Five Legal Problems with the National Popular Vote bill
Last Wednesday, both houses of the Maine Legislature passed LD 1578, a bill that enters Maine into the National Popular Vote compact. This compact aims to change how presidents are elected to circumvent the purpose of the Electoral College and change presidential elections to a nationwide popular vote. If enough states sign onto the compact, they will dedicate their Electoral College votes not to the candidate for whom their state votes, but to the candidate who wins the most votes nationwide. All the compact needs is enough states comprising 270 of the Electoral College’s 538 votes to participate in order to effectively render the Electoral College process as we know it obsolete.
The compact currently has 205 electoral votes, and the only obstacle to Maine adding its four votes to the compact is a potential veto from Gov. Janet Mills within the 10-day window of the Legislature’s passage date of April 3. Gov. Mills should veto the bill, not only because it would reduce Maine’s impact on the outcome of presidential elections by 40% (from .75% of the Electoral College to .43% of the national population) but also because the compact violates multiple provisions of the U.S. Constitution and federal law. Each potential violation is outlined below.
Issue One: The Compact Clause
Article 1 Section 10 of the US Constitution reads, “No state shall, without the Consent of Congress…enter into any Agreement or Compact with another State.” One interpretation historically accepted by the Supreme Court is that this clause exists to protect the horizontal balance of powers between states. If successful, the National Popular Vote Compact would weaken the votes of nonmember states so that their Electoral College votes no longer matter. Additionally, the Electoral College protects the interests of smaller states, and the compact removes that protection.
Issue Two: The Voting Rights Act
Unrelated to the compact clause, the National Popular Vote compact could potentially be a civil rights violation. The Voting Rights Act of 1965’s second section has been interpreted by the Supreme Court to mean that states can not create an electoral system that reduces the electoral impact of the state’s minority voters (Shaw v. Reno). By switching to the popular vote, Maine would significantly dilute the impact any minority voter in Maine would have on presidential elections by diluting the entire state’s impact, and this is true for any small-population state.
Issue Three: U.S. Constitution Article Two Violation
Article 2, Section 1 of the United States Constitution requires an indirect election through the Electoral College. Allowing the public to directly select the president violates the language of the U.S. Constitution by rendering the election completely direct, while the Constitution requires it to be indirect. Thus, a state-level compact would violate the interstate compact clause, civil rights protections and also the Electoral College selection clause.
Issue Four: The “AZ Legislature v. AIRC” Problem
In the 2015 Supreme Court Case Arizona Legislature v. Arizona Independent Redistricting Council, Justice Ginsburg wrote a 6-3 majority opinion for the court. This opinion ruled that because the Arizona Constitution contained the language, “the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature,” the “legislature” of the state was both the people of Arizona and the two houses of the traditional legislative branch.
Maine has almost identical constitutional language to Arizona. Assuming that the Arizona Legislature case is still good case-law, then the court’s interpretation of a state legislature requiring indirect selection by that state’s citizens still stands. The Electoral College Clause of the U.S. Constitution requires that the legislature direct the selection of electoral candidates, which calls into question whether the Maine Legislature can give that power away to a non-legislative entity. The NPV Compact would remove the input of our state legislature and the people of Maine, and delegate lawmaking power away in a manner that violates the concept of legislative appointment of electors. The people of the United States do not derive lawmaking power from the people of Maine, but under the compact they would be deciding which candidate receives Maine’s electoral votes. But the Constitution does not allow that to occur.
Issue Five: The Legal Absurdity Argument
Lastly, the argument of the NPV compact supporters is that there is no limitation on the power of state legislatures to select Electoral College members. NationalPopularVote.com says in their “Answering Myths” section, “The U.S. Constitution gives the states the “exclusive” and “plenary” power to choose the method of awarding their electoral votes.” Therefore, their belief is that the Maine Legislature could decide to use its electoral votes however it wants with no limitations. This includes voting for someone that no voter voted for, promising the votes to whoever wins a specific party’s primary regardless of the general election outcome, or even giving the votes to someone who didn’t run for president. This outcome is so logically absurd that a court could throw out the compact entirely because of the legal implications ruling in their favor would have.
There’s little question that the compact is both unconstitutional and would dilute Mainers’ voice in presidential elections, particularly in the rural Second Congressional District. Gov. Mills should do the right thing and veto it immediately.