On the Equal Protection Clause argument and the National Popular Vote project

A number of people have written to ask whether prevailing on an Equal Protection Clause claim against “winner-take-all” would also render vulnerable the National Popular Vote project. Short answer: Absolutely not.

The National Popular Vote project is a brilliant idea (described originally here by the brilliant Brothers Amar) to use state compacts to effectively render the electoral college a ratification of the national popular vote. Under the agreement, once states representing 270 electoral votes join the compact, they all would pledge to assign their electors to the candidate who won the national popular vote.

This scheme raises none of the Equal Protection concerns that “winner take all” raises. The election is an election of the President of the United States. Counting every vote equally means giving the candidate who wins the national popular vote the victory. That is the effect of NPV. There could be no Equal Protection problem with a scheme that achieves what is the right result from the perspective of the Equal Protection Clause.

But some worry that if the Court were to apply the Equal Protection Clause to the state’s scheme for allocating electors, that might undermine the states’ ability to join the NPV compact. If the state’s power is not wholly “plenary,” then it might be limited in its freedom to assign electors freely.

If the question here is whether the state’s power to assign electors is truly or absolutely “plenary,” that ship has already sailed. As the Supreme Court held in Williams v. Rhodes, 393 U.S. 23 (1968):

The State also contends that it has absolute power to put any burdens it pleases on the selection of Electors because of the First Section of the Second Article of the Constitution, providing that ‘Each State shall appoint, in such Manner as the Legislature thereof may direct, a number of Electors * * *’ to choose a President and Vice President. There, of course, can be no question but that this section does grant extensive power to the States to pass laws regulating the selection of Electors. But the Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution. **** Nor can it be thought that the power to select Electors could be exercised in such a way as to violate express constitutional commands that specifically bar States from passing certain kinds of laws. Clearly, the Fifteenth and Nineteenth Amendments were intended to bar the Federal Government and the States from denying the right to vote on grounds of race and sex in presidential elections. And the Twenty-fourth Amendment clearly and literally bars any State from imposing a poll tax on the right to vote ‘for Electors for President or Vice President.’ Obviously we must reject the notion that Art. II, § 1, gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other constitutional provisions. We therefore hold that no State can pass a law regulating elections that violates the Fourteenth Amendment’s command that ‘No State shall * * * deny to any person * * * the equal protection of the laws.’ Id. pp, 28–29.

Likewise, in Moore v. Ogilvie, 394 U.S. 814, 819 (1969), the Court acknowledged that the state’s power to determine how to select electors was “plenary,” but held that “plenary” notwithstanding, “one person, one vote” limited how the state could craft its petition scheme for nominating presidential electors. And likewise, in Bush v. Gore, the Court acknowledged that the state’s power to determine how to select electors was “plenary,” but held that the method the state adopted to recount votes for electors was subject to Equal Protection review.

This is the right result. There should be no power in our government that is absolutely plenary, in the sense of free from constitutional standards. And there’s no reason for the NPV community to insist on that truly awful principle in order to advance their truly brilliant hack to the problem of the electoral college.