There are a group of states that are trying to change the electoral college into direct public election of the president. The Constitution awards electoral votes to individuals states and it lets the state legislature determine how the electors who cast those electoral votes will be chosen. As of now, every state picks the electors by popular vote. Forty eight states and DC award all electors to the winner in the state. Maine and Nebraska allocate two electors to the state-wide winner and one elector for the winner in each congressional district. As a result, the winner of the presidential race has to win across the country. It is not enough to win the popular vote if that vote is highly concentrated in a few states. That is what happened in 2016 when Trump won the electoral vote while Clinton won the nationwide popular vote because she got huge margins in California and a few other states. (Trump won the non-California popular vote easily; Clinton swept California, however.)
Since the 2016 election, Democrats have been trying to get rid of the electoral college by having states agree to award their electoral votes to the winner of the nationwide popular vote. If states with a majority of the electoral college make this move, the proponents say that it will mean that the winning candidate will always be the one who wins the popular vote.
There are a number of arguments for and against this proposal. The most basic issue, however, is that the proposal is unconstitutional for a number of reasons.
1. The proposal seeks to amend the Constitution without following the methods set forth in the Constitution for doing so. There are only two ways to change the Constitution. First, both houses of Congress can pass an amendment with a two-thirds majority followed by ratification by three quarters of the states, or second, there can be a constitutional convention called by three quarters of the states which convention can then rewrite the Constitution. The proposal to replace the electoral college with the popular vote would only have approval of states having a majority of the population. That is insufficient.
2. The proposal would violate the Equal Protection clause of the 14th Amendment. The Supreme Court has made clear that once a state authorizes an election, it must conduct that election so that the votes of every citizen of that state are given equal weight. In the famous case of Bush v. Gore following the 2000 election, the Supreme Court stated, "When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter." The proposal clearly doesn't do that. Imagine if a majority of the voters in Indiana select the Democrat nominee while the majority of the public nationwide selects the Republican. The votes of the Indiana citizens are not being given equal weight. Those who voted Democrat (the majority) are being counted less than the votes of those who voted Republican (the minority). Equal protection in Indiana cannot be satisfied by looking at the votes of people in Missouri, Montana or Florida. The issue is equal protection of all votes in Indiana.
It is highly unlikely that there will be any change to the popular vote before the 2020 election. Even so, this issue may be ready for adjudication now. A citizen in one of the states that have passed this interstate compact could bring an action for declaratory relief in federal court. Ultimately, it will be up to the Supreme Court to strike down this interstate compact as unconstitutional.
Since the 2016 election, Democrats have been trying to get rid of the electoral college by having states agree to award their electoral votes to the winner of the nationwide popular vote. If states with a majority of the electoral college make this move, the proponents say that it will mean that the winning candidate will always be the one who wins the popular vote.
There are a number of arguments for and against this proposal. The most basic issue, however, is that the proposal is unconstitutional for a number of reasons.
1. The proposal seeks to amend the Constitution without following the methods set forth in the Constitution for doing so. There are only two ways to change the Constitution. First, both houses of Congress can pass an amendment with a two-thirds majority followed by ratification by three quarters of the states, or second, there can be a constitutional convention called by three quarters of the states which convention can then rewrite the Constitution. The proposal to replace the electoral college with the popular vote would only have approval of states having a majority of the population. That is insufficient.
2. The proposal would violate the Equal Protection clause of the 14th Amendment. The Supreme Court has made clear that once a state authorizes an election, it must conduct that election so that the votes of every citizen of that state are given equal weight. In the famous case of Bush v. Gore following the 2000 election, the Supreme Court stated, "When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter." The proposal clearly doesn't do that. Imagine if a majority of the voters in Indiana select the Democrat nominee while the majority of the public nationwide selects the Republican. The votes of the Indiana citizens are not being given equal weight. Those who voted Democrat (the majority) are being counted less than the votes of those who voted Republican (the minority). Equal protection in Indiana cannot be satisfied by looking at the votes of people in Missouri, Montana or Florida. The issue is equal protection of all votes in Indiana.
It is highly unlikely that there will be any change to the popular vote before the 2020 election. Even so, this issue may be ready for adjudication now. A citizen in one of the states that have passed this interstate compact could bring an action for declaratory relief in federal court. Ultimately, it will be up to the Supreme Court to strike down this interstate compact as unconstitutional.
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