Uninformed opponents of the National Popular Vote Compact have claimed that the “Federal Appeals Court Torpedoes the National Popular Vote Movement” because the compact “is predicated on the notion that state governments can bind [presidential electors] in how they vote.” Red State blog

A quick read of the 888 words of the National Popular Vote Compact would reveal that the compact does not try to tell -- much less force -- presidential electors to vote a certain way. And, if the Red State writer had read the actual court decision, they would know that this decision would not affect the operation of the National Popular Vote Compact.

Here are the facts.

The U.S. Court of Appeals in Denver on August 20 ruled, “states do not have the constitutional authority to interfere with presidential electors who exercise their constitutional right to vote for the President and Vice President candidates of their choice.” Page 93. Read the ruling at CNN

The court decision resulted from a lawsuit filed after 3 Democratic presidential electors from Colorado refused to vote for Hillary Clinton when the Electoral College met on December 19, 2016. New York Times article

The decision (if upheld after appeal to the U.S. Supreme Court) would negate existing laws in all 26 states that purport to require presidential electors to vote for their party’s nominee for President. 

However, the decision does not affect the operation of the National Popular Vote interstate compact, because the compact does not rely on the state laws that purport to require presidential electors to vote a certain way. The compact does not try to tell presidential electors to vote a certain way.

Instead, the National Popular Vote Compact would operate in a manner identical to the system that has been used for over 200 years in the 24 or so states that do not have laws requiring presidential electors to vote a certain way. In these 24 states (which currently use the state-by-state winner-take-all method of awarding electoral votes), the presidential electors are the persons nominated by the political party whose presidential candidate receives the most popular votes inside the state. The National Popular Vote Compact would operate in an almost identical way, namely the presidential electors would be the persons nominated by the political party whose presidential candidate receives the most popular votes in all 50 states and the District of Columbia.

This system has worked very reliably over the years. After 23,529 electoral votes in 58 presidential elections between 1789 and 2016, the vote of Samuel Miles in 1796 was the only case when an electoral vote was cast in an unfaithful way by a presidential elector who might have thought, at the time he voted, that his vote might affect the outcome. See section 2.12 of Every Vote Equal book

The 7 faithless presidential electors in 2016 were among the 22 grandstanding presidential electors between 1789 and 2016. These are electors who have cast a deviant vote for President knowing, at the time they voted, that their vote would not affect the outcome of the election in the Electoral College. 

Given the amount of publicity received by the 7 grandstanding faithless electors in 2016, both parties can be expected to be extremely careful in 2020 about vetting the people they nominate for the position of presidential elector. If the political parties do their job of vetting their nominees for the position of presidential electors, faithless electors cannot have any effect on the outcome -- under either the current system or the National Popular Vote compact. 

In any case, the 10th Circuit decision is likely to be reviewed by the U.S. Supreme Court because the Washington State Supreme Court reached the opposite conclusion concerning faithless electors. 

It remains to be seen whether the U.S. Supreme Court would uphold the decision. As the 10th Circuit decision itself noted on page 67 of its decision, “The Supreme Court, however, has considered a closely analogous question -- whether a primary candidate for party elector can be required to pledge to support the party’s candidate.” The Supreme Court concluded in that case that the state could require the pledge. 

If there is any remaining concern, states that currently have laws purporting to require presidential electors to vote a certain way could enact Pennsylvania’s law in which the presidential candidate directly chooses the people to serve as his or her presidential electors (25 P.S. §2878).

Finally, keep in mind that this court decision was not about the National Popular Vote Compact. It was about the current state-by-state winner-take-all method of awarding electoral votes.

Meanwhile, former Michigan Republican Party Chair Saul Anuzis recently talked to NBC about National Popular Vote and faithless electors.

In summary, the recent court decision was not about the National Popular Vote Compact, and it had nothing to do with whether the statewide or national popular vote are used to determine a state's presidential electors.

BACKGROUND INFORMATION 

It would make every vote equal throughout the United States. 

It would guarantee that every voter in every state matters in every presidential election. 

For additional information, see our book Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote (downloadable for free). Chapter 9 provides short and long answers to 131 myths about the National Popular Vote bill.   

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