The Democratic candidate has won the national popular vote in four of the last five presidential elections, yet the Republican candidate took office after three of those five elections. As any middle school civics student knows, the anomaly results from the Electoral College, a feature of the U.S. Constitution that was designed to insulate the selection of the President from the passions of the masses, giving the choice over instead to a smaller, more select, body. Although the Electoral College has not functioned in that way since roughly the period of Andrew Jackson’s presidency, it continues to affect both how candidates campaign—they focus on “purple” swing states rather than clearly red or blue ones—and who wins: because each state’s Electoral votes reflect its representation in Congress, including the Senate, the system overvalues votes in small states relative to those in large states.
In recent years, that configuration has tended to favor the Republican candidate, but it does not inherently do so. Some small states (such as Delaware and Rhode Island) typically vote Democratic in presidential elections, and the parties’ platforms tend to evolve over time to compete for various slices of the electorate. Although Republicans benefited from the Electoral College math in 2000 and 2016, when George W. Bush and Donald Trump respectively lost the popular vote but won the Electoral College, relatively small differences could have played out very differently. On the eve of the 2000 elections, some pundits thought Democrat Al Gore might lose the popular vote but win the Electoral College, and many observers thought Democrat Hillary Clinton could rely on an Electoral College “blue wall” in 2016.
Given the uncertain partisan benefits the Electoral College confers, there ought to be bipartisan support for a constitutional amendment that would replace it with a national popular vote. However, most voters seem incapable of looking past the short term. Thus, although more Americans favor abolishing than keeping the Electoral College, a majority of Republicans want to retain it. Given the difficulty of amending the Constitution, it will not likely be abolished any time soon.
Accordingly, reformers have been seeking to circumvent the Electoral College without a constitutional amendment, based on an idea originally proposed by law professors including my fellow Verdict columnist Dean Vikram Amar. National Popular Vote (NPV) advocates an interstate compact. States joining the compact enact laws requiring their electors to vote for the winner of the national popular vote, regardless of the winner in that state, so long as states accounting for a majority of Electoral votes have joined the compact. Thus far, states accounting for 196 Electoral votes (of the 270 needed) have joined, and at least one legislative house in states accounting for another 75 Electoral votes have passed bills supporting NPV. Approval by the other house and the governor in each of those states would put NPV over the top. Notably, some Republican-controlled chambers have voted for NPV, perhaps because their legislators recognize (as Dean Amar emphasized in a column earlier this year) that over the long run the Electoral College does not have a partisan slant.
NPV raises a number of difficult questions. For example, the Constitution authorizes two kinds of interstate compacts, those requiring congressional approval and those that go into force directly. Which kind is NPV? As Dean Amar has noted, there are also questions about how exactly to count the national popular vote. And some commentators think that NPV would be unconstitutional as a violation of the letter and spirit of the presidential selection method set forth in Article II and the Twelfth Amendment.
The Standing of Faithless Electors
NPV’s prospects may grow even dimmer should a recent ruling by the U.S. Court of Appeals for the Tenth Circuit be affirmed by the Supreme Court. In Baca v. Colorado Dep’t of State, the appeals court held that so-called faithless electors cannot be bound by a state to vote for a particular candidate. Although the case did not involve NPV, as I explain below, its logic could doom the movement.
The lead plaintiff in the case was Michel Baca, who was a Colorado elector in the 2016 presidential election. Colorado law requires electors to cast their ballots for the winner of the statewide popular vote for President. Although Baca was part of the state’s Democratic slate, he had qualms about voting for Hillary Clinton and thus cast his vote in the Electoral College for John Kasich. The state removed him and replaced him with an elector who, seeing the writing on the wall, cast his Electoral College vote for Clinton. Baca (and two other plaintiffs) sued. The plaintiffs lost in the district court, which found they lacked legal standing and had no legal claim.
The appeals court agreed that the other plaintiffs lacked standing but reversed on Baca’s behalf, finding that he had both standing and a legal claim. The court’s analysis with respect to standing is detailed and somewhat complex, but it boils down to the contention that Baca suffered a personal injury by having his participation in the Electoral College nullified, even though he did not suffer any material or economic setback.
Should the Supreme Court review the appeals court ruling, it would also have to consider standing, which is a threshold jurisdictional question. How it would rule is not entirely clear. Standing doctrine in general is somewhat indeterminate, and courts have been known to find standing when they want to reach the merits while finding no standing when they want to duck the merits. Here there is at least a colorable argument for standing: the appeals court is correct that a physical, economic, or even psychic setback is not strictly necessary for legal standing. For example, damage to reputation can give rise to standing to bring a defamation action, even absent any of those sorts of setbacks. In such cases, the availability of nominal damages suffices to render an injury redressable.
Even if one thinks Baca himself lacked standing, it is easy to imagine future cases arising in which electors who have not yet been ousted from their role sue for injunctive relief. Hence, let us consider the Tenth Circuit’s merits ruling.
Faithless Electors Since the Founding
Although the Tenth Circuit decision is quite long, its core merits argument is simple: The Constitution uses the term “elector” in Article I (in discussing congressional elections) to refer to ordinary citizen voters, who have the freedom to vote for the candidates of their choice, and thus “electors” appointed to the Electoral College must likewise have a similarly free choice; meanwhile, although Article II gives power to each state to “appoint, in such manner as the Legislature thereof may direct, a number of electors,” it confers on states no power to revoke or control how those electors vote; the Twelfth Amendment (which substituted a joint presidential/vice-presidential ticket for the system that failed in the election of 1800) confirms that the state legislative role is complete once appointment has been made.
The foregoing argument strikes me as a plausible construction of the relevant constitutional provisions, though hardly a slam-dunk. State legislative power to direct appointment of electors could be deemed plenary, thus encompassing various limitations. In my view it is relatively clear that the framers of the original Constitution and the Twelfth Amendment almost surely expected that electors would exercise discretion in carrying out their duties, but it is much less clear that the text they wrote mandates such discretion. At the very least, I would hope that if and when the Supreme Court faces this issue, it gives at least as much weight to the democratizing trends of the last two-plus centuries as it gives to the framers’ expectations.
The Tenth Circuit, for its part, acknowledged that history but also pointed to a persistent pattern of acceptance by Congress of occasional anomalous votes cast by faithless Electors. That historical pattern no doubt is entitled to considerable weight, but there is a distinction between recognizing the validity of faithless electors’ votes in general and doing so in the teeth of a state effort to enforce a law forbidding such votes. Should Baca or a case like it reach the Supreme Court, it would present a question of first impression.
Implications for NPV
I shall not hazard a guess about how the Supreme Court would likely resolve that question of first impression. Instead, I want to focus on the potential consequences if the Court were to affirm the Tenth Circuit approach.
In a Verdict column shortly after the 2016 election, Dean Amar explained how, under the right circumstances, a faithless elector could swing the outcome of a presidential election. He offered a model state statute that might control faithless electors, so that voters—meaning the millions of ordinary voters—could achieve the results they think they voted for.
Yet Dean Amar’s proposal and virtually any state law that purports to constrain the choice or continuing mandate of a faithless elector might run afoul of the Tenth Circuit’s reasoning in Baca. Should that ruling stand up and apply nationwide, it would forbid states from restricting the choice of electors once appointed, perhaps even if the restriction were cleverly structured to appear as something else.
That could be quite problematic, but it probably won’t be. As legal scholar David Post observed in a recent Volokh Conspiracy essay on the Baca case, the parties and their candidates choose their slates of electors. Even if they lack the means to enforce restraints via state law, the parties and candidates can vigorously screen for loyalty to greatly reduce the likelihood that any electors would go rogue.
Yet if the faithless elector problem would prove unimportant for the current regime, it might nonetheless indirectly undercut NPV.
NPV does not directly run afoul of Baca. A state that has signed onto the NPV compact agrees through state legislation to appoint the statewide slate of electors for the candidate who won the National Popular Vote. For example, if NPV were in effect and the Republican candidate won the national popular vote but the Democrat won in New York, New York’s legislation adopting NPV would require the state to designate the Republican slate of electors. Because the Baca decision invalidates the removal of an elector but not the states’ ability to name electors, the NPV legislation would remain enforceable.
Yet there is reason to worry that the panel of the Tenth Circuit that decided Baca might accept the sorts of arguments that have been advanced for the proposition that NPV is also unconstitutional. There is substantial overlap between the style and substance of the Baca opinion and the argument advanced by Professor Norman Williams in a 2012 article in the BYU Law Review contending that state legislative power over presidential electors is limited by the text and original purposes of the electoral college.
NPV will work, if it does, by providing states with an assurance of reciprocity; government officials in blue states will be willing to appoint a slate of Republican electors should a Republican win the national popular vote because they know that their counterparts in red states will appoint a Democratic slate of electors should a Democrat win nationally. However, a decision like Baca, especially if affirmed by the Supreme Court, would cast sufficient doubt on the enforceability of NPV to lead politicians to worry that their political rivals in other states would defect in the hope of having NPV declared invalid. And as in a prisoner’s dilemma and other kinds of collective action problems, a substantial risk of defection itself can lead to anticipatory defection.
Ideally, states would proceed to adopt NPV, Congress would approve the interstate compact, and the Supreme Court would uphold it, all before it went into effect. However, political considerations might prevent congressional approval, and the Supreme Court’s ripeness doctrine might prevent pre-implementation litigation. If so, the defection worry could prevent NPV from working.
Baca does not concern NPV, nor does NPV directly violate the rule Baca adopts. However, given human psychology, Baca could make NPV unworkable in practice. That would be a shame. The Electoral College is an anachronism that should be circumvented if it cannot be eliminated.
