Thread by @msbellows

THREAD: This may be the most important issue of our lifetimes, bec it raises the significant possibility that the National Popular Vote Interstate Compact will be found unconstitutional and that there is no way to restore democracy by neutering the Electoral College.
1/

https://twitter.com/lessig/status/1163950029041782788

In the new case, Colorado was clear that the Popular Vote Compact is at stake: "[Colorado] argues... that we must decide whether there is 'any constitutional bar against the States binding their electors to the outcome of the State’s popular vote.'"
2/

The 10th Circuit concluded that states do NOT have that power: "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."
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More: "The Twelfth Amendment allows no room for the states to interfere with the electors’ exercise of their federal functions." And: "neither the Tenth Amendment nor the power to appoint electors provides the states with the power to remove electors and nullify their votes."
4/

In a popular vote landslide, the Compact might result in enough electors voting consistently with the popular vote to override the defections of a handful of faithless electors. ...
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But in a closer election, there likely would be a free-for-all, resulting in an EC vote that reflects NEITHER the popular nor state-by-state results. It's an ugly image, and one that could deprive the resulting president of any veneer of legitimacy.
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(Of course, the alternative is to amend the Constitution to eliminate the Electoral College altogether and elect the president by popular vote. But amending the Constitution (like the Electoral College) is done on a state-by-state basis, not by national popular vote, ...
7/

... and it's unlikely to the point of impossibility that the smaller states that benefit from the Electoral College would vote to decrease their own power by agreeing to such an amendment -- which is why reformers have resorted to the Compact in the first place.)
8/

This case WILL go to the Supreme Court. And there is almost zero chance that this Court will vote to sustain the National Popular Vote Interstate Compact, because doing so would remove the inbuilt advantage the Electoral College gives to Republicans, ...
9/

...not only in choosing the president but also, indirectly but substantially, in determining which party gets to choose federal judges (including Supreme Court justices).

It ain't gonna happen. Not with this Court.
10/

There are two tiny slivers of hope. One is that the Tenth Circuit found (mostly) that the plaintiff electors lacked standing to sue over their votes being changed. Play Future case, brought by electors who were ABOUT to vote, probably would be decided differently.
11/

The other tiny sliver of hope is the possibility that SCOTUS will decide that the issue is premature, waiting for a future case involving electors who are about to cast their votes immediately following the 2020 election. ...
12/

If that election yielded a clear result, with one candidate winning both the EC + popular vote, SCOTUS might conclude the issue was moot or a "political Q"...
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But, more likely, such a clear election might give SCOTUS cover to kill the Compact in its cradle, since at the moment it wouldn't seem to matter.

And, in a close election, SCOTUS would favor the EC (ie, the Republican).
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So I fear the National Popular Vote movement is doomed. Which would mean our nation is (possibly irretrievably) damaged -- a permanent non-democracy.

I hope I'm wrong. I'd love someone to show me I'm wrong. Please: prove me wrong.
15/end

I get your point, but see #2 above. If SCOTUS "upheld" the Compact but rendered it toothless, the appointed electors would be free to do whatever they want, + some will be pressured BIG TIME to ignore the Compact + vote how their state's electorate voted.

https://twitter.com/fleetadmiralj/status/1164230927410593792

P.S.:

https://twitter.com/JesseAPaul/status/1164201250004410368