California devises end-run around electoral college (Passed!)

CoCoTimes ^ | 5/28/06 | Jim Sanders

[JeffAtlanta]

LOL - sorry about the ping, I searched to see if you had weighed in on this thread but didn't see any replies.

[JeffAtlanta]

It does not matter how many states pass such a law, to the extent that it affects the power of non-cooperating states in the selection of the President, it is an unconstitutional confederation (Article I, section 10).

Couldn't California and other states just put in their state law that it won't take effect until a certain number of other states do as well?

This wouldn't be a contract, compact or confederation as agreements with other states would be not be necessary.

[pepperdog]

A very interesting question. You are right it would be a broken promise, not that that has ever stopped politicians from doing what they want.

[jwalsh07]

My views are up above Jeff. The states can do whatever they want in apportioning electoral votes. What they can not do is enter into a compact with other states concerning federal elections absent congressional approval.

Article 1, Section 10 directly addresses compacts and SCOTUS case law would seem to agree that in matters of import to the republic Congress gets a veto on these kinds of compacts. Other compacts, a notable example being a bridge joining two states, have seen SCOTUS hold that the states do not need congressional approval.

So from a constitutional point of view it's pretty clear that the original intent was to give Congress the power to approve or disapprove such compacts when they are of sufficient import to the Republic.

[RedStateRocker]

"Either these politicians are completely ignorant, or they are banking that the voters are."

I don't see why this is necessarily an 'either/or' proposition:-)

[JeffAtlanta]

The states can do whatever they want in apportioning electoral votes. What they can not do is enter into a compact with other states concerning federal elections absent congressional approval.

Do you feel that a system where California does not into a compact but rather just makes the implementation contingent on other states switching to the new system would pass constitutional muster?

California's law could just say something like "this law will not go into effect until a number of states representing the majority of electoral votes enact the same system".

[jwalsh07]

Not sure where we disagree. Presumably, this Congress will not approve this Compact. The compactees(play on words) will then go the courts. The SCOTUS, as currently constituted, will reject their argument and the Compact will be null and void. If the states go forward with the compact, that will be unlawful.

[jwalsh07]

I think the courts call things like that a sham. At least they do when ID is involved. :-}

[Republican Wildcat]

"When you're in first grade, if the person who got the second-most votes became class leader, the kids would recognize that this is not a fair system," he said.

A very dishonest analogy. The person who gets the most votes wins the state's electoral votes, not the person who won the second most.

[Right Wing Professor]

I agree.

[Right Wing Professor]

Couldn't California and other states just put in their state law that it won't take effect until a certain number of other states do as well?

Case law says reciprocal legislation is a compact. See the link I posted.

[ReignOfError]

Think again. If Congress doesn't sign off on the compact, the compact is unlawful.

Then it's void. Neither you nor anyone else has shown any provision under which Congress can dictate to the states how they may allocate electoral votes. Calling it a compact is mere rhetoric. If a large number of states go along, the effect is the same, whether it's a binding compact or not.

[CSM]

Ping for later read.