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Breaking the Constitution National Popular Vote Interstate Compact
Townhall.com ^ | May 3, 2014 | Hank Adler

Posted on 05/03/2014 6:53:48 AM PDT by Kaslin

Just another group of New York lawyers:

“Let’s see if we can find a loophole in the Constitution of the United States and amend the Constitution without a Constitutional Amendment.”

“Let’s skip any vote required by Congress, let’s skip the required vote of the states and let’s skip a Constitutional Convention --- oh, and let’s not even ask the people of New York.”

Looking for a loophole. That is what we just love about lawyers, isn’t it?

Governor Cuomo has signed, on behalf of the people of New York, the National Popular Vote Interstate Compact. This Compact would result in the State of New York voting each of its electoral votes for the winner of the national popular vote regardless of the actual vote of the citizens of New York.

The Compact would become effective when and if states controlling 270 electoral votes, a number sufficient to elect the President, pass identical contractually binding legislation. State delegates in each of these states would thereafter be required to ignore their constituents and vote their state’s electoral votes for the winner of the national popular vote.

Without a vote of the people of New York, the New York legislature and the Governor agreed to essentially change the Constitution of the United States, risk the possibility that the State of New York will vote its electoral votes for a person other than the candidate selected by the people of New York and ultimately cause yet another presidential election to be decided by the Supreme Court of the United States.

There could be no greater irony than Governor Cuomo signing a bill to disenfranchise the roughly 13,000,000 million registered voters of New York. Ignoring all intellectual positions, the Governor must know that if in 2004, 59,300 Ohioans had voted for John Kerry instead of George W. Bush, Senator Kerry would have become President despite having lost the national popular vote by over 3 million votes. New York voted overwhelmingly (58%) for Mr. Kerry. If the National Popular Vote Compact had been in place, every New York electoral vote would have gone to President Bush and made him the President of the United States instead of Mr. Kerry.

This notion that a number of states controlling 270 electoral votes (theoretically possible with the approval of only 11 states) should be able, by a contract among themselves, affect a "poor man's constitutional amendment" to the Constitution of the United States is fascinating. This should be abhorrent to anyone with the slightest interest in the vitality and history of the Constitution. Such a plan would reduce the combined voting impact of the voters of Vermont, Wyoming, North Dakota and South Dakota in the presidential race to that of Brooklyn.

The Founders' conceptual framework for electing a President insured that urban voters of a few states could not totally control the selection of the President. Electing a President through a national popular vote would obliterate this concept.

Oh yes, the Compact is likely unconstitutional. Article 2 of the Constitution of the United States does allow each state legislature almost unlimited power to direct their electors in casting their electoral votes for President. However, two other articles of the Constitution individually and collectively trump Article 2.

First, Article 1 of the Constitution specifically prohibits agreements between States without the consent of Congress. While this clause has been judicially narrowed over time, it is unlikely that it has been narrowed sufficiently to allow the National Popular Vote compact without Congressional consent.

Second, this "poor man's constitutional amendment" is specifically designed to circumvent the Constitution. Without reservation, its sole purpose is to avoid the constitutionally necessary and likely unattainable requirement of ratification of this notion by three quarters of the states under Article 5. Would the Supreme Court allow such a result? I think not.

Under either Articles 1 & 5, separately and certainly collectively, the Supreme Court should hold the Compact unconstitutional. But here is the rub. First there would have to be an election, then there would have to be a lawsuit, then the Supreme Court would have to decide if the winner of a presidential election would be the winner according to the Constitution or via a loophole developed by approved by a bunch of New York lawyers. Then, instead of an election determined by the popular vote or the electoral system, the president would be determined by a majority of the then nine Supreme Court judges. Disaster!

The Compact contemplates neither multiple or regional candidates. The proposal does not contemplate a popular third party candidate emerging in 2016 or thereafter. It is not inconceivable that a candidate could win but two or three states, but do well across the country and win the presidency.

That any state legislature could be taking actions to approve a "poor man's constitutional amendment" rather than moving forward with a proper constitutional amendment as envisioned by the Founders is unacceptable. That any state legislature would consider ignoring their constituents' votes through their own affirmative action should be reserved for the fiction section of our local libraries.


TOPICS: Constitution/Conservatism; Culture/Society; Editorial
KEYWORDS: amendment; andrewcuomo; constitutional; nationalpopularvote
Navigation: use the links below to view more comments.
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1 posted on 05/03/2014 6:53:48 AM PDT by Kaslin
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To: Kaslin

It’s also a mass disenfranchisement of voters in a particular state.


2 posted on 05/03/2014 6:57:50 AM PDT by headstamp 2 (What would Scooby do?)
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To: Kaslin
Ignoring all intellectual positions, the Governor must know that if in 2004, 59,300 Ohioans had voted for John Kerry instead of George W. Bush, Senator Kerry would have become President despite having lost the national popular vote by over 3 million votes. New York voted overwhelmingly (58%) for Mr. Kerry. If the National Popular Vote Compact had been in place, every New York electoral vote would have gone to President Bush and made him the President of the United States instead of Mr. Kerry.

Something is wrong with this argument. I'm pretty certain that President Bush *did* become president in 2004. Whatever point the author was trying to make here is hopelessly muddy.

3 posted on 05/03/2014 7:00:15 AM PDT by exDemMom (Current visual of the hole the US continues to dig itself into: http://www.usdebtclock.org/)
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To: Kaslin

These kinds of machinations are what scares me about recent attempts to begin the process to hold a convention of states intended to reinforce the basic tenets of the US Constitution. Frankly, I don’t think the proponents for this could reasonably control the process and keep our enemies from interfering and subverting the process.


4 posted on 05/03/2014 7:00:49 AM PDT by Gaffer (Comprehensive Immigration Reform is just another name for Comprehensive Capitulation)
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To: Kaslin
the roughly 13,000,000 million registered voters of New York.

Thass a LOT of voters!

5 posted on 05/03/2014 7:03:46 AM PDT by Sherman Logan
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To: Kaslin

.......there’s no question that silver spoon Cuomo and lawyer and governor Cuomo, indeed all 3 of those people are “Leaders” of The Left in this country. Only Obama, Biden and Kerry, all three lefties too, are higher in the Marxist food chain in the US.

There’s also no question that The Left has declared war on the Constitution! They know they can’t kill it outright but “death by a thousand cuts” is their goal.

The only question is “Is The Right going to have the backbone and stamina to resist and defeat these bastards over the long haul?”


6 posted on 05/03/2014 7:05:10 AM PDT by Cen-Tejas (it's the debt bomb stupid!)
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To: headstamp 2
It's a mass disenfranchisement of voters in states that are almost exclusively "Blue," so let's keep quiet about this and let them keep working their way through this.

Every state that has passed this stupid measure has voted for Democratic presidential candidates for years, so I can't imagine a scenario where any of these states would be in a position to change their votes from a Republican candidate who wins the most votes in the state to a Democratic candidate who loses the state but wins the "national popular vote."

The whole discussion here is idiotic. If you go back over the last few elections and see how this would have played out in the past, you'll find that it rarely would have been applied and it never would have done much except change the margin of victory for the winning candidate in a presidential election. For example, what you find is that a lot of "Blue" states would have been changing their electoral votes from John Kerry to George W. Bush in 2004.

7 posted on 05/03/2014 7:05:44 AM PDT by Alberta's Child
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To: Gaffer

Former MI GOP chairman Saul Anuzis got into some trouble for pimping this national popular vote crap.

Fred Thompson is another NPV pimp.


8 posted on 05/03/2014 7:07:24 AM PDT by cripplecreek (Remember the River Raisin.)
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To: exDemMom

It’s just an argument for getting what they want in spite of the rules of the Electoral vote process. In my mind, a national popular vote would relegate the control of this country to the whims of maybe 20 or 30 highly populated cities and counties (mainly leftists).

Regional rights and legitimate interests would be subsumed to a few areas where targeted government influence could make all others’ needs irrelevant.

Whenever someone says to me “Why should Wyoming have two Senators?” I reply, “Why in the hell should Rhode Island have two?”

On the one hand, the entire spiel of leftists is the richness of “Diversity, inclusion and fairness”. Yet when it comes to engineering a foolproof way to ensure continual power, they bristle at it. They can go screw themselves.


9 posted on 05/03/2014 7:08:54 AM PDT by Gaffer (Comprehensive Immigration Reform is just another name for Comprehensive Capitulation)
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To: cripplecreek

NPV subverts the context of this country being a Constitutional Republic. In effect, it would relegate it to being nothing but a mob democracy where individual rights are damned at the whim of the mob.


10 posted on 05/03/2014 7:11:20 AM PDT by Gaffer (Comprehensive Immigration Reform is just another name for Comprehensive Capitulation)
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To: Alberta's Child

The bill they passed in the Michigan house some years ago included an opt out clause in case it looked like the democrats were going to lose.

You are foolish if you think the democrats have overlooked the possibility of losing.


11 posted on 05/03/2014 7:12:37 AM PDT by cripplecreek (Remember the River Raisin.)
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To: Kaslin
First there would have to be an election, then there would have to be a lawsuit, then the Supreme Court would have to decide if the winner of a presidential election would be the winner according to the Constitution or via a loophole developed by approved by a bunch of New York lawyers.

I'm not an attorney, but there might be an alternate route.

I don't see why the state of WY could not file suit against one or more states with this Compact in place. Supreme Court would have original jurisdiction, and presumably could determine whether it is or is not constitutional prior to an election.

Possibly even a citizen of NY could file such a lawsuit, which again would go straight to the Supremes.

Article III, Section 2. In all Cases ... in which a State shall be Party, the supreme Court shall have original Jurisdiction.

If somebody with better understanding of constitutional law could comment on whether a state or voter could file such a suit against a state for this reason, I'd appreciate it.

12 posted on 05/03/2014 7:13:55 AM PDT by Sherman Logan
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To: Kaslin

Sorry (well not really) but I think the AC is an anachronistic joke. Every single campaign just floods a handful of areas. A handful of voters have WAY too much power. While we should amend the Constitution to get rid of the EC, this is a States’ Rights matter. They get to assign their EVs as they please. So if one has a problem with this, it again pints out with this anachronism.

Get rid of the EVs. I hope the States do this. And besides, if you can’t get a majority of the people to elect your guy, you don’t deserve to have your guy elected. Every other election in this Nation is popular vote.


13 posted on 05/03/2014 7:16:13 AM PDT by RIghtwardHo
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To: Kaslin

This foolishness was started after the 2000 election. It is only gaining popularity in liberal states where of course the powers believe it will allow them to elect a liberal candidate in the event of another popular vote vs electoral vote schism. The first time a conservative wins the popular vote these libs will be running for the exits clinging to their seldom read copies of the Constitution.


14 posted on 05/03/2014 7:18:37 AM PDT by redangus
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To: headstamp 2

“It’s also a mass disenfranchisement of voters in a particular state.”

Voting for electors is not required. State Legislatures have complete authority over how electors are chosen. Voting by citizens of the states is optional.


15 posted on 05/03/2014 7:19:26 AM PDT by Jim Noble (When strong, avoid them. Attack their weaknesses. Emerge to their surprise.)
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To: RIghtwardHo

You do realize that the term “State” and not “Province” is used to describe each State?

Do you understand why? Because the word State means “country”. We are fifty separate countries united by a Constitution. Each candidate for the Presidency of this union of countries is elected by fifty separate countries. Each one of those countries deserves to have the right to have a voice in the election of their President.

That is why the Electoral College is important. Each country (State) in the union deserves to have a solid, form voice. Not just the thirty biggest metropolitan areas.


16 posted on 05/03/2014 7:23:16 AM PDT by Anitius Severinus Boethius (www.wilsonharpbooks.com - Eclipse, the sequel to Bright Horizons is out! Get it now!)
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To: Jim Noble

What is your opinion on proportional elector selection by a particular state?


17 posted on 05/03/2014 7:24:19 AM PDT by headstamp 2 (What would Scooby do?)
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To: Gaffer
In my mind, a national popular vote would relegate the control of this country to the whims of maybe 20 or 30 highly populated cities and counties (mainly leftists).

As opposed to the present system, where the election hinges on the results from a handful of "swing states."

18 posted on 05/03/2014 7:27:35 AM PDT by Sherman Logan
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To: headstamp 2
What is your opinion on proportional elector selection by a particular state?

I think the power of State Legislatures over the appointment of their electors is plenary and unreviewable (except for an illegal interstate compact).

Any method a Legislature chooses is fine, including proportional appointment.

19 posted on 05/03/2014 7:30:25 AM PDT by Jim Noble (When strong, avoid them. Attack their weaknesses. Emerge to their surprise.)
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To: Anitius Severinus Boethius

Just look at what happened to the senate when we started electing senators by popular vote. In most states, the cities elect the senator.


20 posted on 05/03/2014 7:32:21 AM PDT by cripplecreek (Remember the River Raisin.)
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To: Sherman Logan

You are never going to convince me that concentrated population voting is better than dispersed regional interests of a national people.

The true dispersed diversity of this country, not the racial and ethnic diversity popularized by devious Democrat interests, is what makes it great. To relegate its future a bunch of self serving, self interested ideologues with no real connection to the rest of this country is the worst possible thing that could happen to America in my opinion.

It is true that there are a number of swing states that seem to control the debate and outcome, but one thing you always have to remember: Democrat rule and policies in these areas eventually out themselves and the tide changes.

It is PRECISELY WHY they are hell bent on taking all that out of the equation and want opt for the popular vote so they don’t have to work against a few Governors, a few state legislatures, etc. They’ll only have to enslave NYC, LA County, and Chicago, etc. with Democrat rule and they are in perpetual power.

Hell no.


21 posted on 05/03/2014 7:38:30 AM PDT by Gaffer (Comprehensive Immigration Reform is just another name for Comprehensive Capitulation)
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To: exDemMom
President Bush was reelected in 2004. He was elected in 2000. There is a difference between being elected and being reelected. John who was in Nam Kerry ran for election in 2004 and President Bush for his reelection.

I think you misunderstood the author.

22 posted on 05/03/2014 7:42:14 AM PDT by Kaslin (He needed the ignorant to reelect him, and he got them. Now we all have to pay the consequenses)
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To: headstamp 2

“It’s also a mass disenfranchisement of voters in a particular state.”

I propose a new voting system that will not change the constitution.

My suggestion is a point system. Every county gets one point. You win the county, you get a point. Most points win the electoral votes of that state. This way if there is 115% of the vote in one county, a firewall is built in that only allows for one point.

You also hold down disenfranchisement in that the votes of one county do not impact the entire state. So Cook County, have at it. You want another 100,000 dead people to vote,go for it.

The rats cannot argue it. They don’t want voter ID, cool. They have an issue with minorities voting? Cool. They dont even have to worry about SCOTUS because there is no issue with the Constitution. It’s a state decision.

What’s great about this is the only argument he rats have is that 83% of the counties in the country vote Republican, which then becomes more representative of the people. 6 cities should not dictate how our government should be aligned.


23 posted on 05/03/2014 7:46:47 AM PDT by EQAndyBuzz ("Heck of a reset there, Hillary")
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To: cripplecreek

You don’t know chit about Fred Thompson. You live in Michgan


24 posted on 05/03/2014 7:47:21 AM PDT by Kaslin (He needed the ignorant to reelect him, and he got them. Now we all have to pay the consequenses)
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To: Kaslin
Video.

"We live in a time when the American people are increasingly cynical about their government's ability to deal with our most pressing problems," said Thompson. "This means that there is a need for bold, effective presidential leadership as never before. Therefore, we simply can no longer afford to run the risk of having a president who is handicapped by not having won the most popular votes. The National Popular Vote approach offers the states a way to deal with this issue in a way that is totally consistent with our constitutional principles."

- Fred Thompson

Fred Thompson endorses National Popular Vote

Call me an idiot again moron.
25 posted on 05/03/2014 7:53:53 AM PDT by cripplecreek (Remember the River Raisin.)
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To: Kaslin

In that passage, the author is discussing several “what-if” scenarios that would have led to President Bush rather than President Kerry. Since we did, in fact, end up with President Bush following that election, the author failed (IMO) to make his point.


26 posted on 05/03/2014 7:55:32 AM PDT by exDemMom (Current visual of the hole the US continues to dig itself into: http://www.usdebtclock.org/)
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To: Kaslin
Constitution, Schmonstitution!

These days the Constitution is what a bunch of rich, scheming Liberal lawyers says it is - not what the Founding fathers drafted and the States agreed to. In our post-modern world, truth is what they say it is and not what it actually is.

That's the way of all tyrants.

27 posted on 05/03/2014 7:57:13 AM PDT by Gritty (Gun controllers aren't afraid of guns but a country where the individual has power-Dan Greenfield)
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To: cripplecreek
First of all I didn't call you an idiot or any name at all and I as a lady demand an apology from you for calling me a moron, or otherwise don't bother to post on any of my threads anymore

Got it

28 posted on 05/03/2014 8:11:56 AM PDT by Kaslin (He needed the ignorant to reelect him, and he got them. Now we all have to pay the consequenses)
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To: exDemMom
Dear ExDemMom,

I think the author made his point.

What he's saying is that from an electoral vote point of view, John Kerry very nearly won the election. 60K vote swing in Ohio would have meant President Kerry (I shudder as I type).

However, if this compact had been in place, President Bush would have STILL been re-elected.

As this abomination is being pushed primarily by liberal Democrats, of which the scum of Satan Cuomo is a chief exemplar, it would seem that in the last election where it was electorally close (2004), if the popular results hadn't matched the electoral college results, the backers of this monstrosity would have frustrated their own ends - to elect a president from Hell.

A little circuitous, but not an unreasonable example.

The moral of the argument, in this case, is “be careful what you wish for.”


sitetest

29 posted on 05/03/2014 8:34:27 AM PDT by sitetest (If Roe is not overturned, no unborn child will ever be protected in law.)
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To: headstamp 2

“It’s also a mass disenfranchisement of voters in a particular state.”

Voting for electors is not required. State Legislatures have complete authority over how electors are chosen. Voting by citizens of the states is optional.


30 posted on 05/03/2014 8:45:14 AM PDT by Jim Noble (When strong, avoid them. Attack their weaknesses. Emerge to their surprise.)
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To: Jim Noble

“... Voting for electors is not required.
State Legislatures have complete authority over how electors are chosen ...”
-
You are correct, sir,
and that may provide for a counter measure to the “National Popular Vote” foolishness.

Supposing that the legislatures from several States
(Georgia, Alabama, Mississippi, Louisiana, Texas, and others...)
were to decide to create a compact of their own,
wherein the legislatures would directly appoint their presidential electors
(as is within their authority under the Constitution),
then no national popular vote tally would exist for the NPV states to relate to.


31 posted on 05/03/2014 9:15:35 AM PDT by Repeal The 17th (We have met the enemy and he is us.)
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To: Repeal The 17th
One of the major problems, should the compact be concluded AND should it be approved by Congress would be defining the "national popular vote" and deciding who would validate the enumeration.

I mean, we're not going to ask ABC News who won.

Are we?

32 posted on 05/03/2014 10:05:23 AM PDT by Jim Noble (When strong, avoid them. Attack their weaknesses. Emerge to their surprise.)
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To: Jim Noble

Or even a more simple counter measure...
supposing the legislatures from several States directed their secretary of state
to not release their state’s presidential popular vote tally
until after the electoral college had met.


33 posted on 05/03/2014 10:55:12 AM PDT by Repeal The 17th (We have met the enemy and he is us.)
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To: Repeal The 17th

How would the state determine who the electors should be?


34 posted on 05/03/2014 10:59:29 AM PDT by jjotto ("Ya could look it up!")
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To: Jim Noble
Another error in the column is this one:

The Founders' conceptual framework for electing a President insured that urban voters of a few states could not totally control the selection of the President.

THAT had absolutely zero to do with the Framers' debates on how to select a national executive.

35 posted on 05/03/2014 11:03:34 AM PDT by Jacquerie (By their oaths, it is the duty of state legislators to invoke Article V.)
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To: Gritty
Yes, there is the written constitution that Freepers refer to, and the unwritten Frankenstein Constitution of congress, courts and Obama.

Elections alone will not rid us of the Frankenstein Constitution.

36 posted on 05/03/2014 11:14:14 AM PDT by Jacquerie (By their oaths, it is the duty of state legislators to invoke Article V.)
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To: jjotto; Jim Noble

You can announce the winner without announcing the tally.
As Jim Noble (courtesy ping) pointed out in his #32,
How will the states in the NPV compact define “the popular vote”?
Who would validate that enumeration? ABC News?


37 posted on 05/03/2014 11:17:22 AM PDT by Repeal The 17th (We have met the enemy and he is us.)
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To: Jacquerie

Fancy bumping into you here!
Hope you are well.


38 posted on 05/03/2014 11:18:52 AM PDT by Repeal The 17th (We have met the enemy and he is us.)
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To: Gaffer
With passage of the 17th Amendment our federal FreeRepublic was transformed overnight into a dangerous democratic republic.

Instead of diffused power among the states, ALL power collected in DC. It is a wonder and testament to the American tradition that it took almost a hundred years for an Obama to appear.

Until powers are once again vertically separated between the states and the government they created, there is zero hope for restoration of freedom.

39 posted on 05/03/2014 11:24:08 AM PDT by Jacquerie (By their oaths, it is the duty of state legislators to invoke Article V.)
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To: Repeal The 17th

You betcha!


40 posted on 05/03/2014 11:24:36 AM PDT by Jacquerie (By their oaths, it is the duty of state legislators to invoke Article V.)
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To: exDemMom
Whatever point the author was trying to make here is hopelessly muddy.

I guess he's trying to say that Cuomo would have wanted Kerry to win even if he got fewer votes and Cuomo's own plan would have prevented this.

I agree with you. It's confusing and a weak argument. Presumably, by proposing the plan, Cuomo would have been okay with Kerry losing the presidency if he got fewer popular votes nationwide.

While the governor may really want Democrats to win, one can't simply assume that this plan is designed purely to ensure Democrat victories.

It may be a very lousy plan but the author's logic looks faulty here (the conditional "would have" grammar may also be confusing).

41 posted on 05/03/2014 11:41:00 AM PDT by x
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To: x

Another problem with this scheme will occur when each State in the compact “decides” who won. For example - 2016 Cruz beats HRC by 50 000 votes. California and NY announce they won’t recognize Texas returns because of voter suppression, and appoint electors to vote for HRC.


42 posted on 05/03/2014 11:48:20 AM PDT by Jim Noble (When strong, avoid them. Attack their weaknesses. Emerge to their surprise.)
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To: Jim Noble

Another reason the “popular vote” tally is a fallacy.
In many states,
if the number of absentee, military, overseas, or whatever other provisional ballots
that are on hand at the end of the election are not enough in number to make a difference
in the outcome of the race, then they are never even counted in the first place.

I still find it amazing that a state legislature would basically say:
“no matter how the people of this state vote,
we are going to ignore that, and we will direct our electors
to vote according to how someone else voted.”


43 posted on 05/03/2014 12:01:21 PM PDT by Repeal The 17th (We have met the enemy and he is us.)
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To: exDemMom
Muddled argument, but what (I think) that they're trying to say is "My Dear Beloved John Kerry was only 59,000 votes from being President! And if this Compact had been in place, he wouldn't have a chance in Hell of winning, no matter how many recounts we wanted! And WORST OF ALL, NEW YORK would have gone for .... BUSH!!!1!"

At least, that's how I read it.

44 posted on 05/03/2014 12:02:37 PM PDT by Tanniker Smith (Rome didn't fall in a day, either.)
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To: Repeal The 17th

mmm...

The electors don’t meet until the middle of December. Disputes within states about which electors go are to be decided six days before that meeting. Plenty of time to ferret out state-by-state vote totals, as such totals are (theoretically) witnessed by multiple representatives and are not in any way secret.


45 posted on 05/03/2014 12:09:07 PM PDT by jjotto ("Ya could look it up!")
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To: Kaslin
Under either Articles 1 & 5, separately and certainly collectively, the Supreme Court should hold the Compact unconstitutional.

I'm not sure that I agree with this sentiment. On its surface, the National Popular Vote Compact does seem to be constitutional, but only if Congress consents.

The Compact contemplates neither multiple or regional candidates. The proposal does not contemplate a popular third party candidate emerging in 2016 or thereafter. It is not inconceivable that a candidate could win but two or three states, but do well across the country and win the presidency.

I think I just thought of a new flaw in this argument that I had not considered before.

The idea of 3rd party candidates (like Ross Perot) for instance, gave us President Clinton who did not win a majority of the national popular vote (he won a plurality), but he still got the needed 270 electoral college votes.

But what happens if a candidate wins the national popular vote but fails to gain 270 electoral votes?

The National Popular Vote Compact violates the 12th amendment by usurping the power of the House of Representatives to choose the President in the event that a candidate fails to reach 270 votes.

Imagine a scenario where the compacting states award their 270 votes to the plurality winning candidate, but that candidate, without the NPV Compact, would not have attained both a majority national vote and the required 270 electoral college votes.

With the NPV Compact, the compacting state will still award 270 votes to the plurality winner, which bypasses the 12th amendment power of the House to decide.

Would the House of Representatives, as a part of consenting to the Compact, agree to give away this power?

-PJ

46 posted on 05/03/2014 12:34:05 PM PDT by Political Junkie Too (If you are the Posterity of We the People, then you are a Natural Born Citizen.)
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To: Political Junkie Too
Wanting to agree with you... looking for it but not seeing it...

Article II Section. 1 (As amended by the 12th Amendment)
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

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.

The Electors shall meet in their respective States, and vote by Ballot for two Persons President and Vice-President, of whom one at least shall not be an Inhabitant of the same State with themselves.

And they shall make a List of all the Persons voted for name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the Number of Votes for each; which Lists they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.

The Person having the greatest Number of Votes shall be the President for President, shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President, the President.

But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice.

In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

47 posted on 05/03/2014 1:16:15 PM PDT by Repeal The 17th (We have met the enemy and he is us.)
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To: Repeal The 17th
The Person having the greatest Number of Votes shall be the President for President, shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President, the President.

See the bolded, underlined, black text.

According to the 12th amendment, if a candidate fails to reach the majority of electoral college votes (270), the House of Representatives decides amongst the top 3 vote-getters.

Since the NPV Interstate Compact is not an amendment, the Article VI supremacy clause rules that the 12th amendment supercedes as Constitutional law of the land.

I'm simply pointing out that the NPV Compact is being sold as a method to get around the Electoral College, but it is also a scheme to get around the House of Representatives, too, via circumventing the 12th amendment.

Since an interstate compact requires Congressional consent, one can lobby the House to withhold their consent because they would be ceding away one of their unique powers to a handful of states. Under the NPV Interstate Compact, there would never again be a case where a candidate fails to attain the majority of electoral college votes. It's debatable as to whether that's a good or bad thing.

For those who argue that this is not a compact requiring Congressional consent, I argue that taking away a Constitutional power of the House without their consent, when the remedy is already in the Constitution (Congressionial consent for interstate compacts), then this fact is enough to demand Congressional consent to the compact.

-PJ

48 posted on 05/03/2014 1:59:20 PM PDT by Political Junkie Too (If you are the Posterity of We the People, then you are a Natural Born Citizen.)
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To: Jim Noble

Current 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.” 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.

With both the current system and the National Popular Vote approach, all counting, recounting, and judicial proceedings must be conducted so as to reach a “final determination” prior to the common nationwide date for the meeting of the Electoral College. 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.

Neither the current system nor the National Popular Vote compact permits any state to get involved in judging the election returns of other states. Existing federal law (the “safe harbor” provision in section 5 of title 3 of the United States Code) specifies that a state’s “final determination” of its presidential election returns is “conclusive”(if done in a timely manner and in accordance with laws that existed prior to Election Day).

The National Popular Vote compact is patterned directly after existing federal law and requires each state to treat as “conclusive” each other state’s “final determination” of its vote for President.


49 posted on 05/05/2014 10:22:56 AM PDT by mvymvy
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To: Political Junkie Too

It is difficult to sustain the argument that preserving the opportunity for the U.S. House of Representatives to choose the President was ever a significant guiding factor (much less a constitutional imperative) in the choice of the size of the House. In the time between ratification of the 12th Amendment and 2008, the size of the House has been such as to make the size of the Electoral College an even number in only about half of the years in which presidential elections were held.

The Solicitor General’s brief to the U.S. Supreme Court in 2010 in the case of John Tyler Clemons et al. v. United States Department of Commerce traces the history of the various statutes that set the size of the U.S. House of Representatives.

The (ultimately unsuccessful) plaintiff in that case argued that the present-day size of the U.S. House of Representatives is unconstitutionally small because it creates unconstitutionally large differences in the number of people represented by congressmen from different states.

If Congress thought that the opportunity to break a tie in the Electoral College was a constitutional imperative—or even a worthy secondary objective—Congress could have easily accommodated that factor when it periodically adjusted the size of the House.

If it were unconstitutional to enact an electoral arrangement that has the almost-certain practical effect of depriving the U.S. House of Representatives of the opportunity to occasionally choose the President, then the House has operated with a constitutionally impermissible structure for about half of American history.

The contingent election procedure exists in order to resolve a deadlock if one should arise in the Electoral College. The existence of a contingent procedure does not create a constitutional imperative that other statutes be fashioned so as to guarantee that the contingent procedure will be used.

The Solicitor General’s brief shows that Congress did not view protection of its own prerogative to elect the President and Vice President as a factor in setting the size of the House.


50 posted on 05/05/2014 10:32:36 AM PDT by mvymvy
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