There is nothing in the Constitution mandating a popular vote.
Article II, Section 1:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.If the state legislature chose to, it could take the presidential election off the Nov 4 ballot entirely, and decide who the state's electoral vote goes to by legislation
That was my point in response to post #8. The states can allocate their electoral votes anyway they want, witness the systems used in Maine and Nebraska. The contstutional issue involved in this case are state compacts and the allocation of electoral votes. It has never been tested.
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector”
At at the time the Constitution was ratified, voters did not “elect” presidents (actually, they STILL don’t do that), but NOR DID THEY choose the electors for the candidates (which is what we do in presidential elections today). If I recall, the state legislatures themselves APPOINTED electors who were not chosen by a popular vote, and “presidential elections” at the state level were non-binding popularity contests which had the effect of “advising” the state legislatures.
But have not all of the states since passed laws designating that electors shall be chosen by a popular vote of the citizens OF those states? If I’m wrong, someone will step in and correct me.
I contend that when citizens obtained the right to choose electors through binding votes at the state level, it changed the operation of the original “elector clause” (as reproduced above).
In what way did it change, you’re asking?
Article IV, Section 4 states:
“The United States shall guarantee to every state in this union a republican form of government”
Seems to me that one of the essential elements of “a republican form of government” is that states (and their legislatures) will be bound by the voting decisions of their citizens, as represented by a majority of votes cast.
That is to say, if there’s going to BE a vote in the first place, the state in question must then be governed by the RESULTS of that vote. State legislatures cannot hold popular elections, and then ignore votes of their citizens insofar as choosing candidates is concerned.
BEFORE there was popular voting for electors, the state legislatures did indeed have the absolute right to choose electors by ANY means they wished to. So - even if the voters of their state expressed a desire for candidate A in the “presidential election”, at that time, the states could still choose electors for candidate B, if they desired. That choice would be supported by the Constitution. No “election” was involved in those days. There was no binding vote involved.
But - AFTER voters were designated to choose electors, states were now forced to abide by the results of such votes, to comply with the “republican government” clause of the same Constitution. To wit, states are now bound to respect the resprentative vote of _their own citizenry_ in how they apportion their electors to the Electoral College, and cannot establish (either individually or in concert with other states) a scheme that is inteneded to subvert such voting.
In other words, state legislatures COULD conceivably have passed laws similar to those now being proffered (and already passed in New Jersey and in Maryland), because the original clause regarding the selection of electors did not anticipate that those electors would ever be chosen by a popular vote of the people.
BUT - that changed when the states granted their citizens the right to choose electors by popular vote.
And that is why - after an appropriate challenge - I believe the “popular vote” laws being promoted as a wink-of-the-eye end run to get around the Electoral College will ultimately be declared unconstitutional.
I know I’m splitting hairs here. But by spliiting hairs, is how great issues are often decided.
Just as the originally-written Constitution recognized and endorsed slavery, it was later modifed so that the origiinally-written language is no longer operative.
I contend that when laws (even state, not federal laws) were added to permit direct election of electors at the state levels, doing so modified how the states must interpret and repect the Constitutional clause regarding the choice of electors to comply with the “republican form of government” language of The Constitution. And that the only way the states can make an agreement amongst themselves to ignore the votes of their own people in choosing electors, is to first REPEAL - at the state level - any and all laws that establish popular elections OF those electors.
Simply stated, states are Constitutionally-bound to honor the results of ANY and ALL popular-vote elections in those states, even popular votes for presidential electors because those states have granted that Constitutional duty (the selection of electors) to their own voters through existing state laws. Yes, the Constitution DOES permit a state to appoint electors as it pleases, but in order to re-assert that absolute right, the states must first repeal any laws they have regarding popular selection of electors in those states.
- John