Law professor: National popular vote bill may create constitutional conundrum

Colorado would become 12th state to join compact when governor signs bill

What is it? The National Popular Vote interstate compact could go into effect when enough state legislatures join to create a majority of the electoral votes necessary to elect a president – 270 of 538. In December following a presidential election, when electors meet to cast their ballots for president and vice-president, the electoral votes of all the compacting states would be awarded in a package to the candidate who receives the most popular votes across all 50 states and the District of Columbia. The National Popular Vote bandwagon began rolling in 2006 when the Colorado Senate became the nation’s first lawmakers to pass a bill.

A bill tying Colorado’s electoral votes to the national popular vote may not pass constitutional muster, a veteran law professor says. Colorado lawmakers have jumped on the national popular vote bandwagon, recently passing a bill to tie the state’s nine electoral votes to the nationwide popular vote for president.

Gov. Jared Polis said he will sign the bill when the measure reaches his desk. When Polis signs it, Colorado will become the 12th state (plus the District of Columbia) to join the national popular vote interstate compact.

Constitutional conundrum

The Electoral College started with the Constitutional Convention, and is a model of checks and balances, explained Rob Natelson, a retired law professor at the University of Montana and a Senior Fellow in Constitutional Jurisprudence at the Independence Institute, a free-market, libertarian think tank in Denver.

“The Constitution gives the popular vote great authority, but not absolute authority,” Natelson said. “It’s a complicated set of compromises.”

Natelson said he believes state laws demanding that an elector must follow their state’s popular votes are unconstitutional. Those laws are being challenged in several states and before the U.S. Supreme Court, Natelson said.

“They cannot direct electors how to vote,” Natelson said.

The bill that Colorado lawmakers just passed would change that, allowing states to assign electors to the winners of the national popular vote.

If enough states pass it so they have more than enough votes to elect a president through the Electoral College — 270 electoral votes — it would become an interstate compact.

“This bill has no effect until they have 270 electoral votes,” Natelson said.

Long list of potential problems

The list of problems is long and daunting, Natelson said.

First, it’s an interstate compact. Natelson points out that Article 1 Section 10 of the Constitution demands that Congress approve an interstate compact. The seven-state Colorado River Compact, for instance, has that congressional approval.

“This has never been approved by Congress and there is little chance of it being approved in the near future,” Natelson said.

Then there’s the end-run issue.

“Can you really create a situation that changes the Constitution without amending the Constitution?” Natelson asked. “Can they effectively change the Constitution without going through the process?”

Unintended consequences also abound, such as increasing the likelihood of fraud.

“What if a candidate gets a plurality in a fractured field, instead of a majority? How they vote in a state does not matter. They’ll be forced to vote for the candidate that received a national plurality, and that guts public legitimacy and acceptance,” Natelson said.

“It doesn’t matter what your votes are apart from a large national pool,” Natelson said.

The bill also says that each Secretary of State must take on faith the certification of other Secretaries of State that their states’ elections are legitimate, Natelson said.

“What if they’re not? This bill imposes a tight deadline for resolving those issues. No recounts,” Natelson said.

Backfires are possible

It could also backfire. Natelson said history is rife with examples.

In the parliamentary election of 1979 Britain, Margaret Thatcher’s party won that election with less than 40 percent of the popular vote.

Liberals supporting this measure do not appear to realize that strong conservatives in this nation are a plurality — not a majority, necessarily, but a strong plurality, Natelson said.

“A strong right-wing candidate could win a plurality and every other state would be forced to vote for them,” Natelson said.

This happens regularly in countries with direct vote elections, Natelson said.

“Mexico’s presidents are often elected with 40 percent of the popular vote,” Natelson said, noting the Electoral College is there as a check and balance to direct vote elections.

“You can win the Electoral College and not be the most popular person. Witness our current president,” Natelson said.

Supporters: Doesn’t ditch Electoral College

The bill does not get rid of the Electoral College, supporters say. Instead, they say it will ensure voters in each state have an equal voice in presidential elections.

If enough states join the popular vote compact to total 270 electoral votes, all of Colorado’s electors would be awarded to the presidential candidate who collects the most popular votes.

“This bill has the potential to help Americans believe that their vote matters whether you’re a rural, urban or suburban voter — through this bill every vote counts equally,” Rep. Emily Sirota, D-Denver, said in a press release. “Coloradans shouldn’t allow a few battleground states like Florida or Ohio to be the deciders for our entire country when electing the next President of the United States.”

States already joining the National Popular Vote compact include Connecticut, Hawaii, Illinois, Massachusetts, Maryland, New Jersey, New York, California, Rhode Island, Vermont and Washington and the District of Columbia.

Opponents want referendum

Opponents say it would make Colorado voters subservient to population centers in places such as New York, Florida and California. Mesa County Commissioner Rose Pugliese and Monument Mayor Don Wilson launched a measure to put it on a statewide ballot in November 2020, and block implementation until voters approve it.

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