[EL] National Popular Vote fails in Maine, plus a legal question about its constitutionality

[Sean Parnell]

I know today is “The Day After McCutcheon,” and also maybe “The Day People Argue About Voter Fraud in North Carolina,” but I thought I’d also pass along the information that National Popular Vote has failed in Maine, both in the Senate (tie 17-17 vote to accept the minority committee report, which favored NPV) and in the House (60-85 to accept the minority report). As with all legislation there is of course the possibility that it will be revived, but that seems unlikely at this point.

 

It does remind me however that I have a question to pose the list regarding the constitutionality of NPV and the legal theory underpinning it. 

 

As I understand it, the legal theory supporting the constitutionality of NPV is that states have an unfettered authority to determine the manner in which they award their presidential electors, so long as it doesn’t bump up against other constitutional requirements such as by prohibiting women from voting for president. In the case of NPV, this theory means that a system in which states award their electors based on factors outside of the state, and in concert with other states, is constitutional.

 

Now here’s my question: under this theory, NPV’s inclusion of popular vote totals in non-compact states is basically a courtesy. If they wanted to, the NPV compact would be amended to simply say that member states would collectively award their electors to the candidate who receives the largest number of popular votes in the compact states, and simply ignore states that aren’t members of compacts. Furthermore, while the compact currently says that any state may join the compact, I assume that could be amended to say that a majority of states already in the compact must vote to approve the membership of other states who want to join, or some other limiting feature could be devised (I don’t know for sure, but I’m guessing that Oregon can’t join The Great Lakes-St. Lawrence River Basin Water Resources Compact).

 

First question is, have I accurately understood the legal theory underpinning NPV’s constitutionality and what it would allow? And the second question of course is, does anyone think the Supreme Court would look at that and say, “Sure, looks good to us”?

 

I’d love to hear any responses, pro, con, or other, either on the list (it’s been a while since we’ve had a good NPV dustup, I think!) or off. 

 

Best,

 

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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