Constitutional Mischief

Could the Electoral College emerge as a casualty of the Democrats’ midterm gains? That’s the warning mooted in the press after the GOP’s loss of both houses of Congress along with governorships and legislatures in several states. This offers an opening for the advocates of a scheme, the National Popular Vote Compact, that seeks to short-circuit the system set up by the Framers to choose presidents. One might imagine an alteration of that magnitude would require an amendment to the Constitution, yet backers of the compact pursue a different route. States that join the compact agree to instruct their representatives in the Electoral College to vote after Election Day for the presidential candidate who, nationwide, receives the most popular votes. The compact would go into effect once states with an aggregate total of 270 electoral votes join.Would the compact comport with the Constitution? The parchment dictates that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” These electors end up choosing the president, generally based on the winner of the majority of votes in the electors’ state. The compact’s advocates argue that there’s nothing to bar the states from naming electors based on whoever wins the national popular vote.That could run afoul of the Supreme Court, especially if the high bench keeps an originalist majority — a big if, amid the Democrats’ talk of expanding the number of justices. Plus, too, Congress would likely have to okay the deal, since the Constitution prohibits any state to “enter into any Agreement or Compact with another State,” absent a vote of the federal legislature. The compact denies that such a vote would be needed. Much, it would seem, depends on the filibuster.Already, 18 states and the Columbia District have signed on to the compact. These jurisdictions, in all, have 222 electoral votes. In Tuesday’s voting, Democrats won control of the governor’s mansion and both houses of the legislature in Arizona, Michigan, Nevada, Pennsylvania, and Wisconsin, Axios reports. If these new states were to sign on to the compact, that would bring the total electoral vote count of the participating states up to 283.It’s not our intention to overstate the likelihood of these five states moving to join the popular vote compact. After all, it’s far from clear, the New Republic reports, “whether Democrats in these states think that the compact is a priority.” When the Democrats recently had full control of the Wolverine State’s government, they failed to join the pact, and in 2019 the Democratic governor of Nevada at the time, Steve Sisolak, vetoed a bill to join the scheme. Mr. Sisolak reckoned that joining the compact could crimp the state’s influence in the election process. “In cases like this, where Nevada’s interests could diverge from the interests of large states, I will always stand up for Nevada,” he averred. This points to one of the logical flaws in the compact: It could lead to the electors of a state casting ballots for a candidate who won the national vote — but who had been rejected by a majority of that state’s own voters.The compact’s larger flaw is to strip the Electoral College of its role as what these columns have called “a safeguard of state sovereignty,” akin to the “guarantee of equal representation for each state in the Senate.” The need to secure a majority in the electoral college helps ensure national coalitions for the presidency and preserve the rights of political minorities. The popular vote compact amounts to Constitutional mischief that could damage our democracy.

Constitutional Mischief

Constitutional Mischief

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