Today’s question was submitted by Joel - Hey Brian! In regards to the changes proposed by liberals on electoral college changes. That has to go to the Supreme Court in order to take effect right? Or do individual States have the power to change how they are applied?
Bottom Line: The Electoral College was established at the founding of the country and is embedded in the US Constitution in Article II Section 1. This means it was one of the highest priorities at our founding. The answers to your questions range from straight forward to a bit more complicated.
To abolish, the Electoral College system would require a Constitutional Amendment requiring 2/3rd’s support in either the U.S. Congress or through state legislators to pass. That actually almost happened once, in 1934 when it fell two votes short in the US Senate. In terms of current efforts to attempt to do so, there’s beyond zero chance of that happening for the foreseeable future. Until and unless Democrats control two-thirds of the state houses and/or Congress, it’s little more than political red-meat material tossed around. The Supreme Court doesn’t play a role in this process, so that’s the straight-forward answer.
Now, where it gets complicated is in the decisions by states as to how they allocate their votes. The US Constitution grants each state flexibility on how they choose to allocate their Electoral College votes. 48 states and D.C. allocate based on the popular vote winner. Maine and Nebraska don’t, they opt for Congressional District allocation. In terms of the effort underway right now by a consortium of states to award based on the winner of the popular vote in other states here’s what would have to happen.
States can choose how they allocate within their state, but they can’t influence other states independently. 270 Electoral Votes are needed to have a majority in a Constitutional Convention, that's the number needed to win the Presidency. The effort that’s underway is what’s called the National Popular Vote interstate compact. For years this organization has attempted to attain states totaling 270 Electoral Votes to sign onto a law in their state saying that all of their state’s votes will default to a “national popular vote” if/when enough states totaling 270 Electoral Votes sign onto the law. Currently, states totaling 181 Electoral Votes have done so. There’s zero chance of this being in-forced for 2020 but it’s not implausible at some point in the future. Should the time come when it would be attempted, there would almost certainly be legal challenges and the validity of this type of effort to circumvent the Electoral College process would likely at that point be decided by the Supreme Court.
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