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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?

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    If I understand the question correctly, there's no reason to mention Colorado in particular. The National Popular Vote Interstate Compact has already been enacted by 14 other states plus the District of Columbia. The Wikipedia article on that has a long discussion of disputes over its legality, but if I'm not wrong, everything there is basically speculative until it's actually challenged in court. – Brian Z Jun 22 at 20:24
  • It was just the one that I had heard of, so I decided to ask based on it specifically. – Yehuda Jun 22 at 20:45
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    In what way does it go against the constitution? I imagine one could argue that the current method isn't what the framers had in mind either. – Steve Melnikoff Jun 22 at 22:11
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    @SteveMelnikoff Perhaps it's my ignorance of the history of the Electoral College. I assumed that was the system the framers implemented. – Yehuda Jun 22 at 23:24
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    @Yehuda the system hasn't changed as the country has aged, leading to some citizens having "more say" than others. You can find plenty of arguments for and against a national popular vote online, I think CGP Grey had a decent short rundown on the situation – GammaGames Jun 23 at 19:35
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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.

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    This matter may essentially be decided long before then, and soon in fact, through faithless elector cases the court is considering. One of the intents of the electoral college was to allow the electors, as reasoned well-educated men of clarity, to override the will of the people when said people have been suckered into voting for an ill-suited candidate. But faithless elector laws, and the general fashion in which electors are often selected, try to force them to vote in a specific way. So the "textual" vs "intent" angle on the electoral college could be largely resolved with that. – zibadawa timmy Jun 23 at 7:23
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    @Barmar I think you have it backwards. Originalists believe the constitution should be interpreted according to its authors' understanding and intent, which is quite the opposite of interpreting it literally. – jkej Jun 23 at 16:11
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    That you cannot shout fire in a crowded theater is a myth, please fix your answer: legaltalknetwork.com/podcasts/make-no-law/2018/06/… – Eric Lagergren Jun 24 at 13:57
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    The ACA in particular was upheld even though the language that it used suggested it was based on a particular power, and the majority decision rejected that power's applicability, but then went on to apply some other power and found that sufficient. The law said it was a penalty, but if the court construed it as a tax it was valid, and so they did. – zibadawa timmy Jun 24 at 17:22
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    @divibisan it is a poor rhetorical device. Instead of perpetuating the myth, OP should list actual unprotected speech: slander, for example. The myth is only used as a rhetorical device because it’s relatively unknown that it’s a myth. – Eric Lagergren Jun 24 at 21:16
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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

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  • Comments are not for extended discussion; this conversation has been moved to chat. – Philipp Jun 28 at 22:07
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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.

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  • Comments are not for extended discussion; this conversation has been moved to chat. – Philipp Jun 28 at 22:06
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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,

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    That's an interesting perspective – I've never actually seen this section pointed out in this context. Apparently, though, the Supreme Court "in 1893, however, stated in Virginia v. Tennessee that congressional consent is required only for a compact if it is “directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States." loc.gov/law/help/interstate-compacts/us.php – divibisan Jun 24 at 18:14
  • "The lead advocates of NPVC are quite clear that they have every intent of seeking congressional consent at the time when congressional consent of compacts is typically sought: that is, after enough states have adopted it for it to go into effect. But in the event that Congress were not to provide consent, there is an argument that the compact still could be enacted." (source: fairvote.org/…) – probably_someone Jun 24 at 18:15
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    "On its face, the Compact Clause does ostensibly prohibit any compact between states lacking congressional consent. However, the Supreme Court has definitively stated that “not all agreements between States are subject to the strictures of the Compact clause.” U.S. Steel Corp. v. Multistate Tax Comm’n, 98 S.Ct. 799, 469 (1978). Rather, the prohibition is only directed “to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.”" (source: same as above) – probably_someone Jun 24 at 18:15
  • @divibisan I think there's a good argument that the National Popular Vote compact would enhance the power of large-population states such as California and New York at the expense of smaller states. Smaller states would be utterly ignored by candidates - which is the entire point of the compact... – Just Me Jun 25 at 0:14
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    @JustMe Maybe, but I'm skeptical of that. Now, small states, even battleground ones, are still irrelevant since their small numbers of votes makes them less likely to be the tipping point. With the NPVICC, everyone's vote is just as valuable, so that event that turns out 1000 more votes in a small state actually gets you 1000 votes closer to winning, rather than just tacking on a few more electoral votes on the side – divibisan Jun 25 at 0:39
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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.

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    Re: "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": Pundits say a lot of things. Was that outcome actually plausible, or just a delightfully interesting way to fill air-time? – ruakh Jun 23 at 21:28
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    (Aside from that, I think this is an excellent answer . . . to a completely different question.) – ruakh Jun 23 at 21:32
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    In your second paragraph, you need to keep in mind that changing the behavior of other states can help your own state. For example, suppose that you're a state whose preference typically aligns with the national preference, and suppose that the national preference is not who actually gets elected, because other states disproportionately vote against the national preference. If you could change the behavior of those other states (with, for example, a compact) such that the election winner is more closely aligned with the national preference, then that pretty clearly helps you. – probably_someone Jun 24 at 0:37
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    @Kevin I don't see why being a bellwether has anything to do with it. By making other states align their electoral votes more closely to the national popular vote, large states, including states that aren't even close to being a bellwether, like California, get something closer to what their citizens want. – probably_someone Jun 24 at 2:47
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    @Kevin The margins are a bit of a red herring - the volatility of an election is decided by the number of "swing voters" compared to the number of "fixed voters", not by the margins. An election where the margins are 51% to 49%, but where only 0.1% of the voters are likely to switch parties, is a very certain outcome indeed, whereas an election where the margins are 70% to 30%, but where 40% of the voters are likely to switch parties, is anyone's guess. In this era of increased polarization, there are likely more "fixed voters" than there were before. – probably_someone Jun 24 at 13:35
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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.

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    Why can this argument not be applied to the present system at the state level, which in many states is winner-take-all for the winning candidate? If you happen to be in a state where the candidate you don't like is popular, then your vote is nullified, since all of the votes of your state go to the more popular candidate, regardless of what you voted or what proportion of votes there were for other candidates. In other words, if this was valid reasoning, why have we not seen state-level lawsuits already? – probably_someone Jun 23 at 14:56
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    Isn't that basically the same situation as saying that whomever wins the election in the most populous parts of a state will get the votes of the less populous parts of the state as well? If giving Oregon's votes to California is disenfranchisement, why isn't giving Albany's votes to NYC also disenfranchisement? – probably_someone Jun 23 at 15:34
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    Ok, so if the people of Oregon could vote for the same candidates for president as the people of California, then it wouldn't be disenfranchisement, correct? Then the problem is not actually interstate compacts, but rather the differing ballot access requirements in different states. Isn't the fact that a candidate has to pay $1,000 to file in Colorado, but $35,000 to file in Oklahoma, disenfranchising to the people of Oklahoma? – probably_someone Jun 23 at 15:48
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    Faithless electors usually vote for someone not on their states' ballots. How does that fit in with your analysis? – Azor Ahai -him- Jun 23 at 16:17
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    Sure - I'm not a legal scholar, so I was wondering why faithless elector votes haven't been held back in the past because of the same argument. Just because they wouldn't have decided the election? – Azor Ahai -him- Jun 23 at 16:39
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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.

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    books.google.co.uk/… shows such a position appears legal. – Jontia Jun 24 at 19:30
  • @Jontia: Yup. The reason the rule is limited to the second-place finisher, by the way, is that any third-or-worse-place finisher's vote tally will be less than half the combined tally of the first two finishers, and no contestant whose vote tally is less than half the combined tally of two others can possibly finish better than second. If the claimed tally for the supposed third-place finisher was more than half the total of the first two, that finisher should be entitled to more information, on the basis that they can't possibly have actually finished behind the claimed first and second. – supercat Jun 24 at 19:41
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    This is a possible practical problem with the NPVICC, but how is it an issue of Constitutionality? – divibisan Jun 24 at 20:57
  • @divibisan: If all states want to facilitate the NPVICC, they would have the authority to do so. The only time Constitutional issues would arise would be if some did and some didn't. From a practical matter, the fact that a state could decide to render the NPVICC ineffective and other states would have no Constitutional way of preventing such action, would render the question of whether the Constitution would prohibit the NPVICC largely moot. – supercat Jun 24 at 22:55
  • @supercat I'm not sure how this would stop the NPVICC from working. If state A chose to keep their vote totals secret, there would still be a popular vote total – it just wouldn't include anyone from that state. It seems to me that nothing would keep the states in the compact from awarding their votes to the candidate with the most publicly available votes aside from the desire not to disenfranchise the voters of state A, despite their legislators' best efforts – divibisan Jun 24 at 23:23
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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.

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    Again, this sounds like a practical argument against it, not a legal or constitutional one. Uncertainty in vote tallies affects the popular vote total at the state level just as much as at the national level. And if a state chooses not to count all their citizen's votes, that's a problem regardless of the NPVICC. – divibisan Jun 24 at 20:56
  • @divibsan Courts do dismiss legislation for vagueness (compacts, I don't know of any cases). "Winner" is indeed vague for the reasons I stated. Courts do take practical facts into consideration. – Michael McFarlane Jun 24 at 21:09
  • @Michael If SCOTUS rules that vote totals are not good enough for the NPVIC, then they've effectively ruled that every election ever ran was not good enough – Azor Ahai -him- Jun 25 at 6:51
  • @Azor Please read my argument, not skim. Vote totals from all the states don't simply add due to choices states make when their legitimate elections are not close! Put it another way: "Winner of the popular vote" is a common term, not something legally defined. As a result, the compact is vague. Courts strike down legislation on the grounds of vagueness and void contracts for vagueness. My logic is to extend that to compacts. – Michael McFarlane Jun 25 at 16:34

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