The state of Nevada is among the latest to attempt an end run around our constitutionally prescribed method of electing the President.  On Tuesday, the Nevada state legislature passed a bill that would give the state's six Electoral College votes to the winner of the nationwide popular vote — even if the majority of Nevadans vote for somebody else.  

If Nevada’s governor signs the bill, the state will become the 15th states to join an interstate compact of jurisdictions seeking to do away with the Electoral College. The pact would take effect once states with a combined 270 electoral votes (the number needed to win the presidency in Electoral College) have joined. The addition of Nevada brings the total number of electoral votes in favor of the compact to 195.

Constitutional law experts, however, note that the pact is vulnerable to legal challenges. Some scholars believe that the compact violates the Constitution’s Compact Clause, which requires Congressional approval of any agreement between the states that would harm non-compacting states or challenge the supremacy of the federal government. As Professor William G. Ross of Cumberland School of Law has written, the Supreme Court has indicated that,

“the Compact Clause requires Congress to consent to an agreement that ‘would enhance the political power of the member States in a way that encroaches upon the supremacy of the United States,’ or ‘impairs the sovereign rights of non-member states.’

[W]hile the compact might not literally interfere with the supremacy of the federal government, the compact would powerfully affect the federal government since it could change the outcome of a presidential election [and] would interfere with the interests of states that did not subscribe to the compact.”

More fundamentally, it attempts to skirt Article V of the Constitution, which outlines the amendment process, in order to undo the constitutionally prescribed federal nature of our electoral system. As Professor Ross notes,

“[t]he Supreme Court has made clear that states may not enact legislation that interferes with the federalist structure of the Constitution, even when the Constitution does not expressly prohibit such legislation and even when a literal interpretation of the Constitution could support such legislation.”

In this case,

“[the compact would] thwart the intention of the Framers of the original Constitution and the framers of the Twelfth Amendment, which reformed the Electoral College in 1804, since the Constitution clearly contemplates that electoral votes will be cast by the states as states rather than by the states as collective or compacting entities.”

You can read more about our Electoral College system and efforts to undermine it HERE.