Posted on 08/21/2019 2:28:30 PM PDT by mplc51
DENVER — A U.S. appeals court in Denver said Electoral College members can vote for the presidential candidate of their choice and aren’t bound by the popular vote in their states. The 10th U.S. Circuit Court of Appeals ruled Tuesday that the Colorado secretary of state violated the Constitution in 2016 when he removed an elector and nullified his vote when the elector refused to cast his ballot for Democrat Hillary Clinton, who won the popular vote. It was not immediately clear what effect the ruling might have on the Electoral College system, which is established in the Constitution. Voters in each state choose members of the Electoral College, called electors, who are pledged to a presidential candidate. The electors then choose the president. Most states require electors to vote for the candidate who won the popular vote in that state, but the Denver appeals court said the states do not have that authority. The Constitution allows electors to cast their votes at their own discretion, the ruling said, “and the state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that Constitutional right.”
(Excerpt) Read more at washingtontimes.com ...
I believe you’re confused over Madison’s virulent objection to the President’s election by the FEDERAL Legislature (basically a parliamentary system with a weak executive).
it’s not helpful, or persuasive, to seek out only what supports one’s position. Perhaps that fault kept you from seeing Madison’s expression of his preference (though not unqualified LOL!) for a popular vote.
AS events played out the Founders left it to the States- as the Constitution says- to control the Electors.
(i don’t see a significance in “appoint”, it’s a reasonable argument though).
Wish Hamilton had participated more in the Convention.
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 persons most appealing to the state based on their 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.
Both methods pass Constitutional muster, but I suspect that the Framers expected the former process, not the latter one.
-PJ
IDK...
Much of their discussion seems to assume a State would ‘manage’ the selection of Electors to the State’s best advantage.
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.
-PJ
-PJ
it’s a strong moral argument.
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.
I’ve had to face that it is ‘good’ practice to assume when the Constitution is specific - “appoint”- about a power it rules out other powers- “remove”.
Perhaps the Parties should require Electors to give them blackmailable evidence as a requirement for the office...
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 control influence 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.
-PJ
https://www.consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-7-25/
(Just reposting this for context.)
The Founders IMO gave great power over the Electors to the States.
Note
A. The document would have to meet with the States’ approval so the States were given as much power as could be done.
B. Those at the Convention could not decide on specifics of appointing Electors anyway.
The Constitution does NOT specify ‘freedom of conscience’ for the Electors. It says nothing. Though that power may be reasonably assumed, I admit, I’d like more details.
Shame there’s no record of the deliberations of the Committee of Detail
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.
-PJ
Again, I don’t dispute the morality of your position.
Read the first few pages of the first link here (i’m having trouble ‘cutting and pasting- need a new mouse I guess)):
https://www.google.com/search?biw=1097&bih=475&ei=94VgXft1qIqCB_KUvogJ&q=%22the+very+faithless+elector%22+wvu&oq=%22the+very+faithless+elector%22+wvu&gs_l=psy-ab.12...0.0..46...0.0..0.0.0.......0......gws-wiz.V2alJ5DYwes&ved=0ahUKEwi7zZGhoZrkAhUoheAKHXKKD5EQ4dUDCAo#spf=1566606846996
Would you say Electors’ ‘conscience’ is not bound to the Constitution?
Morality and Law do not always coincide.
Want to recommend to you how PJ2 has me on the ropes.
That said...
I briefly scanned the article, but claim no comprehension of it. TL;DR for now, maybe later. I don't think it affects my position for several reasons:
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.
-PJ
I wanted to add a postscript to say that the idea of Electors campaigning is not so far fetched.
In California, during the 2003 recall election of Governor Gray Davis, there was a two-part ballot: part one was yes/no to recall Davis, and part two was whom to vote for as his replacement. There were no primaries, only announced candidates.
There were 135 candidates on the recall ballot, so having a ballot with many candidates for the Electoral College is not impossible.
I will add this, though, for humor's sake: while Arnold Schwarzenegger won the recall with 48.58% of the ballot, a man named George B. Schwartzman came in 9th place, possibly because his name appeared right above Schwarzenegger's on the ballot.
-PJ
The way I read the Constitution, it gives the states authority on who will be the electors, but does not say they can require that elector to vote for a specific candidate. That would invalidate the entire concept of the electoral college. According to Federalist Paper 68, it is intended as a safety mechanism against the selection of an undesirable candidate.
Wow, that argument went way around the bend to not address the issue. Electors are representatives of a particular nominee. Individual voters are voting for the Elector representing the nominee they want to vote for.
If the Elector the voters cast their vote for turns around and votes for a different person they are defrauding the individual voters.
Fraud should not be allowed by Courts of Law.
There is no confusion on my part.
Madison was opposed to a federal legislature choosing the Chief Executive which would have been impossible at the time since we did not have a federal legislature until after the constitution had gone into operation. His warning was directed to the states.
“The existing authorities in the STATES are the Legislative, Executive & Judiciary. The appointment of the Natl Executive by the first was objectionable in many points (of view), some of which had been already mentioned. He would mention one which of itself would decide his opinion. The Legislatures of the States had betrayed a strong propensity to a variety of pernicious measures.”
I was just the existence of these pernicious measures which had led to the Constitutional Convention to begin with.
His initial belief was that the states’ laws should be subject to federal vetos and that the states should be weakened to impotence or reduced altogether.
Not even Hamilton wanted to go that far.
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.
-PJ
Despite idiots and moralists, the question is what our Founders meant.
For me, it 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.
-PJ
Thank you.
Because of the actual wording of the 10th amendment, the States have the power to define the role of the Electors. If a State gives Electors the power to vote for someone other than the nominee they were representing in the election, then voters should understand their vote might undermined by a switcher.
A State that allows that is legalizing fraud, but voters should know that. If they don’t, then they are voting in ignorance.
I hope the USSC overturns this poor decision.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.