The ONLY way I see the NPV as constitutional is if the states in the NPV Compact took away the vote from their citizens. They could then award their electoral votes to the winner of the NPV.
OF COURSE, their citizens WOULD NOT participate in the NPV vote count. DEMs might not like it, but IT WOULD be constitutional.
Assuming the NPV in its current form was ever invoked, it would certainly end up before SCOTUS. The QUESTION is whether states can allow outside influences [such as other state’s votes] determine the award of their electoral college votes.
BECAUSE, in doing so the states dilute and debase their own citizens votes.
In order for the NPV to prevail at SCOTUS [as currently written], NPV proponents would have to win four [possibly five] arguments:
1. That the NPV DID NOT violate the Interstate Compact Clause of the United States Constitution [Article I, Section X, Clause III].
2. That when a state legislature vests the right to vote for President in its people, the NPV DID NOT USURP the equal weight accorded to each vote and the equal dignity owed to each voter [Bush v. Gore, 2000].
3. That having once granted the right to vote on equal terms, the NPV DID NOT value one person’s vote over that of another [Harper v. Virginia Bd. of Elections, 1966].
4. That once the franchise is granted to the electorate, the NPV DID NOT draw lines which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment and that the right of suffrage WAS NOT denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise [Reynolds v. Sims, 1964].
5. IF SCOTUS were to rule that once the right to vote was granted to the citizens of a State, the votes were considered free speech, the NPV would have to prove it DID NOT violate the 1st Amendment.
Yes. For those who haven’t read it, it’s clear.
United States Constitution [Article I, Section X, Clause III]:
“No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”