Editore"s Note
Tilting at Windmills

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September 5, 2006
By: Kevin Drum

ENDING THE ELECTORAL COLLEGE....I don't know if Arnie is going to sign it, but last week the California legislature sent him a bill that would change the way the state allocates its electoral votes in presidential elections:

Under the legislation, California would grant its electoral votes to the nominee who gets the most votes nationwide not the most votes in California....The California legislation would not take effect until enough states passed such laws to make up a majority of the Electoral College votes a minimum of 11 states, depending on population.

Sounds good to me. Unfortunately, Article 1 Section 10 of the United States constitution says that "No State shall, without the Consent of Congress...enter into any Agreement or Compact with another State." Isn't this an agreement with other states? Isn't it prima facie unconstitutional unless Congress consents? Is Congress likely to do that?

Just asking. Any constitutional scholars out there care to weigh in on this?

Kevin Drum 11:37 AM Permalink | Trackbacks | Comments (117)

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Comments

I'm not a Constitutional scholar, but compacts between states are explicit agreements - essentially treaties - that two or more states sign. The governing document for the Port of New York and New Jersey would be one example. Here, California is passing a law that contains a trigger related to laws passed by other states. California is clearly not signing a compact (treaty) with any other state where each party agrees to anything or that spells out what steps one party may take if the other fails to live up to its obligations. I think it would be quite a strech to consider this a compact.

Posted by: Rich C on September 5, 2006 at 11:41 AM | PERMALINK

That's an odd part of the constitution that I wasn't aware of.

States enter into compacts with other states all the time- one simple example is allowing residents of certain states, but not others, to apply as (and pay tuition as) in-state residents to state universities. Was that approved by Congress?

Posted by: pdq on September 5, 2006 at 11:42 AM | PERMALINK

If my family members agree that we will go hiking if it is sunny tomorrow, we haven't entered into a compact with the sun.

Posted by: ergonaut on September 5, 2006 at 11:45 AM | PERMALINK

IANAL, but it doesn't on its face look like a violation to me. It does contain a "trigger" provision, and that trigger provision depends on the actions of other legislatures, but I don't know if that rises to the level of an "Agreement or Compact"; that sounds to me more like something forbidding formal treaties such as are entered into by sovereign nations (which, IIRC, was pretty close to the prevailing view of the States at the time the Constitution was drafted).

Also, if this WERE forbidden, how many other such implicit "agreements" would be forbidden? How much standardization done for the sake of efficiency, how many administrative arrangements? I think that would be a real mess.

And lastly, again IIRC, the Supremes have said the States can appoint their Electors any damn way they please. If that, e.g., involves reading the newspaper about how somebody next door did it, and then doing that themselves, well, that's probably OK.

So my bet is against. But IANAL.

Posted by: bleh on September 5, 2006 at 11:46 AM | PERMALINK

Isn't this an agreement with other states? Isn't it prima facie unconstitutional unless Congress consents? Is Congress likely to do that?

As a conservative constitutional scholar, I am certain you are right. Not only that, but it also violates Article IV Section 4 which says "The United States shall guarantee to every State in this Union a Republican Form of Government" because it tries to make the United States into a democracy and not a Republic. Since America is a Republic and not a democracy, it would be wrong to do so.

Even worse, the unconstitutional compact would destroy states rights and the rights of smaller states if it was passed. The most important right in the American constituion is the right of small states to be not trampled upon by larger states.

Posted by: Al on September 5, 2006 at 11:48 AM | PERMALINK

I can't figure out if "Al" is just one guy who does nothing but hit "refresh" on this site so he can post, or is it a generic name for any conservative who wants to post here?

This is a serious question, I honestly can't tell.

Posted by: Jeff on September 5, 2006 at 11:52 AM | PERMALINK

Not only that, but it also violates Article IV Section 4 which says "The United States shall guarantee to every State in this Union a Republican Form of Government" because it tries to make the United States into a democracy and not a Republic. Since America is a Republic and not a democracy, it would be wrong to do so.

This makes no sense. By that logic, wouldn't initiatives be unconstitutional (as democratic rather than republican government)?

As for the compacts-between-states question, I don't think making something conditional on the actions of other states really constitutes an explicit 'compact' between the states in question.

Posted by: Tom Hilton on September 5, 2006 at 11:54 AM | PERMALINK

Would rather see some kind of proportional system.

Posted by: Calif on September 5, 2006 at 11:55 AM | PERMALINK

The Constitution gives to each state the right to determine how to conduct presidential elections and how to allocate its Electoral College votes.

Well, it did until Bush v Gore in 2000.

The Supreme Court will decide the legality of California's measure when it sees how it will effect a Republican's election to the White House.


Posted by: Jeffrey Davis on September 5, 2006 at 11:55 AM | PERMALINK

Constitution? Didn't Bush and Gonzalez nullify that?

Posted by: steve duncan on September 5, 2006 at 11:56 AM | PERMALINK

"So my bet is against. But IANAL.

Posted by: bleh on September 5, 2006 at 11:46 AM "

bleh,

why are you so ANAL?

Posted by: Gully Foyle on September 5, 2006 at 11:56 AM | PERMALINK

My guess is that your doubts are justified Kevin.

When it comes to the Electoral College, I ask myself this question: Is it acceptable that a the winning candidate can tally fewer votes than the loser(s). My answer is "No". But reform will be difficult.

Posted by: little ole jim from red country on September 5, 2006 at 12:01 PM | PERMALINK
. Unfortunately, Article 1 Section 10 of the United States constitution says that "No State shall, without the Consent of Congress...enter into any Agreement or Compact with another State." Isn't this an agreement with other states?

Nope, its not at all an agreement. Its not in any way binding on any states, its not negotiated, there is no "agreement" anywhere involved. Its simply a legislative act whose effect is conditional on the national legislative landscape.

It has other problems, though; an uncertainty in the results in a state which could determine the national plurality could force states implementing such measures out of the safe harbor. A debacle very similar to the Florida 2000 fiasco in any state (even one not implementing this rule) could leave every state implementing this rule up for grabs and subject to last minute ad hoc rules and uncertainty as to whether electoral votes would be accepted.

I also question whether we really want a system which throws the national election without further deliberation to the winner of a national plurality. Sure, it might be slightly better than throwing it to the loser of a national plurality, as was the result in 2000, but if the process is going to be changed, is it really a well-considered change? Such a system would eliminate any chance of an election without a clear majority being thrown to the House, to be sure, which the present practice in the Electoral College minimizes but does not quite prevent. If we're going to have a national popular election be the standard for Presidential elections, we ought to require either a direct majority or, failing that, some plausible proxy. The fallback to the House in the Electoral College system is a sensible alternative in a direct system as well, though its a lot harder to acheive without a Constitutional amendment. A preference voting system is an even better system for dealing with the absence of a clear first-preference majority, but again difficult to implement nationally without a Constitutional Amendment.

But this reform seems have dubious value at best, and plenty of risk of magnify problems that have been demonstrated in the present system.


Posted by: cmdicely on September 5, 2006 at 12:01 PM | PERMALINK

It's not a compact with other states, it's merely an internal law that triggers when other states act.

Calling this a compact would be like calling model laws (such as the Uniform Commercial Code)compacts. States can get together and decide what laws they want to go home and pass without being in a compact.

Here California isn't even going that far, they're just saying the CA law triggers if other states happen to follow suit.

Posted by: skeptic on September 5, 2006 at 12:02 PM | PERMALINK
Not only that, but it also violates Article IV Section 4 which says "The United States shall guarantee to every State in this Union a Republican Form of Government" because it tries to make the United States into a democracy and not a Republic.

"The United States" is not any "State in this Union", so even if a democracy was necessarily not also a Republic, and even if this measure sought to make "the United States" a democracy (neither of which I think is an accurate statement) that would not make this act violate Article IV.

Posted by: cmdicely on September 5, 2006 at 12:04 PM | PERMALINK
I'm a semi-amateur Con Law scholar.

Then why don't you try to answer the Constitutional question as well as the policy question?

We should keep the Electoral College so that next time the Democrats lose the popular vote but win California, New York, Flordia etc., we still win the White House.

Because disproportional voting power in the Electoral college goes to the smaller states, you can't lose the popular vote but win the big states and still win the Electoral vote (you can lose the popular vote but win mostly smaller states and win the election, of course.) So your argument is nonsense.

Posted by: cmdicely on September 5, 2006 at 12:07 PM | PERMALINK

It's clearly not an agreement between states: there's no "valuable consideration," no offer, no assent. No contract.

Posted by: dj moonbat on September 5, 2006 at 12:08 PM | PERMALINK

Fwiw, Article I, Section 10:

"Section 10. No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

"No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.

"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."

If California and other states pass these laws, they are not compacts between the states. But it will certainly get decided in the courts.

Posted by: JJF on September 5, 2006 at 12:09 PM | PERMALINK

I think that, traditionally, this provision has been "strictly construed" along the lines suggested above, in favor of not finding a compact, if it has ever been construed. Otherwise, it's not clear how states could enter into things like the interstate nurse licensure compact. "Compact" states accept the licensure status of any nurse licensed by any other state in the compact. There are many other examples of reciprocal arrangements, for instance, offering in-state tuition to the residents of other states if their state offers the same to residents of yours.

Posted by: Barbara on September 5, 2006 at 12:10 PM | PERMALINK

This can't work, and I don't know why no one has seen the reason yet.

What happens when the national popular vote is too close to call? California would need a nationwide recount to determine how to allocate its electoral votes. It would be Florida 2000 times 50.

Besides, how can California require another state to spend its resources to recount its vote?

Posted by: Steve Stein on September 5, 2006 at 12:14 PM | PERMALINK
Otherwise, it's not clear how states could enter into things like the interstate nurse licensure compact.

Very easily, the compact is submitted to Congress for approval. There are quite a few interstate compacts, and that's how they are formed.

Posted by: cmdicely on September 5, 2006 at 12:22 PM | PERMALINK
How about RICO laws then, JJF?

How about you point to the provision in RICO that you think is even remotely applicable?

Posted by: cmdicely on September 5, 2006 at 12:23 PM | PERMALINK

1)If compacts between states are unconstitutional, why are agencies such PATH in metro NY allowed?
2) I assume that this is not intended as the final answer, but as a way to force the issue. In that sense, it is very clever. How else to get small states whose impact is magnified by the electoral college to come to the table?

Posted by: kevin_r on September 5, 2006 at 12:29 PM | PERMALINK

It's not a compact between states. California doesn't even know at the time of enactment which other states it would be in this arrangement with. It's just a trigger mechanism.

It's also our best hope of getting rid of the Electoral College, which we badly need to do one day. Maybe if the CA law takes effect, Congress will give up and just amend the Constitution to allow a direct vote.

As for the defenders of the Electoral College, where are your coherent arguments? I have yet to hear any. States don't vote, voters vote. The E.C. was an attempt to avoid political parties and to have a council of eminent citizens choose the president.

Not everything in the Constitution was such a great idea. See the three-fifths compromise.

Posted by: Hal on September 5, 2006 at 12:30 PM | PERMALINK
What happens when the national popular vote is too close to call? California would need a nationwide recount to determine how to allocate its electoral votes.

More likely, California would rely on the certification of results by other states and, if they failed to do so timely, would resort to ad hoc legislation in how to assign its electoral votes (allowing it to resolve the uncertainty in how its votes should be cast, but taking it out of the safe harbor of 3 USC § 5.)

(Hmm. Given the dependence on out of state popular votes, I'm not entirely sure that electors chosen by this procedures are within the 3 USC § 5 safe harbor to start with, which could be another problem.)

Posted by: cmdicely on September 5, 2006 at 12:31 PM | PERMALINK

Offhand, it seems that regardless of the interstate compact clause, it violates the SCOTUS precedent of "one man, one vote". By allocating the electoral votes of the state of California based on the voting patterns of the entire nation, including states that are continuing to allocate their votes the old-fashioned way, it gives voters in the other states a vote in two states, while proportionally diminishing a California vote.

Come to think of it, from a policy standpoint for California, it sounds like a remarkably stupid idea for much the same reason. Right up there with unilateral disarmament.

Posted by: Imaginary on September 5, 2006 at 12:31 PM | PERMALINK
If compacts between states are unconstitutional, why are agencies such PATH in metro NY allowed?

Compacts are not unconstitutional, they require the consent of the US Congress.

Posted by: cmdicely on September 5, 2006 at 12:37 PM | PERMALINK

This has all been discussed by real constitutional scholars for years. Each state is free to choose their electors as they chose--Congress has no authority on that (they can certify or not). Of course, with the make up of the Supreme court such as it is, I'm sure a decision will turn out to benefit the GOP much as Bush v Gore--if you call that a decision.

This is not unilateral disarmament--it only works if enough other states do it as well. In cases of close calls--which are statistically less likely for larger vote totals--you can easily resort back to the old method.

Posted by: gq on September 5, 2006 at 12:47 PM | PERMALINK
Offhand, it seems that regardless of the interstate compact clause, it violates the SCOTUS precedent of "one man, one vote".

I don't think its clear that the legal rationale of one-man, one-vote from Baker v. Carr and its descendants extends to Presidential elections in any case. If it did, the at large election of the entire slate of electors by statewide majority would seem to violate it, and election of electors by equal-size constituencies or proportional representation would seem to be required.

Posted by: cmdicely on September 5, 2006 at 12:51 PM | PERMALINK

The proposal will not pass consititutional scrutiny on equal protection grounds. i.e California (or any other state) cannot pass a law that will nullify the votes of its populace. That privilege is reserved for the SCOTUS. Basically, such a proposal deprives California citizens of the right to have an actual vote because their votes would be meaningless.

Posted by: Out on Bond on September 5, 2006 at 12:52 PM | PERMALINK
From the RICO statute (which could easily be amended if it does not already cover States colluding to bypass the Constitution and Congressional consent)

Any law can be changed to address anything that it doesn't already address, so that's a stupid comment.

"Any act or threat involving . . . bribery, extortion . . ."

You've elided too much for me to see any relevance here, and given an inadequate citation for me to identify what you are looking at. Please explain how you think the RICO act, as currently written, applies to the policy at issue here.

Posted by: cmdicely on September 5, 2006 at 12:54 PM | PERMALINK

Many good points have been brought up, but I'd like to add that awarding the votes to the plurality winner would also make third parties even less viable than they are today.

Not to mention that I'm not crazy about the idea of California throwing its electoral weight around to change Constitutional policy, even if I do agree with the aims.

If we're going to do this, we should do it right. A constitutional amendment with clear recount procedures and a provision for run-off elections. Putting a band-aid over the problem really just reduces incentive for a permanent, well-considered solution.

Posted by: Royko on September 5, 2006 at 12:55 PM | PERMALINK

As a lightweight constitutional scholar (or at least a law school graduate), this law is almost certainly constitutional. But that does not mean the court will sign off on it. The court will swing into full Bush v. Gore mode and bend precedent beyond recognition to strike it down. What I think the justices will think is "We already have a way to change the constitution. They should use that if they want to dump the electoral college." What it comes down to is that I doubt the justices will let the big states get away with giving the article v amendment process an end-run.

But anyway, the text, history, and precedent construing the constitution clearly allow states to decide who their electoral votes go to however the state wants. In fact, the constitution doesn't even require that electoral votes be awarded based on a popular vote. Granted, only South Carolina denied its people a popular vote and only for the first few presidential elections (the legislature determined who got the state's electoral votes).

Posted by: UberMitch on September 5, 2006 at 12:58 PM | PERMALINK
Well, I said YMMV, Chris.

Yes, but clearly you think it applies. I'm not arguing with you on it, yet, I'm just asking you to explain why you think it applies. It's not a hard question. What's the rule from RICO that you think applies? What in this policy do you see those rules applying to and how?

Posted by: cmdicely on September 5, 2006 at 12:59 PM | PERMALINK

Hal,

As for the defenders of the Electoral College, where are your coherent arguments? I have yet to hear any.

Check this out:
http://www.discover.com/issues/nov-96/features/mathagainsttyran914/

"Math Against Tyranny"

Shows how the use of the Electoral College provides more voting power to the individual voter, and protects against a tyranny of the majority.

Posted by: gummitch on September 5, 2006 at 1:01 PM | PERMALINK

They have lost their minds

"The power of accurate observation is commonly called cynicism by those who have not got it." - George Bernard Shaw

Posted by: daCascadian on September 5, 2006 at 1:03 PM | PERMALINK
Think of it this way -- had Kerry won Ohio but still lost the popular vote, wouldn't you think the Electoral College was a grand idea right about now?

I wouldn't think it was a "grand idea". It's like if someone tries to hold you up on the street with a gun and it accidentally discharges and kills someone who was trying to murder you just before they could shoot you: its fortuitous that they tried to rob you at that point in time, but you aren't likely to think "holding people up at gunpoint on the street is a grand idea".

Posted by: cmdicely on September 5, 2006 at 1:04 PM | PERMALINK

Thomas1:

Think of it this way -- had Kerry won Ohio but still lost the popular vote, wouldn't you think the Electoral College was a grand idea right about now?

If this law had been in effect for the 2004 election, both campaigns would have been run so dramatically differently that the national popular vote totals would be totally different.

Posted by: UberMitch on September 5, 2006 at 1:04 PM | PERMALINK

Even worse, the unconstitutional compact would destroy states rights and the rights of smaller states if it was passed. The most important right in the American constituion is the right of small states to be not trampled upon by larger states.

I'm glad to see "Al" is in favor of protecting the minority from the majority.

Posted by: Erik on September 5, 2006 at 1:05 PM | PERMALINK
California throwing its Electoral weight around or actual colluding with other States to bypass the Constitution and Congressional consent requirements sre smells like a conspiracy, threat, act (however you want to characterize it) to me.

Even granting, arguendo, that a reasonable argument could be made that there was "collusion" to "bypass the Constitution and Congressional consent requirements" (though I haven't seen any argument supporting the idea that this is that), the provision you cited did not, in your excerpt apply to any "conspiracy, threat, act (however you want to characterize it)", but to a threat or act involving bribery and/or extortion.

Please, where do you see bribery or extortion here?

Posted by: cmdicely on September 5, 2006 at 1:07 PM | PERMALINK

Forget whether it's constitutional for a second, doesn't this seems like a dangerous idea, especially if California is the only one doing it?

If anything, this will rally Republicans in every other state, including heavily Democratic states, to try to steal California's electoral votes.

This would only work if every state got onboard, otherwise it's just a 55 electoral vote gift to Republicans.


Posted by: Dan on September 5, 2006 at 1:09 PM | PERMALINK

Yeah, but what kind of asshole would make an appeal to SCOTUS concerning a state's deliberately chosen process for determining it's electors? And what kind of partisan supreme court would agree to hear and decide such a controversial case?

You might as well cancel the election and sit around waiting for the SCOTUS clerks to send up colored smoke.

Posted by: B on September 5, 2006 at 1:09 PM | PERMALINK

I agree with pretty much everything Imaginary said except for the opine about the "one man/one vote" violation. The Electoral College itself violates one man/one vote. I don't think that theory applies to elections for President. I also wondered how requiring a super-majority to pass tax increases could pass muster under one man/one vote, but it didn't apply there either apparently.

Still, why California would want to throw our votes to the guy some yahoos from Texas and Alabama want to elect, that's got me stumped.

Two minor amendments would improve the whole Electoral College system immensely. First, change the number of electors to JUST the number of Representatives. That would eliminate the over-weight given to small states.

Second, require Electoral College votes to be allocated proportionately to the popular vote. No more "winner takes all."

These two changes would make the vote for president essentially a national popular vote.

It would require a Constitutional amendment, but if there's not enough sympathy nationwide for reforming the Electoral College, there's not enough for cockamamie schemes like this one.

Posted by: Cal Gal on September 5, 2006 at 1:10 PM | PERMALINK

Oops, just saw it would only take affect if 11 states did the same thing. Still, is that enough?

Posted by: Dan on September 5, 2006 at 1:10 PM | PERMALINK

Thomas1:

I have never liked the electoral college. IMHO, it is anti-(d)emocratic. Further, it makes the entry of 3rd parties into our national political process nearly impossible. It was/is an unnecessary institution in light of other compromises designed to protect the less-populated states against the more-populated states that are embodied in the Constitution.

Congrats on the AmJur- they're hard to come by.

UberMitch- absolutley disagree. "we are not gonna have a vote in the presidential election- we will just give our electoral college to the candidate with the highest number of votes in the rest of the county." Maybe I am wrong- but I am not in doubt. No way it passes muster.

Posted by: Out on Bond on September 5, 2006 at 1:11 PM | PERMALINK

This is a very silly discussion. It is very unlikely that half the states by population would adopt similar laws. Not only that, but even if half the states by population DID adopt similar laws, it would be the wrong half -- big states like Texas, New York, Flordia, etc. The small states will never give up the disproportionate power they have in presidential elections. Why should they?

Posted by: mjk on September 5, 2006 at 1:12 PM | PERMALINK

Imaginary, it wouldn't take effect until enough other states have "disarmed" that further states wouldn't make any difference. And the Electoral College is a bad deal for California, so effectively eliminating it would hardly be "stupid" from a policy standpoint.

Posted by: KCinDC on September 5, 2006 at 1:15 PM | PERMALINK

I don't understand at all the argument being made here regarding RICO. Are you saying that states may be guilty of a federal crime by enacting this? That they may be subject to civil RICO liability?

I've never stopped to think about it before, but I'm almost certain states legally cannot be guilty of crimes.

Posted by: UberMitch on September 5, 2006 at 1:15 PM | PERMALINK
Shows how the use of the Electoral College provides more voting power to the individual voter, and protects against a tyranny of the majority.

Well, clearly, a system which systematic provides the opportunity for the majority winner to lose reduces the risk of "tyranny of the majority" by enabling tyranny of the minority in its place.

OTOH, its manifestly clear that the electoral system we have does not stop political parties from seeking a minimal winning coalition, and that the inequalities in power produced by the EC system giving votes disproportionate to population (which, from the description you link to, seems not to have been consdiered at all) reduces the size of the minimum winning coalition to not require a majority or even a plurality.

If voting power were distributed equally, or voters residence were reshuffled randomly between elections so that the systematic inequalities were not regularly exploitable, the EC might have value in the way Natapoff suggests more generally for aggregation and districting (though I'm not real certain that he has a good operationalization of individual power, or that its something you want to maximize.)

Posted by: cmdicely on September 5, 2006 at 1:19 PM | PERMALINK

MJK, there's no requirement for half the states by population to adopt similar laws. The requirement is for states making up more than half of the electoral votes, so all you need is the big states, who benefit from the change.

Posted by: KCinDC on September 5, 2006 at 1:21 PM | PERMALINK

Isn't this just a special case of appointment by state legislature? I don't think there is anything in the constitution about the criteria they are allowed to use.

Maybe Scalia could write some fancy talk to the contrary, but appointment by state legislature is still the constitutional default for choosing electors.

Posted by: B on September 5, 2006 at 1:22 PM | PERMALINK



Constitution experts Vikram and Akhil Amar wrote an excellent series (Part I, Part II, and Part III) on the topic of electoral college, and why it was an insidious and unjust system in its conception. Go read the series, especially the last part, from which, the new CA idea seems to be based.

Posted by: Ramki on September 5, 2006 at 1:22 PM | PERMALINK

Two minor amendments would improve the whole Electoral College system immensely. First, change the number of electors to JUST the number of Representatives. That would eliminate the over-weight given to small states.

Second, require Electoral College votes to be allocated proportionately to the popular vote. No more "winner takes all."

These two changes would make the vote for president essentially a national popular vote.

Not really; because of the 1 representative floor, even representation in the House isn't all that proportional, and you'd still get a little more bang for your buck in small states (counteracted, perhaps, by the fact that the percentage you have to swing a big state to get some gain would be smaller.)

And, of course, you are going to throw a lot more elections to the House; most people would, I think, like to avoid that. Which is why I think if we get rid of the EC or substantially reform it, the reform has to include preference voting at the popular level, and if the EC is retained either preference voting or actual deliberation by the electoral college.

Posted by: cmdicely on September 5, 2006 at 1:24 PM | PERMALINK

Ramki:
Akhil Amar also has a extended discussion of his theories on the EC in his most recent book, America's Constitution: A Biography. Really good read; highly recommend.

I got to take a class taught by him when he was visiting scholar at my law school that basically was a close reading of the book with him. Good times, incredibly smart guy

Posted by: UberMitch on September 5, 2006 at 1:27 PM | PERMALINK

I don't know about the legal aspects but it's not a good idea unless the electoral college is abolished for the whole country.

I would prefer keeping the electoral college but stop the winner take all in each state. Each candidate would get one electoral vote for each congressional district they win. The remaining two electoral votes per state would remain winner take all for the whole state.

Posted by: Carl on September 5, 2006 at 1:34 PM | PERMALINK

Two minor amendments would improve the whole Electoral College system immensely. First, change the number of electors to JUST the number of Representatives. That would eliminate the over-weight given to small states.

Second, require Electoral College votes to be allocated proportionately to the popular vote. No more "winner takes all."

There's still the potential problem that representatives are based on the number of people, not voters, in a state. If 90% of Californians didn't bother to vote, the remaining 10% would get the full electoral power of California's population.

Anyway, once you go the route of a constitutional amendment, there's no point in going for half measures.

Posted by: Royko on September 5, 2006 at 1:35 PM | PERMALINK

This is brain dead. Why would liberals even consider it? Let's leave aside the fact you could easily have CA's votes being placed againdt the wishes of a majority of it's citizens but the fact is this means the liberal dominace of CA is useless. Why would anyone campaign in CA knowing their voters are meaningless.

The most likely outcomes such as happened in 2000 and 2004 is that the CA vote either stays the same and changes nothing (2000) or the CA vote goes to the majority winning GOP victor to give them an even wider electoral win. A 3rd possibility is the GOP candidate wins the popular vote, but loses in the electoral college and this CA law requires they move their 54 votes from the Democrat who won CA to the Republican how would not win the Presidency.

Is that what you want?


Posted by: rdw on September 5, 2006 at 1:40 PM | PERMALINK

i'm going with kevin on this one - unconstitutional. if it walks like a skunk and smells like a skunk, it likely is a skunk (whose aroma is beautiful to some.)

Posted by: yowzer on September 5, 2006 at 1:40 PM | PERMALINK
Isn't this just a special case of appointment by state legislature?

Nope. Because its not appointment by the state legislature. Its appointed by the voters of all states under a procedure set out by the legislature, on the day appointed by Congress for appointment. One might question whether such voters of other states can be made involuntary agents of the appointing state this way, or whether this is not appointment by the state on the date set, and thus not within the Constitutional procedure.

Likewise, one could try to save the procedure as being appointment by the state by saying that the appointment is done later by some state officer, based on the votes cast on the national election day, but then the appointment would not be at the appointed time, and still not within the Constitutional procedure.

Of course, this is the kind of unconstitutional act for which there is no judicial remedy (well, historically, at least, its a political question in the clear purview of the Congress in its power to judge electoral returns; given the extraordinary activism of Bush v. Gore, its hard to say if that would be the case going forward, though.)

Posted by: cmdicely on September 5, 2006 at 1:40 PM | PERMALINK

the electorial college has got to go...but this isn't the way.

Posted by: zoot on September 5, 2006 at 1:42 PM | PERMALINK
MJK, there's no requirement for half the states by population to adopt similar laws. The requirement is for states making up more than half of the electoral votes, so all you need is the big states, who benefit from the change.

If you take states from largest to smallest that encompass more than half of the electoral votes, you are considerably over half of the population; the only way you get over half the electoral votes with less than half the population is if you take the small states, which have disproportionately large representation in the EC.

Posted by: cmdicely on September 5, 2006 at 1:43 PM | PERMALINK

As a question of politics, the proposal is simply an attempt to render California's liberal majority irrelevant.

Posted by: Jeffrey Davis on September 5, 2006 at 1:55 PM | PERMALINK

This is brain dead. Why would liberals even consider it? Let's leave aside the fact you could easily have CA's votes being placed againdt the wishes of a majority of it's citizens but the fact is this means the liberal dominace of CA is useless. Why would anyone campaign in CA knowing their voters are meaningless.

Well, because CA votes AFFECT the popular vote and therefore would affect who their electors went for.

I think people are having a hard time with the math here. The law only goes into effect if enough states to hold a majority of the electoral college (enough to determine any election) go along with it. Therefore, if this law gets triggered, the popular vote winner will be the president. California would only lose its representative DISadvantage in that case.

It would, I suppose, mess up the margin of victory in the electoral college if small states didn't implement it (winners would get half + small state electors), but who really cares? Can anyone name me the margins of victory in the electoral college for the last four elections without looking it up?

Whatever problems exist with this law, unilateral disarmament is not one of them. There's no inherent GOP advantage here.

Case 1: Popular vote winner is the electoral vote winner. Result: No change

Case 2: Popular vote winner (Dem) is not the electoral vote winner. Result: Dem wins

Case 3: Popular vote winner (Rep) is no the electoral vote winner. Result: Rep wins

The only issues here are recounts, plurality, legality, and the ethics of getting around the amendment process.

Posted by: Royko on September 5, 2006 at 1:58 PM | PERMALINK

Al,

The US is a republic but not a democracy? Wherever did you get that?

Please tell me you are not using definitions that were in place hundreds of years ago but are no longer used today?

To be clear, the US is BOTH a republic and a democracy.

Posted by: GT on September 5, 2006 at 2:05 PM | PERMALINK

GT- technically speaking the US has a republican form of government. There are several anti-democratic institutions that are well established. The Senate for one. Delaware and California have the same number of senators. Not particularly democratic. The EC is another institution. Many of the institutions and laws exist to protect minorities from majorities. Pure democracies only work in highly homogenious (sp?) societies. Societies as ethnically, religiously and politically diverse as the US are really suitable to a pure democratic form of government.

Posted by: Out on Bond on September 5, 2006 at 2:32 PM | PERMALINK

I think people are having a hard time with the math here. The law only goes into effect if enough states to hold a majority of the electoral college (enough to determine any election) go along with it. Therefore, if this law gets triggered, the popular vote winner will be the president.

Er, no, that's not the case.

If the law gets triggered, the popular vote winner will have electors pledged to vote for him appointed by as states with a majority of electoral votes, unless one or more of those states make ad hoc variations in their procedure after the popular election, which might entail some additional risk with regard to safe harbor (or might not, as it seems that this entire scheme may be outside of the safe harbor), is a practical possibility: its particularly a risk if the bare minimum number of states have adopted the new system, the popular vote winner is a plurality rather than majority winner, the popular vote is close or disputed, and the state in question was clearly won by some other candidate.

Though, really, since there is a good case that these rules are unconstitutional in way outside the purview of the courts, but within the purview of the Congress, what they really seem to me to be is a Constitutional crisis waiting to happen; if these rules are implemented and the first vote under them isn't a popular landslide with with broad geographic support that propels nationwide implementation of the procedure so its becomes, legality aside, politically unassailable, I would expect it to lead to a nightmare that makes Florida 2000 look like a walk in the park.

If you want to abolish the Electoral College, work to do it right.


This does not guarantee that the popular vote winner will have a majority of pledged electors, or a majority of actual electoral votes cast, or a majority of the actual electoral votes accepted by the Congress.

Posted by: cmdicely on September 5, 2006 at 2:36 PM | PERMALINK

Probably, NH would just withhold it's turnout numbers and vote totals till mid-December.

Posted by: B on September 5, 2006 at 2:42 PM | PERMALINK

What then would be the point of voting at all in California? As currently standing, if three Californians vote, each voter has tremendous influence on the electoral college outcome. If five million Californians vote, not so much. But if an individual's vote is weighted equally against 100 million national votes, forget it.

California: Lemmings into the sea.

--
HRlaughed

Posted by: HRlaughed on September 5, 2006 at 3:01 PM | PERMALINK

So, basically, the idea is that in 2004, all of California's electoral votes should have gone to Bush?

Anyway, the whole purpose of the Electoral College is to prevent exactly the sort of "big state cabal" that the California legislature is proposing. I'd be surprised if the Governator signs it, and even more surprised if the Supreme Court (and Supreme Court, now or ever) finds it constitutional.

Posted by: DaveL on September 5, 2006 at 3:10 PM | PERMALINK

Royko,

you've got to take your logic to another step.

Look at case two.

Popular winner (Dem) electoral loser. Result after CA switched votes: Dems win.

ONLY if CA switches votes. The most likely probably here is the Democrat already WON in CA and already has the CA votes and still lost. Consider Al Gore.

The more likely event by far is for a Conservative to win the popular vote but lose the electoral vote because they lost CA and NY. Your plan would require CA to switch it's electoral votes from the democratic winner to the republican loser thereby REVERSING the result and making the republican the victor.

This is goofy.

Posted by: rdw on September 5, 2006 at 3:11 PM | PERMALINK

cmdicely,

I never appreciated until recently how consumed you are by Bush Derangement Syndrome. No sane person is talking up changing the electoral college. It's purely sore loser syndrome.

The smaller states will NEVER give it up and you'll never pass the constitutional amendment needed to remove it.

As far as changing rules in single states this would almost certainly backfire on liberals. If states discussed going to proportional electorial voting it would almost definitely pass in blue states but not red states. If NY and CA want to share their votes God Bless them!
Texas won't.

Posted by: rdw on September 5, 2006 at 3:22 PM | PERMALINK

It is NOT unconstitutional. It does NOT involve coming to any special agreement with other states. All it does is stipulate that the California law concerning alloting EVs goes into effect only when a certain minimum number of other states do so. That's it. No other state even needs to be consulted. All California need do is sit back and wait (and hope) that other states learn from their example and follow suit. None of them need to even talk to each other.

Posted by: Praedor on September 5, 2006 at 3:47 PM | PERMALINK

Constitutionality aside, what part of that sounds good to you Kevin?

California's votes should be reflected in its electoral vote.

I'd say "huzzah" to a proportional distribution instead of winner takes all, even though unless all states do it, it likely hurts Dems...

Posted by: Mr Furious on September 5, 2006 at 4:07 PM | PERMALINK

you've got to take your logic to another step.

Actually, you need to beef up on your reading comprehension. Your issue was already addressed when Royko said this:

The law only goes into effect if enough states to hold a majority of the electoral college (enough to determine any election) go along with it.

Take time out of your busy schedule to think about what this means.

The more likely event by far

by far? Huh? So likely that it hasn't happened yet, although the converse has?

is for a Conservative to win the popular vote but lose the electoral vote because they lost CA and NY. Your plan would require CA to switch it's electoral votes from the democratic winner to the republican loser thereby REVERSING the result and making the republican the victor.

If the Republican wins the popular vote, this system would insure that the Repub also wins the electoral vote. That's exactly the intent of this revised system - to ensure that the winner of the popular vote wins the electoral vote. It's a feature, not a bug.

This is goofy.

Nuh-uh. You're goofy.

Posted by: rdw's logic instructor on September 5, 2006 at 4:16 PM | PERMALINK
Anyway, the whole purpose of the Electoral College is to prevent exactly the sort of "big state cabal" that the California legislature is proposing.

California isn't proposing a "big state cabal" of any sort.

Posted by: cmdicely on September 5, 2006 at 4:19 PM | PERMALINK

Thomas1,

Re: States being guilty of federal crimes

I'm still waiting to hear where you see bribery or extortion here, as required by the RICO excerpt you posted.

Posted by: cmdicely on September 5, 2006 at 4:21 PM | PERMALINK
cmdicely,

I never appreciated until recently how consumed you are by Bush Derangement Syndrome. No sane person is talking up changing the electoral college.

So? I'm merely suggesting if you want to get rid of it, you should do it right; further, I don't see you as a particularly competent judge of sanity.

Personally, I can see good reforms that involve keeping it, and good reforms that involve abandoning it. Except as illustrative of situations that might occur and cause practical difficulty, the 2000 and 2004 elections aren't important to those reforms (certainly, my opinion of President Bush is not important to my view of any of those reforms.)

The smaller states will NEVER give it up and you'll never pass the constitutional amendment needed to remove it.

I've pretty much said the same things in past discussions here of the political viability of electoral college reform (with the slight caveat that a national grassroots movement around democracy and fairness could conceivably overwhelm parochial interest here, though its unlikely.)

As far as changing rules in single states this would almost certainly backfire on liberals.

Maybe, maybe not. It would almost certainly backfire on Democrats as a political party, at least in the short term, if the states that did it all tended to go Democratic previously.

If states discussed going to proportional electorial voting it would almost definitely pass in blue states but not red states.

I don't think it would pass in either. As the California law at issue shows, even those favoring (in this case, bad) reform aren't willing to change unless enough others change to make the reformed rules almost certain to decide the election.

If NY and CA want to share their votes God Bless them! Texas won't.

If the law proposed succeeded, California wouldn't share its votes unless, barring challenges to electoral votes in the Congress, the states not doing the same thing would be incapable of affecting the result.

Texas might be able (along with a bunch of other red states) to stop the law from having any effect, but then there'd be no "vote sharing", as you call it, at all. But they couldn't benefit with extra power from other states "sharing", as you call it, and Texas not.

Posted by: cmdicely on September 5, 2006 at 4:33 PM | PERMALINK
Right, Chris, and you probably believe there's no collusion among Big Oil or Big Tobacco companies either.

If you have an argument to make about a big-state cabal, make it. Likewise, I'm still waiting to here where you see bribery or extortion in the proposal, as is required by the excerpt from RICO you claimed was applicable.

Posted by: cmdicely on September 5, 2006 at 4:34 PM | PERMALINK

All in all, this is a supremely stupid position for the California legislature to make. It's effect is to potentially disenfranchise all (not just some, but all) of the voters in the state. Winner-take-all on the basis of votes cast elsewhere is simply nuts. Assume Ahnold runs for preznut (I know, he doesn't qualify, but stay with me) and all voters in California vote for him. Meanwhile, on the national scene, Joe Liebermann runs for preznut and gets the majority of popular votes cast nationwide. Result, all of California's electoral votes are cast for someone who didn't receive a single popular vote in the state.

Posted by: gilacliff on September 5, 2006 at 4:55 PM | PERMALINK

The constitution was written so that the capitalist mullah's will be the final arbiters of who leads the republic.

Posted by: Hostile on September 5, 2006 at 5:10 PM | PERMALINK

Any system that might alter the current bias away republican candidates is helplessly complex, unconstitutional, fascist, socialist, and stupid.

Posted by: toast on September 5, 2006 at 5:11 PM | PERMALINK

Why is California interested in the popular vote winner getting the nod, rather than the electoral college vote?

Well, for one, CA gets kind of screwed by the electoral college. They get only about 1.5 votes per million people, versus a national average of 1.8. Wyoming gets 5.9 EC votes per million voters, so each Wyoming citizen has roughly 3.9 times the EV power of a California one. Direct popular voting would remove this particular imbalance.

Second, California is a solidly Democratic state right now - there's a limited incentive to get more folks to vote, and no incentive for Presidential candidates to come for purposes other than begging for money. If the popular vote counted, suddenly candidates would spend a lot of time in California, trying to win actual votes - and might care about California issues (many of which are neither liberal or conservative, just state specific.)

BTW, this brings up a historical issue. The EC is there in part to allow states to decide who gets to vote, and to implement the hideous 3/5 compromise for Presidential elections. It continues to remove any incentive for states to encourage voter turnout.

Posted by: Fides on September 5, 2006 at 5:17 PM | PERMALINK

One of my professors was one of the many co-authors of the book that the organization that supports this compact, sso I've been paying attention to this for a while.

If I have understood his teaching correctly, the Supreme Court has ruled that only political compacts, which are those compacts that overlap with areas of congressional authority, require congressional approval. As the assignment of electors is left quite firmly in the hands of the states, this is by that standard a non-political compact and thus does not require congressional approval. I think that questions of whether this is a compact or not are somewhat moot as I believe that for legal purposes the group has framed and forumlated this action as an interstate compact.

Curiously, while Democrats seem to have been the chief supporters of the bill in California, the majority of the national committee that supports the compact are Republicans.

I'm in favor, as I said, of the compact. I see the marginalization of all but a few, "swing states," by the current system and situation as far more pernicious than whatever loss of power that the smaller states might suffer. I also think that this might have a greater chance of success since it requires only a number of states with a majority of the electoral votes for it to work and while that's a vaster project than pressing an amendment through congress, it also makes more difficult for opponents to concentrate resources against it. Previous attempts to pass amendments failed, so this alternative option might as well be explored.

Posted by: Paul A. Brmmer on September 5, 2006 at 5:20 PM | PERMALINK

Al: "As a conservative constitutional scholar, I am certain you are right. ..."

I agree with Jeff. Who is this? This post sounds too reasonable for The Al-bot.

Posted by: Donald from Hawaii on September 5, 2006 at 5:27 PM | PERMALINK

AB 2948 (Assembly Committee Analysis) is the bill at issue.

(1) It is expressly an interstate compact that is being ratified,
(2) If it is Constitutional at all without Congressional consent (I'm not certain of the parameters of the "political compacts" doctrine mentioned above) in outline, has some provisions (including the withdrawal provision) that are probably unconstitutional,
(3) The sponsors apparently are of the belief that Congressional approval is necessary.


Posted by: cmdicely on September 5, 2006 at 5:43 PM | PERMALINK

gilacliff,

try making your arguments with more reasonable numbers and more reasonable candidates. It's too silly for me.

Paul,

Do you think this process might raise the incidence of faithless electors who don't believe in going against their state tally?

Posted by: toast on September 5, 2006 at 5:44 PM | PERMALINK
better argument is that it is not a prohibited "agreement or compact"

Which is a pretty easy battle, since the Constitution may require Congressional assent for compacts, but it certainly doesn't prohibit them except where the results would be prohibited no matter whether acheived through a compact or otherwise.

Posted by: cmdicely on September 5, 2006 at 5:45 PM | PERMALINK

One consequence of the California decision would be that every state would have to actually count all of their absentee ballots. Currently in most states, once a candidate has achieved a sufficient majority to withstand any change due to absentee ballots, then counting of absentee ballots ceases. Reliance on the popular vote makes all of those uncounted absentee ballots very important, indeed.

Posted by: Trashhauler on September 5, 2006 at 5:47 PM | PERMALINK

Here's a interesting thought. Some very small states have total voter rolls that would be within the margin of error for any national ballot count. These states could save a few bucks by not even having an election. They could agree ahead of time to pledge their electoral votes to the winner of the big states.

Posted by: Trashhauler on September 5, 2006 at 5:54 PM | PERMALINK

"Do you think this process might raise the incidence of faithless electors who don't believe in going against their state tally?"

I hadn't much thought about that. I suppose that it would as it adds a new set of inspiration for electors to be cranky, so some misguided reaction or states-righter might decide to make trouble, but I doubt that faithless electors would become signifigant. The electoral college isn't really a deliberative body, and it would likely be loaded with the worst sort of rabid party hatchetment and throwaways if it were, so any sort of spontaneous concerted effort to overthrough that national vote seems unlikely.

Posted by: Paul A. Brmmer on September 5, 2006 at 6:00 PM | PERMALINK
Wait just a minute, Chris, you (and all the "hot shot legal eagles" *) were insisting

Yeah, look, I did some more reading, after responding based on what was presented, which showed that Kevin's comments premised on the whole thing trying to be an end-run around restrictions on the limitations on compacts were wrong.

Posted by: cmdicely on September 5, 2006 at 6:33 PM | PERMALINK
I suppose that it would as it adds a new set of inspiration for electors to be cranky, so some misguided reaction or states-righter might decide to make trouble, but I doubt that faithless electors would become signifigant.

Especially since the compact expressly allows for candidates to choose their electors after they win the election.

Posted by: cmdicely on September 5, 2006 at 6:35 PM | PERMALINK

The smaller states will NEVER give it up and you'll never pass the constitutional amendment needed to remove it.

I've pretty much said the same things in past discussions here of the political viability of electoral college reform (with the slight caveat that a national grassroots movement around democracy and fairness could conceivably overwhelm parochial interest here, though its unlikely.)

There's nothing remotely close to a consensus as this post shows. The number of people interested in changing the election laws is tiny and 95% of those people are motivated solely by Bush hatred. Election laws are political minutia to 97% of the population and will remain so.

Regarding fairness your definition of fairness regarding smalls states is no more important or relevant than small state residences' definition of fairness so your definition doesn't matter. There is absolutely no chance the good citizens of New Hampshire are going to support a reduction in their electorial totals.

This is one of those times Democracy sucks. I'm happ to suggest there probably hasn't been a time in American History when the opinions of the elitists has been less important.

BTW Cmdicely: Last week you stated the axis of evil includes Pakistan. It does not. It never did.


Posted by: rdw on September 5, 2006 at 6:49 PM | PERMALINK
The number of people interested in changing the election laws is tiny and 95% of those people are motivated solely by Bush hatred. Election laws are political minutia to 97% of the population and will remain so.

Please provide evidence supporting the claims:
1) That the number of people interested inchangine the election laws is tiny, and
2) 95% of those people are motivated solely by Bush hatred, and
3) 97% of the population views elections laws as minutiae and that number is not subject to change.

BTW Cmdicely: Last week you stated the axis of evil includes Pakistan. It does not. It never did.

Correct, the fictitious product of GWB's fevered imagination, the "Axis of Evil" never actually existed.

However, a real group of three rogue states engaged in mutual development and proliferation of nuclear weapons technology, and joint development and proliferation of ballistic missile technology, and sponsorship of terrorism, that was very much like the "Axis of Evil" Bush described did (and perhaps does) exist, and its members were (and perhaps still are) Iran, North Korea, and Pakistan.

Posted by: cmdicely on September 5, 2006 at 7:20 PM | PERMALINK

Last week you stated the axis of evil includes Pakistan. It does not. It never did.

Does so!

Posted by: equally puerile on September 5, 2006 at 7:21 PM | PERMALINK

However, a real group of three rogue states engaged in mutual development and proliferation of nuclear weapons technology, and joint development and proliferation of ballistic missile technology, and sponsorship of terrorism, that was very much like the "Axis of Evil" Bush described did (and perhaps does) exist, and its members were (and perhaps still are) Iran, North Korea, and Pakistan


However you were wrong.

BTW: Any chance you saw George Will's Newsweek article on Japan trying to return to 'Normalcy'? Normalcy meaning no military restrictions.

As analysis it was a rather silly effort. As propaganda it was great. Will was reassuring his readership not to worry. You see, as the only victims of a nuclear attack, the Japanese understand better than anyone else the need to remain peaceful. Thus do not fear a remilitarized Japan because they would avoid war at all cost.

Actually Will's gentle interpretation might not be accurate. Having felt the devastation of a nuclear attack they are not about to let it happen again. It's not 'normal' for the worlds 2nd greatest economic power to be terrorizedby the 289th economic power. Normal would be for #289 to understand if they send a missle anywhere near #2 they get vaporized. That's the normal Japan is looking for.

To be fair to Will his column printed before the hand picked successor to Kouzimi kicked off his campaign to be Japans PM by announcing his intention to delete Article 9 of their constitution. His election will be a referendum. Obviously the polls are telling him he has wide support.

Now this is really interesting. China can accept a remilitarized Japan or they can sit on NK. Either way one of them is going to end the NK threat.

How's that for GWBs mastery of soft power?

Posted by: rdw on September 5, 2006 at 7:52 PM | PERMALINK
However you were wrong.

Oh, well that settles it, then.

Posted by: cmdicely on September 5, 2006 at 7:59 PM | PERMALINK

Please provide evidence supporting the claims:
1) That the number of people interested inchangine the election laws is tiny, and
2) 95% of those people are motivated solely by Bush hatred, and
3) 97% of the population views elections laws as minutiae and that number is not subject to change.

I have no raw data. I have very hard, very intelligent analysis. I also have more stats.

For example I know 99% of the American public doesn't give a crap about the electoral college. The 97% used above was just to add some wiggle room so perhaps those in the 3% wouldn't feel like such total dorks.

The 95% was rather easy. I reviewed the literature prior to the 2000 election for stories on the fairness of the electoral college. There wasn't a single story from 1967 thru 2000. It wasn't until after the elections the libs lost their minds to BDS. Now that would suggest 100% of the people bitching after the fact ALL suffered from BDS but I wanted to add a safety factor. So we have a count of 95 of every 100 people nuts about the electoral college suffer from BDS while 5 are just dorks in search of a life.

Could it be 96/4? 97/3? It's possible but I've given this a lot of thought. I have a full minute into it and I'm pretty good with these estimates.

Trust me!

Posted by: rdw on September 5, 2006 at 8:04 PM | PERMALINK

"Trust me!"

Let me guess: you know what you're doing.

Posted by: Paul A. Brmmer on September 5, 2006 at 8:21 PM | PERMALINK

The 95% was rather easy. I reviewed the literature prior to the 2000 election for stories on the fairness of the electoral college. There wasn't a single story from 1967 thru 2000.

Or you just don't know what you're talking about as usual:

Over the history of our country, there have been at least 700 proposed amendments to modify or abolish the Electoral College - more than any other subject of Constitutional reform.

Go read the rest over at Fairvote.org so you're not utterly and completely ignorant of what you're talking about. Since the country's beginning states have been tinkering with the electoral college to make it more fair.

Your "review of the literature" missed the bill to abolish the electoral college that passed in the House in 1969 by a vote of 338-70, the proposal to abolish that missed passage in the Senate by only three votes in 1979, and the reform hearings that took place in Congress in 1992 and again in 1997.

Not so much in the historical research department for you, eh? Let me guess -- conservatives don't need pansy research or facts or history. All they need is control of the propaganda machine, insults, and a faster breeding rate.

Posted by: trex on September 5, 2006 at 8:52 PM | PERMALINK

And here's an interesting factoid straight from the in the Electoral College page in the Federal Archives site online:

Public opinion polls have shown Americans favored abolishing it by majorities of 58 percent in 1967; 81 percent in 1968; and 75 percent in 1981.

So much for your 95%.

Posted by: trex on September 5, 2006 at 9:10 PM | PERMALINK

I haven't made it through the entire comment thread, so maybe this is redundant. There is language in the California constitution that could be interpreted as disallowing the legislature the authority to change the vote of the CA electorate. If the national vote differed from the California vote, I think that the CA constitutionality could be easily challenged.
PS: not an expert.

Posted by: frank on September 5, 2006 at 9:20 PM | PERMALINK

BTW Cmdicely: Last week you stated the axis of evil includes Pakistan. It does not. It never did.

BTW rdw, today the office of the President in Pakistan asserted that they will never capture and turn over bin Laden as long as he lives a "reasonable" life.

Oh, and Pakistan just completed a "peace deal" with the Taliban, returning many of their prisoners and weapons.

Good thing cmdicely was wrong about Pakistan being part of the axis of evil, or this news and their former nuclear proliferation activities would really trouble me.

Posted by: trex on September 5, 2006 at 9:34 PM | PERMALINK

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Posted by: 联通铃声下载 on September 5, 2006 at 10:58 PM | PERMALINK

Are you able to even think? Sheesh.

An agreement or contract involves - ESSENTIALLY - the notion of rights and responsibilities of both parties. You have the right to expect X - you are responsible for providing Y. No other state, in this bill, has either. Hence it's not an agreement or contract.

Or if that was too complicated for you: Have I made a contract or agreeement with nature if I commit myself to taking out my umbrella upon its raining?

Duh.

Posted by: cdj on September 5, 2006 at 11:01 PM | PERMALINK

trex,


Pakistan and India have been among GWBs foreign policy coups along with the remilitarization of Japan and Germany. Our relations with both nations is at it's strongest level EVER and far superior than under the smaretest man in the history of the universe who happened to be in office when Pakistan was actually supporting the Taliban and they were taking over Afghanistan.

I have very bad news for you my friend and that's the fact partisan hacks won't be writing history. Pakistan is not in the axis of evil, is no longer supporting the Taliban, who by the way are getting crushed, and Pakistan is working hard for a settlement and peace with India.

GWBs brilliance with India is of course easy to see if one can look past the end of their partisan nose. As the worlds largest Democracy with a reapidly growing economy, well educated workforce and growing technology power, as well as bitter enemy of Islamic Fascism and none too crazy about the Chinese either they make just the perfect addition to the group of the worlds democratic powers led by the USA - Japan - Germany - Italy - Poland - Australia - Canada.

Think of it. No offense to the latter 4 but the big 3 could never be challenged. Once Japan ramps up there's nothing China can do to compete. In fact there's nothing China and Russia combined could do. Japanese technological expertise is simply too great. The Chinese may have a million man army but with smart technology they're be slaughtered immediately, much as the Taliban in Afghanistan.

No Arab, No socialist army could ever hope to compete with a modern western army in battle. It would be a slaughter

Of course the same holds true for Germany. They will not gear up as quickly as Japan mainly because they don't face the same threats. But having lost the protection of the USA they are coming to grips with the reality Germans must defend Germany. Germans are not appeasers. Iran will give them no choice. The German high command will return to it's former excellence.

India is of coruse well behind and still transitioning from socialism which as we know is a devastating disease. But they are most definitely transition and will be a fabulous trading partner. They are rapidly absorbing our excess jobs and two-way trade is booming. With the largest middle class in the world trade will continue to boom and help keep the USA booming.

Just as interesting is the rebirth of the US nuclear power industry. It's very helpful India will invest in nuclear power witch the USA provides and not oil. The entire world is becoming more comfortable with nuclear power a well including the southern US where over a dozen permits are under review by regulators. As CA raised taxes to fund their stem cell and kyoto initiatives businesses will abandon expensive CA for low cost Red State America.

By using nuclear power to open up Inda GWB has created a huge new market for American products and restarted the nucler power industry. By 2012 we'll be getting another 1M Bls a day from the gulf out of the new field, 2M a day from Alberta, 10% of our gasoline from Ethanol and at least a dozen new nuclear plants.

I did not mention the UK and France among the democratic powers because their futures are so questionable. Each is facing a demographic disaster complicated by radical minorities complicated by increasingly socialized economies. Neither can be relied on.

Posted by: rdw on September 6, 2006 at 10:05 AM | PERMALINK

Wow, people are all over the map on this one. It's not like there's no case law interpreting Article 1, Section 10, you know.

In Holmes v. Jennison, decided well over 150 years ago, the infamous Chief Justice Taney wrote:

As these words ('agreement or compact') could not have been idly or superfluously used by the framers of the Constitution, they cannot be construed to mean the same thing with the word treaty. They evidently mean something more, and were designed to make the prohibition more comprehensive. . . . The word 'agreement,' does not necessarily import and direct any express stipulation; nor is it necessary that it should be in writing.

This bill, standing alone, does not constitute an agreement; but any reasonable construction would deem it an offer to enter into an agreement, an offer which may be accepted in a specified manner: by other states passing a similar law.

Let's assume that enough states pass this law that it goes into effect, and all those states attempt to award their electoral votes to the winner of the national popular vote. You'd have to strain pretty hard to argue that they were not awarding their votes pursuant to an "agreement," even though there would be no written contract between the states.

It's worth noting that Chief Justice Taney's doctrine was modified by the case of Virginia v. Tennessee, decided in 1893, which held:

Looking at the clause in which the terms 'compact' or 'agreement' appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.

In other words, states are free to enter into minor agreements that the federal government doesn't really care about. But it's pretty clear that this tacit agreement, which would effectively undermine the institution of the Electoral College, is something that would challenge the authority of the federal government and thus would require Congressional approval. The California bill's sponsors seem to agree.

Posted by: Steve on September 6, 2006 at 10:43 AM | PERMALINK

I have very bad news for you my friend and that's the fact partisan hacks won't be writing history.

Given your continuous attempts at historical revisionism, I'd say this is much worse news for you.

Pakistan, which you seem to know little about, is not very friendly to the U.S. Musharraf puts on a good face but he barely has his own military and intelligence services under control, and can't go out for an ice cream without taking measures not to get assassinated. The populace is hugely unfriendly to the U.S. for all the usual reasons.

Pakistan is not in the axis of evil, is no longer supporting the Taliban, who by the way are getting crushed

I suggest you read the news, you idiot. Pakistan signed a "permanent" peace treaty with the Taliban just yesterday. Or didn't you know there were Taliban in Pakistan? And Karzai has been doing nothing but bitch that Pakistan has been allowing the Taliban to cross the border at will to place attacks in his country - which they have, partly because the local populace and even some troops are sympathetic to the cause.

Perhaps you should ring him up and tell him how great things actually are in Afghanistan. Better yet, send him one of your infamous posts. Be sure to throw in some stuff about Reagan, the Tar Sands, and how if they're not careful the French are going to end up praying five times a day.

I'm sure he'll be amused.

Posted by: trex on September 6, 2006 at 1:26 PM | PERMALINK
I have no raw data. I have very hard, very intelligent analysis.Analysis is something you do with data. If you have no raw data, you have nothing to analyze.
Posted by: cmdicely on September 6, 2006 at 2:15 PM | PERMALINK
Germans are not appeasers. Iran will give them no choice. The German high command will return to it's former excellence.

Posted by: rdw on September 6, 2006 at 10:05 AM | PERMALINK

Compare with:

The Germans did the only thing they know. They cut a deal. These are not the kind to people to ally with.

Posted by: rdw on January 4, 2006 at 6:03 PM | PERMALINK

This is what we in the biz call a "propaganda adjustment" or "meme switch."

You may know it as the dishonest ramblings of a loon.

Posted by: trex on September 6, 2006 at 2:34 PM | PERMALINK

A few quick corrections and clarifications:

1. States can enter into compacts and agreements with or without the consent of Congress. The key is whether the agreement or compact infringes on any federal power. In this case, awarding of electoral votes is a plenary power of states -- see the dreaded Bush v. Gore for details. States can award electors any way they like; see Article II.

2. The compact contains a blackout period for withdrawal: From July 20 of an election year until the inauguration of the president on January 20. Interstate compacts are enforceable contracts; there's plenty of case law on 'em. So there can be no monkey business by compacting states after the votes are cast.

3. Proportional allocation is a terrible idea, and not for partisan reasons. Both proportional allocation (and congressional district allocation, like in ME and NE), still distort people's votes. Like the current system, every vote would not be equal. Worse, perhaps, is the far greater likelihood of no candidate winning a majority of the electoral college, as third-party candidates can scoop up a few electoral votes here and there to deny anyone a majority. Then it goes to the House. Yuck!

4. Finally, small states DO NOT benefit from the current system. Repeat: DO NOT. Mathematically, yes, their votes are more heavily weighted (and that's outrageous and undemocratic), but of the 13 smallest states, 12 are safe for one party or the other. Only NH is in play in November. If your more heavily weighted vote can't get candidates to visit, or policy consideration, it's a totally illusory benefit. It's the difference between outdated civics lessons and the reality of the modern impact of the Electoral College.

How can anyone justify a presidential election where not every American's vote is the same? And that voters in 2/3 of the states are ENTIRELY IGNORED. The NPV plan is constitutional, politically practical, and desperately needed. Lots of mind-numbing details at http://www.nationalpopularvote.com

Enjoy!

Posted by: American Voter on September 6, 2006 at 5:13 PM | PERMALINK

"As a question of politics, the proposal is simply an attempt to render California's liberal majority irrelevant."

"If you want to abolish the Electoral College, work to do it right."

1. Of course its not a great idea if only CA does it. However, if states representing over 50% of population of the U.S. also adopt similar procedures, it simply throws the Presidency to whoever got the most votes - liberal or con.

2. The reason for such a bill is that any attempt to amend the constitution re the electoral college is dead on arrival. An amendment needs to be proposed by 3/4 of the states and ratified by 2/3. Just how many of the majority of smaller states are likely to ever go along with an amendment that ultimately and unambiguously would dilute their power in choosing the President?


Posted by: mb on September 6, 2006 at 5:49 PM | PERMALINK
States can enter into compacts and agreements with or without the consent of Congress.

No, they can't.

The key is whether the agreement or compact infringes on any federal power. In this case, awarding of electoral votes is a plenary power of states -- see the dreaded Bush v. Gore for details.

Actually, its a power reserved to the state legislatures by the Constitution, that cannot be constrained by (e.g.) state Constitution.

States can award electors any way they like; see Article II.

No, states may award electors any way their state legislatures like, which isn't precisely the same.

The compact contains a blackout period for withdrawal: From July 20 of an election year until the inauguration of the president on January 20. Interstate compacts are enforceable contracts; there's plenty of case law on 'em. So there can be no monkey business by compacting states after the votes are cast.


I suspect the blackout period is Constitutionally unenforceable. I actually suspect the entire compact is Constitutionally unenforceable, analogously to a delegation of Congressional power to the executive. This isn't state police power that is being limited by compact, but exclusive powers created by the federal Constitution and placed in the individual state legislatures. The courts have been very vigorous in making the distinction between state legislatures and the states more generally in this context, and I don't think an interstate compact can constrain the plenary power of a State legislature here any more than anything else can.

Proportional allocation is a terrible idea, and not for partisan reasons. Both proportional allocation (and congressional district allocation, like in ME and NE), still distort people's votes. Like the current system, every vote would not be equal. Worse, perhaps, is the far greater likelihood of no candidate winning a majority of the electoral college, as third-party candidates can scoop up a few electoral votes here and there to deny anyone a majority. Then it goes to the House. Yuck!

Having it go to the House when there is no genuine majority winner is probably better than creating an artificial majority through the unequal one-state-one-winner system, though a sensible preference voting system would be better (as, arguably, would be a deliberative Electoral College personally elected.)


Posted by: cmdicely on September 6, 2006 at 5:59 PM | PERMALINK
Of course its not a great idea if only CA does it. However, if states representing over 50% of population of the U.S. also adopt similar procedures, it simply throws the Presidency to whoever got the most votes - liberal or con.

Wrong. If states representing over 50% of the electoral vote (not population) adopt it, then it goes into effect, and then it throws the President to the plurality winner of the national popular vote, which while perhaps not worse than the current system, is not a worthwhile reform.

The reason for such a bill is that any attempt to amend the constitution re the electoral college is dead on arrival. An amendment needs to be proposed by 3/4 of the states and ratified by 2/3.

Er, no. You need to go read Article V again.

Posted by: cmdicely on September 6, 2006 at 6:07 PM | PERMALINK

Why wait for other states? If this had been around in 2000, Gore would still have been screwed, so no harm would have been done. But if one or two smaller red states had this law, Gore would have been president. Why couldn't they just unilateral do this law and hope to lead by example?

Posted by: jussumbody on September 6, 2006 at 7:53 PM | PERMALINK

I wonder if American Voter realizes that his points #1 and #2 are contradictory. If awarding electoral votes is a "plenary power" of each State, then a contract to award those votes in a certain way can't possibly be "binding." Does AV really envision New York suing California in federal court to compel California to award its electoral votes in a certain way?

If a federal court has the power to interpret the laws of California and order California to award its electoral votes in a certain way, then California's power is hardly "plenary." That's just self-evident.

cmdicely, on the legal issue of whether every interstate agreement needs to be approved by Congress, AV is right and you are wrong. See Virginia v. Tennessee, 148 U.S. 503 (1893), which I mentioned above. However, I disagree with him that this is an example of an agreement which would not have to be approved; it clearly infringes on the federal government's establishment of an Electoral College, and Congress has the right to decide if it wants to approve an interstate compact that would effectively undo the Electoral College.

Posted by: Steve on September 6, 2006 at 9:45 PM | PERMALINK

So, if you can't do it according to the Constitution, do it un-Constitutionally?

If the courts declare it unconstitutional it obviously won't fly. The clearly haven't done so at this point now, have they?

Of course its not a great idea if only CA does it. However, if states representing over 50% of population of the U.S. also adopt similar procedures, it simply throws the Presidency to whoever got the most votes - liberal or con.
Wrong. If states representing over 50% of the electoral vote (not population) adopt it, then it goes into effect, and then it throws the President to the plurality winner of the national popular vote, which while perhaps not worse than the current system, is not a worthwhile reform.

I would think that's better than the current system where the winner of the most votes can clearly lose - and when this happens, its generally due the EC bias towards smaller more con. states. Given the realistic alternatives this is possibly the fairest setup that can be expected.


The reason for such a bill is that any attempt to amend the constitution re the electoral college is dead on arrival. An amendment needs to be proposed by 3/4 of the states and ratified by 2/3.
Er, no. You need to go read Article V again.

Your right - its the other way around - 2/3 propose and 3/4 ratify. The logic is nevertheless the same - its damn unlikely that an amendment changing the system would ever get ratified for the reasons I mentioned before.

Posted by: mb on September 7, 2006 at 2:53 AM | PERMALINK




 

 

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