Postscript on the National Vote Compact

John wrote here Sunday about the “National Vote Compact” (NVC), the proposal of the goo-goo (“good government”) reformers to get around the electoral college by having a majority of states agree to award their electoral votes to the winner of the national popular vote. I agree with John that it is a loopy idea, though I’d love the spectacle of California someday having to cast its electoral votes for a narrow Republican national popular vote winner when the present system would elect a Democrat with California’s lopsided electoral vote bloc. I’m sure the compact would go down well in that case.

In addition, the national vote compact would encourage rich independent candidates like Michael Bloomberg to run, since they’d have a plausible shot at gaining the largest plurality of votes, and the NVC doesn’t provide for a runoff like France. I can easily see such a system ensuring the election of Trump, which I suspect is exactly what the NVC people are trying to prevent.

But UCLA law emeritus professor Dan Lowenstein, a podcast guest back in January, writes  in to offer a more substantial objection:

I agree with your policy arguments against the National Popular Vote Plan.  Less recognized is that the plan is also unconstitutional. 

            The first sentence of the second paragraph of Article II, Section 1, of the Constitution reads, in pertinent part:

Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress….

            This language is typically paraphrased as saying that the Legislature may determine any method it chooses for selecting the state’s electors or, as is sometimes said, the Legislature has “plenary power” to choose a method for selecting electors.  In most contexts, that paraphrase is accurate enough.  But it is not accurate enough for purposes of evaluating the National Popular Vote plan.

            A close reading of the constitutional language makes evident that, as the first clause states, the appointment of electors must be by the state.  The power granted to the legislature is not to determine any method whatever for selecting the electors, but to determine a method whereby “the state” shall appoint electors.  The appointment must be by the state.

            Of course, the state is not a human being, and therefore cannot itself appoint anyone or make any other decision.  The state must act through someone who can speak as the state.  Most obviously in a democracy, the voters of the state may speak as the state.  In fact, at present and for most of our country’s history, every state legislature has chosen popular election as the method for appointing electors.  As is well-known, however, in the early decades of the Republic, in many states the legislature itself appointed the electors.  This was proper, because the legislature is elected by the people of the state, and therefore may be said to speak as the state.

            To the best of my knowledge, election by the voters and selection by the legislature are the only means of appointment that have ever been used.  Those also appear to be the only two methods that were contemplated by the framers of the Constitution.  Would any other method be consistent with the language of Article II?  Probably selection by the governor would be permissible, because the governor, like the legislature, is selected by the state’s voters.  Although it begins to get a little tenuous, probably another statewide official, such as the attorney general or the secretary of state, could appoint the electors.  And perhaps two or more such officials acting collectively.  More tenuously yet would be selection by the members of the state Supreme Court, since their appointment too can be traced back to the state’s voters.  (I am not suggesting that any of these methods would make any sense as a matter of policy, but only that they might come within the Constitution’s language.)  It would also probably be possible for the people or the legislature to choose delegates to a convention that would select the electors.

            That about exhausts the possibilities that are or might be permissible under the Constitution’s language.  The selection could not be delegated to a limited portion of the state’s voters or a group selected by such a limited portion.  For example, the Illinois legislature could not decide that electors should be selected only by the voters of Chicago or only by voters outside Chicago.  Or by the City Council of Chicago.  Because a portion of the state is not the state, and a portion of the state cannot plausibly be regarded as speaking as the state.  Even more obviously, the appointment of electors may not be delegated to people who have no connection with the state.  Thus, the legislature could not determine that the state’s electors should be appointed by the King of England or by the Pope or by the United Nations General Assembly.  By precisely the same principle that would bar such methods, the appointment power may not be delegated to the voters of other states.

            All of the above seems to me quite obvious, once one notices that the constitutional language delegates to the legislature not the power to devise any method for appointing electors but only the power to determine how the state shall appoint the electors.  The only contrary argument I have heard is that the legislature may delegate the appointment power to represent the state even if the representative cannot plausibly be regarded as constituting the state, in the same manner as a lawyer can represent a client in court or a trustee can represent a client in financial transactions.  This argument is possible only because the word “represent” is used to describe a number of distinct situations.  Representatives such as lawyers or trustees can represent clients in the sense of binding the clients by words and actions even though the clients did not themselves make the decisions or even, in some cases, know about them.  But the lawyers or trustees are not the clients.  Article II does not refer to that type of representation.  Article II requires the legislature to adopt a method for the state itself to act.  The state itself can act only through methods such as vote of the people or vote of representatives elected by the people, not by delegates who cannot plausibly described as the state.*  If the opposite were true, there would be no bar to absurd possibilities such as the ones suggested above—selection by the King of England, by the Pope, or by the United Nations General Assembly.         

            I would add to that list of absurdities selection by a plurality of nationwide voters.  I do not mean that determination of the President by a plurality nationwide election is absurd (though I agree with you it is a bad idea).  But it is absurd to pretend that a selection by a nationwide plurality is a selection by the State of Minnesota, or by any other single state.

            I realize that this analysis may strike many readers, at least at first sight, as counter-intuitive.  I believe the reason is that the issue has received so much attention without anyone, apparently, reading the constitutional language carefully in the context of the National Popular Vote plan.  I think just about everyone, including most of the plan’s supporters, agrees that the plan can be described as an end run around the electoral college as set forth in the Constitution.  I think many of the supporters are proud of that fact as an indication of their own ingenuity.  It should not be too surprising that such an end run turns out actually to be contrary to the constitutional language upon close analysis.

 

* The power granted to the states to appoint presidential electors is an important one and I think it is very reasonable to conclude that for the legislature to delegate that power to people who live outside and are not citizens of the state is a denial of a republican form of government in violation of Article IV, Section 4, of the Constitution.  The federal government, therefore, would have a constitutional obligation to undo any such delegation and the legislature has a constitutional duty not to make such a delegation in the first place.  As is well known, of course, the Supreme Court has long held that the denial of a Republican form of government is non-justiciable, so that the only recourse would be to appeal to the federal government, which in effect would presumably mean Congress and the President.