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Post by guest2 on Oct 7, 2020 17:15:53 GMT -5
Nobody knows if the NPVIC is legal. The effort going into passing it would be better spent getting states to ratify a Constitutional amendment. There is no reason it wouldn't be legal. I agree that it would be better to fix the Constitution, but this is another place where I think first we might have to change the status quo before people would be willing to make the Constitutional correction. There are a lot of reasons both Constitutional and statutory. What SCOTUS will say about it may be another question, but I would guess they would interpret things relatively strictly to avoid a result that is essentially an end run around the Constitution. The Compacts Clause, the Voting Rights Act, and the Equal Protection Clause are the obstacles most frequently named but I assume there are many others. |
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Post by mikegarrison on Oct 7, 2020 17:30:23 GMT -5
There is no reason it wouldn't be legal. I agree that it would be better to fix the Constitution, but this is another place where I think first we might have to change the status quo before people would be willing to make the Constitutional correction. There are a lot of reasons both Constitutional and statutory. What SCOTUS will say about it may be another question, but I would guess they would interpret things relatively strictly to avoid a result that is essentially an end run around the Constitution. The Compacts Clause, the Voting Rights Act, and the Equal Protection Clause are the obstacles most frequently named but I assume there are many others. That's nonsense. There is not one word in the Constitution that says states have to choose Electors based on a state vote. In fact, the original plan was that state legislators would select them, much like they originally had state legislatures choose the members of the Senate. Nothing in the Constitution says that states even have to have a popular vote for President at all. They only have to select (any way they want to) a set of Electors equal to the number of Reps + 2. If a state wants to choose their Electors based on how the next state over votes, they are free to do it. Or if they want to select their electors based on whether the tide comes in at 1pm or 3pm they are allowed to do that. If the SCOTUS tries to stop this, it would be the SCOTUS that was "doing an end run around the Constitution". And it's completely laughable to try to argue that we need to protect the current Electoral College system based on the Equal Protection Act! Right now the Electoral College violates that! There is no way a resident of Wyoming (who gets 5.2 electors per million residents) and a resident of California (who gets 1.4 electors per million residents) are being equally protected. |
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Post by guest2 on Oct 7, 2020 17:38:07 GMT -5
Candidates would have campaigned in California and New York instead of Florida and Ohio.Just like Hillary didn't need to campaign in Wisconsin, right? I know that's not the same point, but it is also the same thing. You need to win everywhere, not just in CA and NY. I'm sick of that silly, absurd, false argument. Its not a silly argument, its fundamentally true. If the popular vote were what mattered campaigns would function very differently. For example, lets look at campaign events in 2016. 1.05 million people voted for Trump or Clinton in Nevada in 2016. If we say that 20% of those were swing voters, then that means that Clinton and Trump held 17 campaign events (9th most of any state) to contest 205,000 votes In California, 13 million people voted for Trump or Clinton. If we apply the same formula, that gives us 2.6 million swing voters. In order to court these 2.6 million voters, Trump and Clinton held a combined 1 campaign event. |
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Post by BearClause on Oct 7, 2020 17:42:08 GMT -5
There are a lot of reasons both Constitutional and statutory. What SCOTUS will say about it may be another question, but I would guess they would interpret things relatively strictly to avoid a result that is essentially an end run around the Constitution. The Compacts Clause, the Voting Rights Act, and the Equal Protection Clause are the obstacles most frequently named but I assume there are many others. That's nonsense. There is not one word in the Constitution that says states have to choose Electors based on a state vote. In fact, the original plan was that state legislators would select them, much like they originally had state legislatures choose the members of the Senate. Nothing in the Constitution says that states even have to have a popular vote for President at all. They only have to select (any way they want to) a set of Electors equal to the number of Reps + 2. If a state wants to choose their Electors based on how the next state over votes, they are free to do it. Or if they want to select their electors based on whether the tide comes in at 1pm or 3pm they are allowed to do that. If the SCOTUS tries to stop this, it would be the SCOTUS that was "doing an end run around the Constitution". And it's completely laughable to try to argue that we need to protect the current Electoral College system based on the Equal Protection Act! Right now the Electoral College violates that! There is no way a resident of Wyoming (who gets 5.2 electors per million residents) and a resident of California (who gets 1.4 electors per million residents) are being equally protected. Equal protection is generally considered to be an individual right, as is due process. Is still think that 3USC5 says that the laws in general to determine how to choose Presidential electors have to be fixed in time by election day. As far as I can tell, that means the procedure can't be altered on the whim of the Governor or state legislature once the "election" has concluded. www.law.cornell.edu/uscode/text/3/5 |
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Post by guest2 on Oct 7, 2020 18:10:17 GMT -5
There are a lot of reasons both Constitutional and statutory. What SCOTUS will say about it may be another question, but I would guess they would interpret things relatively strictly to avoid a result that is essentially an end run around the Constitution. The Compacts Clause, the Voting Rights Act, and the Equal Protection Clause are the obstacles most frequently named but I assume there are many others. That's nonsense. There is not one word in the Constitution that says states have to choose Electors based on a state vote. In fact, the original plan was that state legislators would select them, much like they originally had state legislatures choose the members of the Senate. Nothing in the Constitution says that states even have to have a popular vote for President at all. They only have to select (any way they want to) a set of Electors equal to the number of Reps + 2. If a state wants to choose their Electors based on how the next state over votes, they are free to do it. Or if they want to select their electors based on whether the tide comes in at 1pm or 3pm they are allowed to do that. If the SCOTUS tries to stop this, it would be the SCOTUS that was "doing an end run around the Constitution". And it's completely laughable to try to argue that we need to protect the current Electoral College system based on the Equal Protection Act! Right now the Electoral College violates that! There is no way a resident of Wyoming (who gets 5.2 electors per million residents) and a resident of California (who gets 1.4 electors per million residents) are being equally protected. "No State shall, without the Consent of Congress...enter into any Agreement or Compact with another State" The NPVIC is clearly a compact - its in the name. As such, it requires the consent of Congress, otherwise its unconstitutional. Assuming Congress gives it consent, that compact then becomes federal law. (There are types of compacts that don't require Congressional approval but this is not one). Federal law binding states in this manner would be unconstitutional, ergo Congress cannot approve this compact, and of course would not do it anyway As for Equal Protection and the Voting Rights Act, both may apply. The VRA makes state actions that can dilute the ability of minorities to influence the political process through various means illegal, gerrymandering districts so all have 10% minorities but none have a larger group for example. California has 55 electoral votes to award and awards them not based on the votes of California, where Latinos are 40% of the population, but based on the national electorate, where Latinos are 12.5%. |
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Post by cindra on Oct 7, 2020 18:19:16 GMT -5
That's nonsense. There is not one word in the Constitution that says states have to choose Electors based on a state vote. In fact, the original plan was that state legislators would select them, much like they originally had state legislatures choose the members of the Senate. Nothing in the Constitution says that states even have to have a popular vote for President at all. They only have to select (any way they want to) a set of Electors equal to the number of Reps + 2. If a state wants to choose their Electors based on how the next state over votes, they are free to do it. Or if they want to select their electors based on whether the tide comes in at 1pm or 3pm they are allowed to do that. If the SCOTUS tries to stop this, it would be the SCOTUS that was "doing an end run around the Constitution". And it's completely laughable to try to argue that we need to protect the current Electoral College system based on the Equal Protection Act! Right now the Electoral College violates that! There is no way a resident of Wyoming (who gets 5.2 electors per million residents) and a resident of California (who gets 1.4 electors per million residents) are being equally protected. "No State shall, without the Consent of Congress...enter into any Agreement or Compact with another State" The NPVIC is clearly a compact - its in the name. As such, it requires the consent of Congress, otherwise its unconstitutional. Assuming Congress gives it consent, that compact then becomes federal law. (There are types of compacts that don't require Congressional approval but this is not one). Federal law binding states in this manner would be unconstitutional, ergo Congress cannot approve this compact, and of course would not do it anyway As for Equal Protection and the Voting Rights Act, both may apply. The VRA makes state actions that can dilute the ability of minorities to influence the political process through various means illegal, gerrymandering districts so all have 10% minorities but none have a larger group for example. California has 55 electoral votes to award and awards them not based on the votes of California, where Latinos are 40% of the population, but based on the national electorate, where Latinos are 12.5%. VRA/Equal protection might apply, I'm not as sure about compact clause. Nothing the states are doing is based on the actions of any other states, right? It's based on the country's vote. Maybe the clause about how it only goes into effect if a sufficient number of states have a similar law on the books is a problem, but otherwise the state is acting on its own. |
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Post by mikegarrison on Oct 7, 2020 18:25:54 GMT -5
That's nonsense. There is not one word in the Constitution that says states have to choose Electors based on a state vote. In fact, the original plan was that state legislators would select them, much like they originally had state legislatures choose the members of the Senate. Nothing in the Constitution says that states even have to have a popular vote for President at all. They only have to select (any way they want to) a set of Electors equal to the number of Reps + 2. If a state wants to choose their Electors based on how the next state over votes, they are free to do it. Or if they want to select their electors based on whether the tide comes in at 1pm or 3pm they are allowed to do that. If the SCOTUS tries to stop this, it would be the SCOTUS that was "doing an end run around the Constitution". And it's completely laughable to try to argue that we need to protect the current Electoral College system based on the Equal Protection Act! Right now the Electoral College violates that! There is no way a resident of Wyoming (who gets 5.2 electors per million residents) and a resident of California (who gets 1.4 electors per million residents) are being equally protected. "No State shall, without the Consent of Congress...enter into any Agreement or Compact with another State" The NPVIC is clearly a compact - its in the name. As such, it requires the consent of Congress, otherwise its unconstitutional. Assuming Congress gives it consent, that compact then becomes federal law. (There are types of compacts that don't require Congressional approval but this is not one). Federal law binding states in this manner would be unconstitutional, ergo Congress cannot approve this compact, and of course would not do it anyway As for Equal Protection and the Voting Rights Act, both may apply. The VRA makes state actions that can dilute the ability of minorities to influence the political process through various means illegal, gerrymandering districts so all have 10% minorities but none have a larger group for example. California has 55 electoral votes to award and awards them not based on the votes of California, where Latinos are 40% of the population, but based on the national electorate, where Latinos are 12.5%. The equal protection argument is ridiculous. It's clearly ridiculous just on the face of it. If equal protection applied to the Electoral College, the Electoral College wouldn't even exist. As for a "compact between states", if enough states were willing to join the NPVIC, they would pretty likely also have enough votes in Congress to get it approved there. Unlike a Constitutional amendment, it wouldn't take any sort of super-majority. (That assumes the filibuster is deleted from the Senate, which seems to be a pretty near certainty.) Besides, I'm not sure it's really a compact in that sense anyway. Right now there is no "compact" that states assign their Electors on an all-or-nothing basis according to their statewide elections, but 48 states do it anyway. |
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Post by guest2 on Oct 7, 2020 18:53:00 GMT -5
"No State shall, without the Consent of Congress...enter into any Agreement or Compact with another State" The NPVIC is clearly a compact - its in the name. As such, it requires the consent of Congress, otherwise its unconstitutional. Assuming Congress gives it consent, that compact then becomes federal law. (There are types of compacts that don't require Congressional approval but this is not one). Federal law binding states in this manner would be unconstitutional, ergo Congress cannot approve this compact, and of course would not do it anyway As for Equal Protection and the Voting Rights Act, both may apply. The VRA makes state actions that can dilute the ability of minorities to influence the political process through various means illegal, gerrymandering districts so all have 10% minorities but none have a larger group for example. California has 55 electoral votes to award and awards them not based on the votes of California, where Latinos are 40% of the population, but based on the national electorate, where Latinos are 12.5%. VRA/Equal protection might apply, I'm not as sure about compact clause. Nothing the states are doing is based on the actions of any other states, right? It's based on the country's vote. Maybe the clause about how it only goes into effect if a sufficient number of states have a similar law on the books is a problem, but otherwise the state is acting on its own. Actually it is specifically a compact, the National Popular Vote Interstate Compact (NPVIC). Their actions are based on the actions of other states because they don't take action until enough states agree - as you mention. "This is not an interstate compact" is an incredibly tough sell both based on the language of the legislation and the fact that its actually has "interstate compact" in the name. I'm all for popular vote deciding the presidency and the EC is BS, but the NPVIC is unconstitutional. |
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Post by mikegarrison on Oct 7, 2020 18:55:06 GMT -5
the NPVIC is unconstitutional. There are dozens of interstate compacts. Nothing unconstitutional about them. And your equal protection arguments are still completely ridiculous. |
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Post by guest2 on Oct 7, 2020 19:08:06 GMT -5
"No State shall, without the Consent of Congress...enter into any Agreement or Compact with another State" The NPVIC is clearly a compact - its in the name. As such, it requires the consent of Congress, otherwise its unconstitutional. Assuming Congress gives it consent, that compact then becomes federal law. (There are types of compacts that don't require Congressional approval but this is not one). Federal law binding states in this manner would be unconstitutional, ergo Congress cannot approve this compact, and of course would not do it anyway As for Equal Protection and the Voting Rights Act, both may apply. The VRA makes state actions that can dilute the ability of minorities to influence the political process through various means illegal, gerrymandering districts so all have 10% minorities but none have a larger group for example. California has 55 electoral votes to award and awards them not based on the votes of California, where Latinos are 40% of the population, but based on the national electorate, where Latinos are 12.5%. The equal protection argument is ridiculous. It's clearly ridiculous just on the face of it. If equal protection applied to the Electoral College, the Electoral College wouldn't even exist. As for a "compact between states", if enough states were willing to join the NPVIC, they would pretty likely also have enough votes in Congress to get it approved there. Unlike a Constitutional amendment, it wouldn't take any sort of super-majority. (That assumes the filibuster is deleted from the Senate, which seems to be a pretty near certainty.) Besides, I'm not sure it's really a compact in that sense anyway. Right now there is no "compact" that states assign their Electors on an all-or-nothing basis according to their statewide elections, but 48 states do it anyway. There is no compact requiring all or nothing now, but the NPVIC is a compact and does require states to take certain actions. Also you can get to 270 with 11 states. It also seems like you are arguing this is Constitutional because you want it to be - I do too - rather than looking at the actual language and the decisions interpreting it. If it requires Congressional approval its unconstitutional because Congressional approval makes the compact federal law and Congress does not have the power to pass this as a federal law. (Because Congress can't enact a law binding states to select their electors a certain way.) But assume for a second that this compact doesn't require Congressional approval. How then would it be enforced? You would basically be in the position of having any state that could destroy the majority having the option every election cycle to stick with the compact or to take what the electoral college would give them. So its either unconstitutional, which seems to clearly be the case, or unenforceable and gives disproportionate power to any state that wants to take it. |
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Post by guest2 on Oct 7, 2020 19:15:57 GMT -5
the NPVIC is unconstitutional. There are dozens of interstate compacts. Nothing unconstitutional about them. And your equal protection arguments are still completely ridiculous. There are thousands of laws that are Constitutional, how is that relevant to ones that aren't? |
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Post by guest2 on Oct 7, 2020 19:28:39 GMT -5
the NPVIC is unconstitutional. There are dozens of interstate compacts. Nothing unconstitutional about them. And your equal protection arguments are still completely ridiculous. Bush v Gore says its a violation of equal protection for a state to use one criteria to judge what a voter wanted in one part of a state, while using another criteria to judge what a voter wanted in a different part of the state. Unlike many other parts of Bush v Gore that was not controversial. (It was 7-2 and Breyer and Souter were in the majority) Those justices saw an equal protection problem because two identical votes (a dimpled chad for example) were being treated differently depending on where the person lived. Now that only applied to votes counted to determine the electors for one state (and no one is sure how good that law is as precedent or an indicator) Now with the NPVIC you have a similar problem. Lets say California uses one standard for saying a somewhat ambiguous vote is good and Texas uses another, whereas Florida uses a third. If Florida is bound to count California' votes and Texas' votes in determining how Florida electors are awarded then you have an identical problem. Different standards being applied to voters for the same state electors. Thats far from a spurious argument. Maybe it stands up and maybe it doesn't but its not ridiculous. |
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Post by BearClause on Oct 7, 2020 19:33:13 GMT -5
So its either unconstitutional, which seems to clearly be the case, or unenforceable and gives disproportionate power to any state that wants to take it. No. There's been talk about the requirement for Congress to sign off on an interstate compact. There's precedent for when an interstate agreement has to be approved by Congress or not. |
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Post by guest2 on Oct 7, 2020 19:42:32 GMT -5
So its either unconstitutional, which seems to clearly be the case, or unenforceable and gives disproportionate power to any state that wants to take it. No. There's been talk about the requirement for Congress to sign off on an interstate compact. There's precedent for when an interstate agreement has to be approved by Congress or not. There is precedent, and my reading of it (which is based on US Steel www.law.cornell.edu/supremecourt/text/434/452) is that congressional approval is required here. |
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Post by BearClause on Oct 7, 2020 19:46:12 GMT -5
There are dozens of interstate compacts. Nothing unconstitutional about them. And your equal protection arguments are still completely ridiculous. Bush v Gore says its a violation of equal protection for a state to use one criteria to judge what a voter wanted in one part of a state, while using another criteria to judge what a voter wanted in a different part of the state. Unlike many other parts of Bush v Gore that was not controversial. (It was 7-2 and Breyer and Souter were in the majority) Those justices saw an equal protection problem because two identical votes (a dimpled chad for example) were being treated differently depending on where the person lived. Now that only applied to votes counted to determine the electors for one state (and no one is sure how good that law is as precedent or an indicator) Now with the NPVIC you have a similar problem. Lets say California uses one standard for saying a somewhat ambiguous vote is good and Texas uses another, whereas Florida uses a third. If Florida is bound to count California' votes and Texas' votes in determining how Florida electors are awarded then you have an identical problem. Different standards being applied to voters for the same state electors. Thats far from a spurious argument. Maybe it stands up and maybe it doesn't but its not ridiculous. Not necessarily. There are statewide elections including for US Senate, the House (in smaller populations states), and of course for President. Different counties may use different equipment that could be subject to all sorts of issues. One could use a touchscreen machine that simply won't allow overvotes, another could use optical scan readers that warn the voter that there's an over or under vote and give a chance to have a complete ballot spoiled and recast, or one where ballots are simply dropped into a box and counted later with no warning about over or under votes. Heck - in California there was an option for some states to declare themselves mail-in counties in accordance with the California Voter's Choice Act. It's not an issue now since we're going mail-in for the whole state, but it will eventually return to the county by county model. www.sos.ca.gov/elections/voters-choice-actIn Montana there have been some claiming equal protection issues with their Governor giving counties the choice to conduct a mail-in election. nbcmontana.com/news/beyond-the-podium/judge-rules-in-bullocks-favor-in-mail-ballot-lawsuitI do recall the issue in 2018 over ballot curing in Arizona. Several counties had already allowed it past election day while others stopped it. A federal judge ruled that all counties must allow that up to a certain date to meet equal protection requirements. |
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