Robert Barnes reports (at WaPo).
ADDED: Here's what I wrote about the case — Chiafolo v. Washington — back in January:
Wow! The answer had better be that these laws are constitutional or all hell will break loose!Ha ha. Phew!
What if the electors have a constitutionally based power to make up their own minds and apply their personal judgment? It's one thing for them to think they might and to contemplate going off on their own and for some of them, occasionally, to do it. It would be quite another thing for the Supreme Court to enshrine this power in constitutional law, to specifically give the electors the go-ahead!
And how would we, the humble voters feel if we found out that we're not voting for Donald Trump or Biden/Sanders/Warren/Bloomberg but for some local character who's free to do what he/she thinks is best? There would be another dimension of analysis. Some person we haven't cared at all about will need to be scrutinized for iron-clad party fealty. Horrible!
On the other hand, for those who hate the Electoral College and have felt bad about the seeming impossibility of amending the Constitution to change it, the crazy chaos of constitutionally empowered electors could be horrible enough to push the states to ratify an abolition of the Electoral College.
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60 comments:
The EC is a circuit breaker on electoral fraud. With it, fraud can flip only one state at a time. Without the EC, fraud in a couple cities could flit an entire election.
Good.
To clarify for me; this refers to the popular vote WITHIN individual states. That is to say, not the NATIONAL popular vote tallies.
It would take a careful years-long effort to fool a lot of people to get to a place where you can be chosen as an elector only to then throw your vote away by not supporting your own party's candidate. When you consider what it would take to happen in anything other than an extreme, and extremely rare, circumstance, you realize this is symbolic decision.
What The Fuck!
One of the precise reasons that the Electoral College was created for, is to create "faithless" electors. The electors were supposed to be a check on populism and democracy, substituting the choice of respected community leaders for the mob.
... by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.
This is what I thought the judgement would be though I did not see a unanimous decision.
What if the electors have a constitutionally based power to make up their own minds and apply their personal judgment?
How can you teach Constitutional Law, and not understand that this was the precise intention?
So they can punish a faithless elector, but the faithless vote still counts?
That foils one way to replace Biden with another choice, at least in those states with faithless electors laws.
...states may require electors to support the winner of the popular vote and punish or replace those who don't.
Does this mean that states must require electors to support the winner of the popular vote?
Ann, how does this affect the effort to make electors vote for the winner of the national popular vote? Will that continue to accumulate states or will this stop it?
Secession comes next. That would make the Confederate Generals Seem less offensive They fought for States too. But both want State Secession for keeping a slavery system ....the modern Dem states wanting everyone enslaved again by Fake Science scams by UN World Governance.
It's traditional that a faithless hussy--or faithless elector should be shunned.
What's astounding is this had to go all the way to the SCOTUS since the 10th Circuit found faithless electors could NOT be punished.
In mid-August 2016, Trump-hating officials in top positions of the US Intelligence Community began developing what they called "an insurance policy" against the possibility that Donald Trump might win the Presidential election by a narrow margin in the Electoral College.
When the "insurance policy" would be enacted, several top Intelligence officials -- surely including Jim Comey, John Brennan and James Clapper -- would inform the public that all 17 Intelligence agencies concurred that Trump had won the election only by colluding with Russian Intelligence.
Based on this revelation, enough Electoral College voters might change their votes from Trump to Clinton so that Clinton would win after all.
This "insurance policy" was rehearsed in October when Clinton denounced Trump for ignoring a unanimous finding of all 17 US Intelligence agencies. A controversy about that denunciation lasted for many days, during which time Comey, Brennan and Clapper remained silent and the USA's mass media did not ask those three (or any other Intelligence officials) for an official clarification.
Yes, this should encourage the abolition of the Electoral College but the Connecticut Compromise should allow voting by states in the presidential election. One state allots votes by Congressional district I believe.
I find that Blogger deletes my comments made in Firefox so I shall have to use Chrome.
one small step for normalcy.
The real question is can a state mandate that its electoral votes go to the winner of the national popular vote and not the state vote.
Yeah, I heard on National Peoples' Radio. The other big story was that "Protesters have been
destroying Confederate statues around the country in recent weeks."
Got that? It's Protesters vs Confederates.
Narr
Nothing to see here, folks
The phrase "winner of the popular vote" is ambiguous, at least to a Colorado voter, whose State has recently adopted the idiotic direction that electors vote for the winner of the national popular vote, regardless of how a majority of the State's voters voted (contingent on some number of other States adopting the same idiocy). I take it that this case does not speak to the Constitutionality of that law.
Could a State require its Senators and Representatives to vote the way the citizens want them to vote on any given issue?
For example, in 2018 Democrat Jacky Rosen defeated Republican Dean Heller in Nevada's Senate election. Could the people of the State of Nevada punish Rosen (other than by not reelecting her in 2024) if she votes the "wrong" way on gun control?
If not, why can they in the EC?
Tim Maguire 10:35 BUT
Gahrie 10:35.
This is part of the glue that holds the system together. Was.
The Constitution gives the states the power to choose their electors- full stop. The only change to that in 220+ years is that electors can't vote for a President and Vice-President from the same state. This decision should be unanimous.
Also, this decision will support the National Popular Vote Compact legally- the states have the power to choose electors that oppose the popular votes of their own states. However, I have already predicted that the compact breaks down the very first time the agreement favors a Republican candidate in any way.
Richard: The real question is can a state mandate that its electoral votes go to the winner of the national popular vote and not the state vote.
My opinion:
Yes, it would be constitutionally permissible for an individual State to give its EC votes to the national popular vote winner. Stupid, I think, but not illegal.
However, it is unconstitutional for a group of states to enter into an agreement to do so (without Congressional approval, that is).
After Trump wins the popular vote, I expect the lamentations of the women-folk.
-Conan the Politician
"the seeming impossibility of amending the Constitution to change it"
It's just legislation writ large. If you want change it, you give up something else. Make an offer.
I can imagine all holy hell breaking loose if Trump won the majority of voters, say in Colorado, but the electors all decided to vote for Biden because California and New York voted for slow Joe in record numbers. I'm sure that's what the Colorado legislators had in mind when they drafted their law but do they really want to trigger a civil war in their own state? Doesn't seem prudent to me.
"Based on this revelation, enough Electoral College voters might change their votes from Trump to Clinton so that Clinton would win after all."
Part of this plot was an effort to provide the electors with "the dossier" and other classified disinformation to persuade them to change their votes.
ratify an abolition of the Electoral College
At which time the non-urban parts of the US should secede and fence off the cities.
The electors were supposed to be a check on populism and democracy, substituting the choice of respected community leaders for the mob.
Except now the electors are part of that "respected community leaders for the mob" group.
..states may require electors to support the winner of the popular vote and punish or replace those who don't.
t crosse Does this mean that states must require electors to support the winner of the popular vote?
No. May. but not necessarily. I believe that some States apportion their electoral college votes on a percentage basis for the votes WITHIN their individual State. Meaning that if X gets 40% of the popular vote and Y gets the remaining 60%...the the electoral votes for that State are split in proportion the the way the votes were cast in that State.
I suppose the States could say that they must vote for the National Popular vote winner...but that would really negate the purpose of the Electoral College, which was to give some balance of power to the less populated States so they wouldn't be overwhelmed by the more populous States.
If they hadn't created the Electoral College, many of the Colonies would never have consented to join the United States. There would have been no point in that they would be just as much ruled by the populated states as they were by King George and remote England.
The founders never ever wanted a completely Popular Vote or Democratic system.
No, the "Real question" is NOT can a state direct an elector, because we first had to confirm that a state can punish faithless electors. Now that we finally got that questioned answered, we can move to the question of directing an elector to vote for a majority popular vote winner.
On the surface, this is obviously wrong, since tradition dictates that the electors vote the way the state votes. The legislators are in effect taking the right to vote out of the hands of the people of a state, and telling them their vote doesn't count. All that counts is how the country as a whole votes. So, if 90% of the state voters, voted R, it wouldn't matter, because 50.1% of the USA nationwide voted D.
In fact, its worse than that. What if a 3rd party siphons off 16% of the vote? You could have an absurd case of a red state voting 65-35 R, and its electoral votes going to the D, because the D candidate got 42.1% of the nationwide vote!
But common sense, and tradition mean nothing to the D Justices and Roberts. So, who knows how the SCOTUS WOuld rule?
"Blogger SeanF said...
Richard: The real question is can a state mandate that its electoral votes go to the winner of the national popular vote and not the state vote.
My opinion:
Yes, it would be constitutionally permissible for an individual State to give its EC votes to the national popular vote winner. Stupid, I think, but not illegal.
However, it is unconstitutional for a group of states to enter into an agreement to do so (without Congressional approval, that is)."
I am not a constitutional scholar or even a lawyer so I clearly don't know how the Supreme Court would vote on this. However, wouldn't the state's giving the vote to a different candidate than the one who got the most votes in the state violate the one man one vote principle?
I wonder what an NFL kneeler would say about that? If a faithless elector is not constitutionally permitted to express an individual view, why should an employee of a team, wearing the team's uniform, playing in a team owner's stadium think it's permitted to kneel on the team's grass during the playing of the national anthem when instructed not to do so?
I'm sure that there are important distinguishing factors, but it's another case of what applies to me does not apply to thee.
- krumhorn
This PROVES the liberals on the court are all RUSSIAN ASSETS!
iHeard it on Maddow.
Get rid of the electoral college and replace it with the winner being whoever wins twenty six states. Then the flyover bumfuck states become very, very important. After the first such election the Left will push to reinstate the EC. While we are at it, require all voters for any office at any level of government be a US citizen in possession of their full civil rights and can only cast their vote in the last place they were residing six months and a day.
President Bartlet's status as a Constitutional scholar hardest hit
I don't think it would be constitutional for a state, individually or as part of a compact, to award its electoral votes on any basis other than the expressed will of the people of that state for a particular candidate. This means either popular statewide vote, popular vote by congressional or other districts, or a vote by the (popularly-elected) legislature. A state can't just award EVs according to some formula or rule that isn't based on the expressed will of the people, because that's a fundamental prerequisite of our republican (small-"r") system. For example, a state couldn't devise a scheme that says the tallest or shortest candidate gets the electoral votes, or the candidate whose birthplace is closest to the state's own state capital, or who wins a certain game of chance. By the same token, a state can't base it's award of EVs on how ANOTHER state voted any more than they could base it solely on the votes of Dixville Notch, NH. The "national popular vote" may sound to some like something official and something that could legitimately serve as a basis for electing a president, but within the overall scheme of Article II, it's just another example of an impermissible, extrinsic formula or device. A state can't just defer to another state or group of states' votes because doing so would deprive the state's own people of having a say in the awarding of electoral votes.
I don't know how you can have a democracy where millions of votes can just be overridden by some obscure person that nobody voted for. The Founders screwed up on this by not making it clear. The only job of these electors should be to make sure the majority vote is valid and passed on to the national election.
I say we just count big city votes as 3/5 of a person. Living that close to so many people makes you more of a cluster of cells in a community organism rather than a sovereign individual. Yep, 3/5 is actually generous.
A major reason for obtaining a FISA warrant against Carter Page -- a Russia-specialist foreign-policy advisor on Donald Trump's campaign staff -- was to obtain communications that could be used for "the insurance policy".
If Trump won by a narrow margin in the Electoral College, then accusations that he had won only because of Kremlin collusion might cause the necessary small number of Electoral College voters to switch their votes from Trump to Clinton so that she would win the election after all.
James Comey, John Brennan and James Clapper would inform the public that -- according to a consensus of all 17 Intelligence agencies -- Trump had won only because of such collusion.
This consensus lie already had been tested in October, when Clinton had succeeded in denouncing Trump on the basis of an alleged such consensus. Nobody in the US Intelligence Community contradicted Clinton's accusation, and the mass media parroted the accusation without asking any Intelligence officials for clarification.
The seizure of all communications related to Carter Page -- with a two-hop scope -- would provide some substance for many leaks from Intelligence officials to Trump-hating journalists. These leaks would tendentiously insinuate that Trump's associates indeed had participated in such collusion with the Kremlin.
The Electoral College voted on December 19, 2016 -- about six weeks after Election Day, November 8. Those six weeks provided enough time for the "insurance policy" to convince some Electoral College voters to change their minds, but not enough time for the collusion accusation to be disproved.
The "insurance policy" was not enacted, but only because Trump won the Electoral College by a large margin.
I am confused. If majority vote wins, what purpose does the Electoral College, as provided for in the Constitution serve? Where did SCOTUS get the power to change our form of government to a mobocracy?
I am confused. If majority vote wins, what purpose does the Electoral College, as provided for in the Constitution serve? Where did SCOTUS get the power to change our form of government to a mobocracy?
Here is a blog article that I have published.
The Change of the Cabal's Attitude Toward Steele
My article includes the following passage:
.... the cabal changed its attitude toward Steele in mid-September [2016].
Before mid-September, the cabal was focused on dealing with a future October Surprise that might cause the defeat of Hillary Clinton on Election Day, November 8. If embarrassing e-mails of Clinton were released a few days before Election Day, then during those intervening days top officials of the US Intelligence Community would assure the public that the e-mails had been stolen AND ALTERED by Russian Intelligence. This assurance would have to convince the public only for those few days. After the election, the e-mails could turn out to be unaltered.
The cabal's initial preparation for an October Surprise might be helped by the Dossier reports -- or the preparation might be troubled. If top Intelligence officials would be trying to assure the public that Russian Intelligence was to blame for the October Surprise, then allegations that, for example, Trump had been filmed watching prostitutes urinate on a hotel bed might detract from the attempted gravity of the assertions.
The cabal did not need Steele. The cabal had the CrowdStrike findings and Downer's report about Papadopoulos. That evidence would suffice to convince the public that Russian Intelligence had stolen the e-mails in order to affect the US election.
In the cabal's perspective before mid-September, Steele was mostly an unreliable, uncontrolled trouble-maker. That is why the cabal told [Christopher Steele's FBI handler Michael] Gaeta to get its permission before forwarding Steele's reports to the FBI in the USA and why Gaeta was told to block some reports and eventually to avoid Steele.
In mid-August, however, the cabal's attitude toward Steele began to shift. On August 15, Peter Strzok and Lisa Page indicated in their text messages that discussions had begun about perhaps preparing "an insurance policy" for the possibility that Trump won the election. If Trump won by just a small margin in the Electoral College .....
In relation to the cabal's new "insurance policy", Steele's Dossier might turn out to be useful. The discussions within the cabal began on about August 15 and culminated shortly before September 19, when the NYFO was instructed to delivery its six Dossier reports belatedly to the Crossfire Hurricane team in FBI Headquarters. .....
Another blog article that I have published:
The Role of the FBI's Chief Division Counsel in Hiding Dossier Reports
This article includes the following passage:
.... An unidentified person at the [FBI's Rome-based official Michael] Gaeta interview asked why the NYFO CDC [FBI's New York Field Office's Chief Division Counsel] did not send the Dossier reports directly to FBI Headquarters. In other words, why was Gaeta tasked repeatedly to e-mail Dossier reports from Rome when the NYFO CDC already had all the reports from Gaeta? Nobody at the interview could explain this mystery.
My explanation of that mystery is that the Dossier reports were given to the NYFO CDC to conceal the fact that Gaeta had sent the reports from his Rome office to anyone else in the FBI. I speculate that the NYFO CDC did not have to register its receipt and possession of the Dossier reports.
The NYFO CDC thus provided a potential plausible denial that any FBI official except Gaeta ever had even seen any of the Dossier reports. Eventually such a plausible denial became unnecessary, because the FBI officially embraced the Dossier reports. Even then, however, the NYFO CDC maintained a fiction that the NYFO CDC never had possessed the Dossier reports. That is why the NYFO CDC itself did not send the Dossier reports to FBI Headquarters.
The Horowitz report maintains that fiction, that plausible denial. The Horowitz report pretends that the Crossfire Hurricane team did not receive any Dossier reports until September 19, even though [FBI Counterintelligence Chief, Joe] Priestap must have received Dossier reports long before that date.
The routing of the Dossier reports from Gaeta's Rome office to the Crossfire Hurricane team was deliberately delayed. Part of that delay was the receipt and keeping of the Dossier reports at the NYFO CDC, without normal documentation of that receipt and keeping.
The FBI did not want the public to ever learn the role that the Dossier really played in the Crossfire Hurricane investigation from the very beginning of that investigation.
robother said...
The phrase "winner of the popular vote" is ambiguous, at least to a Colorado voter, whose State has recently adopted the idiotic direction that electors vote for the winner of the national popular vote, regardless of how a majority of the State's voters voted (contingent on some number of other States adopting the same idiocy). I take it that this case does not speak to the Constitutionality of that law.
------------==========
as there is not nor can be an entity to provide "binding official certification" of "National Popular Vote" that law is idiotic in the extreme though par for USA style legislation and jurisprudence.
I agree with DBQ but would take my criticism of the National Popular Vote Compact beyond hers.
Yes, the Compact is an agreement among states that would circumvent the Electoral College and push the country toward an election process that the framers of our republic repudiated, the popular vote. But there may be complications in attempting to implement it, even if the Compact were approved by Congress.
For example, the Compact only binds states that are a party to it and only after the total number of electoral votes equals or exceeds the majority (currently 270). But it indirectly also expects that every state uses a popular vote to select the electors. There is no requirement in the Constitution that a popular vote be used. Prior to the Civil War, some states allowed the legislature to select the electors, either entirely or some part of them. Thus, it would only take one rouge state, even one outside the Compact, to revert to such a method and suddenly there is no longer a national popular vote total on which to base the decision.
Probably if we thought about it some more we could come up with other flaws but that is the first one that popped into my mind when I first heard about this several years ago. It would seem that unless the states in the Compact could somehow enforce every state having a popular vote - and they can't - it cannot be guaranteed to work.
"The founders never ever wanted a completely Popular Vote or Democratic system."
Perhaps, but did they want some unelected guy throwing out millions of votes? I don't think so. Not sure how it happened, but the founders dropped the ball on this one.
Once the electors are thoroughly hemmed in by state laws, the Electoral College will be a vestigial organization. It will have only an arithmetic function to fulfill with no leeway for any odd events that might UNforeseeably occur. And once it is nothing but an arithmetic formula to be applied, why not change the formula? Or heck, get rid of the formula, that antiquated function from back in the dark, unenlightened past of those dead white founders.
Way too easy and therefore tempting to unprincipled humans such as we might find among the ranks of highly partisan participants.
What could possibly require good judgment outside of the arithmetic formula? A little test for your imagination. What if Joe Biden were elected in the national balloting, but died on Nov. 20? Should AOC really become President? Especially after she blurts out how she can now really jettison the Constitution and devote both her and this woebegone nation's loyalties to the progressive governments in Beijing, Havana and Teheran?
Or what if Biden is elected and still walks and talks -- but the FBI discovers on Nov. 20 evidence that the Democratic Party had violated many electoral laws in its ballot harvesting, financial contributions, and in-kind service donations from Xi? Organizing a full investigation alone would carry the agency past the Electoral College voting date, and the full investigation itself might take six to nine months. So, so unlikely, to be sure; but, what if?
What if Biden wins by one state, let's say Pennsylvania, where three of the Democratic electors know that there was extensive fraud in Allegheny County, Erie County and oh, Pike County, that swung the final total away from Trump? And, when they discuss it, and see some of the earliest evidence of tainted totals, eight more of the 20 electors reluctantly come to agree with them? OK, that last part is farfetched, I know.
But there are all sorts of juicy contingencies that could be imagined with only a little effort. Human intervention into the formula might come in handy, just as the founders foresaw. But now the Supreme Court thinks we're beyond all that stuff. Just waaayback history, completely out of the realm of possibility in this modern, enlightened world.
gadfly: "I am confused. If majority vote wins, what purpose does the Electoral College, as provided for in the Constitution serve? Where did SCOTUS get the power to change our form of government to a mobocracy?"
You know, I don't think gadfly is kidding here. I think he/she/xe is serious.
Perhaps, but did they want some unelected guy throwing out millions of votes? I don't think so
It wasn't millions of votes, most of the time not even thousands. Remember the franchise was much more restrictive, not even all White men could vote.
The Founding Fathers rightly feared the mob and democracy, which is why they worked so hard to build a republic instead.
No, Drago-
gadfly seemingly asks a legit question, then lbgtqrstxhe/r/they/them/(insert Romulan pronouns) assures itself the answer is the mob.
Blogger Narr said...
Yeah, I heard on National Peoples' Radio. The other big story was that "Protesters have been
destroying Confederate statues around the country in recent weeks." Got that? It's Protesters vs Confederates. Nothing to see here, folks. 7/6/20, 11:20 AM
Yep, "protesters" destroying Confederate Statues - like big Confederate "Columbus", Madison's own General Heg, Grant's multiple statues, etc. Hell they'll come for the 'Statue of Liberty' next.
We all know that BLM is a Marxist organization and cares less about the "Confederacy" or "Slavery" and wants "Capitalism" destroyed as it's primary goal.
Mountain Man said I agree with DBQ but would take my criticism of the National Popular Vote Compact beyond hers.
Yes, the Compact is an agreement among states that would circumvent the Electoral College and push the country toward an election process that the framers of our republic repudiated, the popular vote.
The fairest way to handle the Electoral College votes would be on a State by State basis where the States votes are apportioned according to how that State's population voted.
For instance California has 55 electoral votes. They could be apportioned by the total votes throughout the state....or by dividing the State into electoral voting districts for the Presidential race.
A look at 2016 shows that Hillary got 61% of the vote in the State and Trump got the majority of the remaining 39%.... A fair distribution would be to allot the 55 electoral votes along those percentages. This way the 30-ish percent of the population isn't just aced out. Sort of a state level electoral college.
It would be fair. But then...the Democrats are not about being fair.
The Red Counties in California are just screwed because we don't have the population. It is basically an exercise in futility for Conservative/Republican type of voters to vote in a national or even statewide election. We do it anyway.
This dynamic in California is exactly what the US would look like if the electoral college were to be abolished. Like Ca. where SF and LA are the deciding areas....it would be the most populated states like NY, California that would be deciding the race.
Montana and Idaho and Kentucky....might as well just go suck eggs.
gadfly said...
I am confused. If majority vote wins, what purpose does the Electoral College, as provided for in the Constitution serve? Where did SCOTUS get the power to change our form of government to a mobocracy?"
Are you really that ignorant? Without the EC and the Senate having equal representation for all states there wouldn't be a United States. Did they teach civics in your middle school?
The NPV is stupid beyond words. Setting aside the fact that it is impermissible as per the constitution if it were to happen this would almost guarantee the beginning of the dissolution of the USA. And if that train were to leave the station then why would anyone assume the states themselves wouldn't be indivisible? Taking things to their extreme logical conclusion three thousand counties would become the reformed USA. Of course this speculation is silly but it isn't anymore silly than the NPV.
When I lived in PA, the Elector's name was listed under the candidate's on the ballot in the general election. In the (closed) primary, the Electors were voted on separately. Now that I've moved, I can't say I've paid attention to that detail.
@DBQ: ME and NE do something different. They award two electoral votes by the statewide popular vote winner and then allocate the remainder of their votes by the winner in each congressional district.That would seem to me to be an easy and fair way to do it rather than by percentages.
Prior to the Civil War I think several other states did this. Another variation was to have the two extra votes allocated by the legislature.
I think it its first election after becoming a state TN created unique elector districts separate from the congressional districts but I think it was only done that one time.
"Probably if we thought about it some more we could come up with other flaws"
Well, it has no way to force a national recount.
When anyone talks about popular vote for President, ask what country's system they would adopt.
This decision surprised me, because I foolishly thought that the constitution protected people from being unduly coerced into voting one way or another. But by golly, it does not!
However, what does this imply? The Court has essentially ruled that because vote protection is absent from the Constitution, people can be fined for how they vote. This is all very well when one is trying to stop electors from reneging on their pledges, but surely it is open season on other kinds of votes too? For example, the State of Maryland may be able to fine the Chief Justice, who currently resides in that state, should he not vote on the Court as they desire! Why not? There's nothing in the Constitution that says they can't!
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