Ben Blatt, NYT Upshot (“Democrats Now Have a Path to Sidestep the Electoral College. Would It Work?“):
Eliminating the Electoral College would require a constitutional amendment, a highly unlikely prospect in a polarized nation. But after Tuesday’s midterm elections, Democrats will soon have enough power in statehouses across the country to try to circumvent it without an amendment.
Since 2007, 18 Democratic-run states and the District of Columbia have joined a legal framework that would pledge their Electoral College votes to the nationwide popular vote winner, rather than the winner in their state. The effect of the pact, if enacted and enforced, would be the same as replacing the Electoral College with the popular vote. The pledge would activate only if the states in the pact accounted for at least 270 electoral votes, the majority needed to win.
The states already in the pact represent 222 electoral votes. On Tuesday, Democrats in Arizona, Nevada, Michigan, Pennsylvania and Wisconsin achieved a “trifecta,” winning control of both chambers in their state legislatures and governor’s offices. If these states all joined the pact, they would represent a total of 283 electoral votes. That would be enough for the agreement, called the National Popular Vote Interstate Compact, to go into effect:
I’ve written quite a bit about the Compact over the years, going back to my April 2006 post “Abolishing the Electoral College by Stealth.” While I’ve been skeptical both that it will pass and that it’s enforceable, for all manner of reasons, I support the goal. The way we elect the President, far and away the most powerful person in our political system, simply makes no sense.
Regardless, last Tuesday’s blue tsunami makes enacting the Compact possible:
Lawmakers in all five states have introduced legislation to join the pact in recent years. Among them, Robert Wirch, a state senator in Wisconsin, said he had redrafted his bill. And Carrie Rheingans, a Democrat in the Michigan House of Representatives, told The New York Times that “the time is right.”
There is some room to spare. Pennsylvania and Michigan would have to join, but just two of Wisconsin, Arizona or Nevada would also need to join to reach 270 electoral votes.
My late co-blogger Doug Mataconis frequently objected to it on both philosophical and legal grounds. Expert opinion is mixed.
Such a compact would face a variety of legal challenges.
The pact most likely violates a part of the Constitution known as the compact clause, said William G. Ross, a professor of law and ethics at Samford University.
The Supreme Court has ruled that the compact clause prohibits agreements between states that “interfere with the just supremacy of the United States” without consent from Congress, Professor Ross said. The circumvention of the Electoral College would qualify as interfering with the supremacy of the federal government because it changes the outcome of the presidential election, he said.
Michael Morley, a law professor at Florida State University, said the agreement would probably survive compact clause objections but would run afoul of state constitutions requiring voters in statewide elections to be residents of the state. If the national popular vote were used as the deciding factor for a state’s Electoral College votes, he said, it would essentially be granting voter eligibility to citizens of other states.
There’s quite a bit of SCOTUS precedent that seemingly points to the legality of this particular Compact; whether the current Court would adhere to it to the potential disadvantage of Republicans, alas, is an open question.
The “granting voter eligibility to citizens of other states” argument strikes me as absurd. It’s merely an agreement to cast the state’s Electors—over which state legislatures have plenary power—to the national winner. But, again, I wouldn’t bet much money on how SCOTUS would rule.
Fundamentally, though, I see this as a huge obstacle:
Additionally, Professor Morley and others have questioned whether the compact would be enforceable. Imagine a scenario where Republicans win the popular vote but Democrats win the traditional Electoral College. If there were concerns, legitimate or not, that the vote had been suppressed in other states, would Democratic officials still go through with selecting electors for the Republican Party?
Although the compact has language forbidding states to leave in the six-month period before a president’s term ends, states that had once willingly entered into the compact could try to challenge it in court.
“I don’t know that a federal court would order a state to appoint electors against the will of both its executive as well as the will of its own voters,” Professor Morley said.
I concur.
There’s also the problem of fluidity:
Many Democratic states are either losing population or failing to grow and, as a result, are in line to lose Electoral College votes after the 2030 census.
According to a Times analysis, the current states in the pact and the five new trifecta states could have a total of 275 Electoral College votes in 2032 instead of the 283 they currently have. That means the pact would need all five new trifecta states to stay afloat. If it went into effect in 2028 with just four of them, it would fall apart in the next election cycle.
And although unlikely, if the population shifts are more severe, the pact could drop below 270 even if all five new trifecta states joined. (Of course, it is possible other states could join.)
The compact’s language says it would not go into effect if the number of electors were under 270 for a given presidential election.
f states can vote to join the pact, they can also vote to leave. As long as they do it six months before a presidential inauguration, it would just require passing a new law.
Right now, the states in the pact and the other trifecta states are under robust Democratic control. But this could always change after the next election. Arizona had a Republican trifecta as recently as 2022. Michigan and Wisconsin had a Republican trifecta in 2018.
Ultimately, amending the Constitution would be the preferable route. I haven’t done the math on whether Democrats control enough state legislatures to make this possible.
