I don’t believe I’ve seen mentioned on ELB the effort to put the National Popular Vote Interstate Compact on the ballot next November in Michigan. As the Detroit Free Press reported a couple of weeks ago, supporters of the measure have been given “the green light” to gather signatures to put this issue to the state’s voters.

Were this effort to succeed, it would only add by itself 15 more electoral votes towards the necessary 270 for the compact to take effect. Right now, the compact has enough states on board for 195 electoral votes.

It is difficult, but not entirely impossible, to see the compact reaching 270 in time for 2024. Doing so would require its adoption in states, like Michigan, with the direct democracy option of a ballot initiative. I’m not an expert on the specific ballot initiative rules and procedures in Arizona, Florida, Maine, Missouri, Nevada, and Ohio (among other states), but some combinations of those states could get the compact to the magic number.

This all suggests that Michigan’s effort, especially if followed in other states, might test the precedent of the Supreme Court’s Arizona Independent Redistricting Commission decision and the Court’s current views of the so-called “independent state legislature doctrine” insofar as it applies to the Article II authority of state legislatures to choose the “manner” of appointing the state’s electors. I for one would not be surprised to see the current Court hold that the use of the initiative process, as in Michigan, to adopt the NPV interstate compact is a violation of Article II (either overruling or distinguishing the Arizona case). Whether one would agree or disagree with the merits of that judicial decision would be irrelevant to its role in preventing this approach to getting the NPV compact adopted before the 2024 election.

Depending on the outcomes of the 2022 midterms–specifically the gubernatorial elections in the battleground states (Pennsylvania, Michigan, Wisconsin, Georgia, Arizona–I think a different type of Electoral College change could be on the horizon: one or more of these pivotal states might move to adopt the Maine/Nebraska method of using congressional districts to appoint electors. I blogged about that possibility back in August under the heading Gerrymandering the Presidency Without a Coup, and the passing months have not diminished my concern on this point. On the contrary, with all the attention currently being paid to the possibility that state legislatures will attempt to use their Article II power to repudiate the results of a popular vote they don’t like (as in Barton Gellman’s new piece for the Atlantic), one must at least consider the prospects that the same state legislatures will attempt to use legislative power they may have after the midterms (assuming governors of the same party in 2023) simply to adopt the constitutionally unassailable Maine/Nebraska method of participating in the Electoral College and thus avoiding the necessity of repudiating the results of the popular votes in their states.

I also wonder whether the effort to pursue the National Popular Vote Interstate Compact by means of a ballot initiative, as in Michigan, may embolden a counter-effort by state legislatures to pursue the Maine/Nebraska method. “If you can try to change the Electoral College your way, we can try to change it our way, and our way at least has the advantage of being entirely permissible as Maine and Nebraska already show.” Maybe the politics of Electoral College reform will run in the opposite direction: fear of spurring the NPV compact efforts might cause state legislatures to exercise restraint in moving to the Maine/Nebraska method, which they otherwise would be enticed to do?

(By the way, I believe it would be possible for the Michigan legislature in 2023, assuming Republicans win the gubernatorial election there, to adopt the Maine/Nebraska method, even if the NPV compact initiative passes next November; because the compact taking effect is contingent on the compact reaching 270, the Maine/Nebraska method rather than current winner-take-all method could be the new status quo in the state unless and until the compact becomes operational. The same point, presumably, would be true if Maine were to adopt the compact; its existing system would stay in place as long as the compact remains below the 270 threshold.)

I will leave it to others to weigh in with any political prognostications on this issue. I simply wish to note here that the green-lighting of the Michigan signature-gathering effort signals, at least to me, that we might see considerable maneuvers to change state laws for participating in the Electoral College system over the next couple of years.