Electoral vs. Popular Vote: Is it constitutional?
If you’re a Colorado resident, your vote for President could now be weighted towards the candidate who garners the most votes across the nation; politicians are now playing math with the 270-to-win adage, amalgamating Colorado’s electoral votes into the largest vote-getter.
Fuzzy math? Depends on who you talk to.
Let’s first start with the basics: electors elect Presidents. Electors vote in a way that represents the people’s voice. In the state’s not-so-distant past, it was a winner-take-all rule, where all nine electors voted for the presidential candidate who received the most votes from Coloradans.
As of the March 15th signing of National Popular Vote Interstate Compact, that changed: Colorado’s nine electors could now vote for the presidential candidate who receives the most votes on the national stage — regardless of how Colorado voters were swayed.
But, there’s a caveat: the law would only go into effect when enough states with enough electors — 270 — also join in.
The conversation over the national popular vote started back in 2000, when George W. Bush got 271 electoral votes. Al Gore, however, won the popular vote by 540,520.
That had only happened three other times in U.S. history, where the president-elect lost the popular vote.
And then, it happened again in 2016. President Trump clinched 304 electoral votes, and Hillary Clinton oupaced him by 2,864,903 popular votes.
Democrats were burned. The national popular vote movement gained momentum, with more states signing the Interstate Compact. 15 states are currently part of the agreement — amounting to 189 electoral votes — shy of the 270 needed to trigger the compact.
But here’s the rub: is it fair? Is it more democratic? Is it constitutional?
To be sure, the issue has Coloradans, experts, and politicians all a twitter.
“This clearly violates the Constitution,” said UCCS Political Science Professor, Josh Dunn. “In Article 1, Section 10, there’s something called the Compact’s Clause. What it says is that state’s can’t enter into any compact with each other unless they are approved by Congress.”
Dunn is confident that, if enough states join the compact, it will eventually land at the Supreme Court to determine its constitutionality.
“It’s absolutely constitutional,” countered Sylvia Bernstein, the Co-Chair of the Colorado National Popular Vote. “In Article 2, Section 1, there is language in there that says that state legislatures shall determine how their state’s electoral college votes are allocated.”
Already, there’s a grassroots movement to turn the issue directly over to voters. Coloradans Vote has until August to collect 124,634 signatures, to put the issue of how the state’s electoral votes are counted, on the November 2020 ballot.
Multiple requests for interviews with Secretary of State Jena Griswold about the issue went unreturned.
