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The debate over the Electoral College calls for “careful, conscientious, statesmanlike, and non-partisan consideration,” said former Michigan Chief Justice Stephen Markman in remarks for Save Our States. His focus was the National Popular Vote interstate compact (NPV), which attempts to “effect constitutional change by non-constitutional means.” He identifies many legal issues with the compact plan, any one of which could result in litigation, uncertainty, and NPV being struck down or modified by federal or state judges.

Combining popular votes across state lines, as NPV would require, is the source of many of these legal conflicts. As Justice Markman explains, the Supreme Court of the United States has applied the Fourteenth Amendment’s equal protection guarantee to presidential elections. 

The Supreme Court held in Bush v. Gore, the 2000 decision resolving the Presidential ballot-counting controversy in Florida, that “[w]hen the State legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.” Such intra-electionequality is relatively easy of achievement where there are fifty-one separate elections, for disparities arising within any one of these elections will tend to be relatively uncommon and susceptible to state remedy. Where, however, state elections are aggregated into a single national election, the rule of Bush v. Gore will be considerably more difficult of application for electoral disparities are certain to arise along state lines in great number. We do not know for certain whether or how Bush will apply in the NPVC context for the simple reason that the United States has never before held a single national election. … In short, disparities in state electoral laws and practices are of little national consequence under the Electoral College in which each state administers only its own election but of considerable national consequence when such state-by-state elections are replaced by a single national election. 

States like Michigan also have constitutional provisions that are incompatible with schemes like the NPV compact, according to Justice Markman.

“The outcome of every election in this State shall be determined solely by the vote of electors casting ballots in the election”. (Constitution of Michigan, Art 2, § 7)-- There is a counterpart of this provision in most other state constitutions, to which every state legislator must take an oath of office in addition to that taken to the Federal Constitution. The term “solely” is defined as “exclusively; entirely; without another; and alone.” And therefore under the Michigan Constitution (and most others as well), the “outcome of every statewide election must be determined “exclusively, entirely, without another, and alone” by the votes of those who have cast ballots in the “election” of that state,” which not unreasonably is understood to refer to elections occurring within Michigan, and within such communities as Kalamazoo, Battle Creek, Flint, and Sault Ste Marie, not within elections occurring within New York, California, Chicago, or Boston. The NPVC is plainly incompatible with this provision of the Michigan Constitution.

Whatever anyone thinks about the Electoral College, the NPV compact’s conflicts with the federal and state constitutions is reason enough to reject it. At best, it would lead to a patchwork of legal decisions in state and federal courts across the country. At worst, NPV would throw presidential elections into greater turmoil than ever before.

You can read all of Justice Markman’s remarks here.