Colorado lawmakers debate plan to dilute Electoral College

AP - Bakersfield Californian ^ | 4/11/06 | Steven K. Paulson - ap

[NormsRevenge]

Colorado lawmakers said it's time presidential candidates start paying attention to smaller states like Colorado, Wyoming and Utah and approved a plan Monday that would effectively circumvent the Electoral College in hopes of making them do that.

The proposal is being considered in four other states - California, Louisiana, Illinois and Missouri - and is part of a national effort to change the way the nation picks a president.

It calls on other states to enter into compacts that pledge that all their Electoral College delegates will vote for the winner of the national popular vote. It would only take effect if enough states agree to decide the election on a popular vote.

The state Senate Judiciary Committee approved the measure and sent it to the full Senate for debate.

Senate Majority Leader Ken Gordon, D-Denver, said the current system split the decision among electors from all 50 states and favors swing states like Iowa and Florida, which have local issues - such as Cuban immigrants in Florida or ethanol in Iowa - that don't apply to the rest of the nation.

"It definitely distorts the election," Gordon said.

Gordon said Democrat John Kerry would have won the presidency in 2004 if he picked up 60,000 more votes in Ohio, even though Bush won by 2.8 million votes nationwide.

Sen. Shawn Mitchell, R-Broomfield, said if Colorado approved the compact, candidates would be forced to campaign for the popular vote in big states like California, Texas, New York and Florida.

"The president is not the super mayor of Washington, Chicago or Los Angeles," Mitchell said.

John Koza, who is promoting the plan, said small states already were being ignored by the major candidates and a compact would force the candidates to address national issues. Koza said two-thirds of the advertising and two-thirds of the visits during the last presidential election were focused on five states and 95 percent of the attention went to voters in just 16 states.

Koza said the proposed change was constitutional because the U.S. Constitution leaves the decision on how to allocate electoral votes to the individual states.

Bob Loevy, a political science professor at Colorado College, said the move was an attempt to dilute the power of the Electoral College. He said it could backfire if small states approve the compact because it would force candidates to go to the most populous states for votes.

Lawmakers said it would be a disaster if there was a nationwide recount and the election was close, like the one that went all the way to the U.S. Supreme Court before President Bush was declared the winner by a margin of 537 votes six years ago.

"A recount would be politically divisive and catastrophic," Mitchell said.

[E. Pluribus Unum]

If you can't win, change the rules.

[thoughtomator]

This is a ploy to allow the rampant vote fraud in big cities (e.g. Chicago, Philadelphia) to affect more than their own states.

[Red Badger]

How will the pols in the state capitals explain this to their voters when the electorate votes one way and the electors vote the other way?...........

[Kenny Bunkport]

Bad idea. It means that in close elections, vote fraud in, say, Illinois, which could swing the popular vote nationwide, will affect the electoral votes of states that opt for this way of designating their ev's.

[Mike Darancette]

Good idea, instead of Colorado being worth a net 9 votes to the winner make it worth a net 1 vote to the winner less than any other State in the nation. If all states did that then Bush still wins.

[Kenny Bunkport]

GMTA

[Red Badger]

HERE's THEIR REAL PROBLEM........


AMENDMENT XVII

Passed by Congress May 13, 1912. Ratified April 8, 1913.

Note: Article I, section 3, of the Constitution was modified by the 17th amendment.

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

[3AngelaD]

This went down in flames in the last Presidential election. Wonder what part of "No" on behalf of Colorado voters they didn't understand. Caveat: Dems control the state Legislature.

[loreldan]

Yep. That's our Colorado Dems - always looking out for the best interests of California and New York.

[Dixie Yooper]

The United States of America is a Republic, not a democracy.

[dljordan]

"The United States of America is a Republic, not a democracy."

It used to be a republic.

[freepatriot32]

ping

[philled]

Hmm, pretty transparent Democrat scheme to erase the concept of red states. Why just have NYC determine that all of NY's electoral votes go to the Dems, how about they swallow up those of several other small states as well?

Rather than pledge the votes to the national vote getter, how about we change the Electoral College so that each state only gets two votes? That way, my state with less than one million people would be just as important for candidates to campaign in as New York or California? Wouldn't this give the small states an even better footing than the plan that would just further marginalize their small populations because it would just encourage the candidates to campaign in the large cities (D) and population centers. Oh, wait, it's not really about making the small states important, is it??

[KarlInOhio]

Good idea, instead of Colorado being worth a net 9 votes to the winner make it worth a net 1 vote to the winner less than any other State in the nation. If all states did that then Bush still wins.

This is a different plan than 2004. Colorado was then proposing proportional distribution of its electoral votes. Now they want to join with other states to give their electoral votes to the national popular vote winner.

Personally I would like to go to the Maine/Nebraska system of 2 EVs for the state and 1 for each House district. That way Chicago style vote hijinks at one location would be limited to changing 3 EVs instead of all of them for the state.

With the proposal in the article, Seattle's secret ballot warehouse which elected Governor Gregoire could change the vote for the entire nation even if Washington wasn't a tossup state.

[ARCADIA]

Fat chance. The Electoral College is there to give voice to the smaller states.

[trebb]

Oh, wait, it's not really about making the small states important, is it??

Bingo! Right now, they go after the States with the most Electoral College vote, which also happen to be the States with the most VOTERS. This new plan scheme would still leave the States with the fewest voters dangling in the wind as "inconsequential".

The Dims smell illegal-immigrant amnesty in the air and want to harness all them illegal votes. That's why they took a bad Kennedy plan, which had near-blanket amnesty, and "amended" it to extend full-blanket anmnesty in hopes of pulling a fast one. That's why they are attending the protests and trying to sign up some more good illegal Dims to their base (in all its meanings).

[Politicalities]

Gordon said Democrat John Kerry would have won the presidency in 2004 if he picked up 60,000 more votes in Ohio, even though Bush won by 2.8 million votes nationwide.

This is a distortion that Kerry voters have been spreading since the day after the election. Bush won Ohio by an official tally of 118,601 votes. Pre-2004, this would have been described as "he would have won if he'd picked up 118,602 votes." But since the Kerry folks decided to try to minimize their guy's loss, they halved the margin by pretending that each additional Kerry vote would be a lost Bush vote. Kerry wouldn't have won if he'd picked up an additional 60,000 votes in Ohio; he'd have won if he'd managed to sway 60,000 voters away from Bush to himself.

[Mike Darancette]

Now they want to join with other states to give their electoral votes to the national popular vote winner.

So some States would form some type of treaty among themselves that could nullify the popular vote of the citizens of their state? This would then make the value of the votes in their state effectively zero.

Dumb, Dumb, Dumb.

[Chi-townChief]

Wouldn't applying this to 2004 mean that Ketchup Boy would have gotten his sorry anti-American ass kicked by an even wider margin ??

[Dixie Yooper]

Then we must be using an old Pledge of Allegiance.

[BlueNgold]

The 'pay attention to the smaller states' argument honestly makes me laugh. Not because I am disdainful of the smaller states, but because those who put forth such an argument ignore history. In fact they ignore the primary reason the electoral college was established as we know it - to protect the small states. This is grade school civics, not rocket science, but just for the fun of it, lets throw around some statistics.

Please allow me a moment of your time:
At the constitutional conventions (way way back when...) the small states were concerned about representation. One result of this concern was the bicameral house we know as the Senate where each state has equal footing, large or small. The second result of the compromises between small and large states was the electoral system of choosing a President.

The Electoral College as we know it actually over-represents the citizens of small states. An election based on purely popular vote in the modern age would surely result in less, not more, 'attention' to be paid to the smaller states.

For example - California has 55 electoral votes, which seems huge since there are only 538 electoral votes available. CA has the rights to 10.2% of the presidential vote. This seems outrageous until you realize that CA residents comprise fully 12.0% of the population of this great land. CA, despite all of the attention it gets, is under-represented on election day. TX - same thing - 6.3% of the electoral votes despite 7.4% of the population. NY - more of the same - 5.7% of the electoral votes, yet they have 6.8% of the population.

Where does all of this lost representation go, you ask? It goes to the small states. RI - 0.7% of the EC, but only 0.3% of the population. VT - 0.6% EC / 0.2% population. WY 0.6% EC despite less than 0.2% of the population. What about CO, the source of this story? I'm so glad you asked. Our good friends in CO fall into the over-represented category. CO - 1.7% EC and only 1.5% of the population. CO would, in effect, be giving up electoral prowess through the elimination of the EC.

More statistics to fill your head (Census 2000 numbers used for reference.):
The top 10 states (population) comprise 54.1% of the population of the country. (They are going to get a lot attention no matter what system you use.) Yet these same states only represent 45.7% of the Electoral College.
The top 20 states represent 75.6% of the population (66.9% of the EC), and the top 25 states include 83.5% of our citizens (75.3% EC).

So if we shift the system to recognize only the popular vote, where are we shifting the power? The top 10 states just GAINED 09% (raw) of the presidential vote - a gain of 20% in their power to influence the outcome of the election - that doesn't sound like a plan that's going to look out for the 'small' states to me...

And lastly, in case you need a reminder' take one more look at the 2004 Electoral map and just think for a moment about what the people pushing to get rid of the influence of the electoral college really want...

I hope this helps - BnG

[monkeyshine]

That is ridiculous. Why would states willingly throw away their power by letting other states decide how their state should vote?

A more modest reform would be to eliminate the winner take all. It would put every state into play.

[monkeyshine]

a compact would force the candidates to address national issues.

Nonsense. They already do that. This proposal is expressly what the framers did not want to happen. There has already been too much erosion in the federalist system - the 2 parties have corrupted it by being members of their party before representatives of their state.

I think the bigger states would be better off to throw the two parties out and elect people who swear allegiance to their state, and not to their party. If the California delegation was 100% pro-California, it would be a huge block (11-12% of the House) and legislation would reflect positively on the state. But because the delegation is split between parties, national party politics take priority over the needs of the state.

[monkeyshine]

You got it right on.

[monkeyshine]

I don't know where these people get their ideas from. They are just flat out wrong as you pointed out.

They are upset because Gore lost? That anomaly is no reason to change the system. Similarly, Clinton won despite not having the majority of the popular vote in either election. What then? Should the states be forced to vote for a minority winner? Ludicrous!

If we had a runoff in 1992, with Perot out, Bush Sr. would have probably won a second term including winning the popular vote.

[hershey]

Mob rule.

[heleny]

proportional distribution of its electoral votes. Now they want to join with other states to give their electoral votes to the national popular vote winner. Personally I would like to go to the Maine/Nebraska system of 2 EVs for the state and 1 for each House district. That way Chicago style vote hijinks at one location would be limited to changing 3 EVs instead of all of them for the state.

Yes, 1 EV per congressional district would be very nice. (plus distributing the remaining 2 EVs per state somehow, perhaps by winner-take all.) For those of us in big states like California, it means the nominees would have to campaign throughout the state instead of taking for granted (or writing off) the state's total EV's.

Unfortunately, the Democrats in CA oppose such a plan, because it would reduce the number of EV's for Democrat presidential candidates. Former Assemblyman Tony Strickland (R-37?) introduced such legislation after the 2004 election, but nothing became of it. I guess the idea doesn't have enough support to be tried through the initiative process, either.

[dvwjr]

The proposal is being considered in four other states - California, Louisiana, Illinois and Missouri - and is part of a national effort to change the way the nation picks a president.

It calls on other states to enter into compacts that pledge that all their Electoral College delegates will vote for the winner of the national popular vote. It would only take effect if enough states agree to decide the election on a popular vote. .
.

Koza said the proposed change was constitutional because the U.S. Constitution leaves the decision on how to allocate electoral votes to the individual states.

First to the power of the States, according to the Federal Constitution:

Article II, Section 1: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors"... [as modified by Amendment XII]

The above in combination with Federal Law: 3 U.S.C. §§ 6, 15. gives the State Legislatures the exclusive power to choose Electors and the exclusive power to accept Electors to the Congress. The State Legislature have the power to directly select the Presidential and Vice-Presidential Electors themselves or to have the voters of their State select its electors by some form of election. This State-wide election could be the popular-vote in a plurality winner-take-all Electors fashion (most States); or by one Elector awarded per plurality winner of a Congressional district, with the State-wide plurality winner getting two Electors (Maine, Nebraska); by some type of voting system which awards Electors by a proportional voting system. In every case the selection method determined by the State Legislatures must be in place before the general election day on which the selection of Electors are determined.

The proposal to have several States form a compact to agree to ignore the rules that the individual State Legislatures have enacted before a general election - by which each State Legislature pledged to honor the decision of the voters of their State will violate both 3 U.S.C. §§ 6, 15. and the Federal Constitution. These violations are not hard to determine...

Each State has a process to be followed following any general election in which the Electors are determined. If a State uses a State-wide popular vote to determine its slate of Electors then there is a possible delay due to any legal contest and protest phases, post-election. As with Florida in the 2000 Presidential Election - State Supreme Courts may change the law which determines the election contest/protest time-frames set in place by the State Legislature before the election, throwing into chaos the determinations of any other State in this proposed 'compact' which is awaiting the certification of Electors (and hence the popular vote) of any State in the Union. This might very well put the final certification of the slates of Electors of all of the 'compact' States in jeopardy since they might be certified after the "safe harbor" period determined by the Congress of 1877. If a State's Electors are not certified one week before they meet to Elect the President and Vice-President then they may be challenged by Congress.

The Federal Constitutional problem with this Colorado Legislature for other "states to enter into compacts" is that they have no such power unless they have the consent of Congress of the United States. They have no power to do this on their own to perform an "end-run" around the Electoral College system.

United States Constitution

Article 1 Section 10
Powers prohibited of States
.
.

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

I know that the State of Colorado arrived at the party after the Founders had departed the scene, but surely its Legislature realizes that the Federal Constitution trumps States doing Congressionally unapproved deals among themselves... The Republicans are in control of the House and Senate for now - I don't see any approval for this hare-brained scheme by those who wish to amend the Constitution by statue instead of Amendments...

dvwjr

[Politicalities]

The proposal to have several States form a compact to agree to ignore the rules that the individual State Legislatures have enacted before a general election - by which each State Legislature pledged to honor the decision of the voters of their State will violate both 3 U.S.C. §§ 6, 15. and the Federal Constitution.

Uh, the proposal is for the state legislatures to change the rules of how they appoint electors. Yes, the federal constitution gives the state legislatures plenary authority to determine the method for appointing electors. The state legislature has the absolute right to decree that the state's electors will be chosen based on the winner of the popular vote in that state, or based on the winner of the national popular vote, or based on the outcome of a massive pie-eating contest. The only constraints are that if the state chooses electors by means of an election, it may not discriminate on account of race (15^th Amendment), sex (19^th Amendment), or age over 18 (26^th Amendment).

As with Florida in the 2000 Presidential Election - State Supreme Courts may change the law which determines the election contest/protest time-frames set in place by the State Legislature before the election

This was actually a matter of some controversy at the time. The Constitution describes in several instances powers reserved to "the States", but the determination of electors is explicitly given to state legislatures. One could make a fairly compelling argument that the method of determining electors is not subject to review by the state's judicial branch... or, for that matter, veto by the state's executive.

throwing into chaos the determinations of any other State in this proposed 'compact' which is awaiting the certification of Electors (and hence the popular vote) of any State in the Union.

The proposal is for states to grant their electoral votes to the winner of the national popular vote, which wouldn't cause any state to be held up by any other state. As for the argument that delays in tabulating the national popular vote might cause a state to forfeit its "safe harbor"... well, that's an argument for the proposal being a bad idea, not for it being unconstitutional.

The "safe harbor" isn't all that safe anyway. Ohio had its electors certified well within the deadline, and had its electoral votes challenged anyway. Being within the safe harbor does not guarantee that a state's vote will be unchallenged; being outside the safe harbor does not guarantee that a state's vote will be challenged.

But yes, the proposal is a bad idea... although certainly not as awful as the ludicrous proposal on Colorado's 2004 ballot to split its electoral votes in proportion to a candidate's share of the vote. I wrote an essay after the 2000 election challenging the notion that the electoral college raises the influence of the small states at the expense of the large states. What it actually does is raise the influence of the swing states at the expense of the safe states.

[Paleo Conservative]

I guess the idea doesn't have enough support to be tried through the initiative process, either

That would violate the US Constitution, which gives the power to decide how electors are chosen soley to the state legislatures. This was what Bush vs Gore was about. The Florida Supreme Court was usurping plenary powers of the Florida legislature determined by the US Constitution.

[Mike Darancette]

That would violate the US Constitution

The Colorado idea probably violates the Voting Rights Act in that votes in a state yoked to the national vote risk not having their voted counted in the same way as a voter in a not yoked state.

[heleny]

That would violate the US Constitution, which gives the power to decide how electors are chosen soley to the state legislatures.

Can an initiative compel the legislature to act a certain way? But, thank you for pointing out that fact, again, about the state legislatures' sole authority to decide how to chose electors.

[heleny]

That would violate the US Constitution, which gives the power to decide how electors are chosen soley to the state legislatures.

Can an initiative compel the legislature to act a certain way? But, thank you for pointing out that fact, again, about the state legislatures' sole authority to decide how to choose electors.

[eddie willers]

It ain't broke....don't fix it.

[dvwjr]

Originally posted by: Politicalities

"I wrote an essay after the 2000 election challenging the notion that the electoral college raises the influence of the small states at the expense of the large states. "

Then I hope your essay writing skills are better than your analysis of my reply...

"The proposal is for states to grant their electoral votes to the winner of the national popular vote, which wouldn't cause any state to be held up by any other state. As for the argument that delays in tabulating the national popular vote might cause a state to forfeit its "safe harbor"... well, that's an argument for the proposal being a bad idea, not for it being unconstitutional."

You will notice that I was very careful to separate my arguments against this proposed Legislation into two categories: statute and Constitutional. The only Federal Constitutional argument I made against the Colorado proposal was on Article 1, Section 10 grounds - Powers prohibited of States, that is entering into compacts with other States without Congressional approval. You conflated the two in your paragraph above; I did no such thing in my initial reply.

"Uh, the proposal is for the state legislatures to change the rules of how they appoint electors. Yes, the federal constitution gives the state legislatures plenary authority to determine the method for appointing electors. The state legislature has the absolute right to decree that the state's electors will be chosen based on the winner of the popular vote in that state, or based on the winner of the national popular vote, or based on the outcome of a massive pie-eating contest."

The State Legislature may change the selection method for its Electors from itself to a "massive pie-eating contest", or a state-wide popular vote proportional plurality vote, or a state-wide popular vote "winner-take-all" plurality, or a state-wide Congressional district plurality vote. All are valid as long as they happen within the confines and jurisdiction of the State. What they may not do is to base the Electors selection on a two part process - the first being that the Electors selected are to be based on the results regularly held State-wide election, unless that State-wide certified electoral result is at some point afterwards "over-ruled" by the results of the non-existent non-certified nationwide 'popular vote' which would then force the substitution a loosing slate of electors for the certified winning Electors.

There is no "national popular vote" until all 50 States and the District of Columbia have certified the results of 51 separate elections. This takes time, sometimes enough to put such certification close to the 'safe harbor' date established by Congress. The flaw with such a plan is that is violates 3 U.S.C. § 6 in that certification of a State's Electors is only lawful if the ascertainment of votes cast for elections or the determination of elections contests must be conducted pursuant to State law. A State Legislature may discriminate against a voter on the basis of any criminal felony record. If a particular State has determined that convicted felons may not vote in its elections, but that this 'voting compact' with other States which uses the 'national popular vote' to determine Electors would of course include States which do allow convicted felons to vote in their State elections - this would then violate the State laws of that particular State. Such violation of State law would prevent the "lawful certification" of any electors based on unlawful votes under the election laws of the State in question.

What is to prevent States from entering into a compact with Territories of the United States, allowing Guam or Puerto Rico to influence the choice of Electors in the less populous States of this proposed compact? The use of the 'national popular vote' as the deciding factor in the selection of a State's allocated Electors would allow Federal Courts a way to subvert Electoral process of the Federal Constitution.

"This was actually a matter of some controversy at the time. The Constitution describes in several instances powers reserved to "the States", but the determination of electors is explicitly given to state legislatures. One could make a fairly compelling argument that the method of determining electors is not subject to review by the state's judicial branch... or, for that matter, veto by the state's executive."

The Florida Supreme Court had no power to cause the Florida Secretary of State, Mrs. Harris to delay certification of the vote and Electors. It had no power to set new dates for certification. It had no power to extend the protest phase of the election as determined by the Florida Legislature which thereby shortened the contest phase. It had no power to call for any State-wide recounts. It had no power to create new vote counting standards after Election day. It had no basis for interfering the laws and procedures which the Florida State Legislature had set into place and which the Executive Branch of Florida was carrying out. However, the Florida Supreme Court did all these things - the time delay and chaos was real, until the United States Supreme Court finally ended their madness and vacated two of their three decisions - which removed the pressure to act against the Court from the Republican controlled Florida State Legislature. The Legislature was saved from asserting their plenary authority to appoint a slate of Bush/Cheney Electors and to impeach the entire Florida Supreme Court to prevent that or any future court from EVER tampering with said plenary authority of the State Legislature in Federal Electoral matters.

"The 'safe harbor' isn't all that safe anyway. Ohio had its electors certified well within the deadline, and had its electoral votes challenged anyway. Being within the safe harbor does not guarantee that a state's vote will be unchallenged; being outside the safe harbor does not guarantee that a state's vote will be challenged."

Title 3, Section 5 of the U.S. Code

“If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.”

It appears that you do not understand the purposes of the 'safe harbor' provision of the Electoral Count Act of 1887. The statute was never intended to prevent any challenges to the certificates and votes of a particular State's Electors, it was intended to regulate what will happen in the event such challenges do occur and by law what the Houses of Congress may do in the event of such a challenge. In particular, it replaced the "Twenty-Second Joint Rule" passed on February 6, 1965 by the Congress which gave each House of Congress an individual veto over the counting of the votes of Electors from a particular State. In most cases the older single-House 'veto' was replaced with a dual-House veto to disallow the counting of any particular State's electoral return(s). The 1887 law was intended to cover as many Electoral vote counting contingencies as were determined during that period of Congressional history. In the case of the Ohio Electors in 2005 - the law of 1887 was followed: a written objection signed by at least one Senator and one Representative was presented to the President of the Senate. The objection caused both Houses to retire to their respective chambers for no more than two hours of debate to consider the single set of returns from the State of Ohio under the following passage from 3 U.S.C. § 6:

Title 3, Section 6 of the U.S. Code

"...no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified."

The challenge to the Ohio electors votes was rejected 267-31 in the House and by 74-1 in the Senate. The rejection of the challenge by either House would have been enough to ensure the counting the votes of the Electors of Ohio - since those votes were "regularly given" by lawfully certified electors. The fact that a few Democrats did not like the outcome of the Ohio election in which the Bush Electors were chosen was irrelevant under the 'safe harbor' provision. There is no way that the Congress could follow the law and especially the 'safe harbor' provision and reject the single slate of certified returns from the State of Ohio without making every other State vulnerable to the same political standards both now and in the future. The State of Ohio determined the lawful, certified winners of their electoral contest. The Congress has no right to refuse to count Ohio's single set of electoral votes.

The other use of the 'safe harbor' provision is to act as a potential 'tie-breaker' in the case of dual returns presented to the Congress from one State. If one such State return had its Electors certified within the 'safe harbor' and another set of Electors was not so certified within the 'safe harbor' period - then the only return to be considered valid would be the set of returns which met the State certification requirements and occurred within the 'safe harbor' time period.

However, the 'safe harbor' provision is not absolute and was over-ridden by the Congress on January 6th, 1961 when three sets of returns from Hawaii were opened by Vice-President Nixon - a certified 'safe harbor' return of December 19th, 1960 for Nixon-Lodge signed by the acting Governor of Hawaii; a non-certified non-'safe harbor' return of December 19th, 1960 for Kennedy-Johnson signed by no one in executive authority; the third was a certified non-'safe harbor' return of December 19th, 1960 signed by the new Governor of Hawaii on January 4th, 1961. On January 6th, 1961 Vice-President Nixon decided to count the third Kennedy-Johnson return "without the intent of establishing a precedent," as a courtesy since the Hawaii electoral votes would not change the outcome of the election. Since there was no objection by either House, the power reserved by the Congress to determine that the legitimate 'safe harbor' Nixon-Lodge slate was not the lawful return of Hawaii electors was implicitly used, but not made precedent to this day. The Nixon-Lodge return should have been the only one counted if the 1877 law was followed since the determination that the Kennedy-Johnson slate had won the popular vote did not occur until December 30th, 1960 - well after the electors voted on December 19th, 1960.

The proposed 'Colorado Compact' will get no where without the approval of the Congress and without newly enacted Federal laws to regulate such a blatant attempt at subverting the Electoral College.

dvwjr

[Politicalities]

"Then I hope your essay writing skills are better than your analysis of my reply... "

Oh boy! An ad hominem! What a strong argument! I tremble helplessly before it!

"The only Federal Constitutional argument I made against the Colorado proposal was on Article 1, Section 10 grounds - Powers prohibited of States, that is entering into compacts with other States without Congressional approval."

Meaning that state legislatures could not Constitutionally pass laws saying "the slate of electors shall be awarded based on the results of the national popular vote -- unless Montana doesn't do the same." They could, however, pass laws saying "the slate of electors shall be awarded based on the results of the national popular vote."

"The State Legislature may change the selection method for its Electors from itself to a "massive pie-eating contest", or a state-wide popular vote proportional plurality vote, or a state-wide popular vote "winner-take-all" plurality, or a state-wide Congressional district plurality vote. All are valid as long as they happen within the confines and jurisdiction of the State."

Uh oh. It seems that my copy of the Constitution is defective... because in my copy, Article II Section 1 simply states "Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors..." The careless bastards who printed it seem to have omitted the part that says "...based on events that happen solely within the confines and jurisdiction of the State." Could you cite the exact wording, please? I'd like to pencil it into the margin of my copy.

"What they may not do is to base the Electors selection on a two part process - the first being that the Electors selected are to be based on the results regularly held State-wide election, unless that State-wide certified electoral result is at some point afterwards "over-ruled" by the results of the non-existent non-certified nationwide 'popular vote' which would then force the substitution a loosing slate of electors for the certified winning Electors."

What a beautiful strawman. In the first place, you're wrong; there is nothing in the Constitution prohibiting such a two-stage process. But in the second place, and more importantly, why does there need to be a two-stage process? Why does the state need to appoint a slate of electors only to change it in the future? Why not just award the electors to the winner of the national popular vote in the first place?

"Losing" is spelled as you see it here.

"There is no 'national popular vote' until all 50 States and the District of Columbia have certified the results of 51 separate elections."

True. And there is no appointment of a slate of electors in any given state until the results of the statewide election are certified. Your point?

"This takes time, sometimes enough to put such certification close to the 'safe harbor' date established by Congress."

Once again, you make a twofold error, one part more serious than the other but either part being fatal to your argument. In the first place, it's possible that certification in all 50 states plus DC might take a very long time, just as it's possible that the sun will rise in the west. In practice, certification doesn't take nearly that long. All 51 voting jurisdictions had their results certified well in advance of the safe harbor deadline in every single recent election. Even Florida in 2000, with its interminable delays, managed to get its results certified in time.

But your second (and more serious) error is viewing the safe harbor as some sort of holy writ, set in stone. It's not. It's an optional date, a guarantee from the federal Congress to the states that if they have their electors certified by a particular date, they will be safe from challenge. States are free to disregard the safe harbor if they choose... and the choice is entirely up to the state's legislature.

"The flaw with such a plan is that is violates 3 U.S.C. § 6 in that certification of a State's Electors is only lawful if the ascertainment of votes cast for elections or the determination of elections contests must be conducted pursuant to State law. ... If a particular State has determined that convicted felons may not vote in its elections, but that this 'voting compact' with other States which uses the 'national popular vote' to determine Electors would of course include States which do allow convicted felons to vote in their State elections - this would then violate the State laws of that particular State."

Now I'm afraid it is you who is being confused by a two-stage process: the determination of the eligibilty of voters, and the tabulation of votes. The law says that felons are not eligible to vote in a particular state; it does not say that the votes of felons from other states can be no part of the process.

I remain at a loss as to how you can assert that the proposal would violate state law, when the state laws in question haven't even been written yet. Suppose a state had a law forbidding felons to vote in presidential elections but allowing them to vote in downballot races. Would that be a "violation of state law?"

"What is to prevent States from entering into a compact with Territories of the United States, allowing Guam or Puerto Rico to influence the choice of Electors in the less populous States of this proposed compact?"

What is to prevent the states from entering into a compact with Territories? The same thing that prevents states from entering into compacts with each other: the Constitution. That doesn't mean that the states cannot pass laws awarding their electors to the winner of the national popular vote, or the winner of the pie-eating contest, or the candidate chosen as "hottest" by the readers of People magazine.

"The Florida Supreme Court had no power to cause the Florida Secretary of State, Mrs. Harris to delay certification of the vote and Electors."

A bald assertion with which I happen to agree, but which I recognize is controversial and which has arguments both for and against it. In any case, neither the United States Supreme Court nor any inferior federal court ruled that the Florida Supreme Court did not have the power to rule on the case.

I gotta get ready to go to work. I'll demolish your interpretation of the safe harbor later.