[EL] New-ish paper on constitutionality of National Popular Vote

[Sean Parnell]

Just ran across a relatively new paper (November 2012) on the National
Popular Vote, titled "Why the National Popular Vote Compact is
Unconstitutional," thought it might be of interest to the list.


Why the National Popular Vote Compact is Unconstitutional,
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=112255> Norman
Williams,  Willamette University - College of Law
November 19, 2012
Brigham Young University Law Review, p. 101, 2012
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2188020##>  


Abstract:      
Unable to secure passage of a federal constitutional amendment abolishing
the Electoral College, several opponents of the Electoral College have
sought to establish the direct, popular election of the President via an
interstate compact according to which individual signatory states agree to
appoint their presidential electors in accordance with the nationwide
popular vote. Ostensibly designed to prevent elections, such as the one in
2000, in which the Electoral College "misfired" and chose the candidate who
received fewer popular votes, the National Popular Vote Compact has been
adopted by several states, including California. In this Article, I argue
that the National Popular Vote Compact violates the Presidential Elections
Clause of Article II of the U.S. Constitution. Although the text of the
Clause seem to give states unlimited power to select the manner in which
each state's presidential electors are chosen, a close reading of U.S.
history suggests the need and propriety of limiting the scope of state
authority under the Clause. Not only did the Framers of the Constitution
expressly reject the idea of a direct, popular election for President, but
not one state either in the wake of ratification or at any time thereafter
has ever sought to appoint its presidential electors on the basis of votes
cast outside the state, as the NPVC requires. In the same way that similar
historical considerations led the U.S. Supreme Court to limit the scope of
state authority with respect to federal legislative elections, this history
regarding the Presidential Elections Clause likewise counsels in favor of a
more limited understanding of state authority under Article II. As such, if
opponents wish to abolish the Electoral College, the sole constitutionally
proper mechanism for doing so is a federal constitutional amendment, not an
interstate compact negotiated by a handful of states.


Link to full paper at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2188020

 

 

Sean Parnell

President

Impact Policy Management, LLC

6411 Caleb Court

Alexandria, VA  22315

571-289-1374 (c)

sean at impactpolicymanagement.com

 

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