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Voters cast their ballots in downtown Denver on Tuesday, June 30, 2020. (Jesse Paul, The Colorado Sun)

Colorado’s decision on whether to join the National Popular Vote Interstate Compact could have implications across the country. 

But even if Colorado voters opt to keep the state in the National Popular Vote Interstate Compact, experts say it’s still a long shot that the U.S. will change the way it elects presidents. Proponents will have to navigate a tenuous national political landscape that would make it difficult to coax enough states to join the compact, not to mention untold legal challenges. 

To take effect, the agreement needs states with a combined total of 270 electoral votes to join. So far the backers of the effort say they have support from states with 196 electoral votes, including Colorado. 

The measure’s success so far in Colorado — it passed both chambers of the Democratic-led Colorado General Assembly and signed by Gov. Jared Polis — is largely due to a favorable political environment that doesn’t exist in other states. The remaining states will be harder to cajole into joining, and if voters reject the effort in Colorado, it could spell trouble for the movement nationally.

“I do think if the national popular vote is repealed in Colorado, I would consider it almost completely dead across the country,” said Derek Muller, a election law professor at the University of Iowa who has written extensively about the Electoral College. 

Proposition 113 asks voters whether to approve or reject a 2019 law that entered the state into the compact. It is the first time that voters have directly weighed in on the issue — which explains why Advocates and experts across the country are donating major money to either side of Colorado’s ballot initiative and keeping a close eye on the race. 

“I think it’s an important state,” said state Sen. Mike Foote, a Lafayette Democrat who is a lead proponent of the national popular vote law. “Whatever happens will benefit one side or the other in other states.” 

Mesa County Commissioner Rose Pugliese, one of the leaders of the repeal effort, said Colorado is a linchpin in the effort to reject the compact elsewhere. “Colorado is going to be the leader in the nation, so it’s very important that we win the ‘no’ vote on Proposition 113,” she said.  

“There are definitely a lot of eyes on Colorado,” she added. 

Even with Colorado’s support, it’s a politically fraught route to 270

Nearly every state that embraced the national popular vote has one thing in common: They were run by Democrats when they joined the agreement. 

The most common formula for joining the compact works like this: one Democrat-controlled chamber passes a bill, sends it over to another Democrat-controlled chamber, which passes it to a Democratic governor to sign into law. That’s exactly how it went in Colorado, where Democratic leaders entered the state into the compact without a single Republican vote. 

The problem now for those trying to get the compact approved in other states: There are few places left for that formula to work. 

“My sense is that they’re going to have a hard time getting to 270,” said Jennifer Hendricks, a professor at the University of Colorado Law School who teaches a class about the national popular vote. 

Proposition 113 explained: Colorado voters could push the U.S. closer to a national popular vote system

There are only a handful of Democratic-controlled states in the nation that haven’t yet joined the compact. In Maine, a bill to do so died in the state’s House of Representatives last year after passing the Senate. In Virginia, the House voted to join the compact, but a Senate committee pushed further consideration of the bill off until next year.

The Democratic governor of Nevada vetoed a national popular vote bill that both chambers of the legislature passed.

Proponents of the effort point to New York as an example of bipartisan support for the measure, where a Republican-controlled Senate in 2014 voted to join the compact. But it’s an exception to what has otherwise been a steadfast rule: Democrats support the move and Republicans do not. One other exception came in Arizona, where a Republican-controlled House voted to join the compact in 2019, but the bill ultimately stalled in the Senate. 

Hawaii is the only other state to have joined the compact without Democrat control of all three major levers of state power. But it was only able to do so in 2008 because Democratic lawmakers were able to override a veto by a Republican governor.

Proponents of the measure say it has passed one legislative chamber in nine states with 88 additional electoral votes among them, and argue that approval in those states would push the effort past the 270-vote threshold. But that statistic is misleading, as some states included in that count have not made meaningful progress toward joining the compact in at least a decade. 

In some states, the bill passed a Democrat-controlled chamber but stalled in a Republican-controlled chamber. In others, bills once introduced to join the compact haven’t made progress in years. “It’s easy to get a bill through one chamber,” said Muller, the University of Iowa professor. 

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The hard part is guiding it all the way through the lawmaking process.

In North Carolina, a national popular vote bill passed the then-Democratic controlled Senate in 2007, but failed to gain further traction. Lawmakers have twice in recent years reintroduced bills to join the compact, but both legislative chambers are now controlled by Republicans.  

In 2009, a bill to join the compact passed the Democratic-controlled House in Arkansas but never made it far in the Senate. Republicans now control both chambers of the legislature in those states.

The support reflected at the state level is evidence of how the national popular vote has only become more partisan since 2016, when Trump lost the popular vote to Democrat Hillary Clinton but won the Electoral College. 

Foote said he thinks the 2016 election “was a real hindrance to the national popular vote” because it made efforts to pass it seem like an attack on Trump. He argues the law would allow Trump votes to count more powerfully in states he loses.

All of these political dimensions could change quickly. By 2024, the political dynamics of picking presidents could be vastly different. If Texas, for example, were to become a reliably blue state — which demographic trends suggest could happen — Democrats would essentially start every presidential election with four of the five most electorally-rich states likely to go their way: California, Texas, New York and Illinois. The fifth, Florida, is perennially competitive. 

Armed with those four states, and the 142 electoral votes among them, Democrats could come to see the Electoral College as politically advantageous and be less enthusiastic about national popular vote. 

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Short of that shift, state-level gains by Democrats could create more of the governor-house-senate triumvirates that have proven to be the most effective at passing the national popular vote. 

Even then, Foote said he hopes to win over Republicans to support the issue. He said he’s worried about proceeding in any way that could appear partisan given that the effort, if successful, would fundamentally alter the way the United States picks presidents.

“You don’t want to implement something like this with just having Democratic states,” he said.

Legal challenges are almost certainly on the horizon

Even if the National Popular Vote Interstate Compact reaches the 270-electoral vote threshold, legal experts and advocates say it will inevitably face legal challenges.

Pugliese, the Mesa County commissioner opposed to the compact, said it is “safe to say” opponents of the agreement will try to top it by going to court. Foote, who stands on the opposite side of the ballot measure, feels the same way. He said at least one group has already threatened to sue if Colorado fully adopts the measure.

“I think that’s a foregone conclusion that there’s going to be some kind of litigation,” he said. 

But Foote said he was confident the measure would pass any legal test it may face in court. 

Most scholars agree that the U.S. Constitution gives states broad legal authority to determine how they allocate electors. Article II permits states to appoint electors “in such manner as the legislature thereof may direct.” 

But even with this broad latitude, election law experts who follow the national popular vote issue say there is a range of legal issues that could be relevant to the compact

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Critics could argue the national popular vote interstate agreement runs afoul of the little-known compact clause, which regulates agreements between states. The clause was intended to prevent states from entering into agreements that could threaten federal authority, and requires Congress to agree to certain interstate compacts. 

But Hendricks, the CU law professor, said the agreement doesn’t challenge federal authority, and therefore would not require congressional consent. “I think it’s pretty clear that that authority is broad enough that a state could do this on its own,” she said. 

Muller, at the University of Iowa, listed a gantlet of additional arguments critics could throw at the compact in courts. “There will inevitably be lawsuits and there are a lot of different ways this could go,” he said. 

The equal protection clause could come into question if critics argue the compact gives some states more electoral power than others. Questions of national consistency also could arise, because the Supreme Court determined in Bush v. Gore that there needs to be at least some state-by-state level of uniformity regarding elections. If some states use the existing system to appoint electors and some use the national popular vote, it could conflict with the precedent set by the case. 

More basically, the U.S. Constitution could have implicit limits in the authority it grants states, Muller said. 

Another idea: The fact that Colorado voters — instead of the legislature — get the final say on whether the state joins the compact could mean it violates the U.S. Constitution, which gives the legislature, not citizens, the power to determine how to appoint electors. This argument, however, is less likely to hold legal weight, Muller said, because previous U.S. Supreme Court decisions have found that the term “legislature” applies to however states choose to write their laws. And in Colorado, that includes challenging a law on the ballot. 

In a 2015 case, the late Justice Ruth Bader Ginsburg, writing for the majority of the Supreme Court, stated: “there is no constitutional barrier to a state’s empowerment of its people by embracing that form of lawmaking.”

An antiquated document could spell trouble for the compact in Colorado

National legal challenges are unlikely unless the compact musters 270 electoral votes worth of support from states. But Colorado’s commitment could be challenged sooner, argues David Kopel, a conservative and adjunct professor at the University of Denver’s law school.

That’s because it runs afoul of the Colorado Consitution’s Schedule, a relic from the 1800s that has not been wielded by the courts since 1914, Kopel said. 

The Schedule was implemented in 1876 as part of the state’s constitution and outlined many of the procedures for transitioning Colorado from territory to state. Much of what it stipulates is now irrelevant, but it does, in no vague terms, dictate how Colorado ought to appoint its electors: “The general assembly shall provide that after the year eighteen hundred and seventy-six the electors of the Electoral College shall be chosen by direct vote of the people.”

That language explicitly prohibits the state from choosing its electors by any other method, including via the national popular vote, Kopel argues

In an interview, he said Colorado leaders would be wise to ask the state’s Supreme Court to hear a case on the issue now, instead of waiting for a tightly-contested election to prompt legal challenges down the road. 

“The people’s right to choose their electors by direct election never came up until last year,” he said. “The legislature had a perfect record of obeying it until 2019.”