Will the AZ Redistricting Case Save National Popular Vote From Constitutional Challenge?

Yesterday’s Supreme Court decision reading the term “Legislature” capaciously for purposes of the Elections Clause likely means it would be read capaciously for purposes of Article II as well. This means, for example, that if a state by initiative decides to divide up its electoral college votes proportionally rather than winner take all, or district by district, it likely does not usurp the power of the state legislature. (See my Slate piece yesterday on the connection of the AZ case to Bush v. Gore’s discussion of this issue.)

But that does not mean, as Richard Winger suggests, as easy constitutional path for the enactment of NPV, which would divide electoral college votes of all states that agree in line with the winner of the national popular vote.

The biggest constitutional problem with NPV is not the Legislature question, but instead whether such an agreement among the states would be a “compact” requiring congressional approval. Derek Muller makes a strong argument that the compact issue is a problem. Of course that debate would be moot if Congress approved the compact.

[This post has been updated.]

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