One More Damn Thing

SCOTUS is going to hear a case about whether states can punish electors who are “faithless”that is don’t give their vote to the winner of the popular vote in their state.
At the same time, though we don’t hear much about it, a number of states (i think 15 ) have entered into some kinda pact that their electors will vote for the winner of the nationwide popular vote. (This is incomprehensible: why would smaller states want to give up the very provision in the fed constitution which safeguards their power? But anyway..)

Have you ever read the US Constitution Art II, Sec 1, paras 2-4, as amended by Amendment XII (1804)?It does not say anything about for whom the electors must vote. The electors are appointed in a manner determined by each state’s legislature. Then as for the rest, it sets out when anD where they meet, and various other contingencies.

My understanding, either from what my parents said or from som long-ago civics class, is that when we vote for a presidential candidate, we are really voting for electors committed to him or her. (It now seems like an unpardonable omission, but we didn’t study these clauses in law school.)
But I’m tellin ya, just a cold reading of the constitution gives me the impression that the electors can indeed vote for whom they choose. That’s certainly what people thought when we endured all that crap about lobbying the electors to “vote your conscience”,after Trump won. A lotta ink was bled, and I kept hoping, but I did t read anything that said it wasn’t possible or legal. There were a few defectors, from both sides. Is that this case is about, whether their states can sanction those electors? With what, a fine? Prison?
But, when and where do electors ever pledge their faith to a certain candidate, or even to the populace of their state? Presumably they are called “faithless electors” because they’ve broken faith with some entity: their state‘s voters, the legislature which appointed them.
I read that there are 30 states that by legislation require electors to vote for the state’s popular vote winner, and that just by convention, electors in the other states have usually done so.
Doesn’t it HAVE to remain that way? I mean, if the interstate pact people win, the presidency will always be determined by NY and CA. But if the “untethered Elector” people win, uh, it would be possible we could end up with a president chosen solely by the electoral college no matter whom the people had chosen. Wouldn’t it?
At least, that’s how it looks from my somewhat belated perusal of our great document.

Now obviously, the second scenario I envision above could never be allowed to transpire. So, one way or another, we’re gonna get the first scenario: president chosen by popular vote alone. Amending the constitution is a cumbersome process; our foes won’t eliminate the electoral college that way. But they’re quietly working to do it by the interstate compact method. Whether this is the kind of interstate compact that requires congressional approval is debatable. But, um ,it isn’t really being debated is it, not nationwide.
And if SCOTUS says, right, the Constitution does not say states can dictate for whom electors will vote, it Only says how many the state legislature can appoint, and their qualifications (and this is true) well, that’ll be a big shot in the arm for the interstate compact people, coming like a thief in the night, and the structure of the US as a “republic”rather than a direct democracy, will be changed in a twinkling, with no one having known the day or the hour.

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11 thoughts on “One More Damn Thing”

  1. Hypatia:
    This is incomprehensible: why would smaller states want to give up the very provision in the fed constitution which safeguards their power?

    Because a small Prog state gets to magnify their power.

    Progs only worship at the altar of power.

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  2. Hypatia:
    But I’m tellin ya, just a cold reading of the constitution gives me the impression that the electors can indeed vote for whom they choose.

    It’s true but the Founders also established the EC so no single conglomeration of states could dominate an election. If we abolished the EC, we might as well abolish the two party system as well; there would no longer be any use for one.

    The good news is that a number of states (list, anyone?) have amended this, requiring electors to respect the voters’ choice. Can you imagine the ensuing revolution if all the fly-over states were robbed by CA and NY?

    Darnit Hyp, I was having a good day…

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  3. Desolée,  ET!  If you have a minute, read the American Thinker piece I reference on my other recent post.  You’ll love it! ❤️❤️

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  4. Not one Nobel laureate imagined this American renaissance of GDP and stock market surge, record-low unemployment, wage growth, and low inflation in one bubbling cauldron.  It took a change agent. 

    This was a highlight to be sure, so thanks much for sharing this article and reminding me to read it.

    You’re off the hook today Hyp; you’ve reinstated some of my earlier optimism. 🙂

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  5. Kevin Schulte:

    Hypatia:
    This is incomprehensible: why would smaller states want to give up the very provision in the fed constitution which safeguards their power?

    Because a small Prog state gets to magnify their power.

    Progs only worship at the altar of power.

    This has happened in states where Democrats had thin majorities in both houses of their legislature and Democrat governors and were afraid that their voters would do the unthinkable, again, and vote for Trump for president.

    By passing “National Popular Vote,” Democrats jammed in an override provision that can hijack their electoral votes and throw the election, because they are afraid that they cannot keep their voters on the Democrat plantation.

    We are perilously close to having the National Popular Vote throw an election.

    How many conservatives would storm their state capitols?   Would we be willing to get violent?  Would we be willing to overturn a lawful outcome?   What would civil disobedience look like when the courts upheld this constitutional crime?

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  6. Ickle more research reveals the case to be taken up by SCOTUS is about two electors who cast their votes for Colin Powell in 2016. Their state was one which said they had to give their vote to their state’s popular vote winner.  ( Powell, of course was nowhere near the ballot.)  So they broke the state  law and were prosecuted and fined.  On appeal is the issue  of whether a state can legally mandate for whom their electors must vote.

    Ei-yii-yii….  Do you see what I mean? The very best we can hope for is they say, yes, a state CAN pass such a law, we will not strike the laws of 30 states which so require.  (Although as I said in the OP, I don’t see any language in the cOnstitution which resolves the question.)   That still wouldn’t mean those states COULDNT repeal  their   legislation and join the compact, but at least, they wouldn’t HAVE to.
    But what if they  say that state’s  law,  and the other 29 like it,are unconstitutional: states CANNOT legislate that their electors must give their vote to the winner of the state’s popular vote?  If  they so ruled, we’d have no choice but to get rid of the Electoral college summarily, I don’t know how but the sooner the better.  Because  that would mean that, although only Clinton and Trump were officially running in 2016, the electors coulda put Powell in the Oval!

    Am I wrong? I keep thinking I must  be, this can’t really be the situation, surely if it were, other people woulda noticed…. somebody set me straight! 

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  7. MJBubba:

    Kevin Schulte:

    Hypatia:
    This is incomprehensible: why would smaller states want to give up the very provision in the fed constitution which safeguards their power?

    Because a small Prog state gets to magnify their power.

    Progs only worship at the altar of power.

    This has happened in states where Democrats had thin majorities in both houses of their legislature and Democrat governors and were afraid that their voters would do the unthinkable, again, and vote for Trump for president.

    By passing “National Popular Vote,” Democrats jammed in an override provision that can hijack their electoral votes and throw the election, because they are afraid that they cannot keep their voters on the Democrat plantation.

    We are perilously close to having the National Popular Vote throw an election.

    How many conservatives would storm their state capitols?   Would we be willing to get violent?  Would we be willing to overturn a lawful outcome?   What would civil disobedience look like when the courts upheld this constitutional crime?

    As I’ve mentioned, this could be Civil War II and I would happily contribute to the defense to protect my assets in Florida. I’ll be damned if I allow CA and NY to dictate my future; I lived for many years in both those states but I was young and poor and didn’t really mind it because I was learning, experiencing lots of things and meeting new friends.

    Now, I am neither of the above because I’ve worked and sacrificed for decades so Hear Ye! Hear Ye!

    Governmental. overreach. just. isn’t. going. to. happen. on. my. watch.

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  8. My take on this is that they are going to limit states to just restrict their electors to how the State votes. The electors are selected by the state legislatures therefore the only influence the people are supposed to have in electing the president is through voting for their state legislators. If SCOTUS was serious about the constitution they would completely detach the electors from how people vote for president, but they aren’t about to play by the rule book so don’t hold your breaths.

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    Robert A. McReynolds:
    My take on this is that they are going to limit states to just restrict their electors to how the State votes. The electors are selected by the state legislatures therefore the only influence the people are supposed to have in electing the president is through voting for their state legislators. If SCOTUS was serious about the constitution they would completely detach the electors from how people vote for president, but they aren’t about to play by the rule book so don’t hold your breaths.

    What do you mean?  I don’t see how this could turn out with SCOTUS saying all states must mandate their electors to vote as the state votes.  The challenge is that a state cannot tell the electors how to vote.  And as I said , the Const doesn’t say they do have that power.
    if the electors were held to be untethered, sheesh, just think; 270,people could vote for anybody they choose?   In fact it wouldn’t take 270! Just enough outliers to make sure nobody gets 270, then the election is thrown to the House.  This is awful, a real constitutional crisis while the bozos wring their hands over whether there should be reasonable time, place, and manner restrictions on Trump’s ice cream consumption.

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  10. Hypatia:
     

    Robert A. McReynolds:
    My take on this is that they are going to limit states to just restrict their electors to how the State votes. The electors are selected by the state legislatures therefore the only influence the people are supposed to have in electing the president is through voting for their state legislators. If SCOTUS was serious about the constitution they would completely detach the electors from how people vote for president, but they aren’t about to play by the rule book so don’t hold your breaths.

    What do you mean?  I don’t see how this could turn out with SCOTUS saying all states must mandate their electors to vote as the state votes.  The challenge is that a state cannot tell the electors how to vote.  And as I said , the Const doesn’t say they do have that power.
    if the electors were held to be untethered, sheesh, just think; 270,people could vote for anybody they choose?   In fact it wouldn’t take 270! Just enough outliers to make sure nobody gets 270, then the election is thrown to the House.  This is awful, a real constitutional crisis while the bozos wring their hands over whether there should be reasonable time, place, and manner restrictions on Trump’s ice cream consumption.

    Well the theory is–and this is how it worked in the early republic–that the State legislatures would pick electors that would vote they way the legislators would. In other words, the legislature of Maryland in 2020 would pick electors as blue as they are and ditto the legislature in Alabama picking electors that are as red. It’s not so much that the legislature is telling them how to vote as it is picking people of like mind that reflect the political proclivities of the legislature. This would create situations where, say in Pennsylvania where the legislature could very well be majority Republican picking Trump electors while the State’s population went majority Bernie.

    I for one do not see our heavily politicized SCOTUS doing that. I suspect, since we have a number of States that have mandated that the electors vote as the popular vote IN THAT STATE voted, the SCOTUS will leave it there. They may not even reach the question of whether a State can mandate that they vote the way the entire popular vote goes in the national election–I suspect they won’t touch that. That said, however, they are going to also leave open the ability of electors to vote their conscience because, as you said, there is nothing that says the State legislature can dictate how the electors vote. So you are going to see a very narrow opinion in my estimation. I would not be surprised to see this one go as a plurality opinion with Roberts getting the plurality in such a wishy washy opinion. Thomas will not go for it and likely Alito won’t either. RBG, Kegan, and the Wise Latina are going to go full retard and demand a full popular vote. Gorsuch and Kavanaugh will concur in part and dissent in part. The final Lefty, Bryer, will go with Roberts as it will be the best outcome for this moment. That’s my bet.

    Lastly, the Constitution doesn’t say they DON’T have that power either. And, as the proponents said when selling us this lemon, that which is not expressly defined in the Constitution is left to the States, so legislatures could direct their electors to vote a certain way. I wouldn’t find it a Constitutional crisis at all. This is the way it functions and it would function that way. Now the outcome might not be what  you or I want, but the function is precise. Winning or losing elections is not the best measure for functionality of the system.

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  11. Robert A. McReynolds:
    My take on this is that they are going to limit states to just restrict their electors to how the State votes.

    Today, all but two states (Maine and Nebraska) award all their electoral votes to the single candidate with the most votes statewide (the so-called “winner-take-all” system). Wasn’t this amendment made years ago?

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