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The Supreme Court ruled unanimously on Monday that states could ban so-called faithless electors — meaning, for instance, that if Colorado’s voters choose a Democrat for president, Colorado can require its Electoral College members to vote for the Democrat. The decision will help stop electors from “going rogue,” as seven of 538 did in 2016.
It also raises some broader questions about the future of the Electoral College, and, in particular, about the so-called National Popular Vote Interstate Compact, in which states accounting for at least 270 electoral votes would agree to award their electors to whichever presidential candidate received the most votes nationwide. Fifteen states and the District of Columbia, with 196 electoral votes among them, have signed on, but their commitment will not take effect unless enough states join them to reach 270.
Supporters of the compact see it as a way to functionally abolish the Electoral College without going through the extraordinarily difficult process of amending the Constitution to abolish it formally.
So if the Supreme Court has confirmed that electors can be required to vote in accordance with their state’s popular vote, does that mean they can also be required to vote in accordance with the national popular vote? Did proponents of a national popular vote just get a hidden victory?
In a word, no — but there could be some subtle benefits for them.
“The kind of challenges that would be mounted against the National Popular Vote Compact involve different legal questions,” said Richard L. Hasen, an election law expert at the University of California, Irvine.
Those challenges would probably relate to the Compact Clause of the Constitution, which says in part that states can’t “enter into any agreement or compact with another state” without congressional approval. Courts have generally found that this restriction applies only to interstate agreements that increase states’ power at the expense of the federal government, or that lessen the power of states that aren’t in the agreement.
The question, then, is “whether or not the National Popular Vote Compact would be the kind of compact between states that could not be enacted without congressional approval,” Professor Hasen said, “and that’s something that the court didn’t speak to at all.”
There are, however, some indirect ways in which the ruling could affect national popular vote efforts.
From a legal standpoint, you can’t draw a line between the court’s ruling on Monday and national popular vote efforts, but “politically speaking, you absolutely can,” said Jessica A. Levinson, a professor at Loyola Law School in Los Angeles who studies election law and hosts a podcast on politics and the law.
“By strengthening the Electoral College and making it more rigid, I think it actually emboldens the national popular vote movement,” Professor Levinson said.
The chance for electors to go rogue in past elections, she said, may actually have lessened the pressure to abolish the Electoral College because electors had the ability, at least in theory, to support the winner of the national popular vote if they wanted to — even if, in practice, they almost never did (case in point: 2016). Monday’s ruling ensures that in most states, that will no longer be allowed.
More practically speaking, if the court had ruled the other way, it might have made the National Popular Vote Compact unenforceable. After all, if the justices had found that states cannot force electors to vote a certain way, then states presumably couldn’t have forced electors to abide by the national popular vote.
Chief Justice John G. Roberts Jr. brought that up in oral arguments in May, asking Lawrence Lessig, who was arguing in favor of faithless electors, “Under your view, there would be no way to enforce the popular vote referendum?”
Mr. Lessig said that assessment was correct: The compact would require participating states to choose a set of electors “that fits with the winner of the national popular vote, and that slate of electors then would have the same discretion, legal discretion, that we believe any elector has.”
The justices’ rejection of Mr. Lessig’s arguments, then, at least leaves open the possibility that the compact could be enforced.
Interestingly, Mr. Lessig supports the National Popular Vote Compact and had suggested that he saw the lawsuit the Supreme Court resolved on Monday as a way to put pressure on Americans to abandon the Electoral College system. The idea was that perhaps with enough faithless electors, the system would become so chaotic that there would be little choice but to tear it down.
Professor Levinson said she was not convinced by that argument. “We have plenty of broken systems, and it seems to me we’re fairly comfortable living with them,” she said.
Adam Liptak contributed reporting.
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Source: Elections - nytimes.com
