Will Louisiana Adopt Anti-Electoral College Measure?

May 2, 2012

Tara Ross

Surely Governor Bobby Jindal hopes the answer to that question is “no.”  Such a scenario is at odds with the reputation that he strives to maintain as a solid conservative. Unfortunately for him, the Louisiana legislature may not cooperate.  Many of its members seem intent on eliminating the Electoral College—an institution designed to protect small states exactly like Louisiana.

In a surprise move last week, Louisiana’s Committee on House and Governmental Affairs approved the National Popular Vote legislation, sending the bill to the House floor.  In a near simultaneous move, a Senate committee also considered the measure. According to the agenda, NPV was added at the very last minute. Fortunately, no vote was taken in the Senate committee last week, and the issue appears to have been deferred for now.

If Jindal is serious about making sure that NPV is not enacted in Louisiana, then he needs to do his best to get it killed in the legislature. A simple reliance on his veto power won’t cut it. Unfortunately, a reasonable legal argument can be made that the veto will not be legally binding, even if he issues it.

Article II, Section 1 of the Constitution provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . .”  The precise definition of “Legislature” determines whether a veto can kill NPV in any state. If “Legislature” refers specifically to the lawmaking body and not to a state’s lawmaking process, then gubernatorial vetoes are irrelevant. State legislatures can join NPV’s compact, with or without their Governors. A veto in Louisiana would be irrelevant—just as Governor Donald Carcieri’s 2008 veto of the same legislation in Rhode Island may not have mattered.

It is hard to know what the Court would hold, but there are reasonable arguments to be made on either side of this issue (see bottom of page 41, here).

Jindal’s office has already expressed its opposition to the National Popular Vote legislation. That is a good start.  Now he needs to spend some time at the Capitol talking to legislators and helping them to understand the importance of protecting the Electoral College—especially in a relatively small state like Louisiana.

Otherwise, he may find that Louisiana will become the first red state to fall for NPV’s misguided sound bites.