Here's the plan to subvert the Electoral College without amending the Constitution

[npvnpvnpv]

There is nothing incompatible between differences in state election laws and the concept of a national popular vote for President. That was certainly the mainstream view when the U.S. House of Representatives passed a constitutional amendment in 1969 for a national popular vote by a 338–70 margin. That amendment retained state control over elections.

The 1969 amendment was endorsed by Richard Nixon, Gerald Ford, Jimmy Carter, and various members of Congress who later ran for Vice President and President such as then-Congressman George H.W. Bush, then-Senator Bob Dole, and then-Senator Walter Mondale.

The American Bar Association also endorsed the proposed 1969 amendment.

The proposed 1969 constitutional amendment provided that the popular-vote count from each state would be added up to obtain the nationwide total for each candidate. The National Popular Vote compact does the same.

Under the current system, the electoral votes from all 50 states are co-mingled and simply added together, irrespective of the fact that the electoral-vote outcome from each state was affected by differences in state policies, including voter registration, ex-felon voting, hours of voting, amount and nature of advance voting, and voter identification requirements.

Federal law requires that each state certify its popular vote count to the federal government (section 6 of Title 3 of the United States Code).

Under both the current system and the National Popular Vote compact, all of the people of the United States are impacted by the different election policies of the states. Everyone in the United States is affected by the division of electoral votes generated by each state. The procedures governing presidential elections in a closely divided battleground state (e.g., Florida and Ohio) can affect, and indeed have affected, the ultimate outcome of national elections.

For example, the 2000 Certificate of Ascertainment (required by federal law) from the state of Florida reported 2,912,790 popular votes for George W. Bush and 2,912,253 popular vote for Al Gore, and also reported 25 electoral votes for George W. Bush and 0 electoral votes for Al Gore. That 25–0 division of the electoral votes from Florida determined the outcome of the national election just as a particular division of the popular vote from a particular state might decisively affect the national outcome in some future election under the National Popular Vote compact.

The 1969 constitutional amendment, endorsed by Richard Nixon, Gerald Ford, Jimmy Carter, and members of Congress who later ran for Vice President and President such as then-Congressman George H.W. Bush, then-Senator Bob Dole, and then-Senator Walter Mondale, and The American Bar Association and, more importantly, the current system also accepts the differences among states.

[Ratel]

And I guarantee to you that not a single one of them cares, nor do they sit home during elections going, “Boo-hoo-hoo, my vote doesn’t count!”

At least in some ways they’re not as dumb as liberals.

[Wanderfound]

@Bernel

Remember that in the end men voted to give women the right to vote even if it diluted the value of their own votes. It’s not all about self interest.

It was a bit more complex than that.

Notice which women got the vote in the UK in 1918?

The “local government register” was a list of people who paid property taxes. The franchise was restricted to women of property, or those married to men of property.

It was aimed at shoring up the voting power of the middle and upper classes, to dilute the influence of the newly-enfranchised working class men.

[deltaecho]

I just have a feeling that, if and when the NPV compact is activated and works as intended, and inevitably results in a one huge state awarding all its votes to the “wrong” candidate (that had actually lost in that state, as per the compact), those state’s citizens will move to opt out of the compact for subsequent elections. (And, from their point of view, why shouldn’t they??)

[npvnpvnpv]

Maine and Nebraska do not apportion their electoral votes to reflect the breakdown of each state’s popular vote.

Maine (only since enacting a state law in 1969) and Nebraska (only since enacting a state law in 1992) have awarded one electoral vote to the winner of each congressional district, and two electoral votes statewide.

When Nebraska in 2008 gave one electoral vote to the candidate who did not win the state, it was the first split electoral vote of any state in the past century.

2016 was the first time one electoral vote in Maine was given to the candidate who did not win the state.

In June 2019, 77 Maine state Representatives and 21 Maine state Senators supported the National Popular Vote bill.

In a March 12-13, 2019 poll, Maine voters were asked how the President should be elected

52% favored “a system where the candidate who gets the most popular votes in all 50 states is the winner.”

31% favored “a system where electoral votes are given out by Congressional district” — Maine’s current method for awarding 2 of its 4 electoral votes

16% favored “a system where all the electoral votes in a given state are awarded to whoever gets the most popular votes in that state” — the winner-take-all method currently used by 48 states and used in Maine to award 2 of its 4 electoral votes

After Obama won 1 congressional district in Nebraska in 2008,Nebraska Republicans moved that district to make it more Republican to avoid another GOP loss there, and the leadership committee of the Nebraska Republican Party promptly adopted a resolution requiring all GOP elected officials to favor overturning their district method for awarding electoral votes or lose the party’s support.
A GOP push to return Nebraska to a winner-take-all system of awarding its electoral college votes for president only barely failed in March 2015 and April 2016.

[npvnpvnpv]

No statewide recount, much less a nationwide recount, would have been warranted in any of the nation’s 58 presidential elections if the outcome had been based on the nationwide count.

The state-by-state winner-take-all system is not a firewall, but instead causes unnecessary fires.
“It’s an arsonist itching to burn down the whole neighborhood by torching a single house.” Hertzberg

The 2000 presidential election was an artificial crisis created because of Bush’s lead of 537 popular votes in Florida. Gore’s nationwide lead was 537,179 popular votes (1,000 times larger). Given the minuscule number of votes that are changed by a typical statewide recount (averaging only 274 votes); no one would have requested a recount or disputed the results in 2000 if the national popular vote had controlled the outcome. Indeed, no one (except perhaps almanac writers and trivia buffs) would have cared that one of the candidates happened to have a 537-vote margin in Florida.

Recounts are far more likely in the current system of state by-state winner-take-all methods.

The possibility of recounts should not even be a consideration in debating the merits of a national popular vote. No one has ever suggested that the possibility of a recount constitutes a valid reason why state governors or U.S. Senators, for example, should not be elected by a popular vote.

The question of recounts comes to mind in connection with presidential elections only because the current system creates artificial crises and unnecessary disputes.

We do and would vote state by state. Each state manages its own election and is prepared to conduct a recount.

Given that there is a recount only once in about 160 statewide elections, and given there is a presidential election once every four years, one would expect a recount about once in 640 years with the National Popular Vote. The actual probability of a close national election would be even less than that because recounts are less likely with larger pools of votes.

The average change in the margin of victory as a result of a statewide recount was a mere 296 votes in a 10-year study of 2,884 elections.

The common nationwide date for meeting of the Electoral College has been set by federal law as the first Monday after the second Wednesday in December. With both the current system and the National Popular Vote, all counting, recounting, and judicial proceedings must be conducted so as to reach a “final determination” prior to the meeting of the Electoral College. In particular, the U.S. Supreme Court has made it clear that the states are expected to make their “final determination” six days before the Electoral College meets.

[npvnpvnpv]

The electors have been and will be dedicated party activist supporters of the winning party’s candidate who meet briefly in mid-December to cast their totally predictable rubberstamped votes in accordance with their pre-announced pledges.

The current system does not provide some kind of check on the “mobs.” There have been 24,067 electoral votes cast since presidential elections became competitive (in 1796), and only 31 have been cast in a deviant way, for someone other than the candidate nominated by the elector’s own political party (one clear faithless elector, 29 grand-standing votes, and one accidental vote). 1796 remains the only instance when the elector might have thought, at the time he voted, that his vote might affect the national outcome.

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.

Now political clout comes from being among the handful of battleground states. 70-80% of states and voters are ignored by presidential campaign polling, organizing, ad spending, and visits. Their states’ votes were conceded months before by the minority parties in the states, taken for granted by the dominant party in the states, and ignored by all parties in presidential campaigns.

State winner-take-all laws negate any simplistic mathematical equations about the relative power of states based on their number of residents per electoral vote. Small state math means absolutely nothing to presidential campaign polling, organizing, ad spending, and visits, or to presidents once in office.

In the 25 smallest states in 2008, the Democratic and Republican popular vote was almost tied (9.9 million versus 9.8 million), as was the electoral vote (57 versus 58).

In 2012, 24 of the nation’s 27 smallest states received no attention at all from presidential campaigns after the conventions. They were ignored despite their supposed numerical advantage in the Electoral College. In fact, the 8.6 million eligible voters in Ohio received more campaign ads and campaign visits from the major party campaigns than the 42 million eligible voters in those 27 smallest states combined.

The 12 smallest states are totally ignored in presidential elections. These states are not ignored because they are small, but because they are not closely divided “battleground” states.

Now with state-by-state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), presidential elections ignore 12 of the 13 lowest population states (3-4 electoral votes), that are non-competitive in presidential elections. 6 regularly vote Republican (AK, ID, MT, WY, ND, and SD), and 6 regularly vote Democratic (RI, DE, HI, VT, ME, and DC) in presidential elections.

Similarly, the 25 smallest states have been almost equally noncompetitive. They voted Republican or Democratic 12-13 in 2008 and 2012.

Voters in states, of all sizes, that are reliably red or blue don’t matter. Candidates ignore those states and the issues they care about most.

The National Popular Vote bill was approved in 2016 by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).

Since 2006, the bill has passed 40 state legislative chambers in 24 rural, small, medium, large, Democratic, Republican and purple states with 271 electoral votes, including one house in Arizona (11), Arkansas (6), Maine (4), Michigan (16), Minnesota (10), North Carolina (15), and Oklahoma (7), and both houses in Nevada (6).
The bill has been enacted by 16 small, medium, and large jurisdictions with 196 electoral votes – 73% of the way to guaranteeing the majority of Electoral College votes and the presidency to the candidate with the most national popular votes.

[gracchus]

@npvnpvnpv

The bill has been enacted by 16 small, medium, and large jurisdictions with 196 electoral votes – 73% of the way to guaranteeing the majority of Electoral College votes and the presidency to the candidate with the most national popular votes.

It’s the last 27% that’s going to be the challenge one way or the other, for the reasons I mentioned. I hope they make it, but I’m not counting on it

[DukeTrout]

@Brainspore

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.

The other side effect is, watch all the states (that don’t already have them) start scrambling all over each other to introduce motor-voter and vote-by-mail laws…

[kennykb]

I’m not as certain as many others here that the compact, desirable as it may be, will be found to be Constitutional.

I’m sure that there would be at least some constitutional ground to assail the law if a hypothetical rogue state legislature were to decree that its process for choosing electors would be an election held in another country. Surely, there could be nearly as convincing an argument advanced that votes cast in another state were equally invalid in determining the electors.

Moreover, while the power of the state government to choose electors has been held to be plenary, to what degree would the Voting Rights Act of 1965, or the Fourteenth and Fifteenth Amendments upon which it is founded be held to limit that power? Prior to Reynolds v Sims, it was held that states had plenary power to assign their own legislative districts (in fact, it was fairly common for the upper house of a state legislature to have representatives elected by county). If the Court can hold that equal representation is guaranteed among the citizens of another state, can it also hold that whatever method the state chooses to appoint its electors be founded upon its representing the people of the state and only the people of the state?

Ultimately, there is little blackletter guiding law, and the outcome will devolve into a political question. Given the political makeup of the current Federal bench - both the Supreme Court and the lower courts - I think the smart money will be on the compact’s being held to fail on constitutional grounds if it passes in the next decade or two. There would have to be a tremendous political shift in the judiciary for any other outcome.

[DukeTrout]

@kennykb

Moreover, while the power of the state government to choose electors has been held to be plenary, to what degree would the Voting Rights Act of 1965, or the Fourteenth and Fifteenth Amendments upon which it is founded be held to limit that power?

It would be very unfortunate if the constitutional amendments and federal law used to counteract some of the harm done by a part of the Constitution that was a compromise to racism, were used to uphold that very compromise to racism.

[kennykb]

@DukeTrout

It would be very unfortunate if the constitutional amendments and federal law used to counteract some of the harm done by a part of the Constitution that was a compromise to racism, were used to uphold that very compromise to racism.

States’ rights are a double-edged sword, aren’t they? (That’s why it’s important to work on the down-ballot elections as well as the national ones!)

[DukeTrout]

I don’t see why one of the states enacting the NPV legislation would do that, though. And I don’t see how any of the other states would have standing to challenge it.

[kennykb]

The challenge would come from the voters of the first state to follow the national popular vote when another candidate won the popular vote within the state.

[DukeTrout]

Then wouldn’t it have to be heard within the state courts, and be limited to state law/constitution?

[kennykb]

How did that argument go with Reynolds v Sims?

[DukeTrout]

I was asking the question, without knowing the answer. It wasn’t rhetorical.

Thanks for pointing me to Reynolds. Was it heard first in the state courts, or was it filed in federal courts, first?

[kennykb]

OK, sorry… The Fourteenth Amendment has been held to make a huge swath of Federal constitutional law binding upon the States. In Reynolds v Sims the Supreme Court found that not only did the Federal courts have jurisdiction over the state electoral process, but that non-population-based allocation of seats in a state legislature was in direct contravention of a “one citizen, one vote” principle implied by the Fourteenth and Fifteenth Amendments. Given the fact that the Supreme Court found itself empowered to judge both this case (which led to many states needing to redistrict; the upper house of many state legislatures had had seats representing counties), and the fact that the Court found itself able to intervene in Bush v Gore over what would have otherwise been an internal electoral process in Florida, I have no doubt that the Supreme Court would hear such a case and find some justification empowering the Court to decide it.

The court of original jurisdiction was the Federal District Court of the Middle District of Alabama, with various state and political party officials named in their personal and official capacity as defendants. A cursory reading of the case syllabus doesn’t reveal whether there was earlier, differently titled, litigation pursued in the state courts, or whether plaintiffs prayed the Federal Court directly for relief.

Even more on point for the questionable of whether state election practices are justiciable in the Federal courts was Baker v Carr, which Tennessee had argued that the state’s assignment of districts was an internal political question that could not be resolved by the federal courts (as the Supreme Court had earlier found in Colegrove v Green. Colegrove was probably the turning point at which the Federal judiciary began asserting its power to oversee State elections, a power that it has guarded ever since.

[DukeTrout]

Only a partial non-sequitur: I really miss Thurgood Marshall.

[AnthonyC]

@kennykb

Given the fact that the Supreme Court found itself empowered to judge both this case (which led to many states needing to redistrict; the upper house of many state legislatures had had seats representing counties)

I for one find it hilarious that SCOTUS ruled that it is unconstitutional for states for organize their legislatures the way the constitution organizes our national legislature, because doing so is a violation of important constitutional principles.