Constitutional Crisis: Colorado Dems Pass Bill To Eliminate Electoral College

The common nationwide date for meeting of the Electoral College has been set by federal law as the first Monday after the second Wednesday in December. In particular, the U.S. Supreme Court has made it clear that the states are expected to make their "final determination" six days before the Electoral College meets.

Federal law (Title 3, chapter 1, section 6 of the United States Code) requires the states to report the November popular vote numbers (the "canvas") in what is called a "Certificate of Ascertainment." They list the number of votes cast for each. The Congress meets in joint session in January. You can see the Certificates of Ascertainment for all 50 states and the District of Columbia containing the official count of the popular vote at the NARA web site
 
The National Popular Vote bill mandates: "Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term."

This six-month “blackout” period includes six important events relating to presidential elections, namely the
● national nominating conventions,
● fall general election campaign period,
● Election Day on the Tuesday after the first Monday in November,
● meeting of the Electoral College on the first Monday after the second Wednesday in December,
● counting of the electoral votes by Congress on January 6, and
● scheduled inauguration of the President and Vice President for the new term on January 20.

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

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

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

In 1976, the U.S. District Court for the District of Maryland stated in Hellmuth and Associates v. Washington Metropolitan Area Transit Authority:
“When enacted, a compact constitutes not only law, but a contract which may not be amended, modified, or otherwise altered without the consent of all parties.”

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

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

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

Interstate compacts are supported by over two centuries of settled law guaranteeing enforceability. Interstate compacts exist because the states are sovereign. If there were no Compacts Clause in the U.S. Constitution, a state would have no way to enter into a legally binding contract with another state. The Compacts Clause, supported by the Impairments Clause, provides a way for a state to enter into a contract with other states and be assured of the enforceability of the obligations undertaken by its sister states. The enforceability of interstate compacts under the Impairments Clause is precisely the reason why sovereign states enter into interstate compacts. Without the Compacts Clause and the Impairments Clause, any contractual agreement among the states would be, in fact, no more than a handshake.
 
In 1789, in the nation's first election, a majority of the states appointed their presidential electors by appointment by the legislature or by the governor and his cabinet, the people had no vote for President in most states, and in states where there was a popular vote, only men who owned a substantial amount of property could vote, and only three states used the state-by-state winner-take-all method to award electoral votes.

As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all method is used by 48 of the 50 states. States can, and have, changed their method of awarding electoral votes over the years. Maine (in 1969) and Nebraska (in 1992) chose not to have winner-take-all laws

The current winner-take-all method of awarding electoral votes is not in the U.S. Constitution. It was not debated at the Constitutional Convention. It is not mentioned in the Federalist Papers. It was not the Founders’ choice. It was used by only three states in 1789, and all three of them repealed it by 1800. It is not entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all method. The winner-take-all method of awarding electoral votes became dominant only in the 1880s after the states adopted it, one-by-one, in order to maximize the power of the party in power in each state.. The Founders had been dead for decades

The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding a state's electoral votes.

States have the responsibility and constitutional power to make all of their voters relevant in every presidential election and beyond. Now, 38 states, of all sizes, and their voters, because they vote predictably, are politically irrelevant in presidential elections.
 
Under National Popular Vote, every voter, everywhere, for every candidate, would be politically relevant and equal in every presidential election. Every vote would matter equally in the state counts and national count.

The vote of every voter in the country (Democrat, Republican, Libertarian, or Green) would help his or her preferred candidate win the Presidency. Every vote in the country would become as important as a vote in a battleground state such as New Hampshire, Ohio, or Florida. The National Popular Vote plan would give voice to every voter in the country, as opposed to treating voters for candidates who did not win a plurality in the state as if they did not exist.

The National Popular Vote bill would give a voice to the minority party voters for president in each state. Now they don't matter to their candidate.

In 2012, 56,256,178 (44%) of the 128,954,498 voters had their vote diverted by the winner-take-all rule to a candidate they opposed (namely, their state’s first-place candidate).

And now votes, beyond the one needed to get the most votes in the state, for winning in a state, are wasted and don't matter to presidential candidates.
 
“The bottom line is that the electors from those states who cast their ballot for the nationwide vote winner are completely accountable (to the extent that independent agents are ever accountable to anyone) to the people of those states. The National Popular Vote states aren’t delegating their Electoral College votes to voters outside the state; they have made a policy choice about the substantive intelligible criteria (i.e., national popularity) that they want to use to make their selection of electors. There is nothing in Article II (or elsewhere in the Constitution) that prevents them from making the decision that, in the Twenty-First Century, national voter popularity is a (or perhaps the) crucial factor in worthiness for the office of the President.”
- Vikram David Amar - professor and the Associate Dean for Academic Affairs at the UC Davis School of Law. Before becoming a professor, he clerked for Judge William A. Norris of the United States Court of Appeals for the Ninth Circuit and for Justice Harry Blackmun at the Supreme Court of the United States.

In Gallup polls since 1944 until before this election, only about 20% of the public has supported the current system of awarding all of a state's electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided).

Support for a national popular vote has been strong among Republicans, Democrats, and Independent voters, as well as every demographic group in every state surveyed. In the 41 now shown on divisive maps as red, blue, and purple states surveyed, overall support has been in the 67-81% range -in rural states, in small states, in Southern and border states, in big states, and in other states polled.

In state polls of voters each with a second question that specifically emphasized that their state's electoral votes would be awarded to the winner of the national popular vote in all 50 states, not necessarily their state's winner, there was only a 4-8% decrease of support.

Question 1: "How do you think we should elect the President: Should it be the candidate who gets the most votes in all 50 states, or the current Electoral College system?"

Question 2: "Do you think it more important that a state's electoral votes be cast for the presidential candidate who receives the most popular votes in that state, or is it more important to guarantee that the candidate who receives the most popular votes in all 50 states becomes president?"
 
State election laws are not identical now nor is there anything in the National Popular Vote compact that would force them to become identical. The bill retains the constitutionally mandated Electoral College and state control of elections, and uses the built-in method that the Constitution provides for states to make changes for how to award their electors.
 
Wallet said:
Amend the Constitution.

The United States of America was designed and formed as a "Constitutional Republic" not an open democracy for specific reasons.
More...

The U.S. Constitution says "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . ."
The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as "plenary" and "exclusive."

The normal way of changing the method of electing the President is not a federal constitutional amendment, but changes in state law.

Historically, major changes in the method of electing the President have come about by state legislative action. For example, the people had no vote for President in most states in the nation's first election in 1789. However, now, as a result of changes in the state laws governing the appointment of presidential electors, the people have the right to vote for presidential electors in 100% of the states.

In 1789, only 3 states used the winner-take-all method (awarding all of a state's electoral vote to the candidate who gets the most votes in the state). However, as a result of changes in state laws, the winner-take-all method is now currently used by 48 of the 50 states.

In 1789, it was necessary to own a substantial amount of property in order to vote; however, as a result of changes in state laws, there are now no property requirements for voting in any state.

In other words, neither of the two most important features of the current system of electing the President (namely, that the voters may vote and the winner-take-all method) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation's first presidential election.

The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes. The abnormal process is to go outside the Constitution, and amend it.

The National Popular Vote bill is 64% of the way to guaranteeing the majority of Electoral College votes and the presidency in 2020 to the candidate who receives the most popular votes in the country, by changing state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), without changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes.

Being a constitutional republic does not mean we should not and cannot guarantee the election of the presidential candidate with the most popular votes. The candidate with the most votes wins in every other election in the country.
 
Tsing Tao said:
As usual, I'm not sure the Democrats have actually thought this through. If Colorado is just going to vote whatever the national vote does, then why campaign at all in Colorado? All that money spent campaigning in the state...just bypass it and campaign elsewhere.
More...

Colorado votes would be included in the national popular vote. The goal would be to get the most popular votes from all 50 states and DC.

A successful nationwide presidential campaign of polling, organizing, ad spending, and visits, with every voter equal, would be run the way presidential candidates campaign to win the electoral votes of closely divided battleground states, such as Ohio and Florida, under the state-by-state winner-take-all methods. In the 4 states that accounted for over two-thirds of all general-election activity in the 2012 presidential election, rural areas, suburbs, exurbs, and cities all received attention—roughly in proportion to their population.

The itineraries of presidential candidates in battleground states (and their allocation of other campaign resources in battleground states, including polling, organizing, and ad spending) reflect the political reality that every gubernatorial or senatorial candidate knows. When and where every voter is equal, a campaign must be run everywhere.

With National Popular Vote, when every voter is equal, everywhere, it makes sense for presidential candidates to try and elevate their votes where they are and aren't so well liked. But, under the state-by-state winner-take-all laws, it makes no sense for a Democrat to try and do that in a Red or Blue state, or for a Republican to try it in a Red or Blue state.

Because of state-by-state winner-take-all laws for Electoral College votes, not mentioned, much less endorsed, in the Constitution . . . Colorado, now Blue, is not expected to be visited by presidential candidates in the 2020 general election.

Almost all small and medium-sized states and almost all western, southern, and northeastern states are totally ignored.

Our presidential selection system has cut out 4 of every 5 people living in America from the decision. Presidential elections shrink the “sphere” (to use Madison’s coinage) of public debate to only a few thousand swing voters in a few states.

The Cook Political Report, as of Jan. 10, 2019, believes “There are just five toss up states, representing 86 electoral votes: Arizona, Florida, Michigan, Pennsylvania and Wisconsin.”

The Columbus Dispatch, as of Jan. 9, 2019, believes there will be “just seven states [with 105 electoral votes, where the winner is not predictable already] to allocate. Trump will be 66 electoral votes shy of re-election and the Democratic ticket will need 41 electoral votes to win back the presidency. The seven states are Arizona (11), Florida (29), Michigan (16), New Hampshire (4), North Carolina (15), Pennsylvania (20) and Wisconsin (10).”

Wisconsin Gov. Scott Walker in 2015 was correct when he said
"The nation as a whole is not going to elect the next president,"
“The presidential election will not be decided by all states, but rather just 12 of them.

Candidates have no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they are safely ahead or hopelessly behind.

With the end of the primaries, without the National Popular Vote bill in effect, the political relevance of 70% of all Americans was finished for the presidential election.

In the 2016 general election campaign
Over half (57%) of the campaign events were held in just 4 states (Florida, North Carolina, Pennsylvania, and Ohio).

Virtually all (94%) of the campaign events were in just 12 states (containing only 30% of the country's population).

In the 2012 general election campaign
38 states (including 24 of the 27 smallest states) had no campaign events, and minuscule or no spending for TV ads.

More than 99% of presidential campaign attention (ad spending and visits) was invested on voters in just the only ten competitive states.

Two-thirds (176 of 253) of the general-election campaign events, and a similar fraction of campaign expenditures, were in just four states (Ohio, Florida, Virginia, and Iowa).

In the 2008 campaign, candidates concentrated over 2/3rds of their campaign events and ad money in just 6 states, and 98% in just 15 states. Over half (57%) of the events were in just 4 states (OH, FL, PA, and VA).

In 2004, candidates concentrated over 2/3rds of their money and campaign visits in 5 states; over 80% in 9 states; and over 99% of their money in 16 states.
 
Ottootto, 48 posts in two threads with half in this one and half back in 2017 with another thread, machine gunned just like this one. That's an interesting posting history.

Almost looks like a bot or something.
 
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