There is precedence that pacts that didn’t impact the Federal jurisdiction were allowed, but that pact is addressing how we elected the President. Do you seriously think the current judiciary, and one that will be conservative for decades, would ever judge this pact to be constitutional?
Yeah. You might want to re-read the Constitution. States’ authority over their electoral votes is settled law.
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The intent of the Electoral College is NOT to populary elect the President. Popularly electing Presidents was widely debated and rejected by the founders. The intent of the pact is to populary elect the President. I do not think that the founders intended for electors to be chosen by those residing in other states. Voters in other states, voters who have never lived, nor even visited a state, or even find it on a map, could very well be choosing the electors in that state. I doubt that the judiciary will find that the states have the absolute right to choose their electors any way they choose. There are other constitutional problems with this pact. It likely violated the 14th amendment which has been used to equal protection. For instance, some states allow felons to vote, others do not. If you’re a felon and live in a state that doesn’t permit you to vote you’re screwed. Whereas, a felon in another state, who can vote, is getting to choose the President, and possibly choosing the electors in the state where a felon cannot vote. There are other constitutional issues, as well, and it doesn’t really matter because the current conservative judiciary would simply make something up to reject this pact.
The right of the states to choose their electors is not absolute. The intent of the Electoral College is clear, and it’s NOT to popularly choose the President. The intent of the Elecoral College was not for states to choose the electors of another state, which is what the pact does, but to choose the electors from their own state. The Constitution has changed via amendments since it’s first ratificiation. This pact likely violates some of those changes.
The Judiciary does have a say if choosing those electors violated the rights of the citizens. The Constitution does require pacts among states to get congressional approval. Pacts have in the past only been okay if they didn’t inercede in federal power. This pact, by changing how we elect the President, most certainly does such. This pact would almost certainly be overturned in the courts.
I’m not sure it is an easier sell in any given state, but more to the point, unless every state does it, it doesn’t address the discrepancy between the popular vote and the electoral college. If state A splits its electors proportionally, and state B gives them all to the top candidate, then state A has only weakened its voters’ impact. But, as mentioned, the NPV idea will work as long as 270 electors are committed to it.
Actually, in practice it may not even take that many, because some of the non-NPV electors could still go to the popular vote winner anyway. States could unilaterally choose to implement this rule today, if they wanted to. But that is a harder sell, because it could lead to a state overruling its own voters when other states wouldn’t have done the same. But as long as 270 electors are on board, the rule is the same for everyone: the person with the most votes nationally wins.
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The Constitution only says that pacts between stats have to get Congressional approval. Perhaps you should read it. The ‘settled’ law, via the judiciary, only says that pacts are okay as long as they don’t impact the federal government. A pact changing how we elect presidents certainly impacts the federal government.
Yep, which makes it an even worse option.
I think a big start would be requiring states to agree to an meet a standard of election accessibility and security before the federal government will certify their votes for any federal office. That’s butting up against the intended separation of powers between the states and the federal government, but it certainly seems like it is necessary.
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To be fair, a state’s electors being selected by means of a popular vote within that state wasn’t really the founders intent, either. The founders intended that a state’s legislature would select the electors, and most elections would actually be decided in the House.
This isn’t quite right in terms of Equal Protection. The states are given pretty wide latitude in the way they conduct elections, and as long as they aren’t making race or sex restrictions, there’s not much stopping them from appointing their electors however they want. If Idaho wanted to do away with popular voting for President altogether and go back to a system where the legislature appointed the electors, they could (in theory–in practice there would probably be too much political cost).
ETA: to be clear, I think this plan is a non-starter politically, but who the hell knows I guess
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ETA:
Seriously, read up more on what this effort actually does, and re-read the relevant sections of the Constitution, before commenting further.
What it does not:
- create a contract between states
- usurp the electoral votes of any state by another
- usurp or contravene any powers of the Federal Government
I don’t think you could argue that a federal court has jurisdiction to hear an objection to this under most circumstances, unless someone can come up with a 14th Amendment argument (which would be strained, at best).
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Are you asserting some Federal jurisdiction over how electors are chosen? Could you be more specific about what that power might be?
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If your argument rests on the idea that this arrangement would allow some states to deprive political power from the voters in another state, I have to point out that the current system already does that.
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Anyone interested in how the Constitution is unchangeable thanks to petty Republicans, hillbillies and power-hungry politicians who won’t change for the common good, read Daniel Lazare’s The Frozen Republic – it’s a not-so-fresh book, but it does explain the process of constitutional amendments, and why they’re so tough. (Short reason: The founders couldn’t plan for someone like Mitch McConnell, or imagine a California-sized state among the 13 colonies.)
Also, the headline here, “Here’s the plan to subvert the Electoral College without amending the Constitution”? Let me fix that for you:
“A plan to reform and repair an archaic flawed anti-democratic mechanism that determines our elections without having to beg former slave-owning states for their permission to do so, which will never be given.”
Muuuch better headline.
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I’ll reply here mainly because I liked your post.
It might be because I’m from NH where I have neighbors that are my state legislators, the issue with the electoral college is that there aren’t enough electors. Per a compromise made in the early 20th century the house has limited seating. If we increased the electors to truly account for population plus 2 (for senators) this really wouldn’t be a problem.
Two ways to fix it then. Repeal the 1911 law limiting the house to 435 members and increasing the membership to about 5000 or adjusting the definition of the electoral college to account for the extra population that was never anticipated.
Nothing about the bill is proportional.
It requires enacting states with 270 electoral votes to award all their electoral votes to the winner of the most national popular votes.
All voters would be valued equally in presidential elections, no matter where they live.
With the National Popular Vote bill, when every popular vote counts and matters to the candidates equally, successful candidates will find a middle ground of policies appealing to the wide mainstream of America. Instead of playing mostly to local concerns in Pennsylvania and Florida, candidates finally would have to form broader platforms for broad national support. Elections wouldn’t be about winning a handful of battleground states.
We would not be doing away with the Electoral College, U.S. Senate, U.S. House of Representatives, state legislatures, etc. etc. etc.
The 8 smallest states (i.e., those with three electoral votes) together received only one of the nation’s 952 general-election campaign events in the 2008, 2012, and 2016 elections.
Fourteen of the 15 smallest states by population are ignored, like medium and big states where the statewide winner is predictable, because they’re not swing states. Small states are safe states. Only New Hampshire gets significant attention.
Support for a national popular vote has been strong in every smallest state surveyed in polls among Republicans, Democrats, and Independent voters, as well as every demographic group
Among the 13 lowest population states, the National Popular Vote bill has passed in 9 state legislative chambers, and been enacted by 5 jurisdictions.
Increasing the number of electors would not make every vote in every state matter and count equally. It would not guarantee the presidency to the candidate winning the most national popular votes.
The National Popular Vote bill would.
To elaborate:
The Founders created the Electoral College, but 48 states eventually enacted state winner-take-all laws.
Unable to agree on any particular method for selecting presidential electors, the Founding Fathers left the choice of method exclusively to the states in Article II, Section 1
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”
The National Popular Vote bill would guarantee the majority of Electoral College votes and the presidency to the candidate who receives the most popular votes in the country.
The National Popular Vote bill is states with 270 electors replacing state winner-take-all laws that award all of a state’s electoral votes to the candidate who get the most popular votes in each separate state (not mentioned in the U.S. Constitution, but later enacted by 48 states), in the enacting states, to guarantee the majority of Electoral College votes for, and the Presidency to, the candidate getting the most popular votes in the entire United States.
The bill retains the constitutionally mandated Electoral College and state control of elections, and uses the built-in method that the Constitution provides for states to make changes. It ensures that every voter is equal, every voter will matter, in every state, in every presidential election, and the candidate with the most votes wins, as in virtually every other election in the country.
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People frequently forget that the Electoral College disenfranchises a helluva lot of Republicans as well.
There are more Republican voters in California than in any other state, but no Republican Presidential candidate has any incentive to pay attention to their specific needs or what issues they care about because everyone takes it as a given that their votes won’t matter in the general election.
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The Interstate Compact on Placement of Children is one of the many interstate compacts that do not require (and never received) congressional consent.
Congressional consent is not required for the National Popular Vote compact under prevailing U.S. Supreme Court rulings. However, because there would undoubtedly be time-consuming litigation about this aspect of the compact, National Popular Vote is working to introduce a bill in Congress for congressional consent.
The U.S. Constitution provides:
“No state shall, without the consent of Congress,… enter into any agreement or compact with another state….”
Although this language may seem straight forward, the U.S. Supreme Court has ruled, in 1893 and again in 1978, that the Compacts Clause can “not be read literally.” In deciding the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the Court wrote:
"Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.
“The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee. His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta.”
Specifically, the Court’s 1893 ruling in Virginia v. Tennessee stated:
“Looking at the clause in which the terms ‘compact’ or ‘agreement’ appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.”
The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote:
“The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States”
The National Popular Vote compact would not “encroach upon or interfere with the just supremacy of the United States” because there is simply no federal power – much less federal supremacy – in the area of awarding of electoral votes in the first place.
In the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the compact at issue specified that it would come into force when seven or more states enacted it. The compact was silent as to the role of Congress. The compact was submitted to Congress for its consent. After encountering fierce political opposition from various business interests concerned about the more stringent tax audits anticipated under the compact, the compacting states proceeded with the implementation of the compact without congressional consent. U.S. Steel challenged the states’ action. In upholding the constitutionality of the implementation of the compact by the states without congressional consent, the U.S. Supreme Court applied the interpretation of the Compacts Clause from its 1893 holding in Virginia v. Tennessee, writing that:
“the test is whether the Compact enhances state power quaod [with regard to] the National Government.”
The Court also noted that the compact did not
“authorize the member states to exercise any powers they could not exercise in its absence.”
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Unable to agree on any particular method for selecting presidential electors, the Founding Fathers left the choice of method exclusively to the states in Article II, Section 1
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”
The Constitution does not prohibit any of the methods that were debated and rejected. Indeed, a majority of the states appointed their presidential electors using two of the rejected methods in the nation’s first presidential election in 1789 (i.e., appointment by the legislature and by the governor and his cabinet). Presidential electors were appointed by state legislatures for almost a century.
Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all method) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation’s first presidential election.
In 1789, in the nation’s first election, a majority of the states appointed their presidential electors by appointment by the legislature or by the governor and his cabinet, the people had no vote for President in most states, and in states where there was a popular vote, only men who owned a substantial amount of property could vote, and only three states used the state-by-state winner-take-all method to award electoral votes (and all three stopped using it by 1800).
In the nation’s first presidential election in 1789 and second election in 1792, the states employed a wide variety of methods for choosing presidential electors, including
● appointment of the state’s presidential electors by the Governor and his Council,
● appointment by both houses of the state legislature,
● popular election using special single-member presidential-elector districts,
● popular election using counties as presidential-elector districts,
● popular election using congressional districts,
● popular election using multi-member regional districts,
● combinations of popular election and legislative choice,
● appointment of the state’s presidential electors by the Governor and his Council combined with the state legislature, and
● statewide popular election.
The current winner-take-all method of awarding electoral votes is not in the U.S. Constitution. It was not debated at the Constitutional Convention. It is not mentioned in the Federalist Papers. It was not the Founders’ choice. It was used by only three states in 1789, and all three of them repealed it by 1800. It is not entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all method. The state based winner take all system was not adopted by a majority of the states until the 11th presidential election. - decades after the U.S. Constitution was written, after the states adopted it, one-by-one, in order to maximize the power of the party in power in each state.
The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding a state’s electoral votes.
As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all method is used by 48 of the 50 states. States can, and have, changed their method of awarding electoral votes over the years. Maine (in 1969) and Nebraska (in 1992) chose not to have winner-take-all laws
There is nothing in the Constitution that prevents states from making the decision now that winning the national popular vote is required to win the Electoral College and the presidency.
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