Election reform, the right way

There is always a great deal of interest in reforming the electoral college, particularly replacing it with a nationwide popular election for president. A constitutional amendment is not strictly needed for this because there is the National Popular Vote Interstate Compact. States which are members of the compact agree to pledge their electors to the presidential candidate that receives the most votes nationwide. The compact only takes effect once enough states have become members that the compact will determine the outcome.

But this election, and the last, revealed a more important threat that needs to be addressed independently. Bush v Gore exposed a surprising partisanship on the Supreme Court. In a close election the Supreme Court voted to intervene along party lines. There is no reason to believe this will not happen again. Indeed there is a remarkable new legal theory promoted by some members of the Supreme Court. In the words of Justice Alito, there should be strict adherence to “the provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections". Much has been written about the absurdity of this, but the end result if this doctrine takes hold is SCOTUS would get to decide close elections.

So how close is close? Perhaps it does not matter. The party with control of SCOTUS need only file lawsuits challenging key states. SCOTUS could then hand them victories. Our system has a flaw which allows for a bloodless coup using two branches of government. This problem becomes more severe with a national popular vote because the Supreme Court becomes directly involved in contested elections. Actual vote counts are never cut and dried. There are always hanging chads, smeared postmarks, mismarked ballots, and rules that don't cover every contingency. A really close national popular vote would be a legal nightmare. Imagine a lawsuit in every single county in America. That's 3,141 lawyers for each side, and 3,141 judges making rulings, appeals all over the place, etc.

There is a straightforward way to mitigate this risk. A constitutional amendment that denies SCOTUS any jurisdiction over state selection of electors for current presidential elections. SCOTUS could still strike down state rules, for example to protect the voting rights of minorities, but only in hindsight. Temporary disenfranchisement is a risk, but it beats the permanent disenfranchisement of a coup.

[Edit: as it turned out one of the branches declined to join the coup. We're safe for now]