Politico, and everyone else, come late to the story that states are starting to look past the Electoral College, by directing their electors to vote not for the state’s favorite, but for the winner of the national popular vote.
This plan has actually been in the works for a while. Under the initiative, led by National Popular Vote and seconded by all the right election law groups (the Brennan Center & FairVote), once states comprising a majority of the Electoral College votes (270) pass enabling legislation, all states so bound will give their electoral votes to the winner of the national popular vote, without regard to the winner of their state’s popular vote. It’s a clever way to work around the Twelfth Amendment, by working within the Amendment’s structure. Since the amendment specifically references state procedures, NPV is a violation of neither the letter of the law, nor its spirit. It’s just creative.
Perhaps unsurprisingly, conservatives don’t like it (see supra RedState). Their arguments, however, demonstrate two things. First, conservative respect for states’ rights ends precisely where their self-interest begins. Second, more than us, and thus contrary to the narrative continually leveled against us, the modern far-right seems to regularly confuse emotion and politics with law, and constitutionalism. Take the common argument against government spending: that it’s unconstitutional, by which the speaker means “unwise,” or possibly, “novel.” Maybe. But those aren’t the same, are they? Or RedState’s preface to what passes for its anti-NPV originalist/legal argument: “[NPV] is well within the boundaries of what the Constitution envisioned. I just disagree.”
Oh? Well, that’s not how the system works. The presence of the federal Constitution does not elevate all arguments to the constitutional level. The Constitution creates discretion, and a set of possible outcomes. Most debates center around the selection of one such outcome over another. The assertion that one outcome lies outside of the permissible range therefore carries real meaning, expands the consequences of the debate, and ought not to be made casually, lest we confuse the limits of the rule of law with the limits of wisdom. By design, the two are not coextensive.
Sophisticated players should realize this, because your average political debate ought to be had on the narrowest ground possible, to encourage cooperation, and avoid the needless gridlock that occurs when ego and ideology come into play. That’s simply not possible if one player tacks a frivolous “constitutional” claim onto every issue.