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Is the National Popular Vote Compact Unconstitutional? (Again)
Michael Ramsey

At PowerLine, UCLA law emeritus professor Dan Lowenstein, in a guest comment, argues that the proposed National Popular Vote Compact is unconstitutional, here.  From the core of the argument: 

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.

Thanks to Andrew Hyman for the pointer.  Andrew independently made a similar argument on this blog a while back: Let’s Not Overthink the National Popular Vote Compact Which is Clever but Cannot Work.  An excerpt:

Many provisions of the U.S. Constitution are elegantly simple and straightforward, and that includes this one: “Each State shall appoint…a Number of Electors….”  It seems straightforward, and it is what it seems.  No combination of states can appoint the electors of another state.  Each state establishes who its electors are, the word “appoint” meaning to establish.

Even if the Constitution did not mention any role for a state’s legislature, such a role would be fine, because a state legislature is part of the state.  Likewise, a state’s citizens are part of the state.  Perhaps a legislature may also consider anyone lawfully within its borders to be part of the state.  But one state is obviously not part of another state, just as the United Nations General Assembly is obviously not part of any U.S. state, and so each state must decide by itself who to appoint as electors.  The state decides the manner of appointment, the state decides who to appoint, and the state carries out the appointment.  Simple.

It doesn’t matter whether Congress approves the NPV Compact.  It doesn’t matter whether the compact says state legislatures are free to withdraw from it at any time.  It doesn’t matter whether the compact is a “treaty” versus a mere “agreement.”  It doesn’t matter whether the NPV Compact would allow each state to appoint electors based upon votes cast nationwide under a patchwork of unequal voting procedures.  It doesn’t matter whether the NPV Compact tramples upon protection given to smaller states.  All of that is perhaps worth pondering a little bit, but none of it is really important here.  

The NPV Compact violates these plain words: “Each State shall appoint…a Number of Electors….”  If those words are not empty or trivial, then each state has the power and responsibility to decide who to appoint.  The Constitution elaborates upon that appointment power, but in doing so never involves any other states or nations.

The appointment power of a U.S. president is instructive.  The Constitution involves the U.S. Senate in that process, but once the Senate has confirmed a nominee, then the appointment power allows the president complete power to either appoint the confirmed nominee, or else not appoint the confirmed nominee and instead nominate someone else.  No federal statute (or treaty or executive agreement or congressional-executive agreement) could require the president to do one or the other, much less to do one or the other based upon what the U.N. General Assembly or some other entity wants.

I also think the National Popular Vote Compact is unconstitutional, at least absent the consent of Congress, under the agreement or compact clause of Article I, Section 10, para. 3, as argued by Michael Morley (and endorsed by me) here.  My thoughts from that post:

The threshold originalist objection [to the NPVC] is that Article I, Section 10 says that "no State shall, without the Consent of Congress ... enter into any Agreement or Compact with another State."  Modern law has watered down that clause somewhat in nonoriginalist ways (though not, in my view, enough to validate the National Popular Vote Compact); but for originalists (or even just textualists) the clause seems unavoidably conclusive.  Still, it's worth thinking about whether the Compact would be unconstitutional even if Congress approved it.

One further objection might be that the Compact, despite its name, is actually a treaty.  A different clause of Article I, Section 10 says that "No State shall enter into any Treaty" (presumably even with Congress' consent).  Though the Constitution thus recognizes a difference between treaties on one hand and agreements or compacts on the other, it is unhelpful on the difference.  I made some effort to work out the originalist difference in my long-ago article on executive agreements (where the issue also comes up) but that effort was not terribly satisfactory.

But, I would add, Congress isn't likely to approve the NPVC so the treaty issue seems academic.  And, as Andrew Hyman points out, if he and Professor Lowenstein are right, the compact clause argument is academic as well, since a compact (like a treaty) obviously can't violate the Constitution.