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Defending the Electoral College since 2009

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Defending the Electoral College since 2009

Supreme Court ruling on Trump looks like bad news for National Popular Vote
Sean Parnell • Mar 08, 2024

I frequently tell people on both sides of the debate over the National Popular Vote interstate compact (NPV) that it’s a mistake to predict how the U.S. Supreme Court will eventually rule on the compact’s constitutionality. I personally think NPV is unconstitutional because (among other reasons) it infringes on the rights and powers of non-member states, but I’m happy to admit there are very smart people who take the opposite view. Ultimately, the decision would be made by a majority of the nine individuals who sit on the Supreme Court.

That said, I think we can find some clues in other cases having to do with presidential elections. And based on the last two relevant rulings (Chiafalo v. Washington from 2020, better known as the “faithless electors” case, and Trump v. Anderson, the recent 14th Amendment case), the clues suggest trouble for NPV.

The most obvious sign of trouble for the compact is that what is more or less the entire rationale for the constitutionality of NPV has now been shredded by the Supreme Court.

In short, the case for the constitutionality of NPV is that states have “exclusive” and “plenary” power to appoint their electors in any manner, so long as it doesn’t violate another explicit provision of the Constitution. So, obviously, a state couldn’t refuse to appoint Catholic electors (Article VI, Clause 3: “…no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”). Otherwise, anything goes. As summarized in Every Vote Equal, the book published by NPV, Inc., “states may exercise their power to choose the manner of appointing their presidential electors in any way they see fit…” (p. 355, 4th edition). Aside from explicit restrictions in the Constitution, NPV claims, there is simply no limit to what states can do in choosing their presidential electors.

Chiafalo in 2020 didn’t directly undermine this claim, though I did note at the time that nowhere in the unanimous opinion were the terms “exclusive” or “plenary” used to describe the power of states, which are the two terms NPV’s lobbyists endlessly repeat when the topic comes up. But in Justice Sotomayor’s concurrence in the recent ruling in Trump, she more or less crushes NPV’s core legal argument (internal citations and quote marks omitted):

“Federalism principles embedded in [the] constitutional structure decide this case. States cannot use their control over the ballot to undermine the National Government. That danger is even greater in the context of a Presidential election. State restrictions in that context implicate a uniquely important national interest extending beyond a state’s own borders.”

Sotomayor then concludes with a death blow to NPV’s argument: “No doubt, States have significant authority over presidential electors, and, in turn, Presidential elections. That power, however, is limited by other constitutional constraints, including federalism principles.”

This reads to me as a complete repudiation of NPV’s claim of essentially unlimited power for states when it comes to choosing their presidential electors. It also seems to reflect an area of unanimous agreement for the Court – while the Sotomayor “concurrence” dissents from parts of the ruling in Trump, the quote above comes from the section in which she and Justices Jackson and Kagan are agreeing with the rest of the Court. That can’t be good news for NPV’s lawyers if they ever have to walk into the Supreme Court and argue that states have unlimited power when it comes to choosing presidential electors.

That isn’t the only bad news for NPV. As I wrote about previously, Justice Kagan made it pretty clear in her unanimous opinion in Chiafalo that presidential electors are expected to represent the people of their state. It was an opinion on a different issue and so isn’t precisely on point, but it surely can’t be helpful to NPV that Kagan wrote that a faithless elector 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.”

In Trump, the Court adds to NPV’s problems by making it clear it isn’t happy about the prospect of a “patchwork” of state elections that ultimately have the effect of causing “disruption” that could “…nullify the votes of millions and change the election result…” The issue in Trump is different, of course. But it surely would not escape the Supreme Court’s attention that NPV threatens to nullify the votes of millions of Americans as well if, for example, a state opts to run its popular election in a way that doesn’t satisfy the compact’s definition of a “statewide popular election.” The Court also expressed concern in Trump about “chaos” in the Presidential election and it’s hard to see how NPV doesn’t promise exactly that, given (among other problems) the lack of an official, accurate, and conclusive national vote count that can be used to determine the winner (not to mention its lack of provisions for recounts or other disputes).

I still wouldn’t put any big bets one way or the other on how the Supreme Court would rule if NPV ever took effect. But it does seem like there are clues in these recent rulings that suggest how the Justices think about the Electoral College and presidential elections, and for the most part those clues point to trouble for NPV.

Time is running out

There is a real, immediate threat to the constitutional way we elect our president. National Popular Vote is 76% of the way to implementing their dangerous plan.

76%