[Publius]

The Constitution gives state legislatures plenary power to appoint presidential electors. In our earliest elections, in only a few states did the legislature authorize a popular vote to choose electors. Even then, the legislature used the current Maine/Nebraska formula: one elector for each congressional district based on the popular vote in that district, and two electors for the state at large based on the popular vote for the whole state. By the 1830s, the current winner-take-all approach to electoral votes became predominant.

By 1844, only South Carolina still had the legislature appointing presidential electors, and that ended in 1868 when a carpetbagger legislature brought South Carolina into harmony with the rest of the nation.

In the contested election of 1876, southern states under military occupation saw the people voting for Democratic electors. Charging fraud, the carpetbagger legislature appointed its own slate of Republican electors. Going completely outside the Constitution, Congress appointed a board of 4 Republicans and 3 Democrats to decide which slate of electors to accept for the congressional tally of electoral votes. In each case, the vote was 4 to 3 to accept the Republican slates. And so Rutherford Hayes of Ohio defeated Samuel Tilden of New York.

In 1877 the dispute made its way to the Supreme Court, and the Court ruled that the state legislature had an undisputed right to appoint electors. A state legislature could even refuse to hold a popular election for electors and appoint its own slate.

In 2000, the Florida Legislature appointed a Republican slate of electors in case the dispute over the election ran past the Safe Harbor Date established by federal law in 1887. The Supreme Court decision in Bush v. Gore eliminated the need to appoint that slate.

The initiative in question would require a state’s legislature to hand its duty of appointing electors to the winner of the national popular vote, not the winner of the state’s popular vote, nor the winner of the popular vote of any of its congressional districts. As long as a state’s legislature makes that decision, it’s legal for that state.

Because this would be an interstate pact, it would require congressional approval from both Houses. If that happens, it’s legal and ready to go into effect.

The larger issue is the Guarantee Clause of Article IV. Is it “a republican form of government” for a state to ignore the votes of its own citizens to appoint a slate of electors that reflects the national popular will? That will end up in the Supreme Court.

[greeneyes]

Well, those states that allow illegals to have drivers license and look the other way when illegals vote, likely think it’s ok to do this.

I’m finding it hard to believe that Red States would agree to it. However, current affairs get more and more unbelievable every day - like Congress and States voting for infanticide.

Sigh. Thanks for the essay. Makes sense.

[KitJ]

Excellent write up. Thank you.

You answered the question I was mulling over...

“The larger issue is the Guarantee Clause of Article IV. Is it “a republican form of government” for a state to ignore the votes of its own citizens to appoint a slate of electors that reflects the national popular will? That will end up in the Supreme Court.”

[MileHi]

Thanks for your time to post this.

Is it “a republican form of government” for a state to ignore the votes of its own citizens to appoint a slate of electors that reflects the national popular will?

I am afraid that it could be. The popular vote is "democracy". Having elected officials make these decisions is representative or "republican" government.

I hope I'm missing something here.

[little jeremiah]

Thanks for the details. So it sucks but would be legal if both houses of Congress voted to approve it. And this:

Is it “a republican form of government” for a state to ignore the votes of its own citizens to appoint a slate of electors that reflects the national popular will? That will end up in the Supreme Court.

Yet another very important reason why a good SCOTUS is essential for the survival of our country.

[outofsalt]

Question. Are the legal pot states the same ones for the national popular vote and did they vote for Hillary?

Qurious

[bitt]

#1399

re: 12 states

"The initiative in question would require a state’s legislature to hand its duty of appointing electors to the winner of the national popular vote, not the winner of the state’s popular vote, nor the winner of the popular vote of any of its congressional districts. As long as a state’s legislature makes that decision, it’s legal for that state."

[Rusty0604]

Thank you so much for that information. But I think the intention was to assign the electoral votes to the will of that state’s citizens, not other States. And what about the states that sign up illegals to vote when they give them driver’s licenses? And now ballot harvesting? Are we supposed to just let it go, saying it’s somehow legal and there’s nothing we can do?