Court rules Electoral College members aren't bound by popular vote

Washington Times ^

[caww]

Would leave lots of room to ‘buy’ electors .....vote goes to the highest bidder!.....

[Political Junkie Too]

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?

-PJ

[savedbygrace]

The Constitution doesn’t make any mention of either requiring or forbidding the Electors from voting for any particular person. Therefore, the power to require a certain vote is neither given to the federal government nor forbidden to the States.

Therefore, the 10th amendment says the State’s or the people retain that right. It would be silly if the people had that power so the States retain it.

BTW, the Electors still have the right to vote. As citizens they have the same right as any other citizen to cast their individual votes for whoever they want to vote for at their polling place.

[Political Junkie Too]

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.

-PJ

[Jacquerie]

IMO, you are correct: "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."

My perspective (and most importantly Hamilton's) aligns with yours: The Framers' Electoral College.

In the Framers' EC, before the political parties corrupted the system, notice that the votes of the EC are "sealed" and sent to the President of the Senate. The election results weren't known until the Vice President opened each envelope in the presence of Congress! Constitutionally, the states cannot alter the votes they submit to the Senate.

But of course, regular order under our Constitution is but a memory. Vote results are known on election day, and like you, I do not understand how the states can Constitutionally change the votes of their electors.

I might noodle this issue more, but since the existing system is such a putrid corruption of the Framers' EC, I probably won't.

As you request, I'll read your subsequent posts to see how this all ties in with voting and the 10A.

Freep on brother. I always appreciate your thoughts.

[Jacquerie]

Madison’s notes grew thin in August. It’s an incredible shame the convention didn’t hire a shorthand recorder. And as you relate, we really know nothing of the deliberations of the various committees.

[Political Junkie Too]

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?

-PJ

[savedbygrace]

The Founders understood that the right to a trial by jury meant that the jury could not be dictated to by the court.

Originally a Grand Jury was an entirely different body and event than it is today. It was meant to protect all individuals from illegal behavior by the court and the prosecutors. Today, it is pretty much the opposite.

So, your analogies do not apply properly to the subject at hand. There is no logical comparison to jurors and individual citizens voting for President. Again, voters are voting for Electors who claim to represent a particular nominee.

BTW, the 7th amendment makes two matters that we are discussing clear: One, that when a jury is impaneled, it is the jury that is trying the case. Therefore, the court is not coercing the jury decision. And two, that any re-examination of the facts the jury rules on must be examined according to common law. Common law does not allow the jury to be dictated to by the court.

So, your premise is defective.

[Political Junkie Too]

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

[mrsmith]

Guys, I think you should have the satisfaction of knowing that I have not found contemporaneous evidence that the Founders intended the states to have the power to negate the votes of Electors.

Meaning I have to assume they don’t. And agree with you, though I disagree with many of your assumptions.

I still think a State has power to impose a ‘sentence’ by law upon a fraudulent Elector, but that is another story.

Politics influenced the Constitution at least as much as principle. That’s why I recommend “The Business of May next” by William Miller so heartily.

[Political Junkie Too]

I think that Jacquerie pointed out the obvious from the 12th amendment:

... and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

The reasonable person has to assume that if the Electors were to "seal" the votes, this means it was meant to be kept secret until revealed at a joint session of Congress.

Why seal the votes if the state was to have an oversight on the results and a chance to negate? How could the state punish faithless Electors after the votes were revealed to a joint session of Congress at least a month later?

This brings up the question of the National Popular Vote compact. The Compact says that the state awards the Electoral Votes to the winner of the national popular vote. However, the votes are not the states' to award, they are the property of the Electors. The state only has the power to select the method of choosing Electors, not the result of their votes. This judge ruled that the state cannot tell the Elector how to vote.

The thrust of the last round of debate was that the Electors had to honor the wishes of the voters who voted for them. What are Electors to do in an NPV state that voted for the losing candidate? Are the Electors to follow the wishes of the state and vote for the national popular vote winner and become faithless to the voters, or are they to vote the wishes of the voters who voted for them and become faithless to the state?

-PJ

[mrsmith]

The NPV has nothing to do with what the Founders intended.
Lots of Constitutional points against it that have nothting to do with our Founders intent.

[Political Junkie Too]

The NPV has to do with why this judge made this ruling.

-PJ

[mrsmith]

Wrell the NPV is irrelevant.