Posted on 11/27/2016 8:19:08 AM PST by DaveinOK54
`While we still believe it is unlikely that this issue will need to be resolved by Congress, and note that all the parties involved have expressed concern about meeting deadlines to prevent a default of Florida's electoral votes, we nevertheless believe that it is important-if only for the sake of argument-to clarify: it takes 270 electoral votes to be elected President by the electoral college. A simple majority of electoral votes from states other than Florida is not sufficient.'
(Excerpt) Read more at heritage.org ...
A state’s legislature appoints Electors by passing laws which control that process. It would be up to each state’s legislature and/or Supreme Court to decide whether the laws enacted by the legislature had in fact resulted in the appointment of any Electors, and who those Electors actually were, if any.
And then Congress would have the final say regarding whether or not to accept as valid any Electoral votes submitted by persons claiming to be Electors.
The Convention then chose to amend the language of Article II to use the words "a Majority of the whole Number of Electors appointed" to emphasize that an absolute majority of possible electors was necessary.
The whole sentence from Article II reads: "The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President." (Emphasis added.)
I haven't done the math to see how there could "be more than one who have such Majority, and have an equal Number of Votes", but it doesn't seem to me that they were trying to "emphasize...an absolute majority of possible electors..." if they conceived of more than one with a majority.
And they didn't write "possible electors", they wrote "appointed electors".
In the same section of the Constitution, the appointment of electors by each state was made mandatory, whether or not the electors actually voted.
It says "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors....". If the Legislature's direction is not adequate for an unforeseen circumstance , a State may not be able to follow it to appoint Electors, so we fall back to "a Majority of the whole Number of Electors appointed" not "an absolute majority of possible electors".
Regarding Federal Statute Law:
Last I heard, Federal Statue Law is void if it doesn't agree with the Constitution. Admittedly, many of us might disagree with the courts who decide a particular law is in agreement with the Constitution.
Regarding Historical Practice:
No president, even during the Civil War, has ever been elected by the Electoral College with less than an absolute majority of the whole number of possible electors.
So what? No president has been convicted after impeachment either. That doesn't mean it couldn't happen. Things change.
Regarding Common Sense:
Who gets to decide what's Common Sense?
“Almost correct. Pennsylvania has a Democratic Governor. But the Constitution is clear that the legislature determines the rules for selecting electors.”
Thanks for the correction. That said, damn those Founders were smart :)
Good points. I was just going on what people who are a lot smarter than I am said.
PLURALITY
“Majority of the Whole number”
o is NOT an over half majority, NOT Absolute majority
o IS a plurality
Plurality is written in the Constitution. Constitutional Lawyers who wrote election law were EXTREMELY IGNORANT.
Two attempts and still a mess.
lol. Great opportunity to write a clear book on the matter, but my plate is too full. LMAO :-p
In 2000 Gore had to flip just 2 electors.
How did he do?
Cankles needs 37.
Meese, et al, were making a meretricious argument, which they knew full well all along. Of their four "particularly persuasive" arguments, the last three do not even support their contention; they are neutral, and the first actually destroys their claim, since it makes clear by requiring "mandatory appointment" the Framers intended the Constitution to mean exactly what it means: a majority of the electors appointed by the states and NOT a majority of the electors eligible.
Meese, et al made this argument because if Florida failed to appoint its electors, Bush would lose. Florida was not one of three states that would give Bush a majority of appointed electors. It was the only path to a Bush victory at all. Thus it was imperative to the Bush team that Florida's EV's must be counted. They needed the safe haven provision to force Florida to appoint electors by the legislature, or to guarantee all votes were counted and certified by the safe haven day.
Like many lawyerly arguments -- especially in Constitutional cases -- it sounds superficially convincing, but it is not what the law actually says.
“The Supreme Court’s initial unanimous decision in the 2000 election dispute vacated the Florida Supreme Court’s first decision for failing to take into account this doctrine prohibiting state constitutions from constricting state legislative directions about the appointment of presidential electors. Bush v. Palm Beach County Canvassing Board (2000).”
http://www.heritage.org/constitution/#!/articles/2/essays/79/presidential-electors
Nothing the state- including it’s legislature, courts or executive- does can interfere with the Constitutional power of the legislature to appoint electors.
There’s more on the issue at the link.
Not sure we have a disagreement though.
Yes
What the Supreme Court specifically ruled in Bush v. Gore in regards to the question you're raising was that a state Constitution could not alter the plenary power granted to state legislatures in Article II and Amendment XII.
Why does this matter?
Because the Florida Supreme Court was attempting to arrogate this power to itself. The FL Supremes ruled in effect that since the FL Constitution had provisions, they were subject to judicial interpretation. That Judicial interpretation then fell to the judiciary. The US Supreme Court ruled that the judiciary had no such authority. Nor could a state place such wording in its Constitution to thwart the will of The People because the US Constitutional grant of authority was clearly intended to reserve the power of selecting electors to the People (through their representatives.)
Far from being null and void, state legislatures have plenary power to determine the statutory method for appointment. That is what the court ruled.
We have a disagreement if you’re saying that the Supreme Court ruled a state legislature doesn’t have the authority to set statutory requirements for the appointment of electors. The ruling says no such thing.
The stricken portion of your statement is incorrect. Without it your statement is correct.
The Florida Supreme Court attempted to arrogate this very power to itself in the 2000 election. The US Supreme Court struck down their claim writing that the plenary power of legislatures to appoint electors is a matter for the political branches entirely, and NO State Supreme Court has any authority over their decision, even the state's own Constitution notwithstanding.
They were pounding the table, not pounding the law.
Smart people -- especially smart lawyers -- make meretricious arguments all the time.
Yes.
Voting for President is, in an of itself, only one means by which the state legislatures have decided electors may be appointed.
As a practical matter it couldn't happen, but as a legal matter, if a state legislature passes a law that says "the electors from the Kangaroo State shall be chosen by a vote of the legislature on December 10th," then that is the way they will be selected, and The People would not get a direct vote at all.
I’m not sure we have a disagreement either.
The issue is, who decides whether or not a state’s legislature has actually appointed any Electors? And who Constitutionally decides who has or has not been appointed by a state’s legislature?
Who decides whether or not a state’s legislature has actually appointed any Electors? And who decides who—if anyone—has actually been so appointed?
Constitutionally, it would appear that Congress has the final say on that. Congress is Constitutionally responsible for counting the votes of the Electors.
So if all three states agree to recount and none are done in time, is it that each state legislature appoints electors or that the US house of reps selects our president?
Congress gets the final say. See the election of 1876.
Agreed.
So, for example, if the statute says that electors will be appointed by a vote of all black transsexuals over the age of 61, the Supreme Court would strike down their selection as a violation of the Equal Protection Clause. (This is the basis on which they actually struck down Gore's proposed method of counting only specific kinds of votes in specific counties in Bush v. Gore.)
2) If the statute passes US Constitutional muster, only the Congress would be able to deny the electors' appointment. As a practical matter, that isn't going to happen.
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