Interstate Voting Compact and Its Unconstitutionality

The Interstate Voting Compact is a move amoung the state to mitigate the possiblity that a Presidential candidate can win the popular vote but lose the Electoral vote by awarding that state's electoral votes to the winner of the national popular vote. I argued back in March that the move was unconstituional. I was wrong, shamefully, in my analysis. The Constitution grants the state legislatures the power to determine how electors will be chosen. On those grounds, the awarding of electoral votes to the national electoral winner is permissible.

But Anchor Rising posits a different argument, one that I believe has merit:

But does this really mean that the power of state legislatures to choose the President is absolute? Hypothetically, state legislatures might decide to cut voters entirely out of the process. A legislature could mandate, for example (and not entirely inconceivable in Rhode Island), that its electors vote for the nominee of the Democratic party, no matter the result of the vote at any level. Would this too be legal?

Under Article II, the answer is yes. However, any system that bypasses a state's voters brings another section of the Constitution into play. Section 2 of the Fourteenth Amendment also has something to say about electing Federal officials, President included…

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

In extreme cases, this means that if no citizen votes are counted in a Presidential election process, then no citizens are counted towards a state’s total representation either; a state that ignores its citizens when allocating its electors loses representation in the Electoral College -- and possibly in the House of Representatives.

The problem with the Interstate Voting Compact is that it abridges the right of state voters to choose their Presidential electors nearly as egregiously as an ignore-the-voters-completely scheme does.

So Maryland's adoption of the Interstate Voting Compact bill, which will be effective when engough states to comprise a majority of electoral votes adopts such a law, means that it is possible that the voters of Maryland could be ingored, indeed might be abridged under common circumstances. Maryland routinely votes for Democratic candidates, but if the GOP candidate gets the popular vote, the preference of Maryland voters would be ignored (abridged) and thus Maryland could be excluded from the House of Representatives.

A pretty plausible interprestation.