Lately there is a move by certain states with certain types of legislatures (stupid ones, but also blue ones, so that explains a lot) to circumvent the Electoral College by passing a law that states that their state electors will be appointed based on the total national popular vote for president — not by an internal process that uses the results of the state’s total popular vote for president exclusively.
This idiocy is called the National Popular Vote Interstate Compact (NPVIC). It is supposed to go into effect only if states representing 270 votes in the Electoral College sign on to the pact. Sadly, this is far too close to happening for comfort right now.
One might think that this is all well and good (it is neither), but the NPVIC — along with being a really crappy idea promulgated by progressives who still haven’t gotten over the fact that Donald Trump won the Electoral College in 2016 without winning the national popular vote, despite the fact that the national popular vote has NEVER been considered in determining the winner of the presidential race — is probably unconstitutional for at least a couple of originalist reasons.
Let’s first take a look at why the NPVIC is being pushed at this time.
It is likely impossible to amend the Constitution to abolish or amend the Electoral College in the time left between now and the 2020 presidential election, if it is even possible to do so at all, because small states with few electoral votes are unlikely to amend the Constitution in such a way that it reduces their influence.* Consider if the Senate were to become a proportionately-elected body like the House. The great Compromise that gave small states equal status in one of the two houses of the national Congress would immediately self-destruct, and the Senate would become a body (like the House) dominated by the five or six largest states, while the rest lose any voice on matters that the majority deem to be important. Overnight the Congress would shift blue, thanks to states like California, New York, and Illinois.
It is even more unlikely that the Electoral College could successfully be amended since it is a core, sine qua non provision of the Constitution. Without the equal-representation Senate and the Electoral College, there would not have been a Constitution to tack a Bill of Rights onto, because the small states would have walked out of the Convention and we’d still be living under the Articles of Confederation. Maybe. The world would certainly look a lot different, that’s for sure.
So the amendment process being effectively out of the question, how does one subvert the intent of the Framers for the states to elect the federal President? It is clear that the national popular vote did not figure in their plans, because if it had, we would not have an Electoral College. But we do have an Electoral College, and it’s a very simple thing that allows states wide discretion in just how they appoint their electors. Article II Section 1 provides,
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
We’ll ignore the rest of the description of the Electoral College because it goes into a ton of detail about how the Electors are supposed to vote, and how their votes are to be counted and certified, etc., some of which was superseded by the 12th Amendment after the gigantic hooroar over the election of 1800. You can go look that up yourself. At any rate, the only part that is important at the moment is what is excerpted above. And now we get to the Constitutional reasons why the NPVIC is facially invalid.
As we have said, the Electoral College was devised to even out the small state-large state disparity such that the large states couldn’t overwhelm the small states by simple popular vote in the Presidential contest. Awarding the state’s electoral votes based on the national popular vote winner clearly violates the Framers’ intent to “buffer” the popular vote with the mechanism of the College. Therefore the NPVIC is unconstitutional simply because it attempts to thwart the clear meaning and intent of the Framers’ Constitution in creating the Electoral College in the first place.
To take a more complex look at the issue, it could also be argued that NPVIC is Constitutionally invalid because each state’s electors should (as they have been by tradition) be chosen based on the actual popular vote of the people of that state, “in vacuo” without any influence from external forces or events. Now, the state legislature can choose whatever method suits it** — winner takes all, electors assigned by proportion of the state’s vote tally by candidate, or by propitiation of sheep guts like the Romans did*** — and by a strict reading of Article II, as citizens of a given state, we are bound to accept that method as chosen by our state legislators and codified by law.
However, allowing other states to dictate how your state’s electors are allotted absolutely flies in the face of what the Framers intended, i.e., Federalism in which each state corporately and independently makes its own choice.
I don’t allow anyone in the voting booth with me to tell me how to vote, so why should states allow what happens in other states influence how they choose their electors? To do so is nothing less than madness.
Far from a conspiracy to subvert original intent like the NPVIC, it’s high time that the states the NPVIC would most adversely affect start working on a Constitutional amendment to lock in stone how states may choose their electors, rather than leaving that process to state-level chicanery and corruption. My suggestion is “winner take all”, which was the standard for most states for quite a long time. There’s nothing like old traditions when you’re trying to save your country from socialism.
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* Note, however, that some small states have, incomprehensibly (other than that they are blue states), signed on to the NPVIC. They include Colorado, Connecticut, Hawai’i, and (naturally, even though it is not a state and appoints no electors) the District of Columbia. 12 states plus DC have currently signed on to this suicide, er, NPVIC pact.
** And note carefully that the Constitution is completely silent on the method. It does not mandate that states hold popular elections to determine how it selects its electors. But because electors have been selected in that manner since the beginning of the Constitutional period and the election of 1788, the case can be made that this is the traditional and proper manner of doing so, and to do otherwise would deprive the state’s citizens of their franchise.
*** Although the citizenry of the state would be well within their rights to immediately overthrow any legislature that did the latter.