Why the ‘National Popular Vote’ scheme is unconstitutional

... suppose a state legislature decided to raise cash by selling its electors to the highest bidder. Do you think the Supreme Court would uphold such a measure?

If your answer is “no,” then you intuitively grasp a basic principle of constitutional law—one overlooked by those proposing the “National Popular Vote Compact” (NPV).

NPV is a plan to change how we elect our president. Under the plan, each state signs a compact to award all its electoral votes to the presidential candidate who wins the national popular vote. The compact comes into effect when states with a majority of presidential electors sign on.  The Colorado legislature is currently considering a bill to join this compact.

In assessing the constitutionality of NPV, you have to consider some of its central features. First, NPV abandons the idea that presidential electors represent the people of their own states. Second, it discards an election system balanced among interests and values in favor of one recognizing only national popularity. That popularity need not be high: A state joining the NPV compact agrees to assign its electors to even the winner of a tiny plurality in a multi-candidate election.

Third, because NPV states would have a majority of votes in the Electoral College, NPV would effectively repeal the Constitution’s provision for run-off elections in the House of Representatives.

Fourth, NPV requires each state’s election officer to apply the vote tabulations certified by other state election officers—even if those tabulations are known to be fraudulent or erroneous.  Indeed, NPV would give state politicians powerful incentives to inflate, by fair means or foul, their vote totals relative to other states.

Don’t changes that sweeping require a constitutional amendment?...

In deciding how electors are appointed, state lawmakers may choose among a range of procedures. But they have a constitutional duty to choose a method consistent with the electoral system’s purpose and design. Attempting to convert electors into agents of other states—like selling them to the highest bidder—would be an unconstitutional breach of public trust.

CAIRCO Note

It should be noted that Republican majority state legislative bodies do not favor this misguided initiative. But Democrat majority legislative bodies do - for example, Colorado's state Senate. The reason is that the east and west coast states vote predominantly Democrat. Those states have huge populations compared to interior states. The popular vote initiative would effectively force nominally Republican states to cast their presidential votes with the Democrat coastal votes.

2016 US Presidential Election Map By County and Vote Share

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