I read recently that Colorado will have a version of the National Popular Vote Interstate Compact on their ballot in November. Considering that this bill functionally eliminates the Electoral College, and thus changes the system of elections laid out in the Constitution, what is it's constitutionality? Is there a legal argument against it?
Additionally, assumed that it is challenged after the election, could the results of the election potentially be overturned?
The Interstate State Compact, if it ever was implemented by states representing 270 or more electors would almost certainly be tested in court. Until it is tested in the Supreme Court, nobody can authoritatively say if it is constitutional or not,
The arguments would centre around whether the constitution should be read on the "plain meaning of the Constitution" (this would be a "textualist approach"), or whether we should consider the implied intention of the Constitution (an originalist approach).
The textualist looks to the words written and argues that the Constitution allows states' legislatures to appoint electors in any manner, without restriction. The plain meaning of the Constitution allows for the interstate compact.
The originalist would say "If we look at the structure of the union, it is clear that the intent was that the President would not be elected by the national popular vote. This idea was considered and rejected." So this would indeed be a "subversion" of the intent of the Constitution.
The notion here is that the Constitution delegates power to the states to choose electors, but as with other delegated rights (such as the right to free speech) that right is not unlimited (there is no right to shout "fire" in a crowded theatre) but defined by norms and historical precedent. By this analysis, the interpretation of the phrase "in such Manner as the Legislature thereof may direct" implicitly has a parenthesis "provided you don't fundamentally change the role of elector". An originalist view would not follow the plain text if they felt that my making the selection of electors dependent on the results of elections in other states would be a fundamental change and not sanctioned by the intent of the authors of the Constitution.
Ultimately this change can have political consequences, and so how you interpret the constitution is likely to be coloured by your political viewpoint. And with the US Supreme Court being a political body, with appointees made as much on their political leanings as on their legal expertise, the decision in the supreme court could depend on political factors and not merely a plain reading of the text.
The US Constitution has no procedure for the election of a president to be overturned. The electors send their votes to the President of the Senate, and the senate count and declare the winner. That person becomes President. If the senate consider the votes to be invalid then we are in deep constitutional doodoo.
If however the Supreme Court decides that notwithstanding the lack of any procedure in the Constitution, the Constitution requires that the election should be overturned, then that would be their judgement.
Completely constitutional. Article II, section 1 of the Constitution:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress
It is not Constitutional
Article 1 Section 10: Powers Denied to the States
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State,
The original Constitution text about elector selection would have allowed this, but the passage of the 14th Amendment made it unconstitutional and unconstitutional in a way that is dangerous for the states that are participating in the compact.
The 14th Amendment reads, in part:
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
The interstate compact means that the votes of male citizens 21 and over in the states involved are discarded in favor of votes from other states.
If the compact goes into effect, the states participating in it lose their electors, and also lose their seats in Congress, since the "basis of representation" being lost is 100%.
Of course, the political cataclysm that would result if several states had their representatives expelled from Congress and lost their electoral college votes would be so extreme that I have to assume that no effort would be spared to avoid it. But the 14th amendment makes it a possibility.
The main argument against would be that you could have your state bound to send its electoral votes to someone who did not appear on the ballot.
For argument's sake, let's say Michael Bloomberg decides to re-run his Super Tuesday strategy where he enters the race late to run as in Independent. He's too late to appear on some state ballots, but he's on all the big state ballots. Bloomberg wins the popular vote, but he didn't win any state where he didn't appear on the ballot and he falls short of the 270 needed to win outright.
The Compact says those states have to send their electoral votes to the national popular vote winner. It means voters in those states would see their votes nullified. That would undoubtedly produce a Federal lawsuit by voters who would claim they were disenfranchised. It's not unreasonable that those courts would enjoin those States from casting Electoral College votes until the case was settled. Those cases would be very likely to reach the Supreme Court (similar to Bush v Gore). How SCOTUS would rule is anyone's guess. Still, there would be serious doubt of the Constitutionality at that point.
National Vote Compacts are a bit of a funny subject. Because while they often sound good in abstract (usually, when someone is unsatisfied with the winner of the electoral and wishes the popular vote candidate has won) it's only when the compact matters that the craziness starts to unfold.
Picture this: in 2016, some pundits were predicting the opposite result would happen - that Trump would win the popular vote, and Clinton would win the electoral college.
Now, imagine you're in California. You're a deep blue state. You detest Trump, and he didn't receive even a third of the votes in your state. Care to guess whether your deep blue state would just say, "Eh, we agreed to the compact. Time to ignore the wishes of our California voters, follow the compact, and make Trump president." Or would they say, "Hey, you know, maybe that compact wasn't such a good idea after all. Let's repeal it quick." California would've moved heaven and earth if it could've changed the election result from Trump to Clinton. Likewise, if Alabama (9 electoral votes) was in a compact in 2016 with what happened... do you think that deep red state would've went through choosing Clinton electors? Or would they have pulled every legislative trick they could muster to back out of it?
When it comes down to it, the compact doesn't really ever help the state you're in. If your state's preference aligns with the national preference... well, the compact didn't actually change your voting at all. If your state's preference doesn't align with the national preference... well, at that point, you're disregarding the voters in your state, and choosing a candidate they don't want.
States wishing to undermine the compact could specify that immediately after the election, it will immediately publish the combined number of votes received by the top two candidates, as well as the number of votes received by any other candidates, but will delay publication of the individual vote totals until January 26, unless requested to do otherwise by the second-place finisher.
If Moe beat Larry in such a state by 3,000,000 to 1,000,000, and would would win the national popular vote by 1,500,000 if credited with that 2,000,000-vote margin, but Larry opted not to have those vote totals published, Moe would have no way to show that he won the national popular vote. A second-place finisher who wishes to contest an election would be entitled to know how close it is, but the first-place finisher would not be entitled to demand certification of anything other than the fact that they won.
Another reason it could be ruled unconstitutional is that the winner of the popular vote is not well defined. Vote tallies have uncertainties, as demonstrated by recounts. For the compact to be relevant, the vote has to be close, and thus, uncertainties in states with clear winners that do not agree to the compact will be relevant. Those states will likely not count provisional ballots, recount, recanvas, etc. as requested by states in the compact. Or, they may when it serves their winner. Bickering will follow. Multiple vote counts will be published. Arguing will ensue on a scale much greater than Florida 2000.
The Supreme Court is prescient enough to see this, and dismiss the compact on grounds of vagueness.
