St. Mary's Law Journal


In conclusion, the opinion of the Court in Chiafalo sets a dangerous precedent. The Court gave the states the power to control and to remove electors who failed to cast their votes in accordance with the candidate who won their state’s electoral votes. However, with the growth of the National Popular Vote now in sixteen jurisdictions, there are questions as to whether the Supreme Court, when faced with a challenge to this interstate compact, would hold that the Compact was in violation of the Constitution. Additionally, with the possibility that the NPVIC may violate state constitutions, there will be rigorous debate and challenges brought forth over the true power of state legislatures to assign electors under the National Popular Vote. Without a doubt, enacting the NPVIC in more states will invite a tremendous amount of litigation over whether the national popular vote and NPVIC is constitutional. Nevertheless, keeping in mind the instruction of the Court, that it is the power of the state legislatures to appoint the electors, may well prove that the states have the power to implement the NPVIC.

In closing, the words of Justice Kagan should echo through the debate across the nation regarding whether the various state legislatures may assign their electors to either the winner of the state’s popular vote or to the overall national popular vote winner, that as long as “[t]hat direction accords with the Constitution—as well as with the trust of a Nation that here[—]We the People rule.” However, we must keep in mind that our august Founding Fathers used every ounce of their sagacity to develop a system where we no longer had to fear the tyranny of the majority or a dark cabal of bad actors seeking to dictate every aspect to a group they deemed inferior. The system in place quelled several of the fears of wise men, such as Mr. George Mason, and we should head their warnings and zealously guard the protections they put in place to ensure that the people are sovereign over the national government.

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St. Mary's University School of Law


Brent. A. Bauer

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