DENVER–A unique and obscure provision in Colorado’s Constitution means that the National Popular Vote Compact (NPV) statute enacted by the legislature last year is unconstitutional, says David Kopel, Adjunct Professor of Advanced Constitutional Law at the University of Denver’s Sturm College of Law.
Kopel is also Research Director at the Independence Institute*, a free market think tank in Denver.
The NPV compact requires that all nine of Colorado’s electoral votes be given to the national popular vote winner, even if a majority of Coloradans vote for another candidate.
In a forthcoming article in the Denver Law Review Forum, Kopel analyzes the impact of Section 20 of the Colorado Constitution’s Schedule on the validity of the law joining Colorado to the NPV compact.
The Schedule is the part of the state Constitution that deals with the transition from the Colorado Territory to the State of Colorado in 1876. It provides for things like the continuation of criminal cases and the validity of the Territorial laws then in place and directs the manner in which the transition will take place.
Some parts of the Schedule were temporary or are now obsolete, but the Colorado Supreme Court has ruled on several occasions that the rest of the Schedule is a permanent and enforceable part of the Constitution.
One of the provisions of the Schedule provides that for the presidential election of 1876 the new state legislature would select presidential electors in an expedited process.
But for all elections after 1876, section 20 says, “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.”
This, says Kopel, precludes the statutory scheme passed by the Democrat-majority legislature to require Colorado’s Secretary of State to appoint the slate of electors affiliated with the candidate who wins the national popular vote.
In response to the passage of the NPV statute, an issue committee, Protect Colorado’s Vote, petitioned a repeal referendum onto the 2020 November ballot by gathering nearly 228,000 signatures, almost twice the required minimum of 124,632.
Thus Colorado voters will have the opportunity to repeal the statute November 3 at the ballot. But even if they do not, it appears that the statute itself is unconstitutional.
Thanks to that unique, but still valid constitutional command to the general assembly, Kopel finds that Colorado, unlike all other states, is not at the mercy of the political leanings of the Colorado legislature when it comes to the Electoral College.
“Colorado’s slate of presidential electors must always be chosen ‘by direct vote of the people,’” says Kopel.
“When the General Assembly was passing the NPV bill in committees on the house and senate floors, no legislator or witness on their side of the issue evinced any awareness of the Colorado Constitution problem,” writes Kopel. “The General Assembly does not appear to have been well-served by its nonpartisan staff, which is supposed to identify how proposed bills may conflict with the Constitution or with existing statutes.”
“The NPV’s multistage process ends with the ‘appointment’ of electors by the Secretary of State,“ continues Kopel. “The Colorado electors will not be the slate chosen ‘by direct vote of the people.’ Rather the Colorado electors will be appointed by the Secretary of State, based on her assessment of how people in other states voted for non-Colorado electors.”
Suppose that Colorado voters overwhelmingly vote for electors for candidate A, but the popular vote is very close, close enough that Colorado’s nine electoral votes would make the difference between candidate A winning or candidate B winning.
The NPV statute says, “The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the ‘national popular vote winner.’”
This disenfranchises Colorado voters from a constitutional right to select their electors. They might as well not vote at all if the number of electoral votes in the National Popular Vote pool, based on which states are members of the compact, comprise 10 or more electoral votes more than are needed to elect the President.
Kopel points out that the NPV statute cannot override the Colorado Constitution.
“If the statute joining Colorado to the National Popular Vote Interstate Compact conflicts with section 20, the statute is invalid,” Kopel says.
“Even if the NPV statute were to be validated by the people in November, the statute is just a statute; it cannot override the Colorado Constitution,” Kopel writes. “In Colorado, the only way to remove the right of Coloradans to choose electors by direct vote would be by amending the state Constitution. Unless and until there is an amendment, no statute can deprive Coloradans of their constitutional right to directly elect presidential electors. Courts must enjoin an unconstitutional statute from operating or being enforced.”
Kopel also points out that the Colorado Constitution gives the Colorado Supreme Court power to rule on “important questions” when asked to do so by “the governor, the senate or the house of representatives.”
“If Colorado courts wait to address the problem until it arises as a case or controversy amidst a disputed presidential election, grave damage to public confidence in our republican form of government would be inevitable,” writes Kopel.
* Independence Institute is the publisher of Complete Colorado.