Posted on 06/03/2006 5:23:58 PM PDT by Congressman Billybob
The California Assembly just passed a bill widely described in the press as “an end run around the Electoral College.” It now goes to the California Senate, which is likely to agree. There is only one slight problem with this proposal. It is thrice-times unconstitutional.
The bill is an “interstate compact,” and has been introduced in the legislatures of most of the largest states, by do-gooders who are clueless about the Constitution and how it works. The theory is that if states possessing “a majority of the votes in the Electoral College” pass similar bills, those states would be committed to cast their College votes for the winner of the popular vote nationwide.
The claimed predicate is the constitutional clause giving state legislatures power over their Electors. Article II, Section 1, says: “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 [from that State]....” Proponents of this plan to give the ten largest states control of the Presidency apparently believe this power is unfettered.
Not so.
How have the states exercised this state power? In the first two elections, of George Washington, most states had no popular elections for President. Instead, their Electors were chosen by state legislatures. By the third election, of John Adams, popular voting was generally established. Originally, Electors were chosen in each congressional district, with the senatorial Electors chosen statewide. A total of 21 states have used this method at some point. Maine and Nebraska use it today.
In time, states switched over to the winner-take-all system, to increase their political clout. One of the last states to switch was Virginia, then the largest state. Thomas Jefferson regretted this change to a less democratic method of choosing Electors, but reluctantly agreed that Virginia had to follow the actions of the other states, or lose influence in Washington.
No state has ever conditioned the granting of any of its Electoral College votes on the decisions made by voters outside that state. Since the entire purpose of the College is to reflect the presidential choices of each state, that is the first constitutional defect in this plan.
Related to that is the guarantee to all the states contained in Article IV, Section 4, which reads: “The United States shall guarantee to every state in this union a republican form of government....” Per Aristotle’s Politics, defining the words and concepts still used to describe governments, a “republican” government rests on decisions by the people.
Sometimes, that means a direct decision by voters. Citizens of Athens could expel people by ostracism. Today, direct voter actions are initiatives, referenda, and recalls. The common form of popular decisions is election of legislators who make policy judgments by passing laws.
It is no more the business of other states to decide the outcome of an election in California, than it is for other states to decide the motor vehicle code for California, or its tax laws, or its criminal code. For any state to turn over any decision committed to its legislature to the people of other states therefore violates the guarantee of a “republican” government.
The last constitutional guarantee violated here, is the clearest one. Article I, Section 10, provides: “No state shall enter into any treaty, alliance, or confederation....” Numerous interstate compacts have been entered into by groups of states for specific purposes. The New York Port Authority is one. The states in the watershed of the Chesapeake Bay is another. The water rights compacts of western states concerning the Colorado River is yet another.
But, in accord with this clause of the Constitution, no interstate compact among states has ever been established without congressional approval. Yet, that is exactly what proponents of this legislation are attempting. Absent congressional approval, their bill they correctly describe as an “interstate compact” is a nullity, and will be so declared by the US Supreme Court in any legal challenge.
These “reformers” are trying to write the Electoral College out of the Constitution, without meeting the challenge head on, by a constitutional amendment. The College was intended to protect the interests of the smaller states, being based in part on the Senators from each state. There are enough smaller states to defeat any such amendment in Congress, or in ratification if such an amendment were passed.
So, California is, again, stomping on the Constitution. This time, the Constitution will prevail. This bill is going nowhere, even if it passes in California and other states. Genuine reform of the Electoral College IS possible without offending the Constitution, if the states return to what Jefferson favored, district election of the Electors.
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About the Author: John Armor is a lawyer specializing in constitutional law, who may again be a candidate for Congress in the 11th District of North Carolina.
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F.Y.I.
John / Billybob
Ping
The state legislature of Californication wouldn't know the Constitution from a porn mag.
Totally false. This very site educated me on this esoteric matter.
The issue per SCOTUS precident is whether the compact truncates federal perogatives. Does an electoral college compact truncate federal perogatives, when selecting electors is viewed as a peculularly state function? That is in the eye of the beholder. What will SCOTUS do if the campact ever reaches 270 electoral votes? Flip a coin. Color the handicapping a tossup.
Billybob -- What do you think the prospects are if this reaches the USSC?
Wanna bet? They'd want to ban the former (were they ever to actually read and understand it,) and make the latter required reading in public schools.
And who certifies that the popular vote is accurate?
California Dhimmirats really want a Soviet Union with sunshine..
And in a close election like 2000, we would have to do a recount in every state instead of just Florida. What a nightmare that would have been!
I guess we are to trust Dan Rather. LOL
That is the Achellis heel of this scheme. It would be like the Fruited Plain being in the Katrina eye, ten feet below sea level, all of it.
I still remember the public chuckles that the diaper and cartridge tax proposals produced. Then there was the scheme to micro engrave each bullet. We all roared ... this slug has your name on it!
Nonsense. The porn mag would look familiar.
Classic case of Tragedy of the Commons.
one per didtrict plus two statewde is the system that gives small states the most inflence.
Switch to winner take all gives more clout only if noöne else does it. But they do and now the clout goes to the big states, who didn't really need it in the first place.
What the hell...it gives them something to feel good about, and makes the legislature feel like they're doing something.
I'm a Californian, and I couldn't give a sh*t less what they do up in Sacramento...I ignore them, just as they ignore me and anything and anyplace 40 miles inland from the coast.....that's where the map color turns red quite rapidly.
Here, there IS a "federal prerogative." The Constitution sets up a state by state election of Presidents and Vice Presidents, which this particular compact clearly intends to eliminate. US Term Limits v Thornton. a dreadful decision BTW, is good law, and stands for the proposition that a change like this must be accomplished at the federal level.
That is also the fate of this idea, when it reached the Sp. Ct.
John / Billybob
You don't really think the SCOTUS ruling is a slam dunk do you? You really would not bet the farm on it would you, you savvy lawyer you? You do appreciate that this is an interesting case, where the state and federal perogatives, are at once both compelling, don't you? What are the odds do you think that SCOTUS would nix or uphold this scheme? I came out of the closet and suggested an even coin toss. What are your odds? Just do it. Call it. Post the odds.
Except Palm Springs. You know that town a bit of the way towards the devil city, from the perfect place.
See, "To the Supreme Court! I Quit," published nationally and posted on FR.
Still, with Roberts as Chief Justice and Alito replacing O'Connor, I believe the Court will follow its own precedents and strike this particular interstate compact as unconstitutional. But I hope it doesn't come to that.
I wrote this to try to head off this dumb idea in the state legislatures other than California, where it has been introduced.
John / Billybob
LOL, and Hillary's got the 'cankles' to do the stomping!!
Of course they would. They would notice that the Constitution lacks pictures. No pictures, no good.
If you read my link, you fill find there are no precedents that give any guidance as to what SCOTUS will do, when federal and state interests collide in the way this issue does. Frankly if I were on SCOTUS, at the moment, I would have no idea how I would rule. I would have to ponder it long and hard, and unleash all my smart clerks to dig up every legal nugget and policy consideration known to man. And then I would ponder some more. Some things sir, are cast in shades of grey. And when that happens, that is where and why, the best and the brightest lawyers, get paid the big bucks, just to push the rock tilting on the precipice a bit their way.
It would have been better and more accurate to say that it was first established in the election of 1796. As late as 1836, the South Carolina legislature was still electing its members to the Electoral College. (In that year, South Carolina cast its 11 electoral votes for Willie P. Mangum, a North Carolina Whig.)
If I was a member of SCOTUS (and I never will be...) I would send it back to the en banc, numbered court where it appeared, and let them work it out, if they can.
And then stand for status quo, if it came back.
I agee more with the anti-federalist writings, but dag-nab-it.... We've got to have SOME firm and fixed rules on how we run this place. The person that wants change has to make his case. Otherwise.... Status quo. Or bellum.... I'm not opposed to that option. My party has fire, mobility, and comms. The other party is pretty dumb on some of that stuff.
/johnny
I also hope that Arnold will veto it pronto.
I won't suggest odds, but I will say SCOTUS can do the most repulsive, unconstitutional things, like approve CFR by a 5-4 vote. That's why we've go to keep control of the Senate and keep our justifiable anger against President Bush about illegal aliens within reasonable bounds, lest we burn the whole house down.
I have been following this situation very carefully. I appreciate this article. It now appears this end run around the constitution is illegal. I hope so.
How about this.
Given that California is too weird a state and exercises disproportional influence in presidential elections, we the other 49 states seek to form a compact whereby the electors will vote for the candidate that loses California.
Regarding scotus and cfr, the scotus has been in the past (before alito and roberts) very pragmatic in their rulings.
They tended to defer to the legislatures if at all possible and overturned legislation only if the legislation was way out there.
For CFR, they saw a flawed law, but not so flawed as to overturn it. The practical effect of CFR has been relatively limited on elections.
This compact is in fact, way way out there in that the electors may be required to vote against their constituents. Scotus will overturn it.
But, in accord with this clause of the Constitution, no interstate compact among states has ever been established without congressional approval. Yet, that is exactly what proponents of this legislation are attempting. Absent congressional approval, their bill they correctly describe as an “interstate compact” is a nullity, and will be so declared by the US Supreme Court in any legal challenge.
CA vs. U.S. Constitution bump!
A nonnegotiable part of being a Member of the United States Republic is playing by the RULES! The ORIGINAL ones, not this monkeyshine bilge.
Colorado Democrats tried to do a split-up of electoral votes in 2004. That was a very bad idea also. As if they cared what it could really cost to put them in power....
If a state legislature tried to award electoral votes opposite of what the state voters had decided, the blowback would be interesting to watch.
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