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One of the key questions about the National Popular Vote Interstate Compact (NPV) is: Is it constitutional? For advocates of NPV, there is no question – the Constitution vests “exclusive” and “plenary” authority with the state legislature to determine the method of selecting electors, meaning there is no outer limit to the power of state legislatures in this area and any argument to the contrary is nonsensical and probably made in bad faith.

It is true the Constitution vests the power to select electors with state legislatures, and there are any number of methods that can be used. Here, I’ll just cut-and-paste what NPV itself has on its own site:

The eventual wording in section 1 of Article II (“as the Legislature may direct”) is unqualified. It does not encourage, discourage, require, or prohibit the use of any particular method for awarding a state’s electoral votes.

• If the legislature decides to give the people a vote for President, the Constitution does not specify whether the presidential electors should be elected statewide, in single-member presidential elector districts, in single-member congressional districts, or in multi-member districts.
• If the legislature decides against giving the people a vote for President, the Constitution does not specify whether the presidential electors should be appointed by the Governor, the Governor and his cabinet, by the Governor and the lower house of the state legislature, by both houses of the legislature sitting together in a joint convention, or by both houses of the legislature using a concurrent resolution.

Indeed, all of the above methods have been used in our country’s history.

Further on, the same page states:

In short, states may exercise their power to choose the manner of appointing their presidential electors in any way they see fit (provided, of course, that they do not violate any restriction contained elsewhere in the U.S. Constitution).

The reference to other restrictions in the Constitution is most obviously a reference to the 14th Amendment, which (among many things) prohibits those who “have engaged in insurrection or rebellion” against the United States from serving as presidential electors (Congressmen and military officers who joined the Confederacy, primarily). It also incorporates the prohibition on a religious test for federal office contained in Article VI of the Constitution, so a state couldn’t prohibit Methodists from being chosen as electors, for example.

But beyond that, is it really accurate to say that a state legislature can chose any method for appointing electors, that there are no outer limits beyond those explicit in the Constitution? That’s the position of NPV, but I have my doubts.

Two hypotheticals come to mind that suggest that there are indeed limits to the “exclusive” and “plenary” authority of state legislatures in this area.

First, could a state “sell” (or “rent”) its electoral votes?

For example, as part of the recently re-negotiated and re-structured Colorado River Compact between Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming, could a water-starved state like California have offered to award five of its fifty-five electoral votes to the winner in Nevada, if Nevada agreed to reduce how much water it takes by a million acre-feet per year? Could Illinois sell a couple of electoral votes to a cash-flush state in exchange for a few billion dollars to shore up its shaky pension system? Or for that matter, could a state simply auction off its electoral votes to the highest bidder, allowing private individuals, corporations, unions, and others to select electors?

Second, what about a slightly different popular vote compact, where states agreed to select their electors based on the popular vote only among compacting states? In this way, a group of states worth 270 or more electoral votes could systematically ignore all of the other states—truly disenfranchising those states and their voters in perpetuity.

How would the U.S. Supreme Court rule on NPV? Anyone can speculate, but nobody knows for certain. This is especially true in an area where there are few similar cases. The federal courts have never considered an interstate compact relating to the Electoral College, nor have they considered a state’s attempt to give away its power in presidential elections to other states. No similar disputes have arisen because, before NPV, it appears that no one ever considered either proposal—and certainly not the combination of both.

I am highly skeptical that the Supreme Court would uphold either the buying and selling of electoral votes or an effort by a group of states explicitly to shut out other states from the process. And if these indeed are beyond the pale and unconstitutional, then there are indeed limits to that “exclusive” and “plenary” power that state legislatures have in deciding how to select electors.