This article was first published at Complete Colorado.

The Colorado legislature adopted the National Popular Vote Compact (NPV) in 2019. Since that time, however, there have been two U.S. Supreme Court decisions that strongly indicate the legislature should withdraw from NPV.

NPV is a proposed interstate compact designed to assure that the presidential candidate receiving a majority of the Electoral College vote also has received a plurality (not necessarily a majority) of the national popular vote. After the 2016 presidential election, in which Donald Trump won the Electoral College while failing to win a popular plurality, NPV became a cause célèbre among Trump-haters.

As I have pointed out in previous columns (here and here), electing a president by a bare popular plurality is a prescription for Third-World-style chaos. That is one reason a constitutional amendment providing for direct presidential elections could never be ratified by the requisite three-fourths of the states.

NPV’s creators structured it to implement election by popular plurality while dodging the amendment process. Here’s how it would work:

Article II, Section 1, Clause 2 of the U.S. Constitution reads in part, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” Thus, each state legislature determines how presidential electors are chosen in that state.

In the late 18th and early 19th centuries, state lawmakers often reserved power to choose presidential electors themselves. In the 1876 presidential election, Colorado designated its presidential electors that way. Today, however, all state legislatures delegate the selection of presidential electors to the people of the state.

Under the NPV interstate compact, every signatory state would commit its electoral votes to the winner of a national popular plurality—irrespective of how people voted within that state.

NPV doesn’t come into effect until adopted by states holding a majority of the Electoral College. But if it had been in effect in the 2024 presidential election, Colorado officials would have assigned our electoral votes to Trump (who won a national plurality) even though most Coloradans cast their ballots for Kamala Harris.

Constitutional problems

If your nose tells you something smells fishy about the constitutionality of NPV, then your nose is telling you right. NPV’s problems under the U.S. Constitution are multitudinous. I’ve outlined them in previous columns (here, here, and here). NPV advocates generally either ignore those problems or rely on unconvincing rebuttals.

There also is a constitutional difficulty specific to Colorado: NPV seems to violate an express provision in the state Constitution.

The difficulty was first publicized in 2020 by Dave Kopel, the leading authority on the Colorado Constitution, an adjunct constitutional law professor at the University of Denver, and the Independence Institute’s research director.

Kopel observed that, according to the Colorado Constitution, “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.” In other words, when lawmakers establish the “Manner” of choosing the state’s presidential electors, they must adopt a method that complies with the popular vote within Colorado. This clearly prohibits the method prescribed by NPV.

The only remaining question is whether the Colorado constitutional provision is valid under the U.S. Constitution. In 2019, when the legislature adopted NPV, there was some doubt about that. Since then, however, two intervening U.S. Supreme Court decisions probably have settled the issue.

The U.S. Constitution assigns certain responsibilities (which the courts call “federal functions”) to state legislatures. However, the Constitution uses two different definitions of the word “Legislature.” The definitions apply in different contexts.

The first definition of “Legislature” means the entire lawmaking apparatus of the state as prescribed and limited by the state constitution. This kind of “Legislature” acts by passing ordinary laws, which must, in most states (including Colorado), be signed by the governor unless his veto is overridden.

Early in the 20th century, the Supreme Court decided that when state legislatures regulate congressional elections, this definition applies. Legislatures must lay down congressional election rules in ordinary laws, subject to the governor’s veto and all the other rules of the state constitution.

The U.S. Constitution’s second definition of “Legislature” means the state’s representative assembly, acting alone and independently of the governor’s veto and of the state constitution. Under this definition, legislatures may act through laws, but they also may do so through freestanding resolutions.

The courts have held that when Congress and the state legislatures act in the federal constitutional amendment process, they do so as independent assemblies, free from the executive veto and from other state constitutional rules.  A state legislature may ratify a constitutional amendment or demand a federal amendments convention simply by passing a resolution, free from state constitutional requirements.

Whether the Colorado Constitution bans NPV depends on which definition of “Legislature” controls. If the first, then the state constitution prohibits NPV. If the second, then the legislature may adopt NPV notwithstanding the state constitution.

Two intervening SCOTUS decisions

In 2020, the U.S. Supreme Court decided Chiafalo v. Washington. In that case, the court unanimously ruled that because state legislatures may determine the “Manner” of choosing presidential electors, legislatures also may adopt laws forcing electors who had pledged to vote for particular presidential candidates to actually vote for those candidates. The fact that Chiafalo upheld such laws strongly suggests that the first (and larger) definition of “Legislature” is the one that applies in the presidential election process.

In 2023, the Supreme Court followed with Moore v. Harper. In that case, a 6-3 liberal majority confirmed that when the Constitution grants to each state “Legislature” the power to regulate its local congressional elections, the word “Legislature” refers to the entire legislative apparatus of the state, subject to control by the state constitution. In other words, the first definition again applies.

Although the Supreme Court did not say so, there also is good evidence from the American Founding that the first definition of “Legislature” applies when state lawmakers regulate federal elections: State legislatures generally governed elections with ordinary laws both immediately before and immediately after the Constitution was ratified.

Conclusion

What this tells us is that when the Colorado legislature sets the rules for choosing presidential electors, it must respect the limitations set forth in the state Constitution. And that requires implementing the will of Colorado voters, not the will of the voters of any other state.

Bottom line: NPV is almost certainly unconstitutional—if not under the U.S. Constitution, then under the Colorado Constitution. The legislature should repeal it forthwith.