Side-Stepping the Electoral College

[Hosnon]

I've often read about a possible way for a select group of states to bypass the electoral college and ensure that the popular vote always determines who wins the Presidential election.

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...

U.S. Const., Art. I.

The mechanism known today as the electoral college is controlled by the individual states. To win the election today, a candidate must get 271 electoral votes. Any number of combinations of states could reach this number, with the eleven most populous being the most obvious: California, Texas, New York, Florida, Illinois, Pennsylvania, Ohio, Michigan, Georgia, North Carolina and New Jersey.

Were the legislatures of these eleven states to enact a law stating that their electoral votes would go to the candidate who won the national popular vote, the winner of the popular vote would always win the election.

This is quite possible. However, it is not the method that I find interesting but the potential Constitutional problems.

Reid v. Covert, 354 U.S. 1 (1957) clearly states that a treaty cannot amend the Constitution. Would a similar principle apply here? The drafters of the Constitution did not want the President to be determined by popular vote. If this is a Constitutional principle, it cannot be changed absent a amendment.

It is quite an interesting situation and one that would likely reach the Supreme Court if a situation such as the one in 2000 ever occurs again. My opinion is that there would likely be no Constitutional problem because it is possible that the Founders could not agree on how the President should be elected and so left the decision to the states. If so, then the above process would be completely legitimate.

Thoughts?

[Selatius]

1. A conservative interpretation would likely use similar logic found in Reid v. Covert

They would cite the original intent of the Founders, which is difficult to deny given extensive study on their attitudes towards democracy.

However, the only real way to know for sure is to implement laws in these several states and see what happens.

As the document literally states, "...in such Manner as the Legislature thereof may direct...," this implies the decision-making power on this issue is left up to individual states.

[Hosnon]

4. The language of the Constitution leads me to believe that a strict

textualist would rule it Constitutional.

It's a great scenario because it would most certainly be challenged in a repeat of Bush v. Gore.

[Selatius]

7. Yes, a strict textual interpretation would support this maneuver, but we all know that...

the judicial branch has and will continue to legislate from the bench and change its interpretation of the law.

[Hosnon]

10. I tend to agree. All bets are off when it comes to a Justice's interpretation and

a Presidential election problem.

[Solo_in_MD]

2. How do you deal with unfaithful electors in this approach?

Its happened before

[Hosnon]

5. It would be illegal (under the state's statute) for an elector to vote for

anyone but the winner of the national popular vote.

Hence the Constitutional problem...it completely destroys the need for electors and the Constitution "wants" them to be part of the process.

[Solo_in_MD]

13. I am not sure that you can compel an elector, otherwise unfaithful electors would not even exist

Its a minor point to be sure

[Hosnon]

15. Good point. I don't quite know how it works today. However, the way it works

today would probably be transferable to this new system.

[Bucky]

3. All theory, no practical field application.

The strength of our living Constitution is that it was designed with cynical men in mind. It applies the countering of opposed self-interests. It works because men are ambitious, not selfless.

Your proposal is based on the conceit that the Texas legislature would willingly endorse a Democrat candidate even if a Republican carried that state---and that the New York legislature would willingly endorse a Republican candidate even if a Democrat won their state. Such altruism is not realiable principle of government. It's better to work with human nature rather than trust that we'll all cooperate fairly in direct contrast to our own selfish interests.

On the legal question, the relationship between a treaty and the Constitution is entirely different than the relationship between state laws and the Constitution. Under normal Law of Nations, a treaty between nations supercedes the authority of a national law--even the organic law of a Constitution. Reid v. Covert aside, if our Constitution ever contradicted one of our treaties, the treaty obligation would prevail. That's how the Law of Nations works.

In practical terms, what would happen would be that when the conflict came to be tested, a federal court would probably throw out the law ratifying the "unconstitutional" treaty (assuming that a treaty that negated the Constitution could ever be ratified to begin with).

State laws by Constitutional covenant, are inferior to federal laws and all federal laws must conform to the limitations of the Constitution. They might "work around" Constitutional limits, but they can't override them.

[rinsd]

6. Excellent post (nt)

[Hosnon]

8. Well, two states: Maine and Oklahoma (I believe) already do this in reference

to the state's popular vote.

It does seem unlikely that a state, such as California, would willingly give up its clout but, as one write pointed out, there could be a "trade" between California and several other states, i.e., California would enact the statute if a group of states with the equivalent number of electors did the same.

Reid v. Covert does deal only with Treaties and the Constitution but a similar principle within the laws of the U.S. is not inconceivable. I do not see the Supreme Court letting some elaborate loophole effectively amend the Constitution. As a side note, an Article VI Treaty cannot amend the Constitution under U.S. law. The Treaty may still be valid under international law (the law of nation) but it would not be valid under U.S. law (the very thrust of Reid).

I do find it unlikely that the Supreme Court would overrule such statutes.

[Bucky]

11. The grounds for overruling such a law are pretty clear.

The Constitution explicitly guarantees to every state in the Union a republican form of government. Allowing the electoral votes of Texas to be determined by voters other than Texans is by definition non-republican (as well as non-Republican).

I don't see how California could pass a law based on the good faith assurances that Florida will try and pass the same law--particularly when the law is self-emasculating.

Besides the problems of getting hard leaner states like California, New York, and Texas to go along with this, the states that would really revolt are the big swing states: Ohio, Michigan, and Florida in particular. They're certainly not going to negotiate away their clout as the only states that matter in the current presidential elections.

Look at how badly Iowa and New Hampshire cling to their special power in the nomination process. No body of citizens will voluntarily disarm their critical source of clout in democracy. It's just not natural.

[Hosnon]

12. That's a good argument against its validity. However, the argument

could be made that the voters, by enacting the legislation through their legislators, consented to the process.

Furthermore, the statute would have little relevance to the structure of the state government. The Constitution does not set such limits on the way in which the states vote via their electors.

[Bucky]

14. Ah, the voters! There's the rub.

Pretend you're Republican State House member from Florida. You're running for renomination. You go before the voters of your district and propose that Florida negotiate away the right to determine its own votes in the US presidential elections. Do you get a standing ovation or do you get an immediate and well-funded primary opponent accusing you of selling out to the Democrats?

I'll suggest that any representative advocating such a radical program of self-disempowerment would immediately get handed his hat in the next election. A courageous statesman will sometimes defy his base supporters. No successful politician ever goes out and deliberately fucks over his core voters.

[Hosnon]

16. I agree that it may not work in large states. However, the large states are not necessary.

The rest of the "small" states, which have little clout, could conceivably find this beneficial. It would be a way for them to band together and gain power.

Plus, if the situation was such that existed right after 9/11, where it seemed impossible for a Democrat to win the Presidential popular vote in the near future, Republican Congressman/Senators would have a better go at it.

[rinsd]

9. I think CA started doing something like this until Ahnuld vetoed it (nt)