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Presidential electors can vote with discretion

Amicus brief explains that States cannot compel presidential electors to vote a certain way.

Under the U.S. Constitution, presidential electors are free to vote as they choose, and cannot be controlled by the states. So argues an amicus brief that Rob Natelson and I filed in the 10th Circuit last week. The brief focuses on the original understanding of Article II, and of the Twelfth Amendment (1804), which modified the original system of electing the President and Vice-President. Fellow Volokh Conspirator David Post has also filed an amicus brief in the case; his brief discusses original meaning, but also details the history of presidential electors from the early 19th century to the present.

Factual background: In the 2016 presidential election, Hillary Clinton won the popular vote in the states of Colorado and Washington. In December, when the presidential electors assembled in each state, several Colorado and Washington electors attempted to cast their votes for someone other than Mrs. Clinton. The Colorado electors wanted to vote for John Kasich. They hoped that a sufficient number of electors in other states, including states where Donald Trump won the popular vote, might also vote for Kasich. If Trump did not receive 270 electoral votes, then the House of Representatives would decide the run-off among the three persons who had received the most electoral votes (Trump, Clinton, and Kasich).

In Colorado and Washington, the Secretaries of State threatened the electors with punishment under state law. The Secretaries were enforcing state statutes that require presidential electors in the state to vote for whomever wins the popular vote. Two of the Colorado electors who wanted to vote for someone other than Mrs. Clinton complied, and reluctantly voted for her. A third Colorado elector refused to back down. The Colorado Secretary of State removed the elector, and replaced him with an alternate, who then voted for Mrs. Clinton.

Case history: Harvard law professor Lawrence Lessig is leading a legal team representing the thwarted electors. The electors are dubbed "Hamilton electors," since Alexander Hamilton's Federalist no. 68 plainly stated that presidential electors would exercise discretion. Prof. Lessig and his clients seek a declaratory judgment that laws such as those in Colorado and Washington, which purport to eliminate the electors' discretion, violate the U.S. Constitution.

The case in Washington State is moving relatively slowly, as the Washington Supreme Court decides whether to grant certiorari, or to let the Washington Court of Appeals hear the case first.

In Colorado, the case was brought in federal district court. The district court ruled against the plaintiffs, and the case is now before the Tenth Circuit. Briefs for the Hamilton electors and their amici have been filed. The Colorado Attorney General will write a response brief, and after that, Prof. Lessig can file a reply brief. Oral argument might be in late 2018 or early 2019.

Now is a very good time for this constitutional litigation to take place, since the courts can focus on the legal issues. If the questions were postponed until litigation following some future presidential election, courts would have to make a decision while under immense partisan pressure from both sides--with both sides coercing the courts to decide according to politics, not law.

Argument: The United States Constitution permits, in fact requires, presidential electors to exercise their best discretion and judgment when casting their votes for President and Vice-President. The governing constitutional text is the Twelfth Amendment, whose relevant language is substantively identical to its predecessor in the original Constitution. According to the dictionaries and legal definitions of the time, an "elector" is a "chooser"--someone who exercises discretion to make a choice.

The Constitution gives the States the authority to determine how electors are appointed. For example, electors could be appointed by the state legislature. Today, all states have laws for electors to be chosen by the people. The power to appoint an elector does not include the separate power to control an elector after the appointment. Similarly, the President's power to appoint federal judges do not include the separate power to control how judges vote. The power of the people to elect the members of the U.S. House of Representatives does not include the separate power to control how those Representatives vote during their term of office.

When the Constitution means to give an appointer the separate power to control the appointee, the Constitution says so. For example, Article II is replete with clauses affirming the President's power to control appointees in the Executive Branch. (The Take Care Clause, the Opinion Clause, the Executive Vesting Clause, and the Commissioning Clause.)

The 1787 Constitutional Convention knowingly copied existing electoral models based on elector discretion. The model first was Maryland's system for electing the state senate. In Maryland, the people voted for the electors, and the electors in turn chose who the state senators would be.

The second model was especially important to James Wilson, a Scottish immigrant who was the first to propose an electoral college for choosing the President. In Scotland, members of the British House of Commons were not elected directly by the people (as they were in England). Instead, Scottish MPs were chosen by "commissioners." The commissioners in turn were elected by the people or by local governments.

The Convention delegates stated repeatedly that they wished to ensure that presidential election was kept free of state control. The Convention specifically and overwhelming rejected a proposal to allow the states to elect the president. During the constitutional ratification debate, advocates and opponents of ratification alike repeatedly stated that presidential electors would exercise full discretion.

There is not much serious dispute that the 1787 Constitution provided for free choice for electors. Hamilton's Federalist 68, as well as many other ratification documents, are very clear.

The Colorado federal district court, however, was persuaded by the argument that the Twelfth Amendment changed everything. Originally, the Constitution had provided that the electors would vote for two persons. Whoever came in first would be President, and the runner-up would be Vice-President. After the contentious tie in the 1800 presidential election between Thomas Jefferson and Aaron Burr (one of the pro-Republican South Carolina electors was supposed to not vote for Burr, but failed to follow through), the Constitution was amended. Under the Twelfth Amendment, each elector casts one ballot for President, and a separate ballot for Vice-President.

Although the Twelfth Amendment changed how electors would vote, the Amendment did not remove their discretion. Instead, the Twelfth Amendment copied nearly verbatim the 1787 language from Article II, which is generally agreed to recognize electors' discretion. Even more importantly, during the pro/con congressional debate on the proposed Twelfth Amendment, supporters and opponents expressly said that if the Twelfth Amendment became law, electors would have discretion.

Whether the constitutional system of the Electoral College is a good idea can be debated. People who oppose electors' discretion could argue for a constitutional amendment that would make winning the popular vote in each state worth a certain number of points. Whoever garners 270 points would win the election. Perhaps such an amendment would be an improvement. But that's a decision to be made under the amendment process of Article V.

It is also true that many state ballots these days are deceptive. For example, in Colorado, the names of the presidential nominees are on the ballot, but the names of the persons in the different slates of electors are not. So Colorado voters were tricked into thinking that they were voting for Hillary Clinton or Donald Trump, when in fact the voters who choosing between competing slates of electors who had said that they would cast their electoral votes for Clinton or Trump. And just like candidates for any office who make promises about how they will vote in office, the promises of the electors may be morally binding, but they are not legally binding.

Our amicus brief does not attempt to create a better system for electing the President. The brief simply presents the original public meaning of the 1787 Constitution and of the Twelfth Amendment. Our view is that the courts should adhere to the Constitution that was actually adopted.

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  • santamonica811||

    The most important part of this case is, as you pointed out, that it is a REALLY good idea to resolve this now, before a future real-life case comes by and we get a fiasco like the SCOTUS activism in Bush v Gore.

    When there are no "OMG, We need a ruling right away!" issues, we're much more likely to get a reasoned, thoughtful, objective ruling/analysis.

  • Scarecrow Repair & Chippering||

    SCOTUS activism? My recollection is that the Gore camp tried to recount just the districts they lost, and the Supreme Court said all or none, and there wasn't time for all. The Supremes couldn't have issued a biased opinion (IFFFF they did) if the Gores hadn't tried to bias it their own way first.

  • Chem_Geek||

    Precisely.

  • santamonica811||

    I was thinking about the TRO. The votes were being counted, and Bush's team went to SCOTUS and said, "Give us an injunctive order, to stop the vote-counting. The Supreme Court agreed, under the bizarre theory that if the votes were indeed counted, it was likely the Bush would suffer irreparable harm.

    This, of course, was entirely backwards. Since Bush had already (tentatively) won Florida, it was Gore who would suffer irreparable harm--if the votes were not counted. But the court seemed to ignore this and felt that Bush--if it were found that Gore actually got more votes--would suffer the legal harm.

    Right before that ruling, the votes were being counted. The Republicans (shrewdly) sent in a bunch of loud protesters to the counting room, and the officials there got spooked, and suspended the counting for the night. The would have 8 years to regret that timidity.

    I also agree 100% with you that it was unbelievably stupid for the Gore camp not to say, "Hey, let's recount all of Florida." It looked like cherry-picking to me, and probably looked that way to most people.

  • C. S. P. Schofield||

    I seem to recall that a recount was undertaken after the fact by certain Media (NY Times?), and that that recount found that Al Gore might have been declared the winner...under a set of criteria that could not have stood up in court.

  • Sebastian Cremmington||

    Exactly, the Constitutional recount was conducted by a different organization and those recounts had Gore winning in the most likely scenarios had the Supreme Court not prematurely ended the recount or Harris not dragged her feet.

  • Krayt||

    You can't change the rules on what counts as a vote, after the vote, to make your guy win (e.g. hanging chad rules.)

    You can't recount and recount and recount close districts until one recount makes your guy win, then stop and say, "All done!"

    Gore probably should have won, but not because of recount issues. He probably should have won because of the Pat Buchanan fiasco in that one county. But even there, the government, even more properly, has no power to reassign votes.

  • ||

    If people are too dumb to fill out a ballot correctly, that's just too damn bad.

  • TW||

    I don't think it actually was a "mistake." Buchanan was running as the Reform Party candidate and got something like nine thousand votes in Palm Beach County during the primary so it's not beyond the realm of possibly that he would get 3,407 in the general election. Also the Reform Party Congressional candidate got more votes than Buchanan did in Palm Beach County and a lot of people probably voted for both.

  • Sebastian Cremmington||

    The overcounts which would have mostly gone to Gore were easy to figure out because they checked Gore and then wrote his name in a different section. The undercounts are easy too when no other presidential candidate is punched.

  • bernard11||

    the Gore camp tried to recount just the districts they lost, and the Supreme Court said all or none, and there wasn't time for all.

    Nobody distinguished themselves there. The whole "irreparable harm" business was partisan BS.

    But Gore's strategy was poor. Instead of recounting the places where Gore won they should have recounted the places where he lost. That has a better chance of picking up votes.

    Besides, Gore should have just asked for a statewide recount from the start.

  • MatthewSlyfield||

    "Besides, Gore should have just asked for a statewide recount from the start."

    Florida law at the time (I have no idea if it's changed since or not) would have required the Gore campaign to pay the costs of a state wide recount if he had requested one.

    I read at the time (I have no idea if this is true or not) claims that Gore thought that by requesting recounts of selected counties that he won, he could force the Bush campaign to request the state wide recount and be stuck with the costs.

    If this is true, Gore bluffed and lost.

  • bernard11||

    I never heard this.

    It could be true, but seems doubtful. Surely he had the money available.

  • Sebastian Cremmington||

    It is true and no he didn't have resources for a statewide recount...resources are much more than just money. Basically the limited recount was his only way forward and had it worked it would have forced Bush to request a statewide recount.

  • Sebastian Cremmington||

    That is correct but it wasn't a "bluff" it was his only forward.

  • Sebastian Cremmington||

    Nope, they had limited resources so they did that hoping to trigger a statewide recount. How'd that W work out for ya?

  • MatthewSlyfield||

    "People who oppose electors' discretion could argue for a constituitonal amendment that would make winning the popular vote in each state worth a certain number of points."

    That wouldn't satisfy them. Most of the people who oppose elector's discretion want a single straight national vote. See the movement to get states to pass laws appointing electors based on the national popular vote outcome.

  • Onslow||

    I think that's right and would add that the national popular vote interstate compact is a serious threat to federalism and democracy. It's dangerous to constitutional order.

    I'm generally in favor of elector discretion. By constitutional design, the President is not elected directly by the people--only congressional representatives were accountable directly to the People. While the seventeenth amendment added Senators to that list, I think it undeniable that the 17th has--from the moment it was ratified--been a disaster. Despotism and tyranny are the only guarantees for a people governed by a majority.

  • Susan Anthony||

    States have the responsibility and constitutional power to make all of their voters relevant in every presidential election and beyond. Now 38 states and their voters are politically irrelevant in presidential elections.

    Unable to agree on any particular method, the Founding Fathers left the choice of method for selecting presidential electors exclusively to the states by adopting the language contained in section 1 of Article II of the U.S. Constitution—
    "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . ."
    The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as "plenary" and "exclusive."

    Federalism concerns the allocation of power between state governments and the national government. The National Popular Vote bill concerns how votes are tallied, not how much power state governments possess relative to the national government. The powers of state governments are neither increased nor decreased based on whether presidential electors are selected along the state boundary lines, or national lines (as with the National Popular Vote).

    There is nothing in the Constitution that prevents states from making the decision now that winning the national popular vote is required to win the Electoral College and the presidency.

  • Scarecrow Repair & Chippering||

    There's also the common sense argument that why bother with a complicated and slow Electoral College if everything they do could be replaced by pen and paper calculations? There's no point in introducing Chekov's gun if it will never be used, unless you're a prankster like John Cage.

  • Dilan Esper||

    Nothing in the text of the Constitution says that states do not have the power to bind electors.

    This argument scares me. A lot. The EC has evolved from a body delegated the power to decide the presidency into a formal and ceremonial step that allocates the presidential votes by state. This is consistent with other steps taken over the years, such as direct election of Senators and several amendments broadening the franchise, moving towards direct elections. (At the state level, it has gone even further, with initiative, referendum, and recall.)

    Also, on many sates' ballots, electors' names aren't even listed. We don't even know who we are voting for to make the presidential decision. All we are told is we are voting for electors pledged to Hillary Clinton or Donald Trump.

    If you win this, and electors are suddenly freed up to use their independent judgment, the first time an otherwise legitimate election winner is denied the Presidency, there will be hell to pay. Violence. Massive resistance. Because people didn't sign up for this. They were told their votes would count for the person whose name was on the ballot. And they were assured the electoral college was a mere formality.

    This is a classic example of why the "living Constitution" that conservatives decry is simply a more realistic form of interpretation in an iterative, common law legal system. You can't simply ignore 225 years of practice and systemic evolution and declare that we are in 1787 again.

  • Scarecrow Repair & Chippering||

    Get over it. Hillary lost because she ran for the non-binding combined popular vote while Trump ran in 50 binding popular vote elections. She was incompetent at her one job, she overruled the experts she had hired for their expertise, and she lost. #TrumpFuhror notwithstanding, Trump idiocy notwithstanding, her over-control is what cost her the election, it's what intentionally increased Trump's chances of winning the GOP primary, it's what drove Bernie supporters away from the voting booths, She earned her loss the old-fashioned way, by grasping more than she could handle.

  • Dilan Esper||

    What the heck does that have to do with my comment?

    For the record, I think Trump legitimately won the Presidency in 2016.

  • Rev. Arthur L. Kirkland||

    I agree. Our system's structural amplification of backwoods voices is foolish but, under current law, legitimate.

  • Susan Anthony||

    Of COURSE Clinton ran to win the Electoral College.

  • Careless||

    tell it to people in the Rust Belt who never saw her show up, while she spent tons of time in California

  • Susan Anthony||

    Of COURSE she did not spend tons of time in California. No presidential candidates spend significant time or resources in California for the general election campaign.

    Because of state-by-state winner-take-all laws, not mentioned, much less endorsed, in the Constitution. . .

    Wisconsin Gov. Scott Walker in 2015 was correct when he said
    "The nation as a whole is not going to elect the next president,"
    "The presidential election will not be decided by all states, but rather just 12 of them.

    Candidates have no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they are safely ahead or hopelessly behind.

    With the end of the primaries, without the National Popular Vote bill in effect, the political relevance of 70% of all Americans was finished for the presidential election.

    In the 2016 general election campaign

    Over half (57%) of the campaign events were held in just 4 states (Florida, North Carolina, Pennsylvania, and Ohio).

    Virtually all (94%) of the campaign events were in just 12 states (containing only 30% of the country's population).

  • ReaderY||

    I don't even understand this argument. State legislators can appoint the electors themselves. That they have chosen to use popular election to do this is simply a matter of their discretion. Same with how they choose to run the ballot. If it's a problem, a state legislature can remedy it in any number of ways, from resuming direct responsibility for appointing electors to providing more accurate ballot information to citizen-voters.

    Under a living constitution theory that permits the Supreme Court to change the way presidents are selected, a President need merely pack the Supreme Court with cronies and Voila, the constitution makes him the electoral college and our government evolves into a Presidency-for-Life. Democracy archaic, outmoded, yada yada yada.

    Recall that popular election of senators required a constitutional amendment. And if people want change badly, they can enact another one.

  • Dilan Esper||

    If you don't understand the argument, you just failed jurisprudence 101. A common law system works on precedent, which in turn works on the fact that people rely on legal rules and customs.

    You are saying "states have this option". No. They HAD this option. Back in 1787, they could have chosen to select electors any way they wanted to.

    But times changed and we now have decades of telling voters that they can just cast a vote for "Trump" or "Clinton" and that will cause the electoral votes to go that way.

    And you can't just go against that. The public has come to expect that this is how it will work. That expectation is so strong it has just as much the force of law as constitutional text. The life of the law is not logic, but experience.

  • Rossami||

    You're completely missing the point, Dilan. States had this option - and they still have it. Whether they could exercise that option in the face of precedent and voter expectations is a very good question - but legally, any state could change their process at will and no-one outside their state can stop them.

    Note, for example, that some states do still run their process differently. Maine's proportional representation comes to mind. States are allowed and do still exercise independence in how they select electors.

  • Dilan Esper||

    If you don't understand the argument, you just failed jurisprudence 101. A common law system works on precedent, which in turn works on the fact that people rely on legal rules and customs.

    You are saying "states have this option". No. They HAD this option. Back in 1787, they could have chosen to select electors any way they wanted to.

    But times changed and we now have decades of telling voters that they can just cast a vote for "Trump" or "Clinton" and that will cause the electoral votes to go that way.

    And you can't just go against that. The public has come to expect that this is how it will work. That expectation is so strong it has just as much the force of law as constitutional text. The life of the law is not logic, but experience.

  • Dilan Esper||

    If you don't understand the argument, you just failed jurisprudence 101. A common law system works on precedent, which in turn works on the fact that people rely on legal rules and customs.

    You are saying "states have this option". No. They HAD this option. Back in 1787, they could have chosen to select electors any way they wanted to.

    But times changed and we now have decades of telling voters that they can just cast a vote for "Trump" or "Clinton" and that will cause the electoral votes to go that way.

    And you can't just go against that. The public has come to expect that this is how it will work. That expectation is so strong it has just as much the force of law as constitutional text. The life of the law is not logic, but experience.

  • Susan Anthony||

    The normal way of changing the method of electing the President is not a federal constitutional amendment, but changes in state law.

    Historically, major changes in the method of electing the President have come about by state legislative action. For example, the people had no vote for President in most states in the nation's first election in 1789. However, now, as a result of changes in the state laws governing the appointment of presidential electors, the people have the right to vote for presidential electors in 100% of the states.

    In 1789, only 3 states used the winner-take-all method (awarding all of a state's electoral vote to the candidate who gets the most votes in the state). However, as a result of changes in state laws, the winner-take-all method is now currently used by 48 of the 50 states.

    The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes. The abnormal process is to go outside the Constitution, and amend it.

    The National Popular Vote bill is 64% of the way to guaranteeing the majority of Electoral College votes and the presidency in 2020 to the candidate who receives the most popular votes in the country, by changing state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states),

  • bernard11||

    Nothing in the text of the Constitution says that states do not have the power to bind electors.

    Ah, but you ignore those 18th century dictionaries originalists love.

    Kopel's argument is almost as ridiculous as the EC itself.

  • Joe_JP||

    "Violence. Massive resistance."

    Believe it when I see it though more likely if one side loses.

  • Eddy||

    An example of the Constitution as it *is* being different from the Constitution as it *ought to be.*

    I'd agree that you have to be careful in choosing your electors - make sure they are prepared to vote the right way - because once they're appointed they have the right to vote for anyone qualified - what else does "elector" mean? The same term - "elector" is used for those who vote for House and Senate - but this time the electors are regular voters. If an elector can be coerced or disqualified based on how (s)he votes, then what of the electors for House and Senate?

    Even if we're into a system of electoral votes, these votes should be cast automatically by the states, not put in the hands of electors who might go rogue. But that would mean a constitutional amendment.

  • MatthewSlyfield||

    Don't bother trying to tinker with the electoral college. The majority of those vocal in opposition to it won't be satisfied with anything short of a straight national election of the President.

  • Eddy||

    Yeah, they should have fixed this little problem when they were writing the 12th Amendment.

    But so far the rogue electors have only gone rogue when it didn't make a difference.

    Hopefully it will continue this way.

  • Smooth Like a Rhapsody||

    Why would a direct election be a bad thing?

  • rsteinmetz||

    Because small states would matter even less than the do now. Another option would be automatically allocate electoral votes on the basis the rough percentage of the vote in each state like Nebraska and Maine.

  • Smooth Like a Rhapsody||

    What if the US turned into, demographically speaking, Australia, where everyone lives within 60 miles of the coast and the interior is empty?
    Is there no scenario where we should re-think this?

  • Krayt||

    Certainly, but it will require an amendment. Now go convince myriad tiny states they should give up power so the giant coastal concrete canyons can rule over them with an even greater iron fist.

    Etc. Etc. Etc.

  • bernard11||

    the giant coastal concrete canyons can rule over them with an even greater iron fist.

    Given the current makeup of the US government I'd say it's the other way around.

    Oh, and who cares how many states are involved?

  • Susan Anthony||

    The National Popular Vote bill was approved in 2016 by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).
    Since 2006, the bill has passed 36 state legislative chambers in 23 rural, small, medium, large, Democratic, Republican and purple states with 261 electoral votes, including one house in Arizona (11), Arkansas (6), Delaware (3), The District of Columbia, Maine (4), Michigan (16), Nevada (6), North Carolina (15), Oklahoma (7), and Oregon (7), and both houses in California, Colorado (9), Connecticut, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, New Mexico (5), New York, Rhode Island, Vermont, and Washington.
    The bill has been enacted by Connecticut (7), the District of Columbia (3), Hawaii (4), Illinois (19), New Jersey (14), Maryland (11), California (55), Massachusetts (10), New York (29), Vermont (3), Rhode Island (4), and Washington (13). These 12 jurisdictions have 172 electoral votes – 64% of the 270 necessary to bring the law into effect.

    It would change state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), to guarantee the majority of Electoral College votes and the presidency to the candidate with the most national popular votes, without changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes.

  • Rossami||

    So let me get this straight. Candidate A, a rabid demagogue, advocates for policies which will benefit the South at the expense of the North. He loses in a landslide in NY but pulls in just enough votes to win 50%+1 of the total vote. Under the National Popular Vote law, NY will require all their electors to vote against their own interests and for Candidate A even though not a single voter in NY voted for him.

    The current system may be far from ideal but this sure seems worse.

  • bernard11||

    Yes.

    I mean, we just had a rabid demagogue who got fewer votes than his opponent win because he carried a "better" mix of states. Are you claiming that's an argument for the EC?

    You want to construct disaster scenarios? I can match you easily.

    The point is that a popular vote is far less prone to distorting the will of the voters than the EC. That's just arithmetic.

  • Careless||

    And note the states that are voting for it. The results of this getting enough states to take effect would be *hilarious* as the Democrats scream in rage when they realize they all just voted for Trump

  • Susan Anthony||

    The National Popular Vote bill was approved in 2016 by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).
    Since 2006, the bill has passed 36 state legislative chambers in 23 rural, small, medium, large, Democratic, Republican and purple states with 261 electoral votes, including one house in Arizona (11), Arkansas (6), Delaware (3), The District of Columbia, Maine (4), Michigan (16), Nevada (6), North Carolina (15), Oklahoma (7), and Oregon (7), and both houses in California, Colorado (9), Connecticut, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, New Mexico (5), New York, Rhode Island, Vermont, and Washington.
    The bill has been enacted by Connecticut (7), the District of Columbia (3), Hawaii (4), Illinois (19), New Jersey (14), Maryland (11), California (55), Massachusetts (10), New York (29), Vermont (3), Rhode Island (4), and Washington (13). These 12 jurisdictions have 172 electoral votes – 64% of the 270 necessary to bring the law into effect.

  • Joe_JP||

    There are conservatives in NY and liberals in Texas.

    Back in the day, "states" was largely a rough cover for "slave states" but these days breaking things by states alone is rather off.

  • Susan Anthony||

    Maine and Nebraska do not apportion their electoral votes to reflect the breakdown of each state's popular vote.

    Maine (only since enacting a state law in 1969) and Nebraska (only since enacting a state law in 1992) have awarded one electoral vote to the winner of each congressional district, and two electoral votes statewide.

    When Nebraska in 2008 gave one electoral vote to the candidate who did not win the state, it was the first split electoral vote of any state in the past century.

    2016 is the first time one electoral vote in Maine was given to the candidate who did not win the state.

  • Susan Anthony||

    There are good reasons why no state awards their electors proportionally.

    Electors are people. They each have one vote. The result would be a very inexact whole number proportional system.

    Every voter in every state would not be politically relevant or equal in presidential elections.

    It would sharply increases the odds of no candidate getting the majority of electoral votes needed, leading to the selection of the president by the U.S. House of Representatives, regardless of the popular vote anywhere.

    It would not accurately reflect the nationwide popular vote;

    It would reduce the influence of any state, if not all states adopted.

    It would not improve upon the current situation in which four out of five states and four out of five voters in the United States are ignored by presidential campaigns, but instead, would create a very small set of states in which only one electoral vote is in play (while making most states politically irrelevant),

    It would not make every vote equal.

    It would not guarantee the Presidency to the candidate with the most popular votes in the country.

    The National Popular Vote bill is the way to make every person's vote equal and matter to their candidate because it guarantees the majority of Electoral College votes to the candidate who gets the most votes among all 50 states and DC.

  • damikesc||

    The National Popular Vote bill is the way to make every person's vote equal and matter to their candidate because it guarantees the majority of Electoral College votes to the candidate who gets the most votes among all 50 states and DC.

    That would insure that about 7 states run the entire country, which is a despotism I would not accept.

    You want to give NY and CA MORE power in this country? Seriously?

    Get off your ass and pass an Amendment. The law, as it stands, is unconstitutional as is. You cannot change the terms of an agreement unilaterally and expect all parties to go along with it, which is what the NPV bill is seeking to do.

  • Susan Anthony||

    the political reality is that the 11 largest states, with a majority of the U.S. population and electoral votes, rarely agree on any political candidate. In terms of recent presidential elections, the 11 largest states have included 7 states that have voted Republican(Texas, Florida, Ohio, North Carolina, Pennsylvania, Michigan, and Georgia) and 4 states have voted Democratic (California, New York, Illinois, and New Jersey). The big states are just about as closely divided as the rest of the country. For example, among the four largest states, the two largest Republican states (Texas and Florida) generated a total margin of 2.1 million votes for Bush, while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry.

  • Careless||

    " while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry."

    2.6, by my count.

  • Susan Anthony||

    With National Popular Vote, it's not the size of any given state, it's the size of their "margin" that will matter.

    In 2004, among the 11 most populous states, in the seven non-battleground states, % of winning party, and margin of "wasted" popular votes, from among the total 122 Million votes cast nationally:
    * Texas (62% R), 1,691,267
    * New York (59% D), 1,192,436
    * Georgia (58% R), 544,634
    * North Carolina (56% R), 426,778
    * California (55% D), 1,023,560
    * Illinois (55% D), 513,342
    * New Jersey (53% D), 211,826

    To put these numbers in perspective,
    Oklahoma (7 electoral votes) generated a margin of 455,000 "wasted" votes for Bush in 2004 -- larger than the margin generated by the 9th and 10th largest states, namely New Jersey and North Carolina (each with 15 electoral votes).
    Utah (5 electoral votes) generated a margin of 385,000 "wasted" votes for Bush in 2004.
    8 small western states, with less than a third of California's population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).

  • Susan Anthony||

    The U.S. Constitution says "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . ."
    The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as "plenary" and "exclusive."

    The normal way of changing the method of electing the President is not a federal constitutional amendment, but changes in state law.

    Historically, major changes in the method of electing the President have come about by state legislative action. For example, the people had no vote for President in most states in the nation's first election in 1789. However, now, as a result of changes in the state laws governing the appointment of presidential electors, the people have the right to vote for presidential electors in 100% of the states.

    In 1789, only 3 states used the winner-take-all method (awarding all of a state's electoral vote to the candidate who gets the most votes in the state). However, as a result of changes in state laws, the winner-take-all method is now currently used by 48 of the 50 states.

    The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes. The abnormal process is to go outside the Constitution, and amend it.

  • bernard11||

    You want to give NY and CA MORE power in this country? Seriously?

    NY and CA would not get any votes in a popular election. Their individual voters would get votes which carry exactly the same weight as the votes of citizens in Wyoming or Kansas or Alabama. Right now the CA votes weigh less.

    That's absurd and indefensible. States are not sentient beings. They are geographical areas.

  • Jason Cavanaugh||

    It's quite amusing to see people talking about how "Electors are people. They each have one vote" and then go on to describe a system in which they don't have a VOTE at all.

    "The National Popular Vote bill is the way to make every person's vote equal..."

    1) That isn't what it's called.
    2) It would eliminate the vote of Electors, as they would not be provided a choice.

    Yet another person ignoring what it means to "vote" to pursue a decidedly politically-driven power grab.

  • Susan Anthony||

    Of COURSE it is called The National Popular Vote bill.
    https://www.nationalpopularvote.com/

    The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as "plenary" and "exclusive."

    Starting in 1796, political parties began nominating presidential and vice-presidential candidates on a centralized basis and began actively campaigning for their nominees throughout the country. As a result, presidential electors necessarily became rubberstamps for the choices made by the parties. "[W]hether chosen by the legislatures or by popular suffrage on general ticket or in districts, [the presidential electors] were so chosen simply to register the will of the appointing power." McPherson v. Blacker. 146 U.S. 1 at 36. 1892.

    Now 48 states have winner-take-all state laws for awarding electoral votes.
    2 award one electoral vote to the winner of each congressional district, and two electoral votes statewide.
    Neither method is mentioned in the U.S. Constitution.

    The electors are and will be dedicated party activist supporters of the winning party's candidate who meet briefly in mid-December to cast their totally predictable rubberstamped votes in accordance with their pre-announced pledges.

  • bernard11||

    Who cares how much states matter?

    What's important is how voters matter. And right now small state voters matter a whole lot more than big state voters, which is ridiculous. States are just geographic areas, not sentient beings.

  • damikesc||

    What's important is how voters matter. And right now small state voters matter a whole lot more than big state voters, which is ridiculous. States are just geographic areas, not sentient beings.

    So, your argument is that cities should run everything?

    We've already seen in CA and OR how the desires of large cities fucks over large swaths of their states.

    Make that national and prepare for intense violence.

  • Rev. Arthur L. Kirkland||

    Where "large swaths" = unsuccessful, unpopular, can't-keep-up stretches populated by people who believe acreage should get to vote

  • Susan Anthony||

    Under National Popular Vote, every voter, everywhere, for every candidate, would be politically relevant and equal in every presidential election. Every vote would matter equally in the state counts and national count.

    The vote of every voter in the country (Democrat, Republican, Libertarian, or Green) would help his or her preferred candidate win the Presidency. Every vote in the country would become as important as a vote in a battleground state such as New Hampshire, Ohio, or Florida. The National Popular Vote plan would give voice to every voter in the country, as opposed to treating voters for candidates who did not win a plurality in the state as if they did not exist.

  • Susan Anthony||

    The National Popular Vote bill would give a voice to the minority party voters for president in each state. Now they don't matter to their candidate.

    In 2012, 56,256,178 (44%) of the 128,954,498 voters had their vote diverted by the winner-take-all rule to a candidate they opposed (namely, their state's first-place candidate).

    And now votes, beyond the one needed to get the most votes in the state, for winning in a state, are wasted and don't matter to presidential candidates.
    Utah (5 electoral votes) alone generated a margin of 385,000 "wasted" votes for Bush in 2004.
    Oklahoma (7 electoral votes) alone generated a margin of 455,000 "wasted" votes for Bush in 2004 -- larger than the margin generated by the 9th and 10th largest states, namely New Jersey and North Carolina (each with 15 electoral votes).
    8 small western states, with less than a third of California's population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).

    Trump's largest margin of victory came from red states such as Texas, Tennessee, Utah, Arizona, and the Carolinas. Those "wasted" votes didn't help Trump.

  • Susan Anthony||

    Now, because of statewide winner-take-all laws, in some states, big city Democratic votes can outnumber all other people not voting Democratic in the state. All of a state's votes may go to Democrats.

    Without state winner-take-all laws, every conservative in a state that now predictably votes Democratic would count. Right now they count for 0

    The current system completely ignores conservatives presidential voters in states that vote predictably Democratic.

  • Bob from Ohio||

    "States are just geographic areas, not sentient beings."

    No, they are political jurisdictions who in our theory voluntarily join together in a political compact

    Its the "United States", not merely "America"

  • bernard11||

    My argument is that voters should run things.

    Not cities, not states, not counties, not acreage or cows, but people.

    The power of "California" is based on the fact that a whole lot of people live there, and not so many live in Oklahoma or Wyoming.

    We've already seen in CA and OR how the desires of large cities fucks over large swaths of their states.

    And we've seen in national politics how voters in thinly populated states have a big structural advantage and fuck over the larger number of people in larger states.

  • Rev. Arthur L. Kirkland||

    And we've seen in national politics how voters in thinly populated states have a big structural advantage

    People who favor ignorance, intolerance, and backwardness see that as a benefit.

    People who favor education, reason, tolerance, and progress do not.

    That is most of our current political debate.

  • bernard11||

    No, they are political jurisdictions who in our theory voluntarily join together in a political compact

    Except the theory is flawed. Most states are creations of the federal government, not the other way around. Few surrendered any meaningful sovereignty by joining the union.

  • Bob from Ohio||

    "Except the theory is flawed. "

    Let's see Hamilton and Madison or you?

    Decisions. Decisions.

    I think I will side with the Founders, not you.

  • bernard11||

    Oh really?

    What exactly did I say that is historically inaccurate?

    Did the Founders foresee the entire history of the United States?

  • Sarcastr0||

    Bob, I think States are individual cultural institutions, but your political paradigm died about 1865.

  • Rev. Arthur L. Kirkland||

    Because small states would matter even less than the do now.

    Less populous states should matter less, in direct proportion to population. Some states lack the population of a decent county.

  • damikesc||

    You seem to confuse the US for a direct democracy.

    Perhaps people might take you seriously if you had a clue what the fuck you're talking about.

    "We need the majority to make ALL the decisions. Well, except for MY pet issues that matter to me. Then the minority deserve protections..."

  • Rev. Arthur L. Kirkland||

    I believe our system's current structural amplification of yahoo voices is lawful and legitimate.

    I also believe it is foolish and should be changed.

    Your advocacy for snowflake-coddling affirmative action for yahoo voters is noted and disdained.

  • Susan Anthony||

    Being a constitutional republic does not mean we should not and cannot guarantee the election of the presidential candidate with the most popular votes. The candidate with the most votes wins in every other election in the country.

    Guaranteeing the election of the presidential candidate with the most popular votes and the majority of Electoral College votes (as the National Popular Vote bill would) would not make us a direct democracy.

    Direct democracy is a form of government in which people vote on all policy initiatives directly.

    Popular election of the chief executive does not determine whether a government is a republic or direct democracy.

  • santamonica811||

    Yes, under a pure democratic vote, small states would have less influence than they deserve. And right now, small states have more influence than they deserve. Genuine question: Why is the latter inherently "better" than the former?

  • Mike45||

    Our government is built on a system of overlapping checks and balances. Our founders recognized that a pure democracy could be just as tyrannical and destructive as a monarchy so designed a democratic republic. The electoral college is a check on a few highly populated states imposing their will on less populated states. This system Requires presidential candidates to appeal to the whole country,

  • Susan Anthony||

    Because of state-by-state winner-take-all laws, not mentioned, much less endorsed, in the Constitution. . .

    Issues of importance to 38 non-battleground states are of so little interest to presidential candidates that they don't even bother to poll them individually.

    Charlie Cook reported in 2004:
    "Senior Bush campaign strategist Matthew Dowd pointed out yesterday that the Bush campaign hadn't taken a national poll in almost two years; instead, it has been polling [the then] 18 battleground states."

    Bush White House Press Secretary Ari Fleischer acknowledging the reality that [then] more than 2/3rds of Americans were ignored in the 2008 presidential campaign, said in the Washington Post on June 21, 2009:
    "If people don't like it, they can move from a safe state to a swing state."

    When and where voters are ignored, then so are the issues they care about most.

  • Susan Anthony||

    Because of state-by-state winner-take-all laws, not mentioned, much less endorsed, in the Constitution. . .

    Wisconsin Gov. Scott Walker in 2015 was correct when he said
    "The nation as a whole is not going to elect the next president,"
    "The presidential election will not be decided by all states, but rather just 12 of them.

    Candidates have no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they are safely ahead or hopelessly behind.

    With the end of the primaries, without the National Popular Vote bill in effect, the political relevance of 70% of all Americans was finished for the presidential election.

    In the 2016 general election campaign

    Over half (57%) of the campaign events were held in just 4 states (Florida, North Carolina, Pennsylvania, and Ohio).

    Virtually all (94%) of the campaign events were in just 12 states (containing only 30% of the country's population).

  • Susan Anthony||

    Now, a presidential candidate could lose despite winning 78%+ of the popular vote and 39 states.

    With the current state-by-state winner-take-all system of awarding electoral votes (not mentioned in the U.S. Constitution, but later enacted by 48 states), it could only take winning a bare plurality of popular votes in only the 11 most populous states, containing 56% of the population of the United States, for a candidate to win the Presidency with less than 22% of the nation's votes!

    But the political reality is that the 11 largest states, with a majority of the U.S. population and electoral votes, rarely agree on any political candidate. In terms of recent presidential elections, the 11 largest states have included 7 states that have voted Republican(Texas, Florida, Ohio, North Carolina, Pennsylvania, Michigan, and Georgia) and 4 states have voted Democratic (California, New York, Illinois, and New Jersey). The big states are just about as closely divided as the rest of the country. For example, among the four largest states, the two largest Republican states (Texas and Florida) generated a total margin of 2.1 million votes for Bush, while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry.

  • Susan Anthony||

    With the National Popular Vote bill, when every popular vote counts and matters to the candidates equally, successful candidates will find a middle ground of policies appealing to the wide mainstream of America. Instead of playing mostly to local concerns in Ohio and Florida, candidates finally would have to form broader platforms for broad national support. Elections wouldn't be about winning a handful of battleground states.

    Fourteen of the 15 smallest states by population are ignored, like medium and big states where the statewide winner is predictable, because they're not swing states. Small states are safe states. Only New Hampshire gets significant attention.

    Support for a national popular vote has been strong in every smallest state surveyed in polls among Republicans, Democrats, and Independent voters, as well as every demographic group

    Among the 13 lowest population states, the National Popular Vote bill has passed in 9 state legislative chambers, and been enacted by 4 jurisdictions.

    Now political clout comes from being among the handful of battleground states. 70-80% of states and voters are ignored by presidential campaign polling, organizing, ad spending, and visits. Their states' votes were conceded months before by the minority parties in the states, taken for granted by the dominant party in the states, and ignored by all parties in presidential campaigns.

  • Susan Anthony||

    In the 25 smallest states in 2008, the Democratic and Republican popular vote was almost tied (9.9 million versus 9.8 million), as was the electoral vote (57 versus 58).

    In 2012, 24 of the nation's 27 smallest states received no attention at all from presidential campaigns after the conventions. They were ignored despite their supposed numerical advantage in the Electoral College. In fact, the 8.6 million eligible voters in Ohio received more campaign ads and campaign visits from the major party campaigns than the 42 million eligible voters in those 27 smallest states combined.

  • Susan Anthony||

    Being a constitutional republic does not mean we should not and cannot guarantee the election of the presidential candidate with the most popular votes. The candidate with the most votes wins in every other election in the country.

    Guaranteeing the election of the presidential candidate with the most popular votes and the majority of Electoral College votes (as the National Popular Vote bill would) would not make us a pure democracy.

    Pure democracy is a form of government in which people vote on all policy initiatives directly.

    Popular election of the chief executive does not determine whether a government is a republic or pure democracy.

    The presidential election system, using the 48 state winner-take-all method or district winner method of awarding electoral votes used by 2 states, that we have today was not designed, anticipated, or favored by the Founding Fathers. It is the product of decades of change precipitated by the emergence of political parties and enactment by states of winner-take-all or district winner laws, not mentioned, much less endorsed, in the Constitution

    The Constitution does not encourage, discourage, require, or prohibit the use of any particular method for how to award a state's electoral votes

    There is nothing in the Constitution that prevents states from making the decision now that winning the national popular vote is required to win the presidency.

  • bernard11||

    The electoral college is a check on a few highly populated states imposing their will on less populated states.

    As soon as you start talking about "states..imposing their will" you are talking nonsense. States do not have a "will," only people do, and a system that weights voters' wills differently based on the stae they happen to live in is irrational, and does not in fact help preserve the rights of political minorities.

  • Sebastian Cremmington||

    Wrong, Virginia dominated early presidential contests and the largest states have dominated recent presidential elections with 5 out of the 6 last presidents coming from the 5 largest states if you count Trump as NY and FL with Texas, CA, and IL.

  • FlameCCT||

    Direct election aka Direct Democracy aka Mob Rule.

  • Sarcastr0||

    Direct election is different from direct democracy. It still has some tyranny of the majority problems, but it's far from mob rule.

    I favor keeping the electoral college system as a check on political urbanization, but take it from a liberal - these days, there's no need to exaggerate just because your ox is in danger of being gored.

  • Susan Anthony||

    The population of the top five cities (New York, Los Angeles, Chicago, Houston and Philadelphia) is only 6% of the population of the United States.

    Voters in the biggest cities in the US are almost exactly balanced out by rural areas in terms of population and partisan composition.

    16% of the U.S. population lives outside the nation's Metropolitan Statistical Areas. Rural America has voted 60% Republican. None of the 10 most rural states matter now.

    16% of the U.S. population lives in the top 100 cities. They voted 63% Democratic in 2004.
    The population of the top 50 cities (going as far down as Arlington, TX) is only 15% of the population of the United States.

    The rest of the U.S., in suburbs, divide almost exactly equally between Republicans and Democrats.

  • Rev. Arthur L. Kirkland||

    This analysis appears to focus on city lines and consequently is nearly worthless.

  • Susan Anthony||

    16% of the U.S. population lives outside the nation's Metropolitan Statistical Areas. Rural America has voted 60% Republican. None of the 10 most rural states matter now.

    16% of the U.S. population lives in the top 100 cities. They voted 63% Democratic in 2004.
    The population of the top 50 cities (going as far down as Arlington, TX) is only 15% of the population of the United States.

    The rest of the U.S., in suburbs, divide almost exactly equally between Republicans and Democrats.

  • damikesc||

    Voters in the biggest cities in the US are almost exactly balanced out by rural areas in terms of population and partisan composition.

    Explains why the conservative rural areas of NY and CA are able to swing those states Republican in national elections....

  • MatthewSlyfield||

    It wouldn't necessarily be a bad thing.

    However, there are lots of things about the structure of the Federal Government that are designed to balance power between high population states and low population states. For example, the House of Representatives is by population, but the Senate has fixed representation for each state.

    The electoral college is another one of those large/small state balancing factors.

    Direct national election of the President would require a constitutional amendment.

    If you imagine that you could get enough of the smaller states to agree to such a change to ratify such an amendment, then you are engaged in wishful thinking that boarders on being delusional.

  • Rev. Arthur L. Kirkland||

    Eventually, a wealthy person (or persons) or company will recognize that moving tens of thousands of educated, modern, skilled, tolerant people to one of our can't-keep-up states -- putting a large Google or Apple or Amazon office in a small population state, perhaps close enough to the state line and a decent city to be tolerable for the workforce -- could be a cost-effective way to reduce the influence of backward voters in America. An office located in a state that outlaws abortion would be a natural candidate to move to a state whose political balance could be altered.

    I wonder why gays, women, doobie-lovers, and others haven't formed churches to use the expanding law of religious privilege to protect and advance their preferences.

    I also expect the Supreme Court to be enlarged the next time a Democratic president accompanies a Democratic Congress.

    I favor effectiveness.

  • bernard11||

    Once again, Matthew, I as why it is desirable to balance power between high population states and low population states.

    For what reason should the balance of power between CA and WY be determined by anything but their respective populations? State borders are mostly historical accidents or political compromises.

    And don't tell me "California" will overwhelm "Wyoming." They are not monolithic. Trump, for example, got about 25 times as many votes in CA as in WY.

  • MatthewSlyfield||

    "Once again, Matthew, I as why it is desirable to balance power between high population states and low population states."

    Why isn't really relevant. That's how the authors of the existing US constitution set the system up. If you want to have a conversation about whether or not those balances still make sense, it needs to be in the context of constitutional amendments, it makes little to no sense to have that conversation outside that context.

    If you want election of the president based on a single national vote, rather than trying to get each state to appoint electors based on the "national popular vote" and taking any discretion away from the electors, you should push for a constitutional amendment to eliminate the electoral college altogether and establish a single national election for the president.

    The problem with pursuing a "national popular vote" in the states is that even if you get the "National Popular Vote Initiative" to pass in all 50 states, there is no guarantee that it will hold for more than a single presidential election cycle. If states can pass the National Popular Vote Initiative, they can repeal it just as easily.

  • bernard11||

    Why does it have to be in the context of Constitutional amendments, when there are alternative ways to do the same thing?

    Yes, the compact would not be as strong as an amendment, and could disappear, but amending the Constitution is close to impossible, and this particular Amendment would never pass because of the entrenched power of the small states.

    It's a basic flaw of the system that even if, say 80% of the population wanted to go to the popular vote it still couldn't be done.

  • Susan Anthony||

    The National Popular Vote bill was approved in 2016 by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).
    Since 2006, the bill has passed 36 state legislative chambers in 23 rural, small, medium, large, Democratic, Republican and purple states with 261 electoral votes, including one house in Arizona (11), Arkansas (6), Delaware (3), The District of Columbia, Maine (4), Michigan (16), Nevada (6), North Carolina (15), Oklahoma (7), and Oregon (7), and both houses in California, Colorado (9), Connecticut, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, New Mexico (5), New York, Rhode Island, Vermont, and Washington.
    The bill has been enacted by Connecticut (7), the District of Columbia (3), Hawaii (4), Illinois (19), New Jersey (14), Maryland (11), California (55), Massachusetts (10), New York (29), Vermont (3), Rhode Island (4), and Washington (13). These 12 jurisdictions have 172 electoral votes – 64% of the 270 necessary to bring the law into effect.

    It would change state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), to guarantee the majority of Electoral College votes and the presidency to the candidate with the most national popular votes, without changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes.

  • MatthewSlyfield||

    "It would change state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), to guarantee the majority of Electoral College votes and the presidency to the candidate with the most national popular votes, without changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes."

    This is true, but the problem with it, is that if enough states decide they don't like the outcome, they can repeal it just as easily as they passed it. If you want a national election for the President rather than 50 state elections, you need to put forth an amendment to eliminate the electoral college completely. It's the only way to make sure the national election of the president holds for the future.

  • Susan Anthony||

    The National Popular Vote bill says: "Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President's term shall not become effective until a President or Vice President shall have been qualified to serve the next term."

    This six-month "blackout" period includes six important events relating to presidential elections, namely the
    ● national nominating conventions,
    ● fall general election campaign period,
    ● Election Day on the Tuesday after the first Monday in November,
    ● meeting of the Electoral College on the first Monday after the second Wednesday in December,
    ● counting of the electoral votes by Congress on January 6, and
    ● scheduled inauguration of the President and Vice President for the new term on January 20.

    Any attempt by a state to pull out of the compact in violation of its terms would violate the Impairments Clause of the U.S. Constitution and would be void. Such an attempt would also violate existing federal law. Compliance would be enforced by Federal court action

    The National Popular Vote compact is, first of all, a state law. It is a state law that would govern the manner of choosing presidential electors. A Secretary of State may not ignore or override the National Popular Vote law any more than he or she may ignore or override the winner-take-all method that is currently the law in 48 states.

  • Gasman||

    Can a state legislature really make a law so profound that it cannot later change that law? A state constitutional amendment would seem to trump state law for starters. Amendment approval in Missouri for example requires simple majority of the public vote.

  • Susan Anthony||

    Unable to agree on any particular method for selecting electors, the Founders left the choice of method exclusively to the states in Article II, Section 1
    "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…."
    The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as "plenary" and "exclusive."

    The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding a state's electoral votes.

    As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in all states, there are no property requirements for voting in any state, and the state-by-state winner-take-all method is used by 48 of the 50 states. States can, and have, changed their method of awarding electoral votes over the years. ME (only since enacting a state law in 1969) and NE (only since enacting a state law in 1992) choose not to have winner-take-all laws– a reminder that an amendment to the U.S. Constitution is not required to change the way the President is elected.

    The NPV bill says: "Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President's term shall not become effective until a President or Vice President shall have been qualified to serve the next term."

  • Susan Anthony||

    The National Popular Vote bill is states replacing state winner-take-all laws that award all of a state's electoral votes to the candidate who get the most popular votes in each separate state (not mentioned in the U.S. Constitution, but later enacted by 48 states), in the enacting states, to guarantee the majority of Electoral College votes for, and the Presidency to, the candidate getting the most popular votes in the entire country.

    The bill retains the constitutionally mandated Electoral College and state control of elections, and uses the built-in method that the Constitution provides for states to make changes. It ensures that every voter is equal, every voter will matter, in every state, in every presidential election, and the candidate with the most votes wins, as in virtually every other election in the country.

    Every voter, everywhere, for every candidate, would be politically relevant and equal in every presidential election. Every vote would matter equally in the state counts and national count.

    The vote of every voter in the country (Democrat, Republican, Libertarian, or Green) would help his or her preferred candidate win the Presidency. Every vote in the country would become as important as a vote in a battleground state such as New Hampshire, Ohio, or Florida. The plan would give voice to every voter in the country, as opposed to treating voters for candidates who did not win a plurality in the state as if they did not exist.

  • ||

    And they want a straight election with no qualifications on voting, so that states like California can enroll millions of illegals and other parasites.

  • Susan Anthony||

    Tom Tancredo (R-CO) supports the National Popular Vote bill - "it is harder to mobilize massive voter fraud on the national level without getting caught, than it is to do so in a few key states . . . The National Popular Vote make [voter fraud] a smaller [problem]."

    Article I, Section 2 of the Constitution mandates the U.S. Census count every resident in the United States.

    The current system gives "illegal immigrants" a 10 vote advantage in the Electoral College for the Democrats...because they tend to live in safe Democratic states.

    An election for President based on the nationwide popular vote would eliminate the Democrat's advantage in Electoral College members arising from the uneven distribution of non-citizens.

  • damikesc||

    Tom Tancredo (R-CO) supports the National Popular Vote bill - "it is harder to mobilize massive voter fraud on the national level without getting caught, than it is to do so in a few key states . . . The National Popular Vote make [voter fraud] a smaller [problem]."

    Which is absolutely and patently false.

    Chicago's issues with electoral "issues" is exceptionally well known. That is why the problem isn't massive because it only impacts IL electoral votes, not the national total.

    You make it so it impacts the national total and the concept of an honest election ends.

  • Susan Anthony||

    With the current system (not mentioned in the U.S. Constitution, but later enacted by 48 states), a small number of people in a closely divided "battleground" state can potentially affect enough popular votes to swing all of that state's electoral votes.

    537 votes, all in one state determined the 2000 election, when there was a lead of 537,179 (1,000 times more) popular votes nationwide.

    If 59,393 votes had shifted from George W. Bush to John Kerry in Ohio in 2004, Kerry would have won Ohio and thus become President, despite President Bush's nationwide lead of 3,012,171 votes (51 times more). It would be far easier for potential fraudsters to manufacture 59,393 votes in Ohio than to manufacture 3,012,171 votes nationwide. Moreover, it would be far more difficult to conceal fraud involving three million votes.

    The current state-by-state winner-take-all system of awarding electoral votes maximizes the incentive and opportunity for fraud, mischief, coercion, intimidation, confusion, and voter suppression. A very few people can change the national outcome by adding, changing, or suppressing a small number of votes in one closely divided battleground state. With the current system all of a state's electoral votes are awarded to the candidate who receives a bare plurality of the votes in each state. The sheer magnitude of the national popular vote number, compared to individual state vote totals, is much more robust against manipulation.

  • damikesc||

    537 votes, all in one state determined the 2000 election, when there was a lead of 537,179 (1,000 times more) popular votes nationwide.

    The media incorrectly calling the state before the polls closed cost one candidate, by the most conservative estimate out there, at least 10,000 votes in that state.

  • bernard11||

    And if that had happened in reverse you would be disdainfully criticizing those who didn't bother to vote after the call as lazy, irresponsible, and lacking in determination.

    Which they were.

  • Gasman||

    'The media' called it both ways. Not certain which candidate might have benefitted more.
    Potential voters polled after the fact don't count nearly as much toward the election as potential voters who actually went to the polls. And a wise electorate should know better than to trust the media too much.

    "Due to unexpectedly high turnout to the polls, Democratic voting will be postponed until Wednesday."

  • Susan Anthony||

    National Popular Vote would limit the benefits to be gained by fraud or voter suppression. One suppressed vote would be one less vote. One fraudulent vote would only win one vote in the return. In the current electoral system, one fraudulent vote could mean 55 electoral votes, or just enough electoral votes to win the presidency without having the most popular votes in the country.

    The closest popular-vote election count over the last 130+ years of American history (in 1960), had a nationwide margin of more than 100,000 popular votes. The closest electoral-vote election in American history (in 2000) was determined by 537 votes, all in one state, when there was a lead of 537,179 (1,000 times more) popular votes nationwide.

    For a national popular vote election to be as easy to switch as 2000, it would have to be two hundred times closer than the 1960 election--and, in popular-vote terms, forty times closer than 2000 itself.

  • Susan Anthony||

    In Gallup polls since they started asking in 1944 until the 2016 election, only about 20% of the public has supported the current system of awarding all of a state's electoral votes to the presidential candidate who receives the most votes in each separate state (not mentioned in the U.S. Constitution, but later enacted by 48 states) (with about 70% opposed and about 10% undecided).

    Support for a national popular vote for President has been strong among Republicans, Democrats, and Independent voters, as well as every demographic group in every state surveyed. In the 41 red, blue, and purple states surveyed, overall support has been in the 67-81% range - in rural states, in small states, in Southern and border states, in big states, and in other states polled.

    Most Americans think it is wrong that the candidate with the most popular votes can lose. It undermines the legitimacy of the electoral system. We don't allow this in any other election in our representative republic.

    The National Popular Vote bill was approved in 2016 by a unanimous bipartisan House committee vote in both GA (16 electoral votes) and MO (10).
    Since 2006, the bill has passed 36 state legislative chambers in 23 rural, small, medium, large, Democratic, Republican and purple states with 261 electoral votes, including one house in Arizona (11), Arkansas (6), Maine (4), Michigan (16), Nevada (6), North Carolina (15), and Oklahoma (7), and both houses in Colorado (9), and New Mexico (5).

  • MatthewSlyfield||

    "Most Americans think it is wrong that the candidate with the most popular votes can lose. It undermines the legitimacy of the electoral system. We don't allow this in any other election in our representative republic."

    The probability of that happening could be reduced without altering or eliminating the electoral college by eliminating winner takes all for elector assignment at the state level and putting all 50 states back to the system still used in Maryland and one other state I can't remember right now, where the electors tied to Representatives are assigned by the result in each House District and only the two electors tied to the state's senators are assigned based on the state wide popular vote.

    This is probably a better choice than the "National Popular Vote" initiative, because it wouldn't require a constitutional amendment and it will be a lot easier to get the small states (both states sill using this are small) to agree to it than to state level assignment of all electors based on the "national popular vote".

  • Susan Anthony||

    Maine (since enacting a state law in 1969) and Nebraska (since enacting a state law in 1992) have awarded one electoral vote to the winner of each congressional district, and two electoral votes statewide.

    77% of Maine voters and 74% of Nebraska voters have supported a national popular vote.

    Nebraska in 2008 was the first time any state in the past century gave one electoral vote to the candidate who did not win the state.

    2016 is the first time an electoral vote in Maine was given to the candidate who did not win the state.

  • Susan Anthony||

    In Maine, where they award electoral votes by congressional district, the closely divided 2nd congressional district received campaign events in 2008 (whereas Maine's 1st reliably Democratic district was ignored).
    In 2012, the whole state was ignored.
    77% of Maine voters have supported a national popular vote for President
    In 2008, the Maine Senate passed the National Popular Vote bill

    Republican leaders in Maine proposed and passed a constitutional amendment that, if passed at referendum, would require a 2/3rds vote in all future redistricting decisions. Then they changed their minds and wanted to pass a majority-only plan to make redistricting in their favor even easier.

  • Susan Anthony||

    In Nebraska, which also uses the district method, the 2008 presidential campaigns did not pay the slightest attention to the people of Nebraska's reliably Republican 1st and 3rd congressional districts because it was a foregone conclusion that McCain would win the most popular votes in both of those districts. The issues relevant to voters of the 2nd district (the Omaha area) mattered, while the (very different) issues relevant to the remaining (mostly rural) 2/3rds of the state were irrelevant.
    In 2012, the whole state was ignored.
    74% of Nebraska voters have supported a national popular vote for President

    After Obama won 1 congressional district in Nebraska in 2008,Nebraska Republicans moved that district to make it more Republican to avoid another GOP loss there, and the leadership committee of the Nebraska Republican Party promptly adopted a resolution requiring all GOP elected officials to favor overturning their district method for awarding electoral votes or lose the party's support.
    A GOP push to return Nebraska to a winner-take-all system of awarding its electoral college votes for president only barely failed in March 2015 and April 2016.

    The National Popular Vote bill is the way to make every person's vote equal and matter to their candidate because it guarantees that the candidate who gets the most votes among all 50 states and DC becomes President.

  • Susan Anthony||

    The National Popular Vote bill is states replacing state winner-take-all laws that award all of a state's electoral votes to the candidate who get the most popular votes in each separate state (not mentioned in the U.S. Constitution, but later enacted by 48 states), in the enacting states, to guarantee the majority of Electoral College votes for, and the Presidency to, the candidate getting the most popular votes in the entire United States.

    The bill retains the constitutionally mandated Electoral College and state control of elections, and uses the built-in method that the Constitution provides for states to make changes. It ensures that every voter is equal, every voter will matter, in every state, in every presidential election, and the candidate with the most votes wins, as in virtually every other election in the country.

    The bill would take effect when enacted by states possessing a majority of the electoral votes—270 of 538.
    All of the presidential electors from the enacting states will be supporters of the presidential candidate receiving the most popular votes among all 50 states (and DC)—thereby guaranteeing that candidate with an Electoral College majority.

  • Susan Anthony||

    With the National Popular Vote bill, when every popular vote counts and matters to the candidates equally, successful candidates will find a middle ground of policies appealing to the wide mainstream of America. Instead of playing mostly to local concerns in OH and FL, candidates finally would have to form broader platforms for broad national support. Elections wouldn't be about winning a handful of battleground states.

    14 of the 15 smallest states by population are ignored, like medium and big states where the statewide winner is predictable, because they're not swing states. Small states are safe states. Only NH gets significant attention.

    Support for a national popular vote has been strong in every smallest state surveyed in polls among Republicans, Democrats, and Independent voters, as well as every demographic group

    Among the 13 lowest population states, the bill has passed in 9 state legislative chambers, and been enacted by 4 jurisdictions.

    Now political clout comes from being among the handful of battleground states. 70-80% of states and voters are ignored by presidential campaign polling, organizing, ad spending, and visits. Their states' votes were conceded months before by the minority parties in the states, taken for granted by the dominant party in the states, and ignored by all parties in presidential campaigns.

    In 2012, 24 of the nation's 27 smallest states received no attention at all from presidential campaigns after the conventions.

  • Susan Anthony||

    The National Popular Vote bill was approved in 2016 by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).
    Since 2006, the bill has passed 36 state legislative chambers in 23 rural, small, medium, large, Democratic, Republican and purple states with 261 electoral votes, including one house in Arizona (11), Arkansas (6), Delaware (3), The District of Columbia, Maine (4), Michigan (16), Nevada (6), North Carolina (15), Oklahoma (7), and Oregon (7), and both houses in California, Colorado (9), Connecticut, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, New Mexico (5), New York, Rhode Island, Vermont, and Washington.

  • bernard11||

    That creates even more incentives for gerrymandering.

  • Susan Anthony||

    Gerrymandering is Not a factor when every vote, everywhere matters and counts equally.

  • Sebastian Cremmington||

    Great point—democracy doesn't work.

  • Michael Masinter||

    Why is the federal claim a justiciable case or controversy. Doesn't City of Los Angeles v. Lyons require a concrete threat of future harm to the named plaintiffs, not simply a past injury, to give rise to standing for prospective relief? Recall that the Declaratory Judgment Act does not expand the jurisdiction of the federal courts nor does it abolish the Article Three requirement of a case or controversy. Is there reason to think that the alleged past injury to the named plaintiffs is capable of repetition yet evading review?

  • ReaderY||

    Why is Article III standing here any different from when citizen-electors are deprived of the right to vote for, say, Congress. Are you saying nobody whose right to vote was allegedly unlawfully stripped from them ever has the right to contest their deprivation, notwithstanding the long history of voting rights cases? Why in the world should the mere fact that there happen to be fewer Presidential electors than Congressional electors make any difference so far as their Article III standing to contest an allegedly unconstitutional right to cast their election ballot is concerned?

  • ReaderY||

    allegedly unconstitutional deprivation of their right

  • Bob from Ohio||

    "Why is the federal claim a justiciable case or controversy. "

    My thought. This case is seeking an advisory opinion.

  • ReaderY||

    The Constitution permits states to set qualifications to their own state legislature and to Congress, the latter subject To Congressional rules.

    Could a state legislator or Congress impose a requirement that Citizen-Electors must vote for a particular candidate in order for their vote to be accepted.

    One of the biggest advantages of the American Constitution over the Weimar Constitution is that the American Constitution doesn't permit Enabling Acts. A single body can't abolish democratic government by its own fiat. But if Electors' votes could be controlled by legislatures or other political bodies, the safeguards would be removed and democracy could be legally and constitutionally abolished in this country. These cases would doubtless be cited as precedent for every other time the word Elector appears in the Constitution.

  • y81||

    In order for me to take this "original public meaning" stuff seriously, one of two things would have to happen. Either someone would have to demonstrate that the original public meaning of "equal protection" included gay marriage. I won't hold my breath. Or Kopel would have to step up and explain that the his fellow Conspirators are subverting the Constitution, which in no way requires that gay marriage be legalized. He doesn't have the moral or intellectual integrity for that. So this entire post is hypocrisy and cant, and no intelligent person should take it seriously. Fortunately, most judges are intelligent, and they will treat this argument with the contempt it deserves.

  • Joe_JP||

    I don't know how he specifically defines the terms since there are so many different shades of originalism.

    But, the original public meaning of "equal protection" could have been of a concept of equal protection, which would depend on applying the facts and experiences learned at a specific time it is applied.

    Many then figured that the 14A had terms whose specific meaning would change over time as experiences and even those applying them (legislatures, judges etc.) changed. The committee of detail of the original Constitution had that understanding, purosely using open-ended language in many cases.

  • Stephen Lathrop||

    Where are the citations, or even sample quotations, from the historical record? You can't win this point on the basis of what one founder wrote in one number of the Federalist Papers.

    Also, what's this about really? Seems like it might be an attempt to get out ahead of proposals among some states to bind their electors to vote for the winner of the national popular vote, and thus—without need of a Constitutional amendment—promote a practical work-around to bypass minority-rule possibilities built into the electoral college.

    Minority rule with overreach—the course the nation seems headed along now—is a present threat to national political stability. There is no wisdom in trying to lock that process in place, as Kopel seems to want to do.

  • Dilan Esper||

    In addition to your point, what I love about all these originalist arguments is the total lack of case citations.

  • Bob from Ohio||

    "You can't win this point on the basis of what one founder wrote in one number of the Federalist Papers."

    If that is the entire historical record you can.

  • Rev. Arthur L. Kirkland||

    If that is the entire historical record you can.

    Not among educated, informed, reasonable adults.

    Among right-wing goobers, maybe. But only if that one point of evidence favors gun absolutism, certain flavors of superstition, or intolerance.

  • David Nieporent||

    Where are the citations, or even sample quotations, from the historical record? You can't win this point on the basis of what one founder wrote in one number of the Federalist Papers.

    Did you even bother to read the amicus brief? And for that matter, do you know what an amicus brief is?

  • Jason Cavanaugh||

    If you're against this argument, then I hope you are perfectly ok with having your individual ballots mailed to you with pre-filled and unchangeable selections.

    After all, to believe the opposition in this case is to willfully ignore the plain meaning of "to vote." If Electors can be bound to a zero-choice "vote," then so can you.

  • Stephen Lathrop||

    If Electors can be bound to a zero-choice "vote," then so can you.

    By leaving the method of choosing electors to the states, the People chose federalism as a method to exercise their sovereignty. That is by no mean equivalent to making the electors, and not the People, the sovereign—which is what your comment implies.

    The curious historical fact is that state diversity on specification of the means of choosing electors was a founding era compromise about the methods of popular sovereignty, but not on the question of popular sovereignty itself. So long as states were free to choose popular sovereignty full strength, the founders were content if states were also left at liberty to mitigate popular sovereignty through various means they might devise. But the notion of choice by the Sovereign People lies behind the scheme—behind everything in the Constitution, actually—and that is the critical element which can't be taken out without overturning the spirit of the Constitution. The choice may be made at the state level, but the choice must always be there. Nor can it be specified as a choice to be made once, and never again. Otherwise popular sovereignty is gone, overturned by putting the Constitution on its head, and making the document sovereign over its creators.

    The notion expressed at the outset, "We the People," can not be abandoned. Kopel's brief suggests abandoning it. That would be profoundly unwise.

  • David Nieporent||

    Kopel's brief suggests abandoning it.

    No, it doesn't. You and the Bingham guy should get together and form a NonLawyersWhoDon'tUnderstandTheLaw ​ButHaveOneTrackMinds Club. The notion that the people are sovereign would mean that the people can rewrite or revoke the constitution if they choose. It does not mean that they can ignore it without first doing so. (This is hardly unique to the U.S. constitution. Every organization has bylaws and such. Those bylaws can be altered by the appropriate parties -- members, shareholders, whatever -- but until they are altered, they are binding.)

  • Susan Anthony||

    The electors are and will be dedicated party activist supporters of the winning party's candidate who meet briefly in mid-December to cast their totally predictable rubberstamped votes in accordance with their pre-announced pledges.

    The current system does not provide some kind of check on the "mobs." There have been 24,067 electoral votes cast since presidential elections became competitive (in 1796), and only 31 have been cast in a deviant way, for someone other than the candidate nominated by the elector's own political party (one clear faithless elector, 29 grand-standing votes, and one accidental vote). 1796 remains the only instance when the elector might have thought, at the time he voted, that his vote might affect the national outcome.

    The U.S. Supreme Court has upheld state laws guaranteeing faithful voting by presidential electors (because the states have plenary power over presidential electors).

    Presidential electors are loyal party activists who are selected precisely because they can be relied upon to act as willing "rubberstamps" for their party's nominee.

  • David Nieporent||

    The U.S. Supreme Court has upheld state laws guaranteeing faithful voting by presidential electors (because the states have plenary power over presidential electors).

    False. If it had done that, then this suit would by definition have been over already. The Supreme Court upheld a state law allowing political parties to require electors to pledge to vote for a specific candidate. It expressly did not rule that they could be forced to actually cast their ballot that way.

  • Susan Anthony||

    States have enacted and can enact laws that guarantee the votes of their presidential electors

    April 10, 2018 - "US Judge: Colorado Electors Must Follow Popular Vote"

    Pennsylvania law empowers each party's presidential candidate to nominate all elector candidates directly. The presidential nominee is, after all, the person whose name actually appears on the ballot on Election Day and who has the greatest immediate interest in faithful voting by presidential electors.

    North Carolina law declares vacant the position of any contrary-voting elector, voids that elector's vote, and empowers the state's remaining electors to replace the contrary-voting elector immediately with an elector loyal to the party's nominee.

    The Uniform Faithful Presidential Electors Act has a state-administered pledge of faithfulness. Any attempt by a presidential elector to cast a vote in violation of that pledge effectively constitutes resignation from the office of elector. The Act provides a mechanism for immediately filling a vacancy created for that reason (or any other reason).

  • David Nieporent||

    States have enacted and can enact laws that guarantee the votes of their presidential electors

    Thanks, Captain Obvious. That's the whole subject of the post, so everyone already knows that. The issue is whether those laws are constitutional.

    The Uniform Faithful Presidential Electors Act

    is a probably-unconstitutional law passed by only a couple of states.

  • SgtDad||

    PLEASE post a link to Prof. Post's amicus brief, as well. I think the history of "faithless electors" will hel- one & all understand the context.

    Query: Why does the law of agency not apply?

  • Joe_JP||

    People still alive when the original Constituiton was written, surely by the early 19th Century, realized that the original expectations of the Electoral College -- of independent electors deciding things -- soon did not apply in actual practice. As Ray v. Blair noted: "History teaches that the electors were expected to support the party nominees." This sort of long history is currently recognized as of special importance when applying constitutional terms. See, e.g., Town of Greece v. Galloway. Ray v. Blair in part quoted a late 19th Century opinion:

    "Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the chief executive, but experience soon demonstrated that, whether chosen by the legislatures or by popular suffrage on general ticket or in districts, they were so chosen simply to register the will of the appointing power in respect of a particular candidate."

    There is a possibility of interpreting the text differently but precedent and good practice both does not so warrant it. If something is compelled, we need to grit our teeth, but as seen also in the natural born citizenship debates involving Ted Cruz et. al., we often need not worry about that.

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