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View Diary: What is National Popular Vote, and why should we care (187 comments)

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  •  So there would be a single set of electors (0+ / 0-)

    for both parties? Or would Democrats still appoint their own and Repubs their own ... trusting them to ... follow state law? Is that Constitutional?

    Am I right, or am I right? - The Singing Detective

    by Clem Yeobright on Thu Jan 12, 2012 at 01:22:36 PM PST

    •  Each party has a slate of electors (7+ / 0-)

      if the GOP wins the national vote, Rhode Island (for example) would appoint --by law --it's Republican electors.

      Now electors can technically do whatever they want. That's the flaw in the electoral college. But electors will in practice vote for their own party.

      •  Gotcha. But ... (2+ / 0-)
        Recommended by:
        concernedamerican, Nisi Prius

        The logistics of it seem ... difficult. Now, the Secretary of State (or whoever, by state) certifies the election and delivers certificates of election to the electors of the winning candidate, which they show when they arrive at the state Capitol on December 19.  [Remember K. Harris.] Under the new regime, at what point, and exactly how, does the SOS determine to whom to grant the certificates? One 'faithless state' - deciding late - could bring the whole thing tumbling down, couldn't it? I can just see Sandra Benighted O'Connor coming back to the USSC to argue that the Republican should win no matter how the voting came out ...

        All that said, I think it would be fun and we'll be ready for the next Brooks Brothers Riot, won't we?

        Am I right, or am I right? - The Singing Detective

        by Clem Yeobright on Thu Jan 12, 2012 at 01:50:43 PM PST

        [ Parent ]

        •  You are articulating my own concerns with (4+ / 0-)

          regard to this.  There are just too many dirty tricks and faithless followers on the Republican side for this to seem simple.

          That's one more thing to add to my long list of small problems. --my son, age 10

          by concernedamerican on Thu Jan 12, 2012 at 02:05:12 PM PST

          [ Parent ]

        •  State Counts Final 6 Days before EC meets (0+ / 0-)

          Current federal law (Title 3, chapter 1, section 6 of the United States Code) requires the states to report the November popular vote numbers (the "canvas") in what is called a "Certificate of Ascertainment."   You can see them on the NARA web site.

          The U.S. Constitution (Article II, section 1, clause 4) provides:
          "The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States."[Spelling as per original]

          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 approach, all counting, recounting, and judicial proceedings must be conducted so as to reach a "final determination" prior to the common nationwide date for 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.

        •  Electors are Faithful to Their Party (0+ / 0-)

          There have been 22,000 electoral votes cast since presidential elections became competitive (in 1796), and only 10 have been cast for someone other than the candidate nominated by the elector's own political party.  The electors now are dedicated party activists of the winning party who meet briefly in mid-December to cast their totally predictable rubberstamped votes in accordance with their pre-announced pledges. Faithless electors are not a practical problem, and most states have complete authority to remedy any problem there could be, by means of state law.

          If a Democratic presidential candidate receives the most votes, the state's dedicated Democratic party activists who have been chosen as its slate of electors become the Electoral College voting bloc. If a Republican presidential candidate receives the most votes, the state's dedicated Republican party activists who have been chosen as its slate of electors become the Electoral College voting bloc. The winner of the presidential election is the candidate who collects 270 votes from Electoral College voters from among the winning party's dedicated activists.

           The U.S. Supreme Court has upheld state laws guaranteeing faithful voting by presidential electors (because the states have plenary power over presidential electors).

      •  It is, I believe, within the power of the states (4+ / 0-)

        to have bound electors, who must vote in a specific fashion.

        That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

        by enhydra lutris on Thu Jan 12, 2012 at 03:54:04 PM PST

        [ Parent ]

        •  It's very peculiar (3+ / 0-)

          The Twelfth Amendment:

          The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

          The process can only be validated if it is known for whom each elector voted for Prez and VP; a state must be able to decline to forward votes from an elector who voted for two residents of his/her state. [It must have been peculiar in TX in 2000 when everyone voted for two Texans.]

          Can the state decline to forward the votes of a 'faithless elector'? It's never happened.

          In any case, 'faithless electors' is a different issue. Since the state Party selects the electors, as kos notes, it is expected that electors will vote for their party's candidates.

          Am I right, or am I right? - The Singing Detective

          by Clem Yeobright on Thu Jan 12, 2012 at 04:17:49 PM PST

          [ Parent ]

        •  Hmm. Well... (0+ / 0-)

          Let's say one of the states that was in on this did defect. Say they changed the law the day after the election.

          Then all of the other states that had signed the agreement would still have their electors voting for the winner. If more states than necessary signed laws like this, one state simply wouldn't matter. But even if they didn't, if one state defects but the popular vote winner won a few of the states that didn't sign up for this (and chances are he or she did), then it still doesn't matter.

          Basically, the only way this could really fall through is if there were a very close race, and (let's say) the Democrat won the popular vote, and all of the states that weren't signed on with this were Republican-leaning states or battleground states, and all the battleground states that hadn't signed on were won by the Republican (or the state that defected had a LOT of electoral votes, more than any battleground states that were won by the Democrat.)

          In practice, it is certainly conceivable that a defection could flip an election, but it's a lot less likely than a popular-vote/electoral-vote split is right now.

          •  Defection Day After Election is Not Possible (0+ / 0-)

            The bill says: "Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term."

            Any attempt by a state to pull out of the compact in violation of its terms would violate the Impairments Clause of the U.S. Constitution and would be void.  Such an attempt would also violate existing federal law.  Compliance would be enforced by Federal court action

            The National Popular Vote compact is, first of all, a state law. It is a state law that would govern the manner of choosing presidential electors. A Secretary of State may not ignore or override the National Popular Vote law any more than he or she may ignore or override the winner-take-all method that is currently the law in 48 states.

            There has never been a court decision allowing a state to withdraw from an interstate compact without following the procedure for withdrawal specified by the compact. Indeed, courts have consistently rebuffed the occasional (sometimes creative) attempts by states to evade their obligations under interstate compacts.

            In 1976, the U.S. District Court for the District of Maryland stated in Hellmuth and Associates v. Washington Metropolitan Area Transit Authority:

            “When enacted, a compact constitutes not only law, but a contract which may not be amended, modified, or otherwise altered without the consent of all parties.”

            In 1999, the Commonwealth Court of Pennsylvania stated in Aveline v. Pennsylvania Board of Probation and Parole:
            “A compact takes precedence over the subsequent statutes of signatory states and, as such, a state may not unilaterally nullify, revoke, or amend one of its compacts if the compact does not so provide.”

            In 1952, the U.S. Supreme Court very succinctly addressed the issue in Petty v. Tennessee-Missouri Bridge Commission:
            “A compact is, after all, a contract.”

            The important point is that an interstate compact is not a mere “handshake” agreement. If a state wants to rely on the goodwill and graciousness of other states to follow certain policies, it can simply enact its own state law and hope that other states decide to act in an identical manner. If a state wants a legally binding and enforceable mechanism by which it agrees to undertake certain specified actions only if other states agree to take other specified actions, it enters into an interstate compact.

            Interstate compacts are supported by over two centuries of settled law guaranteeing enforceability. Interstate compacts exist because the states are sovereign. If there were no Compacts Clause in the U.S. Constitution, a state would have no way to enter into a legally binding contract with another state. The Compacts Clause, supported by the Impairments Clause, provides a way for a state to enter into a contract with other states and be assured of the enforceability of the obligations undertaken by its sister states. The enforceability of interstate compacts under the Impairments Clause is precisely the reason why sovereign states enter into interstate compacts. Without the Compacts Clause and the Impairments Clause, any contractual agreement among the states would be, in fact, no more than a handshake.

            •  I don't think that would work (0+ / 0-)
              Any attempt by a state to pull out of the compact in violation of its terms would violate the Impairments Clause of the U.S. Constitution and would be void.  Such an attempt would also violate existing federal law.  Compliance would be enforced by Federal court action

              I don't think a Federal Court can tell a state which slate of electors' votes to send to Washington - federalism and core rights of the states.

              I think it is unlikely a state would pull out like that.

              Far more likely is that a state supreme court would rule that the compact violated the state's own constitution and require it to send the slate that had the majority vote in that state.

              •  US Constitution Gives State Legislatures THE Power (0+ / 0-)

                The Founding Fathers left the choice of method exclusively to the states in section 1 of Article II of the U.S. Constitution-- "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."

                •  Say a state Supreme Court disagrees? (0+ / 0-)

                  For example, say a state Supreme Court rules that the state's own Constitution requires the state to use majority vote in that state?

                  That then becomes a very complicated issue.

                  For example, in many states changes to the Constitution are made by or approved by the state legislature.  Can a previous legislature's decisions about how to choose electors written into that state's Constitution override the decisions of the current state legislature written into a law?  Probably, otherwise state constitutions would have little meaning.

                  Can a state court force the legislature to follow the Constitution in this case?  Hmmm... well, probably not.

                  But does the state court need to force the legislature to do anything?  Probably not - it is usually the secretary of state who certifies elections and selects the slate of electors.  And courts can most definitely compel a state secretary of state to do something.

                  Who would have standing to sue if this happened?

                  Could another state demonstrate standing?  How?  What is its injury?  And any other candidate is not a party to the compact and therefore could not sue to compel compliance with it.

                  I'm not nearly as confident as you are that this will work smoothly.

      •  There are also generally penalties (0+ / 0-)

        under State law - and have been for some time - for faithless electors.

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