9.33 Myths about Adjudication of the Constitutionality of the Compact

Trent England, Executive Director of Save Our States, told a meeting at the Heritage Foundation on May 19, 2021, that the system could be gamed by challenging the constitutionality of the National Popular Vote Compact after the first election in which it is used.

“Somebody sues after the election. They say … ‘We think this somehow violates our rights as California voters.’ And you could have one judge just strike the compact down.”[903] [Emphasis added]

In general, litigation about how an election is to be conducted—such as which districts are to be used, which candidates are on the ballot, and how electoral votes are awarded—have historically been decided by the courts, before the election involved. In fact, the only logical time to resolve such issues is before the election.

This principle is illustrated by the fact that challenges to the constitutionality of the method of awarding electoral votes were decided by the courts before the 1892, 1968, and 2020 presidential elections.

1892 challenge to the congressional-district method of awarding electoral votes

In 1892, Michigan repealed its existing winner-take-all law and changed to a congressional-district method of awarding the state’s electoral votes. In June 1892, the Michigan Supreme Court upheld the constitutionality of that law. Opponents of the new law appealed to the U.S. Supreme Court. Because the November 1892 presidential election was approaching, the U.S. Supreme Court decided the case of McPherson v. Blacker on October 11, 1892—that is, before Election Day. The U.S. Supreme Court upheld Michigan’s law.[904]

1968 challenge to the state-level winner-take-all method of awarding electoral votes

Similarly, in 1968, the constitutionality of the state-level winner-take-all method of awarding electoral votes was challenged on equal-protection grounds. The case of Williams v. Virginia State Board of Elections was promptly heard by a three-judge federal court (the usual type of judicial panel for hearing constitutional issues at the time). On July 16, 1968, that court issued its decision upholding the winner-take-all method.[905] See section 2.15.4, section 9.1.13, section 9.1.14, and section 9.25.

2018 challenge to the state-level winner-take-all method of awarding electoral votes

In 2018 (two years before the 2020 election), Equal Citizens, a non-profit organization founded by Harvard Law Professor Lawrence Lessig, organized a coalition of law firms, organizations, academics, and others that brought lawsuits in Massachusetts, Texas, South Carolina, and California asking that federal courts declare existing state winner-take-all laws unconstitutional.

The four substantially similar lawsuits[906], [907]were based on an equal protection claim somewhat different from the 1968 case.

The lawsuits were heard by four federal district courts in the states involved. All four district courts reached the same conclusion, namely that the state-by-state winner-take-all method of awarding electoral votes is constitutional.

Equal Citizens then appealed each of the four adverse district-court decisions to the appropriate U.S. Circuit Court of Appeals.

By mid-2020, each of the four appellate courts upheld the decisions reached by their respective district courts. The U.S. Supreme Court declined to review the rulings of the appellate courts. As a result, the 2020 presidential election was conducted under existing winner-take-all laws.

2020 Supreme Court case about faithless electors

Faithless electors played a prominent and controversial role when the Electoral College met on December 19, 2016 (section 3.7).

Litigation ensued after the election as to the power of the states to require presidential electors to vote for the nominees of the political party that nominated the elector.

In the ensuing litigation, there was a conflict between the conclusions reached by the U.S. Court of Appeals for the Tenth Circuit and the Washington State Supreme Court.

With the 2020 presidential election on the horizon, there was increasing concern that unsettled questions concerning faithless electors might play a decisive role in the upcoming election. A number of academic and political organizations filed briefs in the U.S. Supreme Court, urging it to hear and decide the issue before the 2020 election.

As a result, the U.S. Supreme Court heard the cases concerning faithless electors on May 13, 2020. It issued its decision in Chiafalo v. Washington[908]on July 6, 2020—thus settling the question prior to Election Day.See section 3.7.8.

Doctrine of laches

As explained in Dobbs and Robert’s Law of Remedies, Damages, Equity, Restitution:

“Laches is unreasonable delay by the plaintiff in prosecuting a claim or protecting a right of which the plaintiff knew or should have known, and under circumstances causing prejudice to the defendant.”[909]

As UCLA Law Professor Richard L. Hasen and editor of the Election Law Blog explains concerning election litigation:

“laches … prevent[s] litigants from securing options over election administration problems.”[910]

In matters of election litigation, the courts generally apply the doctrine of laches to reject challenges in which the plaintiff was aware of an issue before an election but waited to see the election results before raising the issue in court. Thus, the only time to raise such election challenges is before the election involved.

Footnotes

In speaking in opposition to the National Popular Vote Compact in Connecticut, State Senator Michael McLachlan said during the Senate floor debate:

“You could make a fortune as a lawyer running around to states defending the Electoral College, or in the case of NPV you could make a fortune trying to make a fortune trying to defend that. … This is going to be such a legal train wreck that you can’t imagine how incredible that’s going to be. Just a legal train wreck. Every state court, state Supreme Court, district courts, Supreme Court is going to be bogged down with this discussion for years.”[911] [Emphasis added]

Senator McLachlan’s concern about every state and federal court at every level being “bogged down” is especially inapplicable to the National Popular Vote Compact, because any legal challenge to it would, almost certainly, be initiated by an Attorney General from a non-compacting state (arguing that the non-compacting state would be injured in some way). In that event, the U.S. Constitution directs cases between states to one court:

“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction.”[912][Emphasis added]

In any event, even if more than one lawsuit were initiated, the litigation would be quickly consolidated into one case.

Connecticut State Representative Daniel Fox observed:

“Litigation is a fact of life after any legislation is proposed … as it is with any other law or statute that’s passed by this body or others.”[913]

Footnotes