Skip to main content

in an editorial entitled Flunking the Electoral College the New York Times today advocates getting rid of the electoral college.   Regardless of the merits of such an idea, I am alarmed at one paragraph in the editorial, which reads

The best way to abolish the Electoral College is to amend the Constitution. Until that happens, a national popular vote movement is working to get states representing a majority of the electoral votes to agree to award their votes to the candidate who has the most votes nationally. That would effectively end the Electoral College. Several states, including New Jersey and Illinois, have already enacted popular vote laws, and others are considering it.

 This is, as far as I can tell, a Constitutional trainwreck, one which in a sense we narrowly avoided in 2000.  Let me explain.

Allow me to quote from Amendment XIV to the United States Constitution:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Let me repeat, using ellipses, to make clear my concern:

But when the right to vote at any election for the choice of electors for President and Vice President of the United States. . . is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged . . . the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Now let me offer my analysis.  Or rather, the analysis I read with respect to the election of 2000, which I believe was offered either by Anthony Amsterdam or Anthony Lewis, I do not remember which (and I have not been able to relocate the piece).

First -  a state legislature has full constitutional authority to pass the National Popular Vote initiative.  If it so desired, a legislature could in theory award all of its electoral votes on the basis of the length of the person's nose - there is NO restriction on the authority of the legislature's power to award electors:  we do NOT have a constitutionally guaranteed right to vote for the electors of President and Vice-Presidet.

Second -  the provision of the Fourteenth Amendment I have cited has never been enforced.  It was intended at least in part to protect the rights of the newly freed slaves, proved insufficient for other reasons, and the issue of concern was in theory addressed by the 15th Amendment.  Nevertheless it remains part of the Constitution.

Third - when the Florida Supreme Court in its first, unanimous opinion, ordered a recount in 2000, the Florida legislature, led by then-speaker (and newly defeated Congressman) Tom Feeney, started in action a process to legislatively designated electors for Bush.   This was constitutionally their right, and is why I believe the actions of SCOTUS in Bush v Gore were irrelevant to the outcome of the 2000 election -  once that action was begun in a legislature dominated by Republicans, Gore was never going to receive Florida's electoral votes.

Now consider the cited provision o hte 14th Amendment.  In 2000 it could well have meant that Florida would have been denied ALL representation in the House of Representatives, since all people would have been denied the right to vote for electors - although the Amendment is not clear for how long:  for one Congress, or for the term of office (4 years) for which people had been denied their right to vote.

The same principle would apply to any state whose legislature passed the National Popular Vote Initiative, if and when electoral votes were awarded to a candidate who had failed to carry that state - and arguable to any state participating in that initiative, even were the votes given to the candidate who had carried that state.  The issue is not who get the electoral votes, but how they were awarded.

Here I have only addressed when state legislatures make the decision in favor of this Initiative.  It should absolutely apparent that were the voters of a state to adopt that National Popular Vote initiative by initiative and referendum, that action would be unconstitutional - the authority of deciding how electors are awarded is reserved to the state legislatures.

Back door attempts to get around the the language of the Constitution and its ratified amendments are a very bad idea, however noble the goal.

And quite frankly, I do not think the goal itself is necessarily all that noble.   Suppose the popular vote were close - are we going to recount every single ballot in the nation, with all the problems that representst?  Remember that in 1960 the national popular vote margin as reported was only about 1 vote per precinct.

People are advocating on behalf of the initiative because of the reality of the impossibility of ratifying an amendment to abolish the electoral college.   It takes only 13 states to reject an amendment.  Consider these small states:

3 EVS:   AK, MT, WY, SD, ND, DE, V

4 EVS:  HA, ID, ME, NH, RI

that is 12 right there.  Add any of the 4 with 5 EVs -  NH, NM, NV and WV - and you have sufficient states to to block ratification of an amendment.

The electoral college forces candidates to pay attention to small states.  After all, had Al Gore paid attention to NH in 2000, losing Florida would not have mattered.  If all that matters is national popular vote, one could realistically argue that small states - and less populated parts of larger states - would never see a presidential candidate: it would not be strategically wise to spend time except in places to maximize the vote.  But the attempt to get to 270 electoral votes can easily persuade one of the importance of NH or NV or NM - small states that are competitive between the parties.  

All of that is interesting, but not relevant to my main concern.  Should we reach sufficient states (totalling 270 or more electoral votes) that support this ill-conceived approach, I fear that we will find ourselves consumed by court battles even more divisive than those we already have in our elections.   And what is worse?  Suppose the Initiative were found not to require the suspension of House representation -  which I argue would be total because all of the citizens would have been denied the right to vote for electors.   Would we not have then opened the door to constitutional interpretation that says we can totally ignore clear language of the Constitution because we seek an end we cannot achieve by amendment?  

I strongly oppose the Nationa Popular Vote Initiative.  I think it is worse than misguided.  It presents the real possibility of a Constitutional trainwreck.

Peace.

Originally posted to teacherken on Thu Nov 20, 2008 at 03:22 AM PST.

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  So go ahead and attack me, but first answer this (20+ / 0-)

    what do you do with the apparently clear language of the 14th Amendment?

    If we want to change the Constitution, we have the power to amend it.

    I feel strongly that this path is too dangerous - we should not proceed further.

    peace.

    do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

    by teacherken on Thu Nov 20, 2008 at 03:24:36 AM PST

    •  I suspect this will not garner a lot of traffic (4+ / 0-)

      there are other issues on people's minds.  And the trainwreck I fear may simply not seem real enough for most people to pay attention.

      But they should.

      I may if I have an opportunity post links to this on open threads.  

      If it dies, so be it.

      I am now getting dressed and heading out to school - later than usual, because I delayed in order to post this.  I think it is important enough to take the time to write about it.

      Peace.

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 20, 2008 at 03:39:19 AM PST

      [ Parent ]

  •  I'm just not a fan of the EC. (11+ / 0-)

    I don't know if a national popular vote is really the answer either. But as to this:

    If all that matters is national popular vote, one could realistically argue that small states - and less populated parts of larger states - would never see a presidential candidate: it would not be strategically wise to spend time except in places to maximize the vote.

    You get the same sort of problem with the EC, just with a different group of states. None of the "safe" states get visited by candidates, and so we play out the election in the same battleground states.

    All I know is that something is wrong when the person who gets the most votes loses.

  •  Could not agree more... (5+ / 0-)

    Most of the people I talk to who take the "popular vote" line seem to think it will cure so many ills. The 2000 election rattled many cages, but I think the reality is that any democratic system is still a system that can have some problem areas. On balance I think the EC is fine.

    You may find yourself in a beautiful house with a beautiful wife and you may ask yourself, "How did I get here?"

    by FrankCornish on Thu Nov 20, 2008 at 03:37:09 AM PST

  •  Um.... (6+ / 0-)

    You fail to cite the operative Constitutional Clause.....

    Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress

    This would seem to permit each state to select its own Electors - according to its own conditions and formulas.

    The 'pay attention tot he small states' argument is just so much garbage now. In the 19th century, perhaps it had some validity.  But with cable television, satellite radio, the Internet, Yahoo, televised debates, 24-hour news shows, etc, ANYONE can get all the information they require. The argument from 'neglect' is no longer valid. It hasn;t been for some time now.

    I don't have "issues". I have a full subscription!

    by GayIthacan on Thu Nov 20, 2008 at 03:44:46 AM PST

    •  Considering the onslaught of TV advertising (0+ / 0-)

      that a "battleground" state gets, I'd say that many living in battleground states would preferred to be ignored! ;-)

      Take President Bush.... PLEASE!

      by DerAmi on Thu Nov 20, 2008 at 04:02:05 AM PST

      [ Parent ]

    •  issue is LEGISLATURE (0+ / 0-)

      which makes doing it by initiative unconstitutional

      I am not arguing that what some states -  Maryland for example, have done through legislative action is unconstitutional.  I note that they have every right to do it.  I am pointing out that approach creates a separate set of problems because of the section of Amendment XIV which I quote.  They CAN do it, but there are constitutional consequences.

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 20, 2008 at 04:35:56 AM PST

      [ Parent ]

      •  Um..... (0+ / 0-)

        I think you need to reread the clause.

        Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors

        The power resides in the STATE LEGISLATURES - not in the Federal Legislative Branch.

        I don't have "issues". I have a full subscription!

        by GayIthacan on Thu Nov 20, 2008 at 06:12:55 AM PST

        [ Parent ]

        •  I understand the clause perfectly (0+ / 0-)

          if a state makes the change to the national popular vote by a process of voter initiative and referendum, it does not meet the requirements of that clause.

          do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

          by teacherken on Thu Nov 20, 2008 at 08:21:45 AM PST

          [ Parent ]

  •  I agree with you, but... (3+ / 0-)
    Recommended by:
    teacherken, Wee Mama, Clem Yeobright

    I also don't think very highly of the National Popular Vote Initiative, especially because of the recount problem but also because presidential candidates would then disproportionally campaigning in urban areas (because that's where most votes are) and their subsequent policy would be skewed toward that constituency (whereas one could argue that it's now disproportionately skewed towards the needs of battleground states). So it doesn't really solve much, in my opinion.

    That said, I do not think the 14th Amendment precludes the adoption of the NPVI, since if it is adopted, one is still voting for the electors of one's state, only from an enlarged pool. The country as a whole decides who your state's electors will be, but you're still part of the country as a whole. Thus, the right to vote for your state's electors is not being abridged.

    •  issue of popular vote is in a sense separate (1+ / 0-)
      Recommended by:
      bourgeoisie

      which is worthy of its own, separate debate.  My point is that if we want to get there, the only safe constitutional method would be to amend the Constitution - which is unlikely to happen given the influence small states have to block amendments they view as disenfranchising them.

      Think of it this way -  it is possible to be elected president by winning a one-vote plurality in 11 states and getting no votes in any other state -  get CA, TX, NY, FL, PA, IL, OH, MI, and three out of NH, NC, GA, and V A and you have reached the magic 270 EVs.

      But that is balanced by the power of small states: take the 7 with 3 (=21) and the five with 4 (= 20) and any one of those with 5, and with states having a total of 46 electoral votes you have blocked a constitutional amendment.

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 20, 2008 at 04:39:30 AM PST

      [ Parent ]

      •  I agree with the ethical point, not the legal one (1+ / 0-)
        Recommended by:
        nilocjin

        It would cause a lot of bad blood in the small states if their influence would be decimated because the NPVI is adopted in a handful of large states. It would indeed be much more ethical to take the road of a Constitutional Amendment, even though that stands a very small change of passage.

        The only thing I am objecting to is your reading of the NPVI as causing the quoted part of the 14th Amendment to be applied, stripping the states that participate of their Congressional delegations. As I explain in the comment above, under the NPVI, you're still allowed to vote for your state's electors; it's just that the constituency of those electors has been made larger -- the whole country (which you are also a part of) instead of just your own state. So while I do not agree with the NPVI, I do not think it in any way contradicts the 14th Amendment.

  •  I could not agree more. (1+ / 0-)
    Recommended by:
    Subversive

    Notice, too, that the people who insisted that Kerry challenge the Ohio result were perfectly happy with the electoral college.

  •  Good catch, but (3+ / 0-)
    Recommended by:
    SLKRR, Clem Yeobright, bourgeoisie

    Let's assume my state passes this "electoral votes to the nationwide winner" law. Let's further assume that Wintergreen wins nationwide by 600,000 votes.

    He loses my state, 2,500,000 to 2,800,000.

    If the Wintergreen voters in my states were completely disenfranchised, Wintergreen would lose nationally. Those voters DID make a difference.

    If that result is possible, I'm not sure you can argue that the law disenfranchises.

    •  argument is if they voted for electors (0+ / 0-)

      and if the vote for elector is ignored, particular in the case where a state awards its electors to a candidate who is overwhelmingly rejected by the voters of that state, we have at least the potential of a conflict between the two provisions of the Constitution.   And given the clear language of the 14th Amendment, one can argue that any state that took such an action could be denied its representation in the House.  

      Would the Courts really want to get involved with this?  I think Scalia saw this trainwreck in 2000, which si why his weird remarks in his concurrence about the recount undercutting the legitimacy of Bush's victory.  He at least saw that if the Feeney instigated movement went forward, the electors selected by the legislature would have to be accepted, and if that were in conflict with the results of a recount, it would undercut the legitimacy of the Bush win.   That seems apparent.  And he is bright enough to have thought through the consequences that could flow from the 14th Amendment.

      BTW -  so far I have not seen anyone argue with my interpretation of the 2000 election and why once the state legislature began its process, the election was over and Bush had won.

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 20, 2008 at 04:43:58 AM PST

      [ Parent ]

  •  There are more important.. (1+ / 0-)
    Recommended by:
    SLKRR

    ...constitution amendments that should be considered. But if the way the president is to be elected is changed then it must be with a constitutional amendment. I would prefer that the electoral votes be awarded according to how the people of the state vote instead of being controlled by the state legislature. The state legislature is also controlled by the votes of the people of the state. However, that legislature is elected prior to the presidential election and therefore when the will of the people has changed due the actions of the political party, just like Florida 2000, the will of the people could be ignored.

    As for more important amendments; I would suggest that imminent domain being used to build shopping centers by private persons or corporations should never be allowed. Imminent Domain is being pursued as a way for wealthy people to sieze land.

    Take President Bush.... PLEASE!

    by DerAmi on Thu Nov 20, 2008 at 03:58:05 AM PST

  •  1893 McPherson v. Blacker (5+ / 0-)

    "The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket [i.e., what is now called the 'winner-take-all' rule], nor that the majority of those who exercise the elective franchise can alone choose the electors."

    Case closed.  

    http://www.nationalpopularvote.com/...

    •  Here's the case. (1+ / 0-)
      Recommended by:
      decafdyke

      link.

      Sometimes I feed my cat dog food.

      by burrow owl on Thu Nov 20, 2008 at 04:29:11 AM PST

      [ Parent ]

    •  true - merely reaffirming rights of legislature (1+ / 0-)
      Recommended by:
      Twoflower

      but that case does not address the issue of the 14th Amendment.  I have not argued that it is unconstitutional for a LEGISLATURE (not the voters of the state by iniative and referendum) to choose to so award electors.  I am arguing that if such an approach is taken, we are confronted with the language of the 14th Amendment which would seem to indicate that any such state is in jeopardy of losing representation in the House.   That is the constitutional trainwreck to which I refer.

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 20, 2008 at 04:46:10 AM PST

      [ Parent ]

  •  I do not agree, but there is another problem (0+ / 0-)

    As far as I can see, nobody is being disenfranchised here. Everybody still has the right to vote for electors. However, in a sense, if you live in a state outside the NPVIC, you are in effect no longer voting for your own electors, but rather for the group assigned by the compacting states. Viewed another way, you are still voting for your own electors, but it is irrelevant which electors win your state.

    The real problem I think is that this compact may be seen as affecting non-compacting states, in that it in effect takes away their right to allocate their electoral votes as they see fit, or as Wikipedia puts it, makes this allocation meaningless.

    •  it is arguable either way (0+ / 0-)

      and that of course is part of the problem.  Which is why we should not go there.  If we want to change to a national popular vote (and I do not), then we should do so properly, by amending the Constitution directly.

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 20, 2008 at 04:47:23 AM PST

      [ Parent ]

  •  First of all, if enough state legislatures pass (0+ / 0-)

    the Popular Vote Initiative to reach 270, I don't see any Constitutional problem with it whatsoever.  As you concede in your diary, state legislators can use whatever means they deem appropriate to choose electors, and they have used various means as illustrated by Nebraska this year.  No one has talked about challanging Nebraska's law.  When Colorado and California discussed apportioning electors according to the popular vote in their state, there were objections but no one was objecting on Constitutional grounds so far as I am aware.  So I just don't buy your argument that it would be a Constitutional train wreck.

    Second, for the life of me I have never understood the argument that the electoral college protects small states.  In reality, the electoral college only protects and forces candidates to pay attentiong to swing states (or states that the candidate believes they can turn into swing states for demographic or other reasons) to the detriment of everyone else living in a solid blue or red state.  Of the 12 "small" states that you listed, only four were given attention by either candidate, those states being MT, ND, ME, NH.  In the end, the only one that was really competitive was MT.  SD was given a little bit of play very late when Obama noticed that it was becoming closer than it was supposed to be, but I don't think he actually made any campaign stops there.  Neither candidate gave a damn about the other 8 small states.  But with a nationwide popular vote, candidates would have to care about all 50 states because allowing the other candidate to run up the score anywhere would put that candidate at risk of losing.  ALL votes suddenly become important.  

    •  states select electors anyway legislatures choose (0+ / 0-)

      that is not issue, providing it is done by legislature and not by voter initiative/referendum

      issue is question of 14th Amendment provision

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 20, 2008 at 05:22:02 AM PST

      [ Parent ]

  •  The National Popular Vote Initiative (0+ / 0-)

    betrays the fundamental agreement on which the Constitution was found agreeable to the founding states, and all others since.  It approaches being a declaration of secession from the intent of thr constitution.

    It also has a worse issue:  Suppose some future election is very, very close, close enough that a popular recount across the entire country is likely to reverse the election, giving the result that the founding fathers would have intended if the electoral votes had been computed as we now do.  Suppose that one of the large states that is likely to invert the outcome takes the position 'the vote count here was overwhelmingly for candidate A, the candidate who won under NPV, and under our law there is not grounds for a recount' and refuses to recount.  You now have a President who most people are sure lost the popular vote, and who clearly lost the honest electoral vote.

    In addition, there are a fair number of small-state conservatives, the folks who populate northern New Hampshire and the Rocky Mountains, who will start saying loudly that an election settled under National popular Vote, contrary to expected electoral vote, is totally illegitimate; they might then force a vote in Congress on the legitimacy of the electoral votes from some states.

    •  Myths about Recounts (1+ / 0-)
      Recommended by:
      Twoflower

      See this site, which addresses these myths:

      Myths about Recounts

      3.1 MYTH: Recount chaos will result from a national popular vote

      3.2 MYTH: The current state-by-state winner-take-all system is a helpful firewall that isolates recounts and disputes to particular states.

      3.3 MYTH: Resolution of a presidential election could be prolonged beyond the inauguration date in January under a national popular vote.

      3.4 MYTH: Conducting a recount would be a logistical impossibility under a national popular vote.

      3.5 MYTH: States would be put in the uncomfortable position of judging election returns from other states under a national popular vote.

      3.6 MYTH: Political fraud and mischief would be encouraged under a national popular vote.

      3.7 MYTH: There is no official count of the national popular vote.

      The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little. -FDR

      by Jeff in CA on Thu Nov 20, 2008 at 07:47:22 AM PST

      [ Parent ]

      •  Specifically... (1+ / 0-)
        Recommended by:
        Twoflower

        Critics of a national popular vote have argued that there could be an extremely close nationwide count in the future (and historical data show that there would indeed be one such disputed election in every 1,328 years). However, even in that rare situation, there would also be, almost inevitably, one or more states with razor-thin popular vote margins. Thus, there would be controversy under both systems in an exceedingly close election.

        It is important to note that the question of recounts only comes to mind in connection with presidential elections because the current system so frequently creates artificial crises and unnecessary disputes.

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

        The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little. -FDR

        by Jeff in CA on Thu Nov 20, 2008 at 07:50:44 AM PST

        [ Parent ]

  •  Im sorry but the EC does not protect small states (2+ / 0-)
    Recommended by:
    Samer, Twoflower

    it protects swing states, some of which happen to be small but most of which happen to be decent sized like Ohio and Florida and Michigan and Missouri and this time around VA and NC for example.

    Most small states ordinarily get no attention at all.

    Only the couple that are swing states and even then ignoring this election the smallest you are talking about might be say a NM or an Iowa.

    With the modern elections, the focus is off most small states AND most big states.

    So CT and MA and OK get ignored but so do TX and NY and CA.

    It's a lot easier to build a fifty state initiative when people in all fifty states know their vote for president is relevant.

    How about Democrats in TX and UT or Republicans in NY and DE finally get the sense that their vote matters?

    There is absolutely no good reason to continue having the EC, and since it is pretty clear legislatures can do whatever they want to pretty much in presidential elections, and heck electors dont even have to vote for whom they are electors for if they dont want to, then this compact would likely pass Constitutional muster.

    You cant argue on one hand the Constitution does not protect the individual right to vote which most scholars say is true and that legislatures could do it all themselves if they wanted, then say but what they cant do is simply vote that all the electors go to the popular vote winner.

  •  I am having trouble wrapping my mind around (0+ / 0-)

    this before coffee. I live in NM. There are actually a few good reasons to think twice before dismantling the electoral college...no matter how unfair it seems. It is meant to protect small states from travesties like Yucca Mountain. We simply do not have the votes, if populaton is the only consideration, to prevent ourselves from becoming the national garbage dump.

    That being said, we have not been particularly good of late at preventing corrupt legislators from pushing through socially and environmentally reprehensible policies.

    A lot of thought needs to go into this issue. Serious, deep consideration...not sound bytes.

    "Big boss man..you ain't so big, just tall, that's all." And McCain is the boss!

    by TheFatLadySings on Thu Nov 20, 2008 at 05:45:57 AM PST

    •  It doesn't do that very well. (0+ / 0-)

      Why would McCain worry about making promises to the people of, say, Idaho, when he knows he's going to win the state handily anyways?

    •  I think about NM (0+ / 0-)

      which has a provision to break tie votes by a game of chance, such as cutting a deck of cards.  Suppose the 2000 election had come down to NM's EVs, and the popular vote were tied. . . .

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 20, 2008 at 08:22:56 AM PST

      [ Parent ]

  •  Rec'ced for research (0+ / 0-)

    I'm tired and not a Constitutional scholar, so I have no idea whether your points are accurate or not, but I'm rec'cing cus you at least did the research!

    I've generally been in favor of going with a straight national popular vote, but have also been concerned about the can of worms it opens up in cases of recounts (imagine 50 Florida 2000's at once!). You've given me more reason to rethink it.

  •  Parsing (1+ / 0-)
    Recommended by:
    Twoflower

    I see your point (and would make the broader point that any attempt to tinker with the current system will disadvantage some state or interest group and result at best in litigation and at worst in challenges when electoral votes are counted in Congress).

    Nevertheless, I believe that a court that wished to get around your 14th Amendment objection would have little difficulty doing so. The language of the Amendment refers to "the right to vote at any election for the choice of electors for President and Vice President of the United States" (my emphasis). Under NPVI, it could easily be argued, the voters are voting not to choose the electors, but to determine the national popular vote. In other words, the state's voters never vote to choose the state's electors, because the legislature has decided that the choice will be made by certifying the electors associated with the slate that wins the national popular vote. In essence, there is no state "election for the choice of electors".

    This interpretation may seem strained, but it is within the scope of possible judicial interpretation. The argument would be buttressed by the fact that NPVI does not discriminate against any citizen within the state, which is of course the evil against which the 14th Amendment was directed. NPVI doesn't disenfranchise anyone; it redirects the action of the voters in each state from choosing electors to determining a national total.

    That being said, I am not a fan of NPVI.

    Democrats: Members of the Democratic Party working to advance democracy; Republicons: Members of the Republicanist Party working to advance Republicanism

    by word is bond on Thu Nov 20, 2008 at 06:11:56 AM PST

  •  Popular democracy confers legitimacy (0+ / 0-)

    Having a very democratic government does not guarantee the best or most efficient government but it does confer legitimacy. There was a strong feeling here in the US and around the world that GWB electoral 2000 victory created a Presidency of questionable legitimacy. If we believe strongly in Democracy, then we have to fix this system.

    I respectfully disagree with Teacherken in this diary. I think that the Constitution may be inconsistent, that is it appears that Amendment XIV is inconsistent with Article I. An Amendment can't take away a right to representation guaranteed by the Constitution itself. The phrase "males over 21" is also inconsistent with emancipation. This seems like a dead zone that should be cleaned up in some future amendment.

    The better argument for small states is that the Constitution granted them an undemocratic advantage and that the bigger states are denying them their constitutionally protected right to greater per-capita representation in the election of a President. Although one could argue back that since the Constitution grants absolute authority to the States for selecting Electors, that no such minority right exists.

    This really gets back to the concept of "These United States" as vs. The United States. The term "state" was not an accident. These colonies originally saw themselves as functional states with minted coins, governments and an official religion. The structure of the Federal Government was designed to placate the states and convince them to give up some authority in return for granting some powers back from the Federal Government. All of those non-population based representative powers are an affront to democracy, including the two Senator per state allocation, and makes our system of government less legitimate than it could be.

  •  Your 14th amend argument (1+ / 0-)
    Recommended by:
    mysticlaker

    is interesting.  I am an attorney and a law professor;  I will admit that this area of law is not my specialty but I will say that while the interpretation you argue for is a possible reading of the language, it is not the only reading.  Constitutional amendments are read in their context and with the reason for the language in mind.  To me the intent behind this language was to ensure that if a state discriminated against a class of citizens (in this case based upon race, but other forms should be included) then the sanction of diminished representation would kick in.  If on the other hand all voters were treated the same an argument could be made that the change in selection process would not result in diminished representation in Congress.  I suspect that if the initiative is adopted then the court would be likely to read the amendment not to diminish the state's representation.

    All of that having been said, I personally think the idea behind the initiative is wrong and any change to the electoral process should be made, if at all, by an amendment to the constitution or by every state adopting the congressional district method of awarding electors as done in ME and NE.  To me the later will solve most problems

    Non, je ne regrette rien

    by alexnovo on Thu Nov 20, 2008 at 06:18:55 AM PST

  •  the electoral college works (usually) (0+ / 0-)

    I used to be against the EV (post bush) but the more research I've done, the more value I think it has.

    1. Candidates will be tempted to run up the tallies by expending uneven resources in large states (TX, CA, NY are the most obvious ones).
    1. Close elections are reflected in both the EV and popular vote. The voters have to come from some-place to reflect the EV's.
    1. Close elections will be a DISASTER. Can you imagine a national recount and the politics of that?
    1. The swing states change. In the last 8 years they've changed. With different candidates, they will continue to change.
    1. Mandadates are easier to define in EV's. See Obama.

    First they ignore you, then they ridicule you, then they fight you, then you win - Gandhi

    by mysticlaker on Thu Nov 20, 2008 at 06:23:58 AM PST

  •  Sorry, but my reading (2+ / 0-)
    Recommended by:
    Clem Yeobright, alexnovo

    of the Apportionment Clause is that it was meant to accomplish two ends: 1) to remove the 3/5 of a man provisions for Congressional Apportionment contained in Article I; 2) to punish disincentivize Southern States who refused to grant newly-freed slaves the vote.  It succeeded in the first goal and was superceded in the second goal by the 15th Amendment.  A broader reading is possible, but not necessarily called for.

    One principle of Constitutional interpretation is to choose to put as narrow an interpretation on any clause as is consistent with the legislative intent.  I think that any Court looking at this provision would take that legislative history into account and would not interpet it as broadly as you seem to be doing.

    I am for the individual over government, government over big business, and the environment over all -- William Douglas

    by Its the Supreme Court Stupid on Thu Nov 20, 2008 at 06:40:39 AM PST

  •  Using state compacts to achieve similar objective (1+ / 0-)
    Recommended by:
    Jeff in CA

    That's why the fairvote.org book I edited and helped research is so important:

    http://www.every-vote-equal.com/

    It keeps the electoral college and allows states to be the ultimate determinates but works towards a national popular votes through state compacts. Absolutely the smartest and most constitutionally respectful approach I've seen that leaves the feds out of it and revives an extremely important too, the compact, as a state-basically form of leverage. Another key part of this is the historical component that looks at historical elections and vote counts, analyzing them.

    It wasn't my idea, just a paid gig i took out of necessaity, but by the time I was finished with the project and had challenged every jot and tittle, i was a true believer. So for that matter was the NY Times, in its editorials. One does not automatically have to exert federal control over the states to bring about the desired outcome. States can design compacts among themselves to kick in only when a critical factors are met and they can withdraw when those factors no longer pertain. This is a very old and important part of American history and still applicable today in a situation like this.

  •  I strongly favor the Nationa Popular Vote Compact (1+ / 0-)
    Recommended by:
    Clem Yeobright

    The Constitution clearly allows for compacts between the states. That is what this is.

    The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little. -FDR

    by Jeff in CA on Thu Nov 20, 2008 at 07:22:32 AM PST

    •  See http://www.nationalpopularvote.com/ (1+ / 0-)
      Recommended by:
      Twoflower

      That website answers all the contitutional questions.

      Myths about the 14th Amendment

      17.1 MYTH: The Privileges and Immunities Clause of the 14th Amendment precludes a national popular vote.

      17.2 MYTH: Section 2 of the 14th Amendment precludes a national popular vote.

      17.3 MYTH: The Due Process Clause of the 14th Amendment precludes a national popular vote.

      17.4 MYTH: The Equal Protection Clause of the 14th Amendment precludes a national popular vote.  

      The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little. -FDR

      by Jeff in CA on Thu Nov 20, 2008 at 07:29:38 AM PST

      [ Parent ]

      •  Specifically... (0+ / 0-)

        Section 2 of the 14th Amendment provides a remedy in the form of reduced congressional representation if any person's right to vote is denied or abridged by any state.

        The National Popular Vote bill does not deny or abridge any person's right to vote for any other office. Section 2 manifestly does not preclude a national popular vote for President.

        Moreover, section 2 does not give the voters the right to vote for President. At the time when the 14th Amendment was ratified (1867), state legislatures were still occasionally appointing presidential electors themselves, without a vote by the people (e.g., in 1860, 1868, and 1876). The congressional act providing for Colorado's statehood in 1876 specifically mentioned that the Colorado legislature would appoint the state's presidential electors for the 1876 election. As the U.S. Supreme Court stated in the 1893 case of McPherson v. Blacker:

        "The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket [i.e., what is now called the 'winner-take-all' rule], nor that the majority of those who exercise the elective franchise can alone choose the electors."

        The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little. -FDR

        by Jeff in CA on Thu Nov 20, 2008 at 07:30:33 AM PST

        [ Parent ]

        •  while it does not deny vote for any other office (0+ / 0-)

          one can argue, as did one of the Anthonys, either Lewis (I think) or Amsterdam (and I am sorry I cannot locate the article) what Florida was doing legislatively designating a slate for Bush while constitutional represented a denial of a vote for electors and thus the 14ht Amendment provision could/should be invoked.  By that ratione, NPVI could/would be similarly interpreted.

          I would suspect that, regardless of the outcome, it would lead to litigation that could be - how shall we say -  "interesting" in its possible consequences.

          That is my point.  It is not a guaranteed trainwreck.  I will acknowledge that.   But it is a possible trainwreck, and at least a major distraction.

          As for the issue of interstate compacts -  they cannot override constitutional provisions.  If this section of the 14th Amendment is a constitutionally valid provision, then no interstate compact can nullify it, not even one agreed to by all 50 states.   It would have to be addressed constitutionally, not legislatively.  

          IT seems to me that NPVI is a clearly backdoor attempt at avoiding the necessity of a constitutional amendment.   And given that such an attempt has not been seriously tried, might also impact how the Courts would view it.  

          AGAIN -  can the states do so, individually or via compact?  Absolutely, if it is done by state legislatures.  I have made the point both in the diary and in the comment thread.  But that is independent of the issue of the 14th Amendment, which may or may not therefore come into force.  And if it does, is that not a constitutional trainwreck?

          Hey, the Constitution has always had holes.   Try this, from Article II, Section III:

          The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

          The Senate shall chuse their other Officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the Office of President of the United States.

          The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

          So in cases of impeachment, except in the case of the President when the presiding official is the Chief Justice, the President of the Senate Constitutionally ahs the authority to preside -  which means if we impeach Dick Cheney he can preside over his own impeachment trial, right?

          Peace.

          do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

          by teacherken on Thu Nov 20, 2008 at 08:32:04 AM PST

          [ Parent ]

          •  Ahhh, but ... (0+ / 0-)

            what Florida was doing legislatively designating a slate for Bush while constitutional represented a denial of a vote for electors and thus the 14ht Amendment provision could/should be invoked.  By that ratione, NPVI could/would be similarly interpreted. ...

            interstate compacts -  they cannot override constitutional provisions

            Ahhh, but I don't think that rationale would hold up under scrutiny because:

            The National Popular Vote bill does not deny or abridge any person's right to vote for any other office. Section 2 manifestly does not preclude a national popular vote for President.

            Also, while I agree that compacts can't override constitutional provisions, in my opinion I do not think that is what the NPV compact would be interpreted as doing.  But I know that is not your opinion.

            You are right that there would be litigation and adjudication.

            The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little. -FDR

            by Jeff in CA on Fri Nov 21, 2008 at 07:10:33 PM PST

            [ Parent ]

  •  I sort of don't agree (0+ / 0-)

    For example, the diarist suggests that because a popular vote for president would cause the campaigns to focus on reaching more people rather than on getting more electoral votes, the popular vote is bad. This seems really backward to me. The current system, where the majority or a substantial minority of the people are basically ignored during the campaign is what is bad, if "democracy" is to have any meaning.

    The problem is that the people of the USA have become so divided that a new constitution is not even possible. An amended constitution is very unlikely, but barely possible. But the national popular vote initiative would, if passed by enough big states, work around one of the less fortunate provisions of our constitution.

    When it comes to the Constitution, what we need, and have needed for probably 150 years or more, is a new constitutional convention and a new document. But, we will never get it, not now, not 150 years from now, because we would never be able to agree on one.

    For example, the role of the "state" in our country has caused endless problems. In the 1780's & 1790's, when the pretensions of the former colonies were still in recent memory, perhaps this was necessary. But now? It's ridiculous. Different states with different laws, different state governments, and disproportionate voices in the national government because of uncorrectable rounding errors? It's a disgrace and an embarrassment.

    However, the reality is that the National Popular Vote Initiative will ameliorate at least one of our constitution's screw-ups, and so I'm on board.

    Greg Shenaut

  •  California's legislature approved the NPV Compact (0+ / 0-)

    ... and sent it to Gov. Arnold, who vetoed it.  Loyola University Law Professor Rick Hasen, author of the terrific Electionlawblog, asked the question (paraphrased), "The method of choosing electors is determined by the legislature.  Because the California legislature voted to adopt the compact, why does it even need the governor's signature? "

    The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little. -FDR

    by Jeff in CA on Thu Nov 20, 2008 at 07:37:13 AM PST

    •  Now the case of California gets interesting (0+ / 0-)

      on the one hand, from the standpoint of the US Constitution, it is not clear that an action addressing electors needs any state executive action.  Thus if the legislature failed to override, the legislature then took it to the people in exactly the same form as the legislature had passed, and the people by referendum adopted it, I would argue that it meets the constitutional requirement that the legislature decide the method.  

      But even here, where I agree with you, I see extensive litigation trying to make a determination.  And until such an action were to take place - that the electors are awarded according to the NPVI -  it is questionable if any court would rule because there is no live issue, and hence no standing.  Thus we are in something of an undefined territory, not knowing if the results of an election will hold.  Kind of like what CA is going through now on Proposition 8.

      That is also part of the problem from my perspective.

      I think that if we want to go the direction of the national popular vote, the only honest way to go about it is to amend the Constitution.  While i am somewhat inclined against such an approach, I have no argument with proceeding by the route of Amendment.  That would clarify the issue, to be sure.

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 20, 2008 at 08:36:21 AM PST

      [ Parent ]

      •  I agree that the US (0+ / 0-)

        Constitution is unclear as to whether state executive action is needed, i suspect the federal courts would say that this is a state issue and would leave it to the State Constitution to say whether a governor has the right to veto such legislation.  Thus it would be up to state courts to make this determination

        Non, je ne regrette rien

        by alexnovo on Thu Nov 20, 2008 at 09:36:23 AM PST

        [ Parent ]

  •  Small states currently get incredibly (0+ / 0-)

    disproportionate time and money spent on them, although in part, rotating primary calendars would take care of a lot of this.

    Got a problem with my posts? Quit reading them. They're usually opinions, and I don't come here to get in arguments.

    by drbloodaxe on Thu Nov 20, 2008 at 07:45:22 AM PST

  •  There are much better ways of addressing this (0+ / 0-)

    If we want the electoral vote to better reflect the popular vote there are other ways of doing it w/o the NPVI.  One is for states to adopt the system of congressional district allocation used in ME and NE.  The second is for a state to allocate its electors based upon a percentage of the votes each candidate received in that state.  States could do this now (as two states already have).  Either would eliminate the problems presented by the current system without the need for the NPVI.  

    Non, je ne regrette rien

    by alexnovo on Thu Nov 20, 2008 at 07:56:37 AM PST

    •  Strongly disagree (0+ / 0-)

      It's my intution (and I suspect an academic could easily prove, since the data should be there for many recent elections) that either of your preferred approaches would have the result of increasing, not decreasing, the odds of either (i) an electoral vote winner different from the national popular vote winner, or (ii) no one obtaining the requisite outright majority of electoral votes required by the constitution, resulting in the election getting thrown to the House of Representatives.

      To see why, consider the following:

      First, very simply, lets take your ME/NE approach.  Because partisan breakdowns are not evenly distributed across congressional districts (sometimes for innocent reasons, sometimes because the existing political establishment gerrymandered districts that way), you have now turned the "only swing states matter" problem into an "only swing districts matter" problem.  Someone living in Charlie Rangel's district in Harlem or in Jesse Jackson Jr.'s district in Chicago is just as disenfranchised as they are today, as is someone in a bright red district in the middle of Kansas -- but now so are people living in solidly democratic urban districts in Cleveland and St. Louis and Atlanta, and people living in solidly republican rural districts in southern Ohio and central Missouri and southwest Georgia -- whereas at least today those Ohio, Missouri and Georgia voters have the real possibility of affecting the outcome of their (perhaps) swing state and thus of the electoral vote outcome as a whole.  Whereas the median suburban Lutheran soccer-mom suddenly finds her voting power magnified immensely if she happens to live in a swing suburban district which can make or break the electoral vote outcome.

      Similarly but maybe even more bizarrely, in a close popular vote, your "proportional split" idea probably gives small states far more disproportionate voting power than they do today (by virtue of the senate 2-votes-per-state structure and the EVs that go along with that) and also produces bizarre results depending on whether the state has an even or odd number of congressional representatives.  If the vote is close to 50/50 in both Wisconsin (10 votes) and Delaware (3 votes), Wisconsin's vote could be completely nullified (as 5 votes for each candidate cancel each other out) while Delaware will award a net 1 vote to whoever wins 50.1 of the relatively small number of people who vote there.  It takes a virtual landslide in Wisconsin to move the needle enough to make the breakdown 6/4 for Wisconsin voters' votes to factor AT ALL in the outcome of the election...

      I've obviously thought about this before (and strongly opposed the 2004 Colorado state intitiative seeking a proportional split for just these reasons), but as bad as the electoral college is (and I AM a fan of national popular vote, whether achieved through NVPI or through a constitutional amendment which I recognize is likely to be a practical impossibility) I actually think there are things that are worse, including the ME/NE model or a proportional split by state.

  •  Standing (0+ / 0-)

    I think you have a point, but one issue that perplexes me is who would have standing to take this to court.

    Seems to me it would only be the states, and that this would therefore be a case of original jurisdiction in the Supreme Court.

    Who knows if any state would choose to do so, or what the court would do with it - for all their talk of strict construction and originalism, they seem happy to get creative when it suits them.

    I'm fully in agreement regarding how inadvisable it is to construct clever end-arounds of the Constitution.

    John McCain - all aboard the lobbyist express!

    by jrooth on Thu Nov 20, 2008 at 08:08:22 AM PST

    •  right now no one would have standing (1+ / 0-)
      Recommended by:
      jrooth

      unless and until a state so awarded its votes.   That is part of the problem, not knowing if someone would have standing, and if they did how the courts might rule.   I don't think we need to be heading in the direction of such unknowns in our election for our national executive.

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 20, 2008 at 08:37:36 AM PST

      [ Parent ]

      •  I agree (0+ / 0-)

        but I think the point of the diarist is that the Presidential election would not be in question under the 14th amendment (therefore his/her election) would be constitutional.  The question would be do states that chose electors against the way their states voted lose representation in Congress.  I previously stated that I do not agree with the diarist reading of the constitution but the court case, if any, would not be over the validity of the presidential election but rather on the seating of the congressional delegation.  I suspect that the courts would say that that issue should be left to the Congress as they are the final word on their own membership and would try to stay out of it.

        Non, je ne regrette rien

        by alexnovo on Thu Nov 20, 2008 at 09:33:58 AM PST

        [ Parent ]

  •  "Back door," "end-run" language is a red-herring (0+ / 0-)

    Limiting this comment to the constitutional policy (rather than the narrower constitutional law) question:

    By starting with the premise that the NPVI is some kind of sleazy, underhanded way to muck with the otherwise pristine and perfect creation of our all-wise founding fathers, you're kind of begging question (in the technical sense of that term), aren't you?

    If the NPVI legislation were to be adopted by a sufficient number of state legislatures, then that means that voters in those states have -- indirectly through their state legislators -- expressly manifested their clear intent that they want their state's electoral votes to be allocated based upon the winner of the national popular vote.

    Now, people may agree or disagree about whether that's a better way to choose our president than the current system (I happen to think that on balance it is, but I also happen to think our electoral system could stand a lot of other tweaks as well, such as (i) eliminating the spoiler-effect that definitely put Bush into office in 2000 ("first-past-the-post" is as much to blame for the last 8 years, if not more so, than is Ralph Nader) and that probably put Clinton into office in 1992 (remember Perot?) by adopting either Instant Runoff Voting, Approval Voting, or Condorcet Voting and (ii) actually requiring a voter-verified paper trail) --

    but to read into the U.S. Constitution (as your stance, it seems to me, implicitly does) a prohibition against voters manifesting such a preference -- a prohibition which can only "legitimately" be overcome through the creaky machinery of the constitutional amendment process -- seems a bit of a stretch to me.

    As long as we're going to be playing in the silly playground of originalism, I would venture that the drafters of the constitution, who by and large took federalist notions of dual sovereignty seriously and viewed themselves as "Virginians" and "New Yorkers" and "Rhode Islanders" just as much and just as importantly as "Americans," would have been simply baffled by the idea that -- having endowed the legislatures of the 13 sovereign states with the power to determine electors (presumably although not necessarily based upon some measure of the popular will (or at the least the will of a small slice of the populus, white, male, educated and landowning) in each such state) -- they would ever witness those same states willingly "surrender" that power to the national will; but respecting each state's sovereignty they would be hard-pressed to justify an explicit prohibition on a state exercising its sacred sovereignty in such a curious way.

    So its not at all clear to me that the framers could or would reasonably have raised any objection to something like the NPVI, since paradoxically to do so (in the interesting of protecting the sovereignty of each of the several States United) would require infringing on that same sacred sovereignty...

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site