Posted on 07/06/2020 7:32:02 AM PDT by jazusamo
The Supreme Court on Monday ruled that states can prohibit their Electoral College representatives from disregarding voters when casting their ballots in presidential elections.
The unanimous decision, arising out of a case from Washington state, essentially gives states the right to outlaw "faithless electors" who cast their votes for people other than those chosen by their voters.
"Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does," Justice Elena Kagan wrote in the majority decision.
--This breaking news report will be updated.
(Excerpt) Read more at thehill.com ...
All the Red States are gray, meaning “bill introduced, but no hearing.” That means the NPVIC was rejected out of hand in the Red States.
Dang, I’m working (at lunch) but now you have me concerned...I have to look
Its the interstate compact that is illegal.
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Exactly. So if this is the case, how does an elector cast a vote for the nationwide popular vote winner? Isn’t that ignoring the voters in his jurisdiction?
The Constitution says that Electors are to be chosen by the state legislatures. It does not require an election to choose the Electors.
Alexander Hamilton wrote in Federalist #68 that Electoral College electors should not be bound by their states and were originally intended to be free to vote their conscience.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.
-PJ
I got nervous about this on two counts:
First, I thought...what am I doing agreeing with Kagan? I cannot think of a single big issue I would side with her on...is there something here I don't see, a deeper thing that a seemingly good decision simply is a front by Leftist Activists in Black Robes to hide a hidden back door opening for something completely destructive and corrosive to the Republic?
Secondly, I thought that with Justices Thomas and Alito, that they were going to highlight that hidden back door, an opening of penumbras and such, but instead I got the impression (on the basis of the few pages I read) that they were strictly adhering to what was in the Constitution, but were basically saying that if states wanted to allow their electors to vote as they pleased, it was up to them to allow it.
Am I wrong there????
With some posters claiming that the electors can vote any way they want, it confirms the fact that we will soon have a democracy, where the popular vote rules.
As far as I am concerned, I don’t care if it was addressed in the Constitution, the way we have been doing it makes sense...OR no need for electoral system at all.
The small states should be pleased with this...and so should we ALL.
Right. There isn’t much I put past them...
I would absolutely think so, from my perspective as a citizen, but I will be the first to admit I am pretty much a dunce on the legal niceties.
But, yeah. If my state went for one candidate and it was the candidate I supported, then the electors voted for the other person because the majority of the popular vote did, I would expect to have “standing” to bring a suit.
On the face of it, that simply doesn’t seem right, but I cannot argue it.
I live in a blue state, and it appears my only hope is that the candidate I support wins the national popular vote, and my electors have to gnash their teeth and cast their votes for my candidate?
More likely, they will amend the rules to say that they have to cast votes with the popular vote, but also have the option to vote as they please, which makes it a “Heads I win, Tails, you lose” setup.
That’s it? Those are my choices as an American? My vote already means absolutely squat.
Baca submitted a ballot for Kasich in COL. Within 15 minutes, his ballot was set aside, he was removed as an Elector. An alternate took his place. The alternate voted Hillary.
Baca’s ballot was not sent to Congress.
That isn’t the question. The question is AFTER a state names electors that already have been chosen-—by whatever means-—must vote as they were originally chosen to vote.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?
Regarding a 10th amendment argument, I'm reposting a series of posts from August 2019 on the nature of one's vote as their private property.
Since you like long posts... 😉
The Constitution doesn’t forbid the State’s from requiring the electors to vote for the popular vote winner. Therefore, the 10th amendment rules and that power belongs to the States.I think this statement doesn't hold when looking at the entirety of the Constitution.
The Constitution expressly gives the states the power to CHOOSE Electors, that's clear.
The 10th Amendment says that any power not expressly granted to the federal government belongs to the states and the people.
However, where it falls apart is with what it means to "vote." The whole concept of consent of the governed means that the vote is sacrosanct. We the People, as the lowest denominator in the federal triangle, retain the most basic power of a representative republic, which is the personal vote.
To say that a state can mandate how an individual is to vote is to undermine the whole meaning of the United States of America. I would argue that the 10th amendment prevents the federal government AND the states from forcing an individual person to vote a desired way. The right to vote is a right retained by the people, as the state is a collection of people and not an entity of its own.
When the Constitution refers to a state, it is referring to the legislature and governor of a state, who are people. The purpose of a legislature is to vote. There is no power that can force a person in a legislature to vote a certain way, and the legislature as a body has no power to force a citizen to vote a certain way.
State legislatures can constitutionally establish processes where Electors are chosen from competing partisan slates of party members predisposed to vote a certain way (the current winner-take-all process), but they cannot force an elector, once selected, to vote a certain way.
Those Electors retain their 10th amendment right to vote their conscience as their expression of consent of the governed.
It seems to me there are times, (only in business maybe?) when people are required to vote certain ways, whatever their belief. That may apply to Electors. It may require state laws to enforce. Whether the punishment could include negation and removal I’m not so sure now.
During primaries, delegates to the party nominating conventions are required to vote a certain way in the first round, but that is by party rule. The punishment is to be expelled from the convention and replaced by an alternate. Note that primaries are not Constitutional processes.
One could argue that "vote" is another of those terms in the Constitution that is not defined because everyone knows what voting is. Electors voting is in the Constitution, so via Article VI it is supreme Law of the Land. There is no federal or state law that can control a Constitutional power to vote. The vote-holder, in this case the Elector, has supreme power over how to vote.
As I posted earlier, the way for states to
controlinfluence an Elector's vote is to use their supreme power to choose the method of selecting Electors in such a way that produces Electors that are very highly likely to vote a desired way. That's what they do now with winner-take-all competing slates of party Electors, but the Electors still retain the power to become faithless.
The Constitution does NOT specify ‘freedom of conscience’ for the Electors. It says nothing.
Not true. It says they meet to "vote by ballot." "Vote" implies choice. "Choice" implies freedom to choose.
The question devolves to why having Electors at all if the states could simply have written their desire directly to Congress?
What's the point of mandating that 55 people in California meet to vote on something that the state could simply order up by fiat? I argue that the state cannot order by fiat how anybody can vote, including Electors.
If they can, it's not a vote.
First, you still haven't addressed anything about what it means to "vote." Is a vote a thing of conscience or is it a rote mindless action, to do as one is told? Is the latter what the Framers meant when they said that Electors vote by ballot?
Second, Electors voting is in the Constitution, it is not a moral argument. Constitutionally, it is supreme Law of the land, and an Elector's vote cannot be legislated if we agree that the first item (to vote) is an individual choice. Do you agree with this?
Third, and I think most important, "Faithless Electors" are only faithless so long as states choose methods where it can happen. Currently, the slate of candidates represented by the Presidential candidate's name is the method used, but what if a state chooses in the future to change the method?
What if a state changes its method to something like Electors being nominated and voted on by the state's legislature? The majority party would likely get the Electors they want; what would a faithless Elector be in this case? If we defined "faithless Elector" to be someone who goes against the popular vote, would we now have a new kind of faithless Elector who goes against the majority party of the Legislature?
Or, what if a state changes its method so that Electors run as candidates for the Electoral College? Let's take the extreme case for this thought exercise and say that California changes to this method. The Presidential candidates names are removed from the ballot and the true Electors are listed instead. California gets 55 Electors, so we can assume that hundreds of people might run to be an Elector.
Here, it would be up to each candidate for Elector to campaign, perhaps to pledge to vote for a candidate, or to instead give a resume of qualifications for why (s)he is qualified to be an Elector. The voter would then choose 55 out of the list, and the top 55 statewide vote-getters become Electors to the Electoral College.
What would a faithless Elector look like in this case? Would it be someone who pledged to vote for one candidate, but voted for another? What about the Elector who didn't pledge, but instead appealed to their qualifications as a judicious person? Can this person even be faithless?
So, the concept of a faithless Elector is not a uniform thing that can be adjudicated because it is situational. If a court were to rule the other way (that states can bind Electors), then does that also bind states from never using their Constitutional power to choose the method of selecting electors again? What about a future case where some states bind Electors and others do not? Is that a 14th amendment equal protection issue? Must all Electors be bound by state instructions or none of them?
All these questions go away if we agree that a vote is a fundamental right of each citizen in any capacity via the 10th amendment, that is their own personal right of consent of the governed that cannot be mandated by law, whether they are Congressmen, state legislators, Electors, or ordinary citizens in the voting booth.
The issue is that the states have the power to choose the method of selecting Electors. I posed some different scenarios where there might not be faithless Electors at all, mostly when the Elector campaigns directly for the position.
If a state decides to allow direct election of Electors and a candidate for Elector does not pledge to vote for a candidate but instead appeals to the voter's sense of judgement, how can that Elector be faithless? How can the state bind the Elector's vote to anything?
This hypothetical Elector has promised to vote his conscience.
Maybe I didn't state it clearly at the beginning, but I think the ruling that a state can't bind an Elector is correct because of such a hypothetical as I just listed.
For me, it still comes down to the principle that a person's vote is his own franchise, and no law can compel him to give up his vote to the state. The Constitution says that Electors meet to vote, not meet to pass along the state's mandate.
Because of the actual wording of the 10th amendment, the States have the power to define the role of the Electors.
I don't agree.
The actual wording of the 10th amendment says that powers not granted to the federal government are retained by the states or the people. It doesn't specify whether states or the people come first in retaining rights, or whether states can take away rights retained by the people.
If a State gives Electors the power to vote for someone other than the nominee they were representing in the election...
The state doesn't give the power to vote for anyone to Electors, the Constitution does via Article II Section 1 and the 12th Amendment. The state only has the power to choose the method for selecting Electors. If the state tries to burden the method with bindings on the Electors' votes, wouldn't that be going beyond the establishment of a process limited to selecting Electors?
As I posted elsewhere, doesn't the principle of consent of the governed mean that a person's vote is his most basic right as a citizen, as that is his form of consent as yea or nay? If a state forces a citizen as an Elector to vote its way, isn't that a disenfranchisement of the citizen's vote as an Elector?
Doesn't the citizen, via the 10th amendment, retain the right to his own vote over the state's interest in the same?
I expected you to land on the concept of different kinds of votes. Your argument is that vote as a citizen for a candidate is not the same as a legislator's vote on a bill which is not the same as an Elector's vote for a President which is not the same as a juror's vote on guilt or innocence.
I'm saying that a vote is a vote is a vote. It is the individual's unique franchise in a representative republic no matter under what circumstances or in what capacity that citizen's vote is being called for. It is an inalienable right of liberty that an individual's vote is his own property.
Where I think you are wrong is when you speak of a "power to require a certain vote." There is no such power. The vote is the property of the citizen, not the state. To "require" that a vote be cast in a state-desired way, whether it's for a desired candidate, or a desired proposition, or to condemn a hated defendant at a trial, makes it no vote at all. It becomes something else if the citizen is not free to choose how that vote is cast.
Compelling a citizen to give his vote to the state to be cast at the state's direction is not a power of the state under the 10th amendment.
Let's take this and apply it to another Constitutional power.
Just as how the Constitution, in Article II Section 1, defines the Elector but not the process for selecting Electors (granted to the state), it also grants YOU a Constitutional power in the 5th, 6th and 7th amendments as a member of a jury of peers in criminal and civil trials.
Using your argument, we know that the Constitution gives YOU the power to vote on guilt or innocence in a trial. We also know that the state has powers for defining how jurors are selected. Is it your contention that the state, therefore, has the power to tell you how to vote on the jury? If the overwhelming sentiment of the community is that the defendant is guilty, can the state compel you to vote on the jury as the public sentiment indicates?
In rebuttal, the 6th amendment qualifies the jury as "impartial," the 5th amendment qualifies the jury as "Grand," and the 7th amendment is silent. If you agree that the 6th amendment "impartial" jury prohibits the state from legislating how the jury should vote, do you believe that the absence of a word like "impartial" in Article II Section 1 means that the state can treat Electors as partial and dictate how they must vote?
The Constitution is absent partiality in 5th amendment Grand Juries and 7th amendment civil juries; does this mean that the state can mandate how these juries must vote, but except only 6th amendment criminal juries?
Is the Constitution to be taken THAT literally, the Electors can be mandated to vote partisan, that Grand Juries and civil juries, due to the absence of the word "impartial" can be mandated how to vote, but that only criminal juries are free to vote without state interference?
Or do you believe, as I do, that the right to vote is inalienable, is the property of the citizen in any civil capacity, and is beyond the reach of the 10th amendment and the state to control?
My premise is that the Constitution offers several cases where citizens are tasked with voting (legislatively in Congress, electorally in the Electoral College, representatively at the ballot box, and judiciously on a jury). My thesis is that the vote is the property of the citizen in all cases.
We are discussing faithless Electors, those who vote against the pledge to the voters. You call it "those who claim to represent a particular nominee." I say that is a temporal thing, as Electors didn't always structure themselves this way, and there is no requirement that they must do so forevermore. In the original case where Electors were the "nobility" of their states, they were chosen to deliberate on the best candidates; they weren't pledged to any one of them, so they couldn't be faithless. They may be that way today with competing partisan slates, but the remedy is not to usurp their vote by the state.
Regarding juries, the parallel is there; it's called "jury nullification." Call it a "faithless juror," one where the jury acquits an obviously guilty defendant (OJ Simpson?) or where a holdout forces a mistrial. The opposite case, the directed verdict, is one where a defendant is deemed innocent by overwhelming evidence.
One might say that the National Popular Vote movement is a directed election, one where the state deems the winner based on overwhelming national sentiment. The NPV disenfranchises Electors entirely if the state votes opposite to the national popular vote, but is directed to go along. Should an Elector in such a state become faithless and vote the wishes of the state, as you say, or should that Elector follow the state's mandate and vote against the voters of their state?
-PJ
You're saying that the ballots in the state are not sealed, they are reviewed first and then all are sealed as a certificate and sent to Congress. Individual elector ballots are not sealed, nor are they anonymous - everyone knows the vote of each elector.
-PJ
There are 2 slates of electors. In each state.
DEM electors &
GOP Electors
only one slate is certified as winning in NOV.
Kagan with the majority? Something's afoot.
Thanks campaignPete R-CT.
Yeah... Washington state....wasn’t that where Sasheen Littlefeather got a vote?
Yes, the Constitution requires the state include a list of what candidates received votes from the state. Which would preclude secret ballot.
But some states have secret ballot, which are then counted that same day by the state. So it wouldn’t be clear who the faithless Elector is.
Besides Washington state, there were 4 other faithless votes sent to Congress. Congress counted them.
"Secret" meaning who casted the vote, not for whom they voted.
-PJ
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