'Hacking the Constitution': States Quietly Plan to Ditch Electoral College

[dcraelin]

Again - lot of words that all boil down to an end-run around the Constitution by eliminating the impact of the EC. "Oh we aren't doing away with it ..." Nope - just undoing it's impact.

Don't be lazy. Don't be dishonest. Get your votes together and amend the Constitution.

I can't totally agree. I don't think one can assume the founders foresaw a well entrenched two party system. Washington certainly decried it. Further, the constitution leaves it up to the states to elect their electors as they see fit. So, I don't see how it could be unconstitutional.

Seems to me I read in the Constitution something about it being illegal for states to get together and form compacts. Could this proposal be illegal under such a provision?

 

[mvymvy]

Seems to me I read in the Constitution something about it being illegal for states to get together and form compacts. Could this proposal be illegal under such a provision?

Article I-Section 10, Clause 3 of the U.S. Constitution specifically permits states to enter interstate compacts. In fact, there are hundreds of major compacts currently in force (and thousands of minor ones).

 

[dcraelin]

Article I-Section 10, Clause 3 of the U.S. Constitution specifically permits states to enter interstate compacts. In fact, there are hundreds of major compacts currently in force (and thousands of minor ones).

"No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."

It does not appear to me that they can do this without the Consent of Congress

 

[mvymvy]

"No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."

It does not appear to me that they can do this without the Consent of Congress

Congressional consent is not required for the National Popular Vote compact under prevailing U.S. Supreme Court rulings. However, because there would undoubtedly be time-consuming litigation about this aspect of the compact, National Popular Vote is working to introduce a bill in Congress for congressional consent.

The U.S. Constitution provides:
"No state shall, without the consent of Congress,… enter into any agreement or compact with another state…."

Although this language may seem straight forward, the U.S. Supreme Court has ruled, in 1893 and again in 1978, that the Compacts Clause can "not be read literally." In deciding the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the Court wrote:
"Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.

"The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee. His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta."

Specifically, the Court's 1893 ruling in Virginia v. Tennessee stated:
"Looking at the clause in which the terms 'compact' or 'agreement' appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States."

The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:
"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…."

In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote:
"The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States"

The National Popular Vote compact would not "encroach upon or interfere with the just supremacy of the United States" because there is simply no federal power -- much less federal supremacy -- in the area of awarding of electoral votes in the first place.

In the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the compact at issue specified that it would come into force when seven or more states enacted it. The compact was silent as to the role of Congress. The compact was submitted to Congress for its consent. After encountering fierce political opposition from various business interests concerned about the more stringent tax audits anticipated under the compact, the compacting states proceeded with the implementation of the compact without congressional consent. U.S. Steel challenged the states' action. In upholding the constitutionality of the implementation of the compact by the states without congressional consent, the U.S. Supreme Court applied the interpretation of the Compacts Clause from its 1893 holding in Virginia v. Tennessee, writing that:
"the test is whether the Compact enhances state power quaod [with regard to] the National Government."

The Court also noted that the compact did not
"authorize the member states to exercise any powers they could not exercise in its absence."

 

[g5000]

Be careful what you wish for. Among others, Lincoln, Wilson, Truman, Kennedy and Clinton (twice) were elected with less than the popular majority vote.

Hold on there! You are wrong in every case. The argument being made is that someone can receive less votes than someone else and still win the electoral vote. That was not the case for any of those people you named.

Lincoln received the most votes in a field of 4 major candidates.

The same is true of Wilson in the 1912 election. He received the most votes of 4 major candidates.

Truman also received the most votes in the 1948 election, out of a pack of several candidates.

Kennedy received more votes than Nixon.

Clinton received more votes than Bush or Perot.


The elections in which the winner won less popular votes than the loser were John Quincy Adams over Andrew Jackson in 1824, Rutherford Hayes over Samual Tilden in 1876, Benjamin Harrison over Grover Cleveland in 1888, and Bush over Gore in 2000.

 

[dcraelin]

Congressional consent is not required for the National Popular Vote compact under prevailing U.S. Supreme Court rulings. However, because there would undoubtedly be time-consuming litigation about this aspect of the compact, National Popular Vote is working to introduce a bill in Congress for congressional consent.

The U.S. Constitution provides:
"No state shall, without the consent of Congress,… enter into any agreement or compact with another state…."

Although this language may seem straight forward, the U.S. Supreme Court has ruled, in 1893 and again in 1978, that the Compacts Clause can "not be read literally." In deciding the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the Court wrote:
"Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.

"The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee. His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta."

Specifically, the Court's 1893 ruling in Virginia v. Tennessee stated:
"Looking at the clause in which the terms 'compact' or 'agreement' appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States."

The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:
"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…."

In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote:
"The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States"

The National Popular Vote compact would not "encroach upon or interfere with the just supremacy of the United States" because there is simply no federal power -- much less federal supremacy -- in the area of awarding of electoral votes in the first place.

In the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the compact at issue specified that it would come into force when seven or more states enacted it. The compact was silent as to the role of Congress. The compact was submitted to Congress for its consent. After encountering fierce political opposition from various business interests concerned about the more stringent tax audits anticipated under the compact, the compacting states proceeded with the implementation of the compact without congressional consent. U.S. Steel challenged the states' action. In upholding the constitutionality of the implementation of the compact by the states without congressional consent, the U.S. Supreme Court applied the interpretation of the Compacts Clause from its 1893 holding in Virginia v. Tennessee, writing that:
"the test is whether the Compact enhances state power quaod [with regard to] the National Government."

The Court also noted that the compact did not
"authorize the member states to exercise any powers they could not exercise in its absence."

It is a little chilling to see Supreme Court Justices say the Constitution is not to be read literally.

Again I say the National Popular Vote folks have not thought thru the ramifications of having fewer recounts, which act as a policing measure on our election process.

The effect of their proposal would be to give even more power to the corrupt political machines that run our major cities.

It would have the effect of promoting, even more so than now, those that can raise a lot of money, i.e. the more corrupt.

The correct way to do this is a Constitutional amendment to restrict the size of the block awarding of electors or to have electors awarded proportionally.

 

[JakeStarkey]

Much ado about nothing.

The electoral vote will remain.

Whether the consensus concept stands SCOTUS review remains open.

 

[Darkwind]

Yep. The flyover doesn't matter a damn, it never did.

Fine, we'll stop shipping you food, then see how it doesn't matter a damn.

Do so. We can import but you can't export. Interesting eh?

Still stupid I see....we CAN export...but you go ahead and import and see how that works out for you.


Yeah I know guys...he won't understand the economics of it. But it will be fun!