New York is one of some 20 states that does not by state statute bind its electors to vote for the presidential candidate who wins the states popular vote (There is a lower court case some 90 years ago of dubious authority that is relevant to this issue.). New York's presidential electors are, therefore, free, as a matter of state law, to vote for anyone. As Justice Robert H. Jackson famously observed in his dissent in Ray v. Blair, 343 U.S. 214 (1952), this is exactly what Framers intended. Ray itself is the only Supreme Court case ever to deal with this issue, and Justice Reed's opinion leaves the question of binding up to a political party mechanism.

The Supreme Court heard arguments on May 12. The case from a Colorado federal circuit court in scholarly and thoughtful opinion held that a Colorado state law binding them was unconstitutional. In the case from the Washington State Supreme Court, the court sustained a state law penalty on an elector who did not vote for the candidate who won the state's popular vote.

Without waiting for the Supreme Court's decision, State Senators Skoufis and Myrie have introduced Senate 6886 that would make New York a statutory elector binding state. As yet, there is no Assembly counterpart bill. If enacted, this bill would take effect immediately, but would sunset prior to the 2024 presidential election.

The bill seemingly ignores the fact that New York is a member of the National Popular Vote movement. National Popular Vote purports to require member states to bind their electors to vote for the national popular vote winner regardless of who won the popular vote in their respective states. Governor Cuomo first vetoed a bill making New York a member. Later he signed another one.

For all of the reasons in my prior NYLJ commentary (see 17 Reasons Why the National Popular Vote Initiative Is Likely To Fail (Jan. 4, 2019)), National Popular Vote is not a good idea. It is far from being adopted by the necessary states with a majority of elector votes. It is unlikely ever to reach that goal. In fact, six of the states that have adopted National Popular Vote have moved to repeal its adoption, and three states have enacted legislation prohibiting adoption. Moreover, New York has never adopted the legislation required by federal law to implement its membership in National Popular Vote.

The Senate bill is obviously inconsistent with New York's National Popular Vote membership, and except for a generalized "Notwithstanding" clause, ignores New York's national popular vote membership.

Finally, if Supreme Court affirms the Colorado decision, the state binding laws of some 30 states would become unconstitutional.

William Josephson is a retired partner from Fried, Frank, Harris, Shriver & Jacobson.