National Popular Vote: Unconstitutional And A Bad Idea To Boot

Today, the Maryland legislature approved a bill that purports to sign the state on to a proposed multi-state compact that would, in effect, eliminate the Electoral College as we know it:

ANNAPOLIS, Md. — Maryland is poised to become the first state to approve giving its electoral votes for president to the winner of the national popular vote, rather than to the candidate chosen by state voters.

The plan, passed Monday by the state House, would take effect only if states representing a majority of the nation’s 538 electoral votes adopted the same change.

Some states are considering the move as a way to avoid a scenario in which a candidate wins the national popular vote but loses in the Electoral College, as Democrat Al Gore lost to George W. Bush in 2000.

Supporters of the Maryland bill said the state, which has 10 electoral votes, gets passed over by presidential candidates who head to larger battleground states. Opponents say the change is unnecessary and constitutionally questionable.

The final vote in the Democrat-controlled House of Delegates was 85-54, with only one Republican endorsing it. The Senate has already passed the bill, and Gov. Martin O’Malley, a Democrat, plans to sign it, said spokesman Rick Abbruzzese.

Delegate Jon Cardin argued that the measure would make Maryland more relevant in the presidential campaign.

As is usually the case with these creative attempts to bypass the Constitution, the clear language of the Constitution would seem to make it clear that the National Popular Vote plan is likely unconstitutional. While it is true that the Constitution largely leaves up to the individual states how Electors are chosen, Article I, Section Ten clearly prohibits states from entering into inter-state compacts without the approval of Congress:

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

The National Popular Vote “compact”, therefore, would clearly be unconstitutional unless it also received the approval of Congress, which seems unlikely.

But the fact that something is unconstitutional doesn’t stop some people. For example, writing about the proposal in today’s Washington Post, E.J. Dionne made this rather astonishing comment:

Yes, this is an effort to circumvent the cumbersome process of amending the Constitution. That’s the only practical way of moving toward a more democratic system. Because three-quarters of the states have to approve an amendment to the Constitution, only 13 sparsely populated states — overrepresented in the electoral college — could block popular election.

Just as with the ongoing efforts to ignore the Amendment process and give the District of Columbia a vote in Congress via legislation, the National Popular Vote is an admission by it’s advocates that they don’t have the support needed to change things legally, so they have decided the only option is to ignore the law.

Moreover, as KipEsquire points out, there is a way, short of amending the Constitution or violating it’s very terms the way the NPV would, to make the Presidential election process more reflective of the popular will, it’s called the District Method:

This method divides electoral votes by district, allocating one vote to each district and using the remaining two as a bonus for the statewide popular vote winner. This method of distribution has been used in Maine since 1972 and Nebraska since 1996, though neither state has had a statewide winner that has not swept all of the Congressional districts as well. Consequently, neither state has ever spilt its electoral votes.

Though I personally don’t think that the current Presidential election system is as bad as people make it out to be, the District method not only makes sense, but would also make Presidential elections more of a nationwide phenomenon than they are today. Rather than ignoring a state entirely because it so heavily favors their opponent, candidates would have an incentive to concentrate on areas of the state where they would be able to win one, or more, Congressional Districts and thus pick up an Electoral Vote or two that could make the difference in the election.

More importantly, though, the District Method could be implemented by each state on its own without any need to take yet another step that turns the Constitution into just so many words on a piece of paper.