On Tuesday, the Colorado Senate passed a Democratic-sponsored bill that would seek to award all of Colorado’s presidential electoral votes to the winner of the national presidential popular vote. Denver’s local ABC affiliate reports:
Colorado’s Senate has passed a bill to have the state award its presidential electoral votes to the winner of the national popular vote.
Democratic Sen. Mike Foote’s bill would have Colorado join 11 states and the District of Columbia in what’s called the National Popular Vote Interstate Compact.
It would replace the Electoral College, in which 270 electoral votes are needed to win the U.S. presidency. Compact proponents say it would go into effect once enough states with 270 votes enter the pact.
The bill passed on a party-line vote. It now proceeds to the Colorado House, which is also controlled by Democrats.
Democratic disdain for the Electoral College is neither a new nor an unexpected phenomenon. Republicans have only won one national presidential popular vote — George W. Bush’s reelection in 2004 — since George H.W. Bush’s landslide victory over Michael Dukakis in 1988. In that time, Republicans have won two presidential elections — in 2000 and 2016 — while nonetheless losing the national presidential popular vote.
The Constitution’s Framers envisioned the Electoral College as one of their many structural securities against majoritarian tyranny — what James Madison described in The Federalist No. 10 as the problem of “faction”:
By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.
There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.
The Electoral College, in attempting to ensure that smaller, more rural states would not be politically overrun by parochial urban interests, was one means by which the Framers sought to “control[ the] effects” of faction. Other examples abound, and are woven into our constitutional structure: a bicameral legislature at the national level, a tripartite separation of powers framework borrowed from the French political theorist Montesquieu, and the uniquely American political innovation of a federalist system of genuine dual sovereignty.
The Colorado bill, as Denver’s Fox affiliate highlights, seeks to “essentially eliminate [the] Electoral College.” Fox notes that Colorado Senate Republicans objected to the bill on the grounds that it is unconstitutional.
The aforementioned National Popular Vote Interstate Compact, of which the Colorado bill is a part, describes itself as an “interstate compact [that] would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states and the District of Columbia.”
Insofar as the Compact is a strictly voluntary agreement among states as to how each state that is a party to the Compact individually chooses to allocate its presidential electors, the Compact should meet constitutional muster. Article II, Section 1, Clause 2 of the Constitution provides for state legislatures to have plenary power over allocation of their states’ electors: “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” The Compact would have to be truly voluntary and symbolic, however, in order to escape the constrictions of the Compact Clause of the Constitution: Article I, Section 10, Clause 3.
However, insofar as the Compact seeks to actually eliminate the Electoral College, that would be unconstitutional absent a constitutional amendment passed via the formal Article V amendment-adopting process.