Posted on 05/13/2020 4:33:08 AM PDT by EBH
WASHINGTON (Reuters) - The Supreme Court is set on Wednesday to consider a dispute involving whether “electors” in the complex Electoral College system that decides the winner of U.S. presidential elections are free to disregard laws directing them to back the candidate who prevails in their state’s popular vote.
If enough electors do so, it could upend an election.
The nine justices will hear two closely watched cases - one from Colorado and one from Washington state - less than six months before the Nov. 3 election in which presumptive Democratic nominee Joe Biden challenges Republican President Donald Trump.
The litigation involves the presidential election system set out in the U.S. Constitution in which the winner is determined not by amassing a majority in the national popular vote but by securing a majority of electoral votes allotted to the 50 U.S. states and the District of Columbia.
The cases involve so-called faithless electors who did not vote for Democratic candidate Hillary Clinton in the 2016 Electoral College even though she won the popular vote in their states.
While that number of so-called faithless electors did not change the election’s outcome, it would have in five of the 58 previous U.S. presidential elections.
State officials have said faithless electors threaten the integrity of American democracy by subverting the will of the electorate and opening the door to corruption. The plaintiffs said the Constitution requires them to exercise independent judgment to prevent unfit candidates from taking office.
(Excerpt) Read more at reuters.com ...
Well, to avoid the problem entirely, just choose electors who are really committed and are dying to cast their vote for the candidate they’re pledged to. Plenty of true-believing party loyalists would be willing.
That’s what usually happens, anyway. Which, again, is why I’m not worried. If faithless electors ever became an actual practical concern, the parties can just make sure it doesn’t happen by choosing the right people. People who are certain to vote the way they’re supposed to.
I think the key issue is “almost always”. This election was one of those “almost” years. I think some states distribute their Electoral College votes by what percentage the Presidential candidates received, but other states use an all or none distribution. I prefer the first option and wish all the states used it.
NO!!!!!!!The electoral college was established to prevent populous states from running everything...New York, Illinois and California would determine the outcome of every national election!!!!
The original intent was for there to be no popular vote for POTUS. There is still no requirement for a popular vote to be held at all. The original intent was for electors to be nominated by states to represent the STATE, not the population at large. Many states did not hold popular elections at all for the first several elections, and in the case of Sputh Carolina no popular vote was held until after Reconstruction.
The Constitution is not vague at all on this issue; it’s quite clear. Electors for a given state are chosen by the state in any manner determined by that state’s legislature. A popular vote just happens to be that manner in all states. There is no provision allowing anyone the legal right to coerce the votes of the electors. If anything, states might be able to impose penalties after the fact, but the faithless elector’s vote would stand.
We wouldn't have had Lincoln either...
You could sue, but you would lose. There is NO requirement that a popular vote be held at all. The electors are to be chosen in a manner determined by the state legislature. All legislatures today use popular vote as that manner, but they need not. There is ample historical precedent—for example there was no popular vote for POTUS in SC until 1876. The electors were simply chosen by vote of the state legislature.
The reference to the guarantee of a republican form of government does not apply. That is a guarantee that the STATES will have such government, and they do no matter how they select electors. Even if they hold no vote, it’s still republican government. We are electing state legislatures to represent us, and one of the areas of that representation is in selection of the POTUS. Should a state legislature try today to eliminate the popular vote, those voting to do so would almost certainly be tossed out of office at the next election, which is why that doesn’t happen.
So you think a State could find a faithless elector, like Washington State did, but not void the votes of that elector and replace him, like Colorado did. Effectively, that would mean a State could only require an elector to pay a fee after being faithless; the State could not prevent an elector from casting a faithless vote. I think that would be primarily a win for faithless elector, because many groups would be willing to pay the fees.
You are free to disregard an unconstitutional law. You’re begging the question by assuming that laws forcing electors to vote for a certain candidate are valid laws. That’s precisely the question at issue here, namely whether or not these are valid laws that an elector must follow. You can’t decide this case by simply stating that the electors must obey these laws.
That’s really the point of ALL cases before the SCOTUS. If we must follow the law in all cases there’s no need for SCOTUS. Some laws are not valid and therefore need not be obeyed.
Same sex marriage wasn’t decided by the Supremacist Court gods.
Jerry Brown opposed the law and refuse to argue on behalf of it at the SC (forfeit).
Those who petitioned to get it on the ballot in California were told that they didn’t have the standing to take up their side at the Supreme Court.
Corrupt government making asinine rules.
Like when Congress gives itself a raise by not voting to oppose it
Tat makes perfect sense. Thanks for the explanation
They can’t wait to turn the U. S. into some meld of New York
and California
I never wrote that they had to hold a vote, did I? If I did write that please point it out because I’m well aware that electors have been appointed by state legislatures at various times. Electors appointed from among the citizens of the state, in other words representatives of the people of the state. Professional baseball players arbitrarily selected from among teams across the country who randomly wind up in the World Series are in no way shape or form representatives of the people of a given state. Quite a different proposition.
So the question is, is it ok to disregard the law?
Oh my.
MR. WEISER: In this situation, the
State can add limitations as long as they comply
with other constitutional provisions.
JUSTICE GORSUCH: And do those?
MR. WEISER: The requirement to visit
a state I don’t believe clearly violates any
constitutional provision. The tax return issue,
we’ve noted, raises a Qualification Clause
question that could be a real concern. And the
JUSTICE GORSUCH: So the presidential
candidate is on the ballot. It’s who the
electors can vote for. Is that a qualifications
problem in the State’s view?
MR. WEISER: Yes, it would be because,
if you tell electors they can only vote for —
pick whatever the concern would be — tax
returns, people over 50, the concern is you
could be adding a new qualification to be
President and thereby disqualify, in effect,
someone from being President who the
Constitution would qualify to be President.
But what if a state chooses its electors by means other than a vote?
What if a state decides that its electors will be, say, the top taxpayers in the state? A state with five electors will pick its top five taxpayers, and those people will vote in the Electoral College?
In this case, there is no "will of the people" mandate for the electors, just the desires of the five most taxed people in the state.
How can the Supreme Court rule on the notion of a "faithless elector" when there is no guarantee that a state will choose a method of selecting electors based on a presumption of voting a certain way, just because they do it that way now?
-PJ
These are good questions. I think the answer is clear: the Constitution doesn’t care WHAT criteria it uses, so long as it is the state that decides.
Federalist #68:
Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one querter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen States, in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty.
Federalist #68 suggests that the Electoral College was meant to be filled temporarily by citizens of the United States who are free from other obligations to federal office holders. Furthermore, they were not to convene as a single body where factions might form; they were to remain local to their states and vote separately from the other states.
The risk of this case is that SCOTUS attempts to nationalize the operations of the Electoral College by ruling in such a way that forces the states into choosing electors by "will of the people" methods, where "will of the people" is really the will of the parties.
Today, the method is winner-take-all (except Maine and Nebraska splitting via Congressional district), with predetermined partisan slates of electors actually at stake. Each party assembles its own slate of party-vetted electors, and the winner of the state gets to send their entire slate of electors to the Electoral College in December to vote as a bloc. The "faithless elector" is the person who ultimately votes against their party slate.
Constitutionally, I think the Framers expected the states to treat the election of Electors as something like a caucus where the states would select the most trustworthy non-government people, not as it is today with competing slates of winner-take-all partisans. With the former, the process would likely be contemplative, where the top business leaders, academics, and property owners would be elected as Electors, and they would gather and choose the person for President who is most appealing to the state based on the electors' diverse perspectives. With the latter, each party in the state assembles a slate of partisans who are active in the party at the local precinct level. The majority popular vote in the state determines which slate of partisans is chosen as Electors. They would gather and vote by rote according to the party line.
I wouldn't mind a system where electors run independently in each Congressional district, and the voters choose their own electors one by one - no statewide slates. The state legislature can choose the two electors who represent the Senate Electoral College votes. In a small 3 EV state, the legislature will get the majority vote. In a 4 EV state, the people and the legislature will have equal representation. In a 5+ EV state, the people will dominate their Electoral College delegation.
This way, there are no faithless electors, just local citizens chosen by their neighbors who will vote in the Electoral College. It will also undermine efforts like the National Popular Vote compact, because there won't be a statewide vote for a candidate, just district by district votes for electors the way that Hamilton envisioned it.
I would appreciate it if you had the time to peruse this thread from August 2019 on this subject, starting from the linked point to the end. In it, I argue that a person's vote is his own property in a government of the consent of the governed. I argue that the state has no authority to compel a person to vote a certain way, and that the Constitutional power of the state to choose the method of selecting electors does not extend to mandating how those electors must vote.
-PJ
The state government is still republican under that scenario. That’s what’s guaranteed by Article 4. Even the President would still be chosen in republican manner, it’s just indirect. We elect representatives (our state legislatures). As our representatives those legislatures choose electors. Those electors choose a President.
You don’t have to agree with the actions of your representatives for a republican giver to exist. Personally I would vote against any legislator who wanted to use a method other than popular vote to choose electors. I’m sure a large majority would agree. That’s precisely why such an action, while insanely stupid, does not fall on Article 4 grounds. We the people do have the power to correct such an abuse at the ballot box and effect a change in the process.
That’s really the point of this case. The laws in question are not really ov much significance. No election result will ever be changed by faithless electors l. The idea is to cast doubt on the EC as a way to try to convince people that it’s flawed so the popular vote compact (or something similar) can be enacted.
No they remain part od the official tally. The Constitution gives no authority to anyone to invalidate an elector’s vote. It’s kind of a cool trivia question: Who finished third in the 2016 election? Obviously Trump won and Hilary was second, but officially the third place finisher was no Gary Johnson or Jill Stein, but Colin Powell, with 3 electoral votes. Those votes were not and cannot be invalidated. The actual question is whether or not criminal penalties can be imposed on faithless electors.
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