Defending the Electoral College since 2009
The U.S. Supreme Court released its opinions today in the two “faithless elector” cases coming out of Colorado and Washington, and while the decision itself doesn’t directly address whether the National Popular Vote interstate compact (NPV) is constitutional, there are a few interesting lines that may have some relevance.
The cases themselves were over a fairly simple question – can a state fine or remove an elector if that elector does not vote for a presidential or vice-presidential candidate they have pledged to vote for (a so-called “faithless elector”)? Fifteen states have laws on the books that remove or fine an elector who violates such a pledge, while another twenty require such pledges but have no penalty for violating them. Sixteen apparently have no law at all on the subject.
The rulings (both unanimous in the judgement, though Thomas had different reasoning than the majority opinion and Gorsuch joined Thomas’ opinion in part) found that removal or fines for a “faithless elector” are constitutional.
In and of itself this doesn’t have much bearing on the question of NPV’s constitutionality. But one thing that does come through in the ruling is that there is a settled expectation that a state’s electors are supposed to vote for the candidate chosen by the voters of that state.
Under NPV, of course, electors would be expected to vote for the candidate who won a majority or plurality of votes cast nationally, even if that meant voting against the candidate chosen by that state’s voters. The language of the ruling suggests NPV may conflict with the Court’s understanding of whom presidential electors represent.
The clearest example of this is on page 16 of the opinion (written by Justice Kagan), where it notes that historically electors had been chosen “simply to register the will of the appointing power…” and that state laws “evolved to reinforce… that a State’s electors would vote the same way as its citizens.” After a brief explanation of how several states had adopted laws requiring pledges and imposing penalties for breaking a pledge, the opinion concludes that Washington’s law “reflects a tradition more than two centuries old. In that practice, electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen.”
That’s not the only part of the opinion asserting that electors are supposed to represent the views of their state’s voters. On page 14, for example, it approvingly quotes a historian who wrote “…presidential electors…were understood to be instruments for expressing the will of those who selected them,” and the idea pops up elsewhere as well.
None of this is conclusive to how the U.S. Supreme Court might eventually rule on NPV if and when it ever gets there, and I’m sure those who advocate for NPV are taking some heart in the part of the opinion recognizing that states have the “broadest power of determination” regarding how to choose an elector (though the terms ‘exclusive” and “plenary” that NPV advocates base so much of their argument on are nowhere to be found in the opinion). But it seems pretty clear that the eight justices who signed this opinion believe that there’s a long-settled expectation that each state’s electors are to vote, as the opinion explains, “in line with its voting citizens,” and that probably isn’t helpful to NPV’s case.
Time is running out
There is a real, immediate threat to the constitutional way we elect our president. National Popular Vote is 72% of the way to implementing their dangerous plan.