Just saying I'm a fan of the electoral college

[ebartley]

Romney's ahead in the popular vote totals, and has been for a while. I don't know if the west coast is finished coming in yet, but I'm just while he is that I want the election decided on the basis of the electoral college, not the popular vote

Comments

[ebartley]

I really hope we never open that can of worms.

Constitution:

Article 1 Section 10 second paragraph

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Article 2 Section 1 second paragraph

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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

So ... are those laws an agreement with another state? They're set not to go off until other states act, but not specific other states. And if they are an agreement, which takes precedence, the legislature directing the appointment of electors or the prohibition on inter-state agreements without consent of Congress?

I'm not saying those laws are unconstitutional. I'm saying I don't know (except that congress can if it so chooses allow this) ... and the Supreme Court isn't allowed to rule until there's a live case before them.

[lhn]

I'm also concerned about the constitutionality of the implementation. Electors are federal officials, so states (probably) can't impose binding voting requirements on them, any more than they can require that all representatives from the state vote with the party that controls the legislature.

On the other hand, the Constitution allows the appointment of electors "in such Manner as the Legislature thereof may direct". So the legislature might be able to just choose the party-selected slate that reflects the NPV. But I'm not sure if effectively disenfranchising the citizens of the state in the selection of their state's electors (by effectively drowning them out with a hundred+ million other votes) would pass the "republican form of government" test. There's also the Fourteenth Amendment:

"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, 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." (With "male" obsoleted by the 19th, and "twenty-one" by the 26th.)

At the state level, it's strongly arguable that the right to vote for electors is being abridged by making votes by noncitizens of the state the primary determinant of the electoral delegation.

(Hypothetical: could a state constitutionally choose electors based on the preferences of a plebiscite held by Canada, if the legislature so determined?)

[agrumer]

I suspect it only becomes a problem if one of the signatory states decides to default.

Congress can't prohibit a bunch of states from all deciding to change their laws in the same way; that's how the Uniform Commercial Code works. But treating that group decision as a contract, enforceable in court, now that probably takes the agreement of Congress, like founding the Port Authority did.

[ebartley]

My concerns with the constitutionality of the law wrt the compact prohibition are because the laws are triggered by the laws of other states. If state governments passed laws immediately after each presidential election making their electoral votes depend on the popular vote -- and then repealed them immediately before every presidential election if there weren't enough other states doing the same -- I think that would successfully detour around the interstate compact prohibition. Having it written into the laws that the implementation depends on a sufficiency of other states doing the same smells like an interstate compact to me.