electors.Unable to agree on any particular method for selecting presidential electors, the Founding Fathers left the choice of method exclusively to the states in Article II, Section 1
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as "plenary" and "exclusive."
The Constitution does not prohibit any of the methods that were debated and rejected. Indeed, a majority of the states appointed their presidential electors using two of the rejected methods in the nation's first presidential election in 1789 (i.e., appointment by the legislature and by the governor and his cabinet). Presidential electors were appointed by state legislatures for almost a century.
All of the 270+ presidential electors from the enacting states will be supporters of the presidential candidate receiving the most popular votes among all 50 states (and DC)
The electors are and will be dedicated party activist supporters of the winning party’s candidate who meet briefly in mid-December to cast their totally predictable rubberstamped votes in accordance with their pre-announced pledges.
There have been 24,067 electoral votes cast since presidential elections became competitive (in 1796), and only 31 have been cast in a deviant way, for someone other than the candidate nominated by the elector's own political party (one clear faithless elector, 29 grand-standing votes, and one accidental vote). 1796 remains the only instance when the elector might have thought, at the time he voted, that his vote might affect the national outcome.
States have enacted and can enact laws that guarantee the votes of their presidential electors.
In Arizona, HB2302 went into effect in August 2017. Electors must cast their vote for candidate and vice president candidate who jointly received the highest number of votes in the state. If the elector refuses to cast that vote, they will no longer be eligible to hold their position as an elector.
April 10, 2018 - A federal appeals court judge has ruled that Colorado’s presidential electors must vote for the winner of the state’s popular vote.
Pennsylvania law empowers each party’s presidential candidate to nominate all elector candidates directly. The presidential nominee is, after all, the person whose name actually appears on the ballot on Election Day and who has the greatest immediate interest in faithful voting by presidential electors.
North Carolina law declares vacant the position of any contrary-voting elector, voids that elector’s vote, and empowers the state’s remaining electors to replace the contrary-voting elector immediately with an elector loyal to the party’s nominee.
The Uniform Faithful Presidential Electors Act has a state-administered pledge of faithfulness. Any attempt by a presidential elector to cast a vote in violation of that pledge effectively constitutes resignation from the office of elector. The Act provides a mechanism for immediately filling a vacancy created for that reason (or any other reason).
The National Popular Vote organization has endorsed this proposed uniform law.
The U.S. Supreme Court has upheld state laws guaranteeing faithful voting by presidential electors (because the states have plenary power over presidential electors).