National popular vote election would be (right now) unconstitutional

As someone who is *not* super anti-Electoral College, I'm just going to repeat what I said earlier this week, which is that most people trying to defend the Electoral College would be better off saying nothing because their arguments have been really dumb. https://t.co/W4W1pOqlRB

— Nate Silver (@NateSilver538) March 22, 2019

Let's start with this. It is still entirely possible for a Republican to win the popular vote and for a Democrat to win the Electoral college. There has been no profound change to the electorate that precludes these possibilities, as much as certain people seem to act as if our electoral future is cast in some sort of stone.

But let's be clear about one of the more obvious legal challenges that I have heard nobody address. That a National Election at this point would be unconstitutional. Arguing about it, is much like arguing about abolishing guns while forgetting about that pesky Constitutional amendment that comes between the first and the third. The reality is that very little can be done without a large structural change to how our country governs.

The fact is that we do not have (nor do we have anything remotely in place) to hold a true "National election". Every state holds their own elections with their own rules. In order to get around the inevitable (and inevitably successful) challenges to the equal protection clauses of the constitution, we (as a country) would have to agree on, and our legislatures would have to pass some form of universal election laws.

As of now, the only equal protection challenges have taken place at a state level. Even within the same rules and regulations, there has been some successful challenges based on things like different voting machines and different means of counting votes. (remember Florida 2000). We have recently seen a huge amount of resources being spent in states to get everyone on the same equipment (and we still have a ways to go). Much of this is court orders. Much of it is small scale.

But certainly everyone understands that a State cannot decide that people who live in one town have 10 days before the election to cast ballots, while people from another town only have the ability to cast a ballot on the same day. A state cannot allow one county to use mail in ballots, while another county has to vote in person. A state could not require some people to show voter ID while other people within that same state are not required.

See where I am going with this?

Now imagine the legal battles if you had a national election where one state (California embraces vote harvesting) while all of the other states still have laws that make vote harvesting a crime? It's fine for California to declare their own laws, and make their own determination as to how they will decide elections and how they decide to award their electoral college votes. But you run into a whole set of legal challenges when you decide to pool their votes into a national count, when they are increasing their share based on an action decidedly illegal in the other 49 states. Right now whether California gets 10% voter turnout or 90% voter turnout, their national influence remains the same. So the fact that they increase voter turnout with voter harvesting doesn't really dilute the vote for anyone else.  But in a national election....

Quite obviously everything would need to be universal. Nationally.  We would have to have a national standard for purging voter rolls. We would have to have a universal standard for voter ID laws. We would have a national standard for absentee and mail in ballots. Almost every state would be required to dump every election law that they have previously fought for, and adopt one universal standard for voting.

Which leads to another fair question. Could the Federal Government even force states to adopt a national voting legal platform? Wouldn't that be a fairly pronounced violation of the multiple amendments that deal with State's rights?  In fact, the states are constitutionally provided with the authority to determine how to run their own elections.

Double constitutional whammy. Damned constitution.

Bottom line is that a National popular vote election would be unconstitutional.

It's even possible that the current push by certain states to give their Electoral College votes to the popular vote winner might even be unconstitutional based (again) on many of these same arguments (as well as some others) if people within those states file suit in federal court. I doubt that this "end around" will every garner the required number of electoral college votes to succeed, but even if it did there would be legal hell to pay. The court battles would be nearly limitless.

As has been pointed out,  this was not an issue in 2008, or 2012, and it probably will not be an issue again if a Democrat wins back the White House. It's just another example of childish people wanting to change the rules of a game every time they lose.