Is National Popular Vote Interstate Compact Constitutional for electing POTUS?

[muon2]

Yes, it is probably constitutional.  Each state can decide how its electoral votes are allocated.  If Maine and Nebraska can allocate electoral votes by congressional district, without any problems, then states should be able to allocate electoral votes based on popular vote, without incident.

I suspect there are limits on how a state might allocate its EVs. Could a state allocate its EVs based on the value of the Dow Jones average on election day? I doubt it. Sticking to elections, could a state allocate its EV to the results in its most populous county? That clearly violates one man one vote. Could a state allocate it based on another arbitrary state? That seems like a violation, too, since it is equivalent to letting that other state have its votes count twice.

So, let me assume that the states have a recognized compact. That could potentially allow the states to aggregate their votes and electors to act as a single state. However, if they use results from states not in the compact, isn't that akin to using votes from some arbitrary state to make their allocation? If so, that also becomes a potential violation of one man one vote, since again the states not in the compact effectively elect electors twice.

To me the only clearly constitutional compact is one that allocates the electors from the compact to winner of the vote within the compact. However, even if the compact has 270 EV, the result could be that the compact winner is not the national popular vote winner. That defeats the whole purpose of the NPVIC.

[muon2]

Any compact must represent something. There are methods of allocating the electoral votes of a State that would never pass Constitutional muster. "All and only votes by persons of the Caucasoid race" is the most obvious.  The choice of the sitting Governor is obviously despotic in nature. A vote by a state legislature gives powers to states that the Founders never thought appropriate (and that probably applies also to gerrymandering that gives one Party's nominees a built-in advantage). A coin flip would be unduly arbitrary.

Um, but that's actually exactly how many of the founders intended electors to be chosen, and it is indeed how most states chose electors early on in the country's history. The state legislature selected the electors.

And in red, I would note that one of the Founders used partisan gerrymandering, and it is so named in his honor.

[muon2]

Yes, it is probably constitutional.  Each state can decide how its electoral votes are allocated.  If Maine and Nebraska can allocate electoral votes by congressional district, without any problems, then states should be able to allocate electoral votes based on popular vote, without incident.

I suspect there are limits on how a state might allocate its EVs. Could a state allocate its EVs based on the value of the Dow Jones average on election day? I doubt it. Sticking to elections, could a state allocate its EV to the results in its most populous county? That clearly violates one man one vote. Could a state allocate it based on another arbitrary state? That seems like a violation, too, since it is equivalent to letting that other state have its votes count twice.

So, let me assume that the states have a recognized compact. That could potentially allow the states to aggregate their votes and electors to act as a single state. However, if they use results from states not in the compact, isn't that akin to using votes from some arbitrary state to make their allocation? If so, that also becomes a potential violation of one man one vote, since again the states not in the compact effectively elect electors twice.

To me the only clearly constitutional compact is one that allocates the electors from the compact to winner of the vote within the compact. However, even if the compact has 270 EV, the result could be that the compact winner is not the national popular vote winner. That defeats the whole purpose of the NPVIC.

That's impossible. If the compact reaches 270 EV's, the states within the compact will not vote according to the popular vote of the states within the compact, but will instead vote according to the popular vote of the ENTIRE COUNTRY (including states not within the compact).

It's not impossible if you read my post. Suppose IL wanted to award its EVs to the winner of the MO presidential vote. Would that be constitutional? It's not clear to me that SCOTUS would permit that since it is an assignment of IL electors unrelated to the vote taken in IL. It's certainly the case that the IL winner may not be the MO winner.

Now consider a situation where NH and ME selects its electors based on the combined vote of NH, ME and MA. Suppose that NH and ME do this as a compact, but MA is not in the compact. MA has more than twice the population of NH+ME, so it wouldn't be hard for NH+ME to vote for one candidate, but the three states together vote for a different candidate. In that case the winner of the compact is not the same as the popular vote winner of the three states. Would SCOTUS allow that compact to cast such a vote?

I can extend this analogy by adding more states to the compact and using a wider set of states to select the winner, but have the same scenario as in the paragraph above. Eventually it could cover the whole country. For example if the compact included all the Romney states plus CA and MN, the total EVs would be 271 and in 2012 the compact winner would have been Romney, but they would cast their EVs for Obama who was the national popular vote winner. That's what my post said, so it's not impossible. More importantly to the thread is that constitutionally different from the two examples I gave above?