Jens 'n' Frens
Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.

"A strong conviction that something must be done is the parent of many bad measures."
  -- Daniel Webster

Thursday, July 29, 2010 :::

Taranto spends the top of today's column on the "National Popular Vote Interstate Compact", a movement to encourage states to pass laws to award their presidential electors to the winner of the national popular vote. He thinks it can't work:
Call it the problem of faithless lawmakers--somewhat akin to the question of faithless electors. Legal scholars differ on whether state laws requiring electors to vote for the candidate to whom they are pledged are constitutional. But because the power of legislatures to choose the method of selecting electors is plenary, there is no question that the Constitution would permit faithless lawmakers to exit the NPVIC.


Since the NPVIC would be legally unenforceable, only political pressure could be brought to bear to ensure that state legislatures stand by their commitments to it. Would this be enough? Let's put the question in starkly partisan terms: If you're a Republican, do you trust Massachusetts lawmakers to keep their word, and to defy the will of the voters who elected them, if by doing so they would make Sarah Palin president?
I don't think this is an issue; the Compact only takes effect if at least 270 electoral votes are agreed to the proposition as of a few months before the election. Up to this point, as he notes, only states that lean strongly toward Democrats have gone anywhere with this idea, but if it's to become active (as he also notes), it will require some swing states or Republican states to go along with it. If the pact is a lot bigger than 270, a few states defecting wouldn't matter. On the other hand, if the pact is a little bit bigger than 270, a close election is likely to be one in which there are a number of non-pact states on each side — not necessarily a close split, but not a shut-out, either. How ever many electors the popular-vote winner gets from non-pact states, at least that many states would have to drop out of the pact in order to change the result. Partly because it will tend to be unknowable before a close election is held which side will benefit from the disparity, the incentive for a single state to drop out will be small, at least in terms of changing the outcome; the only reason to defect is because, e.g., you think Palin will win the election and want to reduce the size of her electoral college victory, or perhaps to avoid the ignominy of casting your own votes for her. If the pact is important enough to push through the legislature, it's probably important enough not to destroy for those reasons.

I'd like to take back up the constitutional point, though, not because I see an actual constitutional objection, but because I wish one. Suppose a pact were initiated whereby the first states to sign up, up to 270 electoral votes, would agree to thereafter vote for the candidate who got the most votes only in those states — disenfranchising the other states. Is that constitutional? I don't know why not, but it sure feels bad, and I'd kind of like it to be prohibited.

::: posted by dWj at 4:59 PM

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Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.

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