I did read it myself, and while the site looks well-researched, it’s unconvincing on a deep read. Specifically, a major point of contention it tries to address is that the Constitution states that “No State shall, without the Consent of Congress… enter into any Agreement or Compact with another State, or with a foreign Power”. The page correctly points out that there is precedent that not all Compacts actually need congressional approval, but it also lays out a false dichotomy - the two situations he considers are “the compact requires congressional approval and gets it” or “the compact doesn’t require congressional approval” - he glosses over the key case of “the compact requires Congressional approval and hasn’t gotten it.” The site points out that there’s two SC cases (United States Steel Corp. v. Multistate Tax Commission in 1978 and Virginia v. Tennessee in 1893) that establishes the precedent that congressional consent is not needed in some cases. But if you look at the actual decisions, they don’t actually support the idea that this is the kind of compact that is exempt from congressional approval, and put it pretty firmly in the category of ‘requires the approval of Congress, hasn’t gotten that’.
I’m not a lawyer or a judge, so my reading certainly isn’t authoritative, but I think the quotes below show that the issue is not as settled as the website presents it. Even without the issue of a politicized supreme court who’s political party is hostile to the concept of popular vote determining the President, I don’t think there’s any clear-cut reason to believe that the SC would rule in favor of the compact over states violating the compact. The bald statement that withdrawing would be unconstitutional just isn’t supported, nor is the implicit statement that the SC would take the case and rule as such, or the implicit statement that they would force compliance rather than choose some other sanction.
My reading of United States Steel Corp. v. Multistate Tax Commission is that the Commission was considered to not need authorization in part because the states did not delegate any sovereign power to the commission and could leave it at any time. But this compact does have limits on when the state can leave and binds future legislatures to the terms of the compact, which to me appears to move it into the category of agreements. “Under the test of whether the particular compact enhances state power quoad the Federal Government, this Compact does not purport to authorize member States to exercise any powers they could not exercise in its absence, nor is there any delegation of sovereign power to the Commission, each State being free to adopt or reject the Commission’s rules and regulations and to withdraw from the Compact at any time.”
My reading of Virginia v Tennessee (supported by a large quote below) is that while many interstate agreements (like ordinary commercial transactions) don’t actually require consent of congress, a political confederation absolutely does. VvT stated that the compact in question (which defined state borders) did require approval, but was approved by being communicated to and recorded by the Federal government, and the Federal government treating the border defined by the compact as legitimate in subsequent actions. So VvT seems to argue strongly that this would be an agreement requiring Congressional approval, and since Congress hasn’t offered such approval, it would be invalid, thus putting the case into the category the page author failed to address.
Yup, we’re totally on the same page. In addition to the security benefits of having disparate voting systems that you cite, it also adds a degree of distance between the federal government, i.e. an incumbent president running for re-election, and the actual local voting authorities. Any federalized system could potentially be subject to influence or unilateral partisan rule changes.
It presumably would come down to one’s interpretation of the Interstate Compact. In the strictest sense, it’s not a agreement with any other state. It’s simply stating that the state will allocate it’s votes in a specific way based on the outcome of the popular vote. They aren’t agreeing with other states to do anything together, it’s simply multiple states choosing to adopt the same internal methodology.
It’s obvious on it’s face that it is an agreement with other states, but for the sake of argument I will presume that it isn’t a compact with another state. In that case, it’s a simple matter of state law setting a procedure. If it’s just state law, then the state as a sovereign is free to change its own state law at any time to anything it pleases, so can simply change it’s own state laws and adopt a different method of selecting its electors whenever it feels like. The fact that the compact specifies rules for withdrawal is meaningless in this scenario, as (like you said) it is not an agreement between states, so only state law matters - and most (all?) states specifically forbid one session of the legislature from binding future sessions via regular law. Also if a hypothetical state does withdraw and submit a non-compliant set of electors, if (as you’ve stipulated) there’s no agreement between the states then there are no grounds for any other state to sue the state for violating the non-existent agreement between states.
As others have noted, that is no different than the case today. Faithless electors, or changing to a proportional system ala Nebraska or Maine, are a thing with or without the Compact. That argument is a red herring.
Interesting comments. It does appear that the language in the Compact which limits States’ ability to withdraw from it would be unlikely to be found Constitutional.
But I don’t think that fundamentally this is a problem with the idea. If all the red States back out, all the blue States can too, and no harm will have been done.
And if the fear is that States might try to switch the rules BETWEEN the election and the Electoral College vote, nothing is preventing them from trying to do so now (except the fear of massive public outrage).
I think you can lawyer this. Joining the compact would need to be coupled with each state passing a state law to that effect. The state’s individual law can be written in such a way that it’s binding and cannot be altered except within the outlined timeframes.
All this becomes moot if and when supporters of the compact hold Congress, since that body can at that time approve the compact making it unquestionably constitutional.
I agree. The language of the Compact does specify that it only triggers once sufficient States have ratified it, but a State ratifying it isn’t making an agreement with any PARTICULAR other State, so it’s not clear that that clause is relevant. And it’s certainly not unconstitutional for States to pass laws saying “we will do X if, at some point in the future, condition Y applies”.
I can’t imagine that SCOTUS would ever interfere with State law to the extent of declaring that a particular method of allocating electors is inherently unconstitutional, when the Constitution expressly gives States free rein in this regard.
Legislatures can’t pass laws and just declare that subsequent legislatures don’t have the power to change them. I suppose theoretically States could amend their Constitutions to prevent future legislatures from changing the law, but I really don’t see why preventing States from changing their minds is so essential here.
It occurred to me that a fairly simple tweak to the Electoral College would make it more democratic, without requiring a major constitutional overhaul:
Simply reduce the number of electors, to = the state’s congressional delegation, not including Senators. So the total would be 438; 220 to win. The ratio of California to Wyoming would change from 55:3, to 53:1 … much closer to reality.
To change the electoral college system would take an amendment. There is no way on earth that the Republicans would go for it. George W Bush did not win the popular vote for his first term. Donald Trump did not win the popular vote. A 2/3 majority of congress is pretty close to the likelihood of me being elected President (Hint, I am not eligible.)
When a State enters the compact, it passes State laws changing its methods of choosing electors, and is then bound by those laws until they are changed. I’m not sure why you seem to imagine States could just ignore their own laws if those laws award electors to the NPV winner, but not if the laws award electors to the winner of the State popular vote.
The same effect could be partially achieved – with no need for a Constitutional amendment – by enlarging the House and thus diluting the weight of the 2-per-state bonus.
As I noted earlier in the thread, the plain language of the Constitution unambiguously permits Congress to “make or alter” state election rules for Congressional elections (and thus de facto for other elections conducted in tandem with them).
You can have it one way- it IS a compact, thus it is Binding- in which case it needs Congressional approval. Or it is NOT a compact, and thus does not need Congress- in which case it isnt binding. Pantasic posted the significant legal arguments against the idea, which no one here can dispute.
And to the OP “How to prevent this election nonsense from happening again” is exactly what the GOp wants. Why bother with elections?
The election worked. The people spoke. What part of that is “nonsense”?
Right, they could try to change the rules after the election, and SCOTUS might or might not let them get away with it. But they could do that right now. So what was your point again?