EmilyD

And I'm responding to it just to be clear.

Here is your question and my response, which was hijacked:

Factnotfiction: There is a debate in congress about changing the e*******l college process from the 'winner take all' to proportional distribution of delegates.

The argument is that all v**es should count in p**********l e******ns, so trump supporters in California feel they get shut out by the current winner take all.

And the same argument is presented in the so called 'purple states' that tend to flip more frequently.

So what do you think the right way to proceed?

Winner take all or Proportional[/quote]

MY RESPONSE:

Are you talking about split e*******l v**es like they have in Maine and Nebraska? Maine adapted this rule before the 1972 p**********l e******n, while Nebraska enacted it starting with the 1992 e******n. A split has occurred once in each of these states. In 2008, Barack Obama won Nebraska's 2nd Congressional District (Omaha and its suburbs), gaining a Democratic e*******l v**e in that state for the first time since 1964. In 2016, Donald T***p w*n Maine's 2nd Congressional District, which covers most of the state away from Portland, Augusta and nearby coastal areas. Statewide, Maine last v**ed Republican in 1988. This would be beneficial in other states that have large cities (mostly on the coasts), but the rural parts of the states are mostly conservative. For instance New York is a "winner take all" state. NY City is largely liberal, but the rest of the state are mostly farmers and small business people who usually v**e conservative, so they would be better represented with a split e*******l college. Same with all the other large states that have big liberal cities, but a lot of conservative rural communities as well.

Kevyn

MY RESPONSE:

Are you talking about split e*******l v**es like they have in Maine and Nebraska? Maine adapted this rule before the 1972 p**********l e******n, while Nebraska enacted it starting with the 1992 e******n. A split has occurred once in each of these states. In 2008, Barack Obama won Nebraska's 2nd Congressional District (Omaha and its suburbs), gaining a Democratic e*******l v**e in that state for the first time since 1964. In 2016, Donald T***p w*n Maine's 2nd Congressional District, which covers most of the state away from Portland, Augusta and nearby coastal areas. Statewide, Maine last v**ed Republican in 1988. This would be beneficial in other states that have large cities (mostly on the coasts), but the rural parts of the states are mostly conservative. For instance New York is a "winner take all" state. NY City is largely liberal, but the rest of the state are mostly farmers and small business people who usually v**e conservative, so they would be better represented with a split e*******l college. Same with all the other large states that have big liberal cities, but a lot of conservative rural communities as well.[/quote]

There is a pact between a number of states who pledge to give their e*******l v**es to the candidate who wins the popular v**e. The National Popular V**e bill would guarantee the Presidency to the candidate who receives the most popular v**es across all 50 states and the District of Columbia. It has passed one house of congress in enough states to make it essentially nullify the e*******l system and have the popular v**e winner become president.

It has been enacted into law in 16 jurisdictions with 196 e*******l v**es (CA, CO, CT, DC, DE, HI, IL, MA, MD, NJ, NM, NY, OR, RI, VT, WA). See map. The bill will take effect when enacted by states with 74 more e*******l v**es. The bill has passed one house in 8 additional states with 75 e*******l v**es (AR, AZ, ME, MI, MN, NC, NV, OK), including a 40–16 v**e in the Republican-controlled Arizona House and a 28–18 in Republican-controlled Oklahoma Senate, and been approved unanimously by committee v**es in two additional Republican-controlled states with 26 e*******l v**es (GA, MO).
STATUS: AK AL AR AZ CA CO CT DC DE FL GA HI IA ID IL IN KS KY LA MA MD ME MI MN MO MS MT NC ND NE NH NJ NM NV NY OH OK OR PA RI SC SD TN TX UT VA VT WA WI WV WY

The Critical Critic Loc: Turtle Island

Last month, Colorado’s legislature became the twelfth to pass the National Popular V**e Interstate Compact (NPVIC,) an agreement among the states to circumvent the constitutional method of electing the president in favor of a national popular v**e. Each state that signs the agreement would require its p**********l e*****rs to obey the results of the national popular v**e, not the results in their own state. It would come into effect when states representing a majority of e*******l v**es have signed on to the idea. Colorado Gov. Jared Polis, a Democrat, has pledged to sign the bill.

The idea has been capturing the attention of frustrated Democrats since law professor Robert W. Bennett dreamed it up after the 2000 e******n. It gained even more popularity on the left in 2016, following the e******n of Donald Trump despite Hillary Clinton’s popular v**e plurality.

As an antidote to the Democratic Party’s current difficulties in winning v**es outside of their coastal base, the compact is bound to appeal to fed-up partisans. But as a legal matter, it is flawed and almost certainly unconstitutional.

The Constitution Can Be Changed Only by Amendment

The way we change constitutional requirements like the E*******l College is detailed in Article V of the U.S. Constitution. The amendment process described there gives several ways to change the Constitution, and may be used to bring about nearly any alteration the people desire. It was, in fact, used to alter the E*******l College process three times before.

The first, in the Twelfth Amendment, approved in 1804, mandated that e*****rs v**e separately for president and vice president (before then, the vice president was the runner-up in the p**********l e******n, a system that quickly became untenable). The Fourteenth Amendment, added in 1868, barred unpardoned rebels from becoming e*****rs and requiring that states allow all of their male citizens over 21 years old to v**e for e*****rs (with a minor few exceptions). The Twenty-Third Amendment expanded the E*******l College to give the District of Columbia three e*****rs in 1961. In addition, the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments expanded the right to v**e generally, including in p**********l e******ns.

As all this makes clear, we are perfectly capable of altering the method of p**********l e******n through the amendment process, and have done so often in our history. Why, then, would the advocates of a national popular v**e not use that tried-and-true method of altering our political structures legitimately? The reason is simple: they have tried it before and failed. Instead of trying to build popular support, popular v**e advocates are now trying to get around the law through this legislative sleight of hand.

It takes more to amend the Constitution than it does to pass a simple statute, and purposely so. The Constitution is supreme over all other laws and state constitutions. As such, changes to it ought to be something that more than a bare majority desires. Laws come and go, but a Constitution is meant to have staying power and not be idly altered.

The popular v**e campaign does not have that widespread support. Time and again, amendments proposed in Congress to accomplish their desired result have failed. A quick look at the states that have joined this legally dubious effort shows that the effort is entirely one-sided—the compact has been made law in Maryland, New Jersey, Illinois, Hawaii, Washington, Massachusetts, Vermont, California, Rhode Island, New York, and Connecticut, as well as the District of Columbia.

None of these states have v**ed Republican in a p**********l e******n since at least 1988. In fact, D.C. has never v**ed Republican, and Hawaii has done so only twice. The addition of Colorado will mark the first time that anything close to a swing state has joined the compact—Colorado v**ed Republican in 2004, and favored Hillary Clinton by less than 5 percent in 2016.

A narrowly partisan change to the Constitution is not likely to pass, nor should it. The changes to the E*******l College made in the 1804 and 1961 amendments had widespread support around the country, and corrected problems that nearly everyone agreed were problems. The NPVIC does not seek to remedy such an ill; it seeks victory for one side through changes in the law.

This Interstate Compact Violates the Constitution

It is a bad idea, but does that mean it’s unconstitutional? Not on those grounds alone, but the compact clearly violates the plain language of several sections of the Constitution. The first clue is in its title. Any interstate compact must raise the issue of the Compact Clause in Article I of the Constitution, which holds in relevant part that “No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State.”

That’s a pretty strong statement. No penumbras and emanations here, only the unequivocal language of the Constitution that says any compact among the states must be approved by Congress. Even in those analyses of the NPVIC that support its constitutionality, http://jlsp.law.columbia.edu/wp-content/uploads/sites/8/2017/03/42-Pincus.pdf

authors admit that “read literally, this provision would require all agreements between states to be approved by both houses of Congress and to be signed by the President before coming into effect.”

“Read literally.” What other way should a law be read? Do the NPVIC’s advocates think the language is metaphorical? Do they suppose the Constitution’s authors were being whimsical when they wrote this phrase? Even originalists can admit that some passages in the Constitution are vague, but to read the words any way other than literally invites us to have no standard at all.

Non-literalists point to historical examples of agreements between states that never received congressional approval, yet have never been invalidated. Most of these involved border adjustments between two states, a necessity in the days of imprecise measurements. Drawing on an 1893 Supreme Court ruling in Virginia v. Tennessee, http://cdn.loc.gov/service/ll/usrep/usrep148/usrep148503/usrep148503.pdf

they maintain that Congress does not need to approve all compacts, only those involving “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.”

This is taken as evidence in the NPVIC’s favor, but it is more naturally read the other way. Even if the carve-out invented in Virginia v. Tennessee remains good law, it suggests only that minor agreements with no effect on the union as a whole should be exempt from congressional approval.

The exact contours of the Virginia-Tennessee border (the subject of that case) do not change the balance of power between the states and the federal government. While important to people living along that state line, it has no federal implications and is hardly even a compact; it is merely the clarification of an earlier (in this case, colonial) agreement on a physical boundary.

Compare that to the NPVIC, which effectively rewrites an entire section of the Constitution. The compromises struck at Philadelphia in 1787 were not made lightly. Decisions on how the president would be elected and how many v**es each state would get are the product of lengthy negotiations and trade-offs. To overturn those arrangements based on the alliance of a few states—likely not even a majority of them—turns that finely balanced design on its head.

A compact among these states that will determine the e******n of the president is the farthest thing from the minute adjustments to a colonial-era state border. The Constitution provides one method of electing a president, while the NPVIC substitutes another. Nothing could be more of an encroachment upon “the just supremacy of the United States.”

Disenfranchising Their Own Citizens

Other constitutional objections could also hinder the NPVIC. One of the biggest issues is that, while claiming to value all Americans’ right to v**e for president, the compact has the effect of disenfranchising each state’s citizens.

Imagine a scenario like the 2004 e******n, where Republican George W. Bush won a majority of the popular v**e, but did not win any of the current NPVIC member states (Colorado will be the exception to this rule when it joins the compact). The result would have been that John Kerry’s ten best states all cast their v**es for his Republican opponent. Does that make any sense? Is that the will of the v**ers in those states?

The concern is more than moral. The Fourteenth Amendment, as noted earlier, made a change to the E*******l College meant to address the former Confederate states’ efforts to disenfranchise their newly freed black citizens. Section 2 of that amendment holds that:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to v**e at any e******n for the choice of e*****rs for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in r*******n, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

In layman’s terms: if any state denies the right of adult male citizens to v**e, that state’s representation in the House of Representatives will be reduced in proportion to the percentage of such men who were disenfranchised. That is, if the state of Louisiana—which was 50.1 percent black in 1870—had refused to allow its black citizens to v**e, the number of representatives Louisiana could send to Congress would be reduced by 50.1 percent.

Despite widespread black disenfranchisement in the South following the end of Reconstruction, this provision was never enforced. It nevertheless remains valid law, and the read together with the Nineteenth and Twenty-Sixth Amendments, it would likely prevent the disenfranchisement of any citizen aged 18 or older. The Congress that passed this amendment sought to protect the former s***es from being deprived of the right to v**e; they never imagined that a state would someday attempt to disenfranchise all of its citizens.

Yet that is clearly what the NPVIC threatens to do in removing the right to v**e for e*****rs for president. If the nationwide v**e is won by a candidate other than the one who won in that state, the state’s e*****rs would nevertheless v**e for that candidate. This would sever the connection between the v**ers and the e*****rs, disenfranchising the people and jeopardizing the state’s representation in the House.

Fantasy E******ns

Even if the NPVIC were constitutional, and even if enough states joined it to bring it into effect, there is no guarantee that the result would suit Democrats any better than the current system. We don’t know who would have won a national popular v**e contest in 2016 because no one, at present, has ever tried to win one.

Any campaign worth its salt tries to win the actual e******n, not the fantasy e******n we call the popular v**e. Republicans do not campaign in California, even though citizens of that state cast 4,483,810 v**es for Trump in 2016, more than any state except Florida and Texas. Likewise, Democrats do not waste much time or money in Texas in p**********l e******ns, even though Clinton got more v**es out of the Lone Star State than any state but three. (Clinton also did not expend much effort in much closer states like Wisconsin and Michigan.)

Could Trump have gotten more v**es out of California if his campaign had spent time and resources there to get out the v**e? Of course he could, but it would not have been enough to overcome Clinton’s massive advantage there, so they did not bother. At the same time, many conservative Californians likely sat home, knowing their v**es would not tip the state to Trump. This is the heart of the NPVIC advocates’ case for a popular v**e, yet they fail to see how it cuts against them just as much. We don’t know who would win a national popular v**e, because we’ve never really had one.

Losing two e******ns in the E*******l College despite popular v**e pluralities is bound to frustrate partisans on the left, and it has seemingly driven some of them to embrace radical, nonsensical solutions. Emotions run high in e*******l politics, but they cannot overcome the t***h of what the Constitution does and does not allow. Proponents of a popular v**e are free to amend the Constitution if they can but until they do so, they must respect the rule of law and accept the results of e******ns.

By: Kyle Sammin

(He is a lawyer from Pennsylvania, a senior contributor to The Federalist, and the co-host of the Conservative Minds podcast. Read some of his other writing at his website, or follow him on Twitter at @KyleSammin.)



(A side note: since this publication, the 10th U.S. Circuit Court of Appeals ruled that the Colorado secretary of state violated the Constitution in 2016 when he removed an e*****r and nullified his v**e when the e*****r refused to cast his b****t for Democrat Hillary Clinton, who won the popular v**e.)

bahmer

MY RESPONSE:

Are you talking about split e*******l v**es like they have in Maine and Nebraska? Maine adapted this rule before the 1972 p**********l e******n, while Nebraska enacted it starting with the 1992 e******n. A split has occurred once in each of these states. In 2008, Barack Obama won Nebraska's 2nd Congressional District (Omaha and its suburbs), gaining a Democratic e*******l v**e in that state for the first time since 1964. In 2016, Donald T***p w*n Maine's 2nd Congressional District, which covers most of the state away from Portland, Augusta and nearby coastal areas. Statewide, Maine last v**ed Republican in 1988. This would be beneficial in other states that have large cities (mostly on the coasts), but the rural parts of the states are mostly conservative. For instance New York is a "winner take all" state. NY City is largely liberal, but the rest of the state are mostly farmers and small business people who usually v**e conservative, so they would be better represented with a split e*******l college. Same with all the other large states that have big liberal cities, but a lot of conservative rural communities as well.[/quote]

I agree with you on this EmilyD I think that that would balance out across this great land and I for sure do not want to do away with the e*******l college.