The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

Every vote, everywhere, would be politically relevant and equal in presidential elections. No more distorting and divisive red and blue state maps. There would no longer be a handful of ‘battleground’ states where voters and policies are more important than those of the voters in more than 3/4ths of the states that now are just ‘spectators’ and ignored after the conventions.

When the bill is enacted by states possessing a majority of the electoral votes– enough electoral votes to elect a President (270 of 538), all the electoral votes from the enacting states would be awarded to the presidential candidate who receives the most popular votes in all 50 states and DC.

The bill uses the power given to each state by the Founding Fathers in the Constitution to change how they award their electoral votes for President. Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have come about by state legislative action.

In Gallup polls since 1944, 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 (with about 70% opposed and about 10% undecided). Support for a national popular vote is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in virtually every state surveyed in recent polls in closely divided Battleground states: CO – 68%, FL – 78%, IA 75%, MI – 73%, MO – 70%, NH – 69%, NV – 72%, NM– 76%, NC – 74%, OH – 70%, PA – 78%, VA – 74%, and WI – 71%; in Small states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE – 75%, ID – 77%, ME – 77%, MT – 72%, NE 74%, NH – 69%, NV – 72%, NM – 76%, OK – 81%, RI – 74%, SD – 71%, UT – 70%, VT – 75%, WV – 81%, and WY – 69%; in Southern and Border states: AR – 80%,, KY- 80%, MS – 77%, MO – 70%, NC – 74%, OK – 81%, SC – 71%, TN – 83%, VA – 74%, and WV – 81%; and in other states polled: AZ – 67%, CA – 70%, CT – 74%, MA – 73%, MN – 75%, NY – 79%, OR – 76%, and WA – 77%. Americans believe that the candidate who receives the most votes should win.

The bill has passed 31 state legislative chambers in 21 states. The bill has been enacted by 9 jurisdictions possessing 132 electoral votes – 49% of the 270 necessary to go into effect.

NationalPopularVote
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I think the Electoral College system is a good idea in that it balances small and large states. The large states have much more influence in house of representatives. The small states in the senate. The electoral college depends on what the individual states want to do. either they split their votes based on % of vote in state, or they choose winner take all, or some other,,, but that’s their decision.

There should always be a push and pull in our government and representation so minorities get chances. The supreme court is a third and equal branch that is supposed to decide laws.. just as congress can enact them, and the president can veto or administer them.

George Will has long supported the Electoral College, despite the various popular vote losers who’ve been installed as President over the years.

‘nuf said.

There should always be a push and pull in our government and representation so minorities get chances.

The Electoral College then is a *lousy* way to accomplish that end. If granting minorities a sayso in the government, then the way to get that done is to end the winner-take-all dominance of US electoral politics and a least elect one body (my choice, the House of Representatives) via a proportional representation system where if you vote for a party that only wins, say, 17 % of the vote, they still get 17 % of the seats.

stewartm

Theoretically a large group of rogue electors could ignore the election results and effectively stage a legal coup.

me thinks thar is a contradiction of terms, if it’s legal it’s not a coup

All this silly idea does is institutionalize the Electoral College by putting a complicated, and illegal, overlay atop it. Much better to get rid of the EC entirely. This proposal always seemed like baling wire and chewing gum, to me.

I hope wiser heads prevail. Let’s chuck the whole thing, ensure voting is safe, legal, and rare (one per customer) every Election Day Saturday (24-hour period).

Also: double the size of the House of Representatives and abolish the Senate, while we’re at it.

In 2008 Obama beat McCain in the Electoral College by 365 votes to 173.

Number of States won by: Obama: 19 McCain: 29
Square miles of land won by: Obama: 580,000 McCain: 2,427,000
Population of counties won by: Obama: 127 million McCain: 143 million.

Nothing will change cause the jerks and grifters in power have learned how to work the system to their advantage.

I don’t have the stats at hand, but in the Senate, something like 31% of the population controls 58% of the votes, effectively blocking anything their Senators don’t want. Which, lately, seems to be a lot.

How did I get so cynical?

Please don’t answer this question.

Not sure how it “balances” small and large states. My understanding is that the electoral college was a construct of the wealthy, educated men who created our republic as a bulwark against mob rule. The ordinary people, who couldn’t possibly have the wisdom required to directly elect a president, would vote for the “elector” they trusted to make the right decision.

Adding: voting should not only be legal, it should be mandatory. No library cards for you non-voters! Also, a sales tax penalty. When you vote, you get a purple finger which, until the ink wears off, entitles you to half-off sales tax. On anything.

Steady lifetime observation would be my bet.

If we were an actual functioning Democracy we would just think the electoral college was a cute symbol of bygone days. We are an aristocracy now run by a corporatcracy and democracy isn’t any part of it.

I think it’s the fluoride in the water.

Or microwaves.

That’s MY recollection. The founding fathers did not “trust” the electorate.Hence our “democratic republic”.

For a while, only men owning land could even vote, and Senators were chosen by the state legislatures not the voters. There will always be winners and losers just by nature of someone ‘winning’ the most votes. Right now, I don’t like the minority GOP crazies,, but at some point I might be in the minority and want some options. We’ll muddle through.

I’m glad we straightened that out. /s

Almost time for dos Dos Equis.

George Will says the founding fathers established the Constitution and the government it created so as to make “governance” very difficult and very slow. Any and all change would have to be carefully analyzed. Hence the difficulty of constitutional amendments, passing laws through TWO houses with different agendas etc.

What we’re left with now with the current GOP and the current democratic party is, in essence, a party that can;t govern and one that won’t and 537 politicians and 9 judges who are for sale to the highest bidder.

Don;t even get me started on the State of Texas.

Like it matters which presidential candidate gets elected. So don’t vote, it only encourages them. That also makes the EC question moot.

“In 2008 Obama beat McCain in the Electoral College by 365 votes to 173.

Number of States won by: Obama: 19 McCain: 29
Square miles of land won by: Obama: 580,000 McCain: 2,427,000
Population of counties won by: Obama: 127 million McCain: 143 million”

Okay, you lost me when you said Obama won 19 states and McCain 29 (total of 48 states). Everything I find shows Obama carried 28 states plus DC, while McCain carried 22.

Square miles of land doesn’t mean much, when some states have vast acreage with little or no population.

If the population of counties won my McCain exceeded the population won by Obama (I didn’t check your facts so don’t know how correct they are) then McCain should have done a better job getting out the vote in his counties, since Obama won the popular vote overall.

So, a priest, a rabbi, and an elector are playing golf…

I stand corrected. Thank you.

While it would be preferable to eliminate the EC, requiring a Constitutional amendment, NPV would be a HUGE step forward, and it can actually be done.

Other reforms : automatic voter registration (wherever you pay taxes, that’s where you vote, no further action required), 30 day vote by mail only (just like Oregon).

If you want to get all Constitutional about it, get rid of the Senate and the entire concept of States Rights. States are lines on a map and a taxing and regulatory jurisdiction, they don’t need representation. The people who live there do.

What you could substitute for the Senate is a nation-wide parliamentary style body where seats are awarded according to party based on the national vote. You get 12% of the national vote, you get 12 seats.

Expand the seats in the House to 1001. Since there isn’t enough chaos there already.

Give DC statehood.

Tell Puerto Rico they need to make a feaking decision.

Square miles? That hasn’t mattered since Britain got rid of rotten boroughs in Charles Dickens’s time.

A more appropriate beverage for this discussion might be one of the fine products of Rogue Ales.

So, a priest, a rabbi, and an elector are playing golf… walk into a bar

the bartender says;

what is this, a joke?

To abolish the Electoral College would need a constitutional amendment, and could be stopped by states with as little as 3% of the U.S. population.

With the current state-by-state winner-take-all system of awarding electoral votes, it could only take winning a bare plurality of popular votes in the 11 most populous states, containing 56% of the population of the United States, for a candidate to win the Presidency with a mere 26% of the nation’s votes!

I <3 you for that perris. Thanks. Full on belly laugh for me.

This year we could have a constitutional crisis, yes 4 times in our history the winner of the popular vote lost the election, but never has a sitting President won the popular vote and lost the electoral college vote.
If this happens will President Obama just turn over power to Mitt Romney???
Or will he decide to challenge the law?

just in case you’re wonering which elections turned out this way:

In 1824, John Quincy Adams was elected president despite not winning either the popular vote or the electoral vote. Andrew Jackson was the winner in both categories. Jackson received 38,000 more popular votes than Adams, and beat him in the electoral vote 99 to 84. Despite his victories, Jackson didn’t reach the majority 131 votes needed in the Electoral College to be declared president. In fact, neither candidate did. The decision went to the House of Representatives, which voted Adams into the White House.

In 1876, Rutherford B. Hayes won the election (by a margin of one electoral vote), but he lost the popular vote by more than 250,000 ballots to Samuel J. Tilden.

In 1888, Benjamin Harrison received 233 electoral votes to Grover Cleveland’s 168, winning the presidency. But Harrison lost the popular vote by more than 90,000 votes.

In 2000, George W. Bush was declared the winner of the general election and became the 43rd president, but he didn’t win the popular vote either. Al Gore holds that distinction, garnering about 540,000 more votes than Bush. However, Bush won the electoral vote, 271 to 266.

Right, if you wait for a constitutional amendment, it will never happen.

The EC may indeed be terrible for all sorts of reasons, but there is no real threat from rogue electors that adds to that terrible.

Each state, by the Constitution and federal law, has to choose its EC votes on e-day. Every state does that by popular vote, but that’s their choice. EC votes could be determined any way the states might choose, as long as that way happens on e-day.

Now, the fac that the system reduces the final result to the winner of the majority of EC votes means that there have to be electors to sign the state tallies of EC votes that get sent to Congress to be opened early in the January after the election, which in turn gets counted to certify the presidential and VP winners. But the electors don’t actually vote, they just sign the piece of paper that stats the EC counts resulting from that state’s chosen process fro deternining allocation of EC votes. The state’s Secy of State then certifies that tally as that state’s results, it is put in an enveolpe and mailed to Congress. People trying to be rogue electors don’t have the right to send another envelope to Congress with alternate results. I guess they can refuse to sign the certification, but that won’t keep it from getting sealed in the envelope and sent to Congress.

Now, when Congress opens up all the envelopes, any member can challenge the results sent in any by any state. That’s true any year, and there doesn’t have to be any sort of threshold or specified irregularity for any Congressamn or Senator to challenge a state’s tally and force Congress to vote to accept or reject the state tally. A member might choose to challenge over the absence of an elector’s signature on the tally, but no challenge is triggered automatically simply by such an absence of signature, and that member needs a majority of both chambers to vote his way to have the challenge accepted.

I guess you could imagine majorities voting not to accept some state’s tally for any number of idealistic all the way to nakedly political motivations. I just can’t imagine the failure to get an elector’s signature being one of those reasons.

Under NPV the Electoral College still meets, though, doesn’t it? That is, NPV does not eliminate the EC at all, it just directs NPV states to send electors to the EC according to how the national vote went.

A rogue elector is one which simply votes contrary to his/her commitment. Under NPV, the situation could still occur. I have postulated that it might even be more likely.

The concept may be worthy, but this method is a bad work around. An Amendment is the only way to do it, I think.

Some states assign electors in proportion to how the candidates scored within the state, rather than winner take all. I think PA and ME do that, maybe some others. Can anyone clarify?

Nebraska and Maine. They allocate two electors to the statewide popular vote winner, and the remainder by congressional district. Obama got one vote from Nebraska in 2008.

There is no meeting of the EC, and there never was, even back before the EC became a complete formality and mere relic. The federal legal scheme (the process required by the Constitution and federal law) calls for the electors from each state to meet in each state, but the electors from all the states have never met in one national EC.

In some states, at one time, perhaps some of these state elector meetings actually did deliberate on who should be president, and the electors actually had the right to decide whom to vote for based on those deliberations. But I’m not aware of any state that still leaves the electors free to vote whichever way they want on the day the electors meet in their states. There is still a meeting, at least in some states, of the state’s electors, but it isn’t to vote, it’s just to sign the document that gets sent to Congress, which has a tally of EC votes already distributed according to the popular election results. In some states, I understand that even this meeting is purely notional, the elecotrs never physically get together, and the meeting day is just the day the Secy of State puts the tally in an envelope and mails it to Congress.

Thanks! Yes, now I recall them meeting here in Mass last time. I don’t think this changes anything though. A political machine in some state or another might be inclined to thwart the system, which I suppose they could do even now. Maybe it would be unlikely, though.

There are other issues with NPV. Congress’ approving interstate compacts, i.e., whether they will or not; a state attempting to withdraw too soon before an election even though NPV has a timeframe limit; whether NPV may encumber a state Constitutionally protected I&R process (this one may be coming up here in Mass).

There are a lot of issues, some of them not too important. Sttill, I don’t think it’s likely NPV will ever navigate around the potholes to be consummated. If it gets too close to its goal (which I doubt) there will be a lot more focused resistance cropping up.

Well, I remember that “interstate compact” provision from the Articles of Confederation, but I’m not remembering that that language made it into the Constitution. Even if it did, i’m not clear on why the NPV would be more or less of an interstate compact than what we have now, a “conspiracy” of 48 of the 50 states to go with winner-take-all in alloicating their EC votes.

The general principle is that the states can decide how the EC votes in their EC allotment get assigned. If they want to assign based on a vote of the people (as all do now), or a vote of their state legislatures (as some did in the past), or the result of a coin flip, that’s their right. If states want to base their allocation on the national popular vote, I don’t see the Constitutional bar to that. It’s really an individual state decision that isn’t at all conditonal on any sort of compact with another state, even if such compacts were verboten. It makes assignment of that state’s EC votes conditional solely on the vote of the people of the United States, not those of any particular state.

I think it is true that NPV might run into problems operating as advertised. There could indeed be trouble enforcing the result, should one or more states try a last-minute opt out. You may rememeber that in 2000, the FL legislature threatened to pass a law assigning that state’s EC votes to Bush, no matter what the result of the electoral contest then making its way through FL courts. I would think they might not have been able to make good on that threat, that a state can’t change its method of assigning EC votes after the rest of the nation has voted, but the question has never been litigated, isn’t really for the courts to decide anyway (Congress is the “controlling legal authority” on the question of whether a state’s EC tally is kosher), and would most likely be decided based not on law or what is right, but on the political composition of SCOTUS and the incoming Congress. Not sure we want to trust those institutions to reach a fair decision, and it does seem to me that NPV adds yet another opportunity for them to fail us, as SCOTUS did in 2000.

That said, NPV seems a mostly secure and reasonable way to achieve the popular vote and fully junk the EC system. And it has this huge advantage over doing the same thing with an amendment, that we actually might be able to get states with at least 50% of the popular vote to agree to it, but we will never, until and unless we get a completely altered political climate, assemble the much more dificult majorities you need for an amendment. I make the analogy to this idea of getting an amendment to reverse CU. To support that measure as the way to reverse CU is the same as giving up on reversing CU, because we will never get the majorities needed to amend CU into the oblivion it deserves. The only practical way to get rid of CU is to pass a law taking away SCOTUS jurisdiction over campaign financing. Jurtisdiction limitation and NPV are less clean and simple ways of getting there than amendments, but at least they’re doable, while amendments aren’t.

There have been 22,453 electoral votes cast since presidential elections became competitive (in 1796), and only 17 have been cast for someone other than the candidate nominated by the elector’s own political party. 1796 remains the only instance when the elector might have thought, at the time he voted, that his vote might affect the national outcome. Since 1796, the Electoral College has had the form, but not the substance, of the deliberative body envisioned by the Founders. The electors now are dedicated party activists of the winning party who meet briefly in mid-December to cast their totally overwhelmingly predictable rubberstamped votes.

If a Democratic presidential candidate receives the most votes, the state’s dedicated Democratic party activists who have been chosen as its slate of electors become the Electoral College voting bloc. If a Republican presidential candidate receives the most votes, the state’s dedicated Republican party activists who have been chosen as its slate of electors become the Electoral College voting bloc. The winner of the presidential election is the candidate who collects 270 votes from Electoral College voters from among the winning party’s dedicated activists.

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

Congressional consent is not required for the National Popular Vote compact under prevailing U.S. Supreme Court rulings. However, because there would undoubtedly be time-consuming litigation about this aspect of the compact, National Popular Vote is working to introduce a bill in Congress for congressional consent.

The U.S. Constitution provides:

“No state shall, without the consent of Congress,… enter into any agreement or compact with another state….”

Although this language may seem straight forward, the U.S. Supreme Court has ruled, in 1893 and again in 1978, that the Compacts Clause can “not be read literally.” In deciding the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the Court wrote:

“Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.

“The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee. His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta.”

Specifically, the Court’s 1893 ruling in Virginia v. Tennessee stated:

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

The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”

In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote:

“The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States”

The National Popular Vote compact would not “encroach upon or interfere with the just supremacy of the United States” because there is simply no federal power — much less federal supremacy — in the area of awarding of electoral votes in the first place.

In the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the compact at issue specified that it would come into force when seven or more states enacted it. The compact was silent as to the role of Congress. The compact was submitted to Congress for its consent. After encountering fierce political opposition from various business interests concerned about the more stringent tax audits anticipated under the compact, the compacting states proceeded with the implementation of the compact without congressional consent. U.S. Steel challenged the states’ action. In upholding the constitutionality of the implementation of the compact by the states without congressional consent, the U.S. Supreme Court applied the interpretation of the Compacts Clause from its 1893 holding in Virginia v. Tennessee, writing that:

“the test is whether the Compact enhances state power quaod [with regard to] the National Government.”

The Court also noted that the compact did not

“authorize the member states to exercise any powers they could not exercise in its absence.”

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.”

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.

There has never been a court decision allowing a state to withdraw from an interstate compact without following the procedure for withdrawal specified by the compact. Indeed, courts have consistently rebuffed the occasional (sometimes creative) attempts by states to evade their obligations under interstate compacts.

In 1976, the U.S. District Court for the District of Maryland stated in Hellmuth and Associates v. Washington Metropolitan Area Transit Authority:

“When enacted, a compact constitutes not only law, but a contract which may not be amended, modified, or otherwise altered without the consent of all parties.”

In 1999, the Commonwealth Court of Pennsylvania stated in Aveline v. Pennsylvania Board of Probation and Parole:
“A compact takes precedence over the subsequent statutes of signatory states and, as such, a state may not unilaterally nullify, revoke, or amend one of its compacts if the compact does not so provide.”

In 1952, the U.S. Supreme Court very succinctly addressed the issue in Petty v. Tennessee-Missouri Bridge Commission:
“A compact is, after all, a contract.”

The important point is that an interstate compact is not a mere “handshake” agreement. If a state wants to rely on the goodwill and graciousness of other states to follow certain policies, it can simply enact its own state law and hope that other states decide to act in an identical manner. If a state wants a legally binding and enforceable mechanism by which it agrees to undertake certain specified actions only if other states agree to take other specified actions, it enters into an interstate compact.

Interstate compacts are supported by over two centuries of settled law guaranteeing enforceability. Interstate compacts exist because the states are sovereign. If there were no Compacts Clause in the U.S. Constitution, a state would have no way to enter into a legally binding contract with another state. The Compacts Clause, supported by the Impairments Clause, provides a way for a state to enter into a contract with other states and be assured of the enforceability of the obligations undertaken by its sister states. The enforceability of interstate compacts under the Impairments Clause is precisely the reason why sovereign states enter into interstate compacts. Without the Compacts Clause and the Impairments Clause, any contractual agreement among the states would be, in fact, no more than a handshake.

Unable to agree on any particular method for selecting presidential electors, the Founding Fathers left the choice of method exclusively to the states 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.”

The constitution does not prohibit any of the methods that were debated and rejected. Indeed, a majority of the states appointed their presidential electors using two of the rejected methods in the nation’s first presidential election in 1789 (i.e., appointment by the legislature and by the governor and his cabinet). Presidential electors were appointed by state legislatures for almost a century.

Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all method) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation’s first presidential election.

In 1789, in the nation’s first election, the people had no vote for President in most states, only men who owned a substantial amount of property could vote, and only three states used the state-by-state winner-take-all method to award electoral votes.

The current 48 state-by-state winner-take-all method (i.e., awarding all of a state’s electoral votes to the candidate who receives the most popular votes in a particular state) is not entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. It is not mentioned in the U.S. Constitution, the debates of the Constitutional Convention, or the Federalist Papers. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all method.

The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding the 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 100% of the 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 frequently have, changed their method of awarding electoral votes over the years. Maine and Nebraska do not use the winner-take-all method– a reminder that an amendment to the U.S. Constitution is not required to change the way the President is elected.

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 meeting of the electors takes place on the first Monday after the second Wednesday in December after the presidential election. The electors meet in their respective states, where they cast their votes for President and Vice President on separate ballots.”

http://www.archives.gov/federal-register/electoral-college/about.html

The National Popular Vote bill has passed 31 state legislative chambers, in 21 small, medium-small, medium, and large states. The bill has been enacted by 9 jurisdictions possessing 132 electoral votes — 49% of the 270 necessary to bring the law into effect.

NationalPopularVote

There are at least six separate and independent reasons why there should be no concern about the hypothetical scenario in which a governor and legislature attempt—for partisan political reasons—to change a state’s method of awarding electoral votes after the people vote in November, but before the Electoral College meets in December.
● The National Popular Vote compact permits a state to withdraw; however, it delays the effective date of a withdrawal until after the inauguration of the new President if the withdrawal occurs during the six-month period between July 20 of a presidential election year and the inauguration.
● Any attempt to appoint presidential electors after the people vote in November would be unconstitutional on its face (and subject to summary judgment) because (1) the Constitution gives Congress the power to establish the day for appointing presidential electors and (2) existing federal law requires that that presidential electors be appointed on a single specific day in each four-year election cycle (namely, the Tuesday after the first Monday in November). Therefore, no state may appoint presidential electors after the results of an election become known (under either the current state-by-state winner-take-all system or the National Popular Vote compact).
● Any withdrawal that purports to take effect between July 20 of a presidential year and the inauguration would be unconstitutional on its face (and subject to summary judgment) because it would violate the Impairments Clause of the U.S. Constitution which states, “No State shall … pass any … Law impairing the Obligation of Contracts.”
● Any attempt to appoint presidential electors after the people vote in November would invalidate the “conclusiveness” of that state’s results under existing federal law specifying that presidential electors must be appointed under “laws enacted prior” to the single specific date set by federal law for appointing presidential electors (namely, Election Day on the Tuesday after the first Monday in November).
● The highly partisan maneuver of attempting to appoint presidential electors after the people vote in November could only be executed, in about four states because of numerous practical political reasons, including (1) high quorum requirements in some state legislatures, (2) lengthy “lay over” requirements before a bill may be considered, (3) the fact that almost half the states have politically divided government at any given time, (4) the fact that state constitutions would delay the effective date of the new state law until after the Electoral College met in mid-December, and (5) the numerous time-delaying tactics enabling the minority party to delay action in the short period of time between Election Day and the meeting of the Electoral College, and (6) other factors.
● Any attempt to appoint presidential electors after the people vote in November would be politically preposterous in the real world because (1) there would be overwhelming public sentiment against changing the “rules of the game” after the people had voted, (2) the fact that the legislature would have to meet in the state capital on Election Day (because this is the only day in the four-year election cycle when presidential electors may legally be appointed), (3) the high level of public support for a national popular vote, and (4) the action would necessarily have to occur in a state where both houses of the legislature and the governor had already enacted the National Popular Vote compact.
● Any attempt by one state, or even multiple states, to appoint presidential electors after the people vote in November would probably not matter anyway because the national popular vote winner under the National Popular Vote compact would typically receive about 75% of electoral votes in the Electoral College, thereby producing a cushion of about 135 electoral votes above the 270 needed to win the Presidency.
● If the hypothetical scenario of changing the “rules of the game” were legally permissible or politically plausible, it would have occurred in the past under the current system on the numerous occasions (including 2000) where a particular presidential candidate was not favored by a particular governor and legislature.

Thanks, Toto. I think getting the support of Congress will be important, even if it appears optional at this point.

If you’re arguing for the NPV over the EC system, you really should not allow yourself the luxury of arguing from how the NPV would work in a normal, average cycle, when no one is excited over the result because it’s a foregone conclusion, and therefore no one is willing to play Constitutional hardball, or do anything controversial. Complacency born of what happens most cycles is probably the single most important reason the NPV hasn’t succeeded, because in normal years NPV and the EC do not produce different results, so why fix what ain’t broken?

It would only be important for us to go to the trouble to junk the EC for the sake of those odd, marginal cycles, when the vote is really close and the two systems might produce divergent results, so don’t try to argue that we can be sure that the NPV would work, its provisions would surely be enforced, because in most cycles, when it isn’t close, the relevant statutes get enforced without much controversy or uncertainty. The whole mechanism really is just a formality in those cycles, and EC formality is no worse than NPV formality.

The point is that all of your asssurances that the rule of law can be trusted to enforce the NPV break down completely over the one counterexample in over a century of when it was close, and there were divergent EC and PV results. I just have to cite Bush v Gore, and every one of your assurances collapses, because in that case, SCOTUS, the top of the rule of law pyramid, its ultimate enforcer, decided the election with a nakedly partisan ruling — and got away with it. Since then, the two weak sisters on the 5-person Fed Society junta on the Court that did Bush v Gore have been switched out for Alito and Roberts, stauncher and more unquestioning servants of the Movement.

And on some of the particular issues you cite, I’m not sure that enforcement would work even if we had courts we could rely on, even in the face of the strong temptation of an opportunity to change the presidential outcome.

The shakiest aspect for me, and it could be based on my imperfect understanding of exactly how these NPV statutes work, is the force of contract you invoke to reassure us that states would not be able to defect at the last minute.

Sure, the case for the existing federal scheme being able to keep states from changing how they select their electors after e-day is pretty good. Again, I think the people who gave us Bush v Gore would be up for allowing such (they would need a pretext, but Bush v Gore tells us they would need very little in the way of pretext). And when the Rs who controlled the FL legislature in 2000 threatened to do just that, change how FL selects its electors to just award them to Bush, I don’t recall any overwhelming chorus of universal outrage or even commentator opinion that they couldn’t do that legally.

But if e-day looms, and it looks like the Dem candidate is likely to win the popular vote but could lose the EC if that still mattered, it seems to me that the only thing that keeps some R-controlled legislature of a state that has enough EC votes to change that result, is only kept from defecting prior to e-day by the force of contract in the NPV statute it has passed. Do these NPV statutes have the states that pass them sign some sort of ocntract? If so, are you sure it would be an enforceable contract, again, even by honest courts? Look, if the state legislatures have the power given to them by the Constituion to determine the manner of EC allocation, is it really at all clear that they can contract that power out? I understand the courts have said that Congress can’t farm out its power over spending, as it tried to do by passing a law that gave the GAO power to cut Congressional spending that exceeded budget-cutting goals. Why exactly do we think that states can contract away an arguably more fundamental responsibility? Has this issue ever been litigated?

It would be one thing if the NPV process required states to change their constitutions so as to prevent defection, and to prohibit changes in those constitutions just before elections. But I am really dubious of the idea that the states can be bound in their legislative power by anything except their own basic law, or federal statute and the US Constitution.

As for what you claim about public opinion not tolerating R power grabs, while that might work when elections aren’t close, because there is a level of clear result in an election beyond which changing the result would be widely (not universally, 23% would approve of whatever the Rs do, no matter how obviously crooked) condemned, we should only be talking about the close, ocntroversial results. In the only such occurrence in the past century, the FL legislature — itself majority R but in a state so closely divided that Gore actually carried its PV, and Obama has since as well — dared threaten to just outright steal the results from the FL courts should the election contest have the temerity to result in awarding the state’s EC votes to Gore. Were they all swept from office next election? Did any of them lose their seats? Or, since this never was pushed beyond the talk stage because SCOTUS stole the results for them, and it was their leadership that did all the threatening talk about this grossly illegal and nakedly partisan act, did at least any of these people even lose their legislative leadership positions? Sure, had the FL legislature threatened such action when the result wasn’t close, a center opinion would have punished them. But whenever it’s close, whenever the difference between NPV and EC matters, there will be no center opinion, everyone will have taken sides, and chosen up sides that are very close to 50/50. Popular opinion will not matter the only time it would be an important deterrent.

All that said, yes, I do favor NPV. No matter what the system, we could easily get screwed in a close election, especially until and unless we get rid of the Federalist Society junta on SCOTUS. Bush v Gore showed us that — so the fact that NPV isn’t bullet-proof screw protection cannot be decisive against it. I just don’t believe in selling the NPV for what it can’t deliver, enhanced protection from having an election stolen legally. We have to destroy the Republican Party to get that, and nothing else will substitute.

Why a federal statue would be necessary

Replying seperately, because it involves a new issue, what I see as the great Achilles Heel of the NPV, the greatest opportunity for Rs to exploit it, is in the inability to control exactly what the tally of the national popular vote is.

The national popular vote is not something at all recognized by the Constitution, therefore there is no definition of how the separate states have to report an NPV (at the risk of confusion, let me switch to referring to the vote total, as well as the law that makes that vote total decide who wins the presidency, as the NPV). I assume there is no such definition in federal law, either.

As such, red states would be free to respond to the success of the NPV states in passing the 50% threshold by redefining their popular vote totals. They could count the entire state population, RVs or not, winner-take-all, as the PV vote total of whoever wins a majority in their state. What’s to stop them from adding a few million to that total that they will report as their PV? The rest of the country might be mad at that state, but its citizens are likely to enjoy having millions of extra votes that the NPV system has to add to the NPV tally.

Somehow there would have to be a uniform definition of a real PV, and a requirement that the states, all the states, even the red ones that haven’t signed on to NPV, report a PV that follows that definition. It seems to me you need a federal statute to do that. Either that, or the NPV states set up some sort of office to decide what the real PV is every cycle, and that doesn’t sound like a good idea, so it seems to me a federal NPV statute is needed.

Current federal law (Title 3, chapter 1, section 6 of the United States Code) requires the states to report the November popular vote numbers (the “canvas”) in what is called a “Certificate of Ascertainment.” They list the electors and the number of votes cast for each. The Congress meets in joint session to count the electoral votes reported in the Certificates of Ascertainment. You can see the Certificates of Ascertainment for all 50 states and the District of Columbia containing the official count of the popular vote at the NARA web site at http://tinyurl.com/3n3syw4

There is nothing incompatible between differences in state election laws and the concept of a national popular vote for President. That was certainly the mainstream view when the U.S. House of Representatives passed a constitutional amendment in 1969 for a national popular vote by a 338–70 margin. That amendment retained state control over elections.
The 1969 amendment was endorsed by Richard Nixon, Gerald Ford, Jimmy Carter, and various members of Congress who later ran for Vice President and President such as then-Congressman George H.W. Bush, then-Senator Bob Dole, and then-Senator Walter Mondale.

The American Bar Association also endorsed the proposed 1969 amendment.

The proposed 1969 constitutional amendment provided that the popular-vote count from each state would be added up to obtain the nationwide total for each candidate. The National Popular Vote compact does the same.

Under the current system, the electoral votes from all 50 states are comingled and simply added together, irrespective of the fact that the electoral-vote outcome from each state was affected by differences in state policies, including voter registration, ex-felon voting, hours of voting, amount and nature of advance voting, and voter identification requirements.

Under both the current system and the National Popular Vote compact, all of the people of the United States are impacted by the different election policies of the states. Everyone in the United States is affected by the division of electoral votes generated by each state. The procedures governing presidential elections in a closely divided battleground state (e.g., Florida and Ohio) can affect, and indeed have affected, the ultimate outcome of national elections.

For example, the 2000 Certificate of Ascertainment (required by federal law) from the state of Florida reported 2,912,790 popular votes for George W. Bush and 2,912,253 popular vote for Al Gore, and also reported 25 electoral votes for George W. Bush and 0 electoral votes for Al Gore. That 25–0 division of the electoral votes from Florida determined the outcome of the national election just as a particular division of the popular vote from a particular state might decisively affect the national outcome in some future election under the National Popular Vote compact.

The 1969 constitutional amendment, endorsed by Richard Nixon, Gerald Ford, Jimmy Carter, and members of Congress who later ran for Vice President and President such as then-Congressman George H.W. Bush, then-Senator Bob Dole, and then-Senator Walter Mondale, and The American Bar Association and, more importantly, the current system also accepts the differences among states.

So there is a definition of the PV already in federal law. Of course that removes that objection to the NPV, or rather, that prerequisite has already been fulfilled.

Thanks for the info.