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The Compact to Destroy the Electoral College:

In a recent episode of the Independence Institute's television show "Indepedent Thinking," former Colorado State Senator Ken Gordon and I debate Gordon's proposal for Colorado to join an interstate compact against the Electoral College. Parts one, two, and three. Senator Gordon, as he always does, made an excellent case in support of his point of view.

In pointing to the dangers of a close popular vote election and the attendant recount, I mentioned Kennedy-Nixon in 1960, but I should have instead cited Garfield-Hancock in 1880, where the popular margin was less then ten thousand, but Garfield won the electoral vote decisively. All the more heartbreaking, from my point of view, since Winfield Scott Hancock was, along with Ulysses Grant, one of the two major party presidential nominees who was also a President of the National Rifle Association.

Splunge:
The obsession with getting the "correct" result from the Electoral College for some interesting academic definition of "correct" is weird. If the popular vote is within a few thousand votes, then by definition the country is essentially indifferent to which candidate becomes President, and you could flip a coin to decide which gets the office, with zero reduction in his legitimacy as the people's tribune.

Furthermore, the Electoral College exists precisely because the Founder's did not want a direct democracy, fearing very reasonably from historical example that it would self-destruct in bread and circuses.

Indeed, you can easily argue the Electoral College now exists in order to reach a result different from that of the popular vote, in certain close cases. Specifically, if two candidates are so close to one another in the popular vote that it's Jesuitical hair-splitting to fancy a preference for one over the other by the sheer numbers, the Electoral College gives the nod to the candidate with the more geographically broad-based support.

I think that's exactly the right outcome. I value the candidate who can add up a million votes from Jewish D.C. legal intellectuals and Ohio farmers and Alabama hardware store owners more than the candidate who gets his million votes all in one place, in Manhattan or Los Angeles.
4.28.2009 6:58am
mls (www):
What is the mechanism to determine who won the national popular vote? If the outcome is so close that it is debatable, can each state decide for itself?
4.28.2009 7:04am
corneille1640 (mail):
MLS,

I don't quite understand your question. Are you asking about how the votes are tallied? how each state decides how its electoral votes are apportioned?
4.28.2009 7:11am
Brett Bellmore:
Democracy has gone from being just another way of selecting public officials, with it's own merits and problems, to becoming sort of a secular religion. I think said officials encouraged that, because the alternative was admitting that limitations on their own power were the chief virtue of our form of government.
4.28.2009 7:12am
iamystery:
This issue is and always will be moot. If you convince a few of, say, Montana, Wyoming, Idaho, North Dakota, South Dakota, Iowa, Delaware, New Hampshire, Alaska, Mississippi, West Virginia, Hawaii, and Nevada, to give up the influence their electoral votes buy them, so that you can curry the 3/4ths of the states you'd need for an amendment, then you've performed a miracle. Either that, or these states are extremely and collectively benighted.

Any interstate compact to abolish the electoral college will always find at least a 13 state minority opposition to stand in the way.
4.28.2009 7:16am
Brett Bellmore:
It's not a compact to amend the Constitution. It's a compact among a minority of states to award all of their electors to whoever wins the popular vote nation-wide, regardless of whether they won in those states.

As such, it can work if a state having a substantial number of electors join it, (Doesn't even require a majority of the electors, assuming the popular vote winner gets some electors elsewhere.) without requiring a supermajority.

It does, however, require that elected legislatures move to deliver a state's electoral votes to a candidate who lost in that state, which is a pretty dicey proposition politically. I'd expect defections if it looked like the compact was really going to make a difference.
4.28.2009 7:39am
mls (www):
corneille1640

Sorry if my question was unclear. If the states that join this compact agree to deliver their electoral votes to the national popular vote winner, how do they decide who the national popular vote winner is? What happens if there is a dispute about who won the most popular votes?
4.28.2009 7:54am
stevesturm:
Maybe this is addressed in the video (I don't have time or the inclination to watch 1/2 hour or so video on my computer at work), but it seems ludicrous that a state legislature would agree to a situation where the wishes of its citizens (voting for a candidate who won that state but not the overall popular vote) would be cast aside in favor of the candidate preferred by voters from other states. Why in the world would, for example, voters in Maryland want their electoral votes determined more by voters elsewhere than by voters from Maryland?
4.28.2009 8:16am
A. Zarkov (mail):
Once the popular vote margin falls below some threshold, the election outcome is essentially random. You can never know who really won, and if you reran the election immediately, the nominal result could be different. I analyzed the 2000 presidential Florida vote and came to the conclusion that the exact vote was undecidable. Think of the reported vote as a sample of the actual vote, and estimate the real vote and its statistical error. This is the reverse of the usual sampling procedure where the size of the sample of small compared to the population being sampled. Of course you have to check that the vote has no systematic errors. I did that and found none on a statewide basis.

The recent Minnesota Senate race is another example of an undecidable election. The Electoral College is a good work around to this problem. Let it be.
4.28.2009 8:19am
p.d.:
Though the proposal appears ostensibly pro-democratic, the method for its adoption seems borderline anti-democratic. All it takes is for some states (those whose electoral vote tally adds up to 275+) to adopt this compact, and the electoral college will be made effectively obsolete? Seems pretty dicey. Even if procedurally plausible, it seems dubious: if you assume that each of the states adopting the measure have a thin layer of popular support, while the other states opposing it are strongly opposed, you might see the electoral college overturned with WELL under 50% popular support in the country. Setting aside (1) whether you think the electoral college should go, and (2) whether this compact can succeed, does it strike anyone else as highly ironic that we would upend a vote-aggregating mechanism (that some dislike) through a procedure that eschews simple majoritarianism?
4.28.2009 8:39am
Steve:
The proposed compact strikes me as clearly unconstitutional unless the consent of Congress is obtained.
4.28.2009 8:39am
Abdul Abulbul Amir (mail):


how do they decide who the national popular vote winner is?


A truly excellent question. Here it is the end of April and the winner of the past November's US senate election in Minnesota is yet to be certified.

The Senate can get along just fine with one less senator, not so the presidency.
4.28.2009 8:41am
rick.felt:
I analyzed the 2000 presidential Florida vote and came to the conclusion that the exact vote was undecidable.

I'm a fan of the Electoral College, but the 2000 Florida fiasco is a bad example for those who want to keep it. There was no doubt that Gore won more votes nationwide. If Florida was "undecidable," then then Electoral College made matters worse by substituting an indisputable winner (Gore) for a disputed one (Bush or Gore).
4.28.2009 8:42am
merevaudevillian:
how do they decide who the national popular vote winner is?

Quoting from the compact as passed by Washington State:

Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each state of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a "national popular vote total" for each presidential slate.
...
The chief election official of each member state shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate made by the day established by federal law for making a state's final determination conclusive as to the counting of electoral votes by congress.
4.28.2009 9:03am
iowan (mail):
I am unable to see the flaw in the electoral college. The nice thing is now we have no federal elections. I like that.

Given the reason for the Electoral College, I see only a deeper need for it now than more than 200 years ago
4.28.2009 9:34am
Adam J:
Steve- care to elaborate? Why is it clearly unconstitutional?
4.28.2009 9:42am
martinned (mail) (www):
For those who want more information, one of the great champions of the National Popular Vote plan is the New Yorker's Hendrik Hertzberg. He blogs about it frequently.
4.28.2009 9:54am
Brett Bellmore:
I can't see how it could be unconstitutional. Constitutionally, the states are free to pick their electors by throwing darts at a phone book, if that strikes the legislature's fancy.

A bad idea? Maybe. Probably fall apart the first time it would make a difference? I'm guessing yes. But unconstitutional? Nah.
4.28.2009 10:00am
Gabriel McCall (mail):
As far as constitutionality goes:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Nowhere in there are the states required to make the selection of electors a democratic process. If the legislature of a state so chose, they could constitutionally scrap the whole popular election, and choose their electors by a scissors-paper-rock tournament in the statehouse cafeteria.
4.28.2009 10:03am
Oren:

Steve- care to elaborate? Why is it clearly unconstitutional?

I wouldn't say "clearly" but it's a quite reasonable position:

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.

I'm not aware of any on-point case-law about what constitutes an agreement or compact for the purposes of this clause, and certainly States negotiate amongst themselves without Congressional meddling.
4.28.2009 10:09am
martinned (mail) (www):

Constitutionally, the states are free to pick their electors by throwing darts at a phone book, if that strikes the legislature's fancy.

Actually, I don't think that is right. According to the constitution, the several states must have "a republican form of government", which presumably means that the method for choosing the electors has to be at least indirectly democratic in some sense. That said, I think the NPV is clearly constitutional. The only objection I can think of is that it violates the spirit (though not the letter) of article V.
4.28.2009 10:11am
DerHahn (mail):
It's probably not 'clearly unconstitutional' but could be challenged on two points, if I understand them correctly.

Article I, Section 10 of the United States Constitution provides that "no state shall enter into an agreement or compact with another state" without the consent of Congress.

So an attempt to implement this plan without Congressional approval appears to be subject to challenge. The proposed state laws include some wink-wink nudge-nudge provisions that attempt to get around Congressional approval by not requiring direct coordination with other states.

Assuming Congress did consent to the compact, given that the Electoral College is a Constitutional provision, that the Constitution does not provide for direct election of the President, that the Constitution specifies procedures for amendment, and this compact isn't on the approved list of amendment procedures, it might be subject to challenge.
4.28.2009 10:13am
just a country lawyer:
Zywicki's inside-baseball gossip about law professors and college boardrooms is not interesting to 99% of readers, i'm guessing
4.28.2009 10:15am
ChrisIowa (mail):

I'm a fan of the Electoral College, but the 2000 Florida fiasco is a bad example for those who want to keep it. There was no doubt that Gore won more votes nationwide. If Florida was "undecidable," then then Electoral College made matters worse by substituting an indisputable winner (Gore) for a disputed one (Bush or Gore).

On the contrary, it is a good example of why to keep the electoral college. With the electoral college the fracas was isolated to one state. Without the electoral college there would have been recounts all over the place, including states that were not close. The candidates' local supporters would try to manufacture votes for their candidate in the process in places where they dominate the electoral boards. The process would increase the odds that the least honest candidate wins.

The electoral college ensures that each state's power in determining the President is set beforehand. The effects of any shenanigans are isolated to that state.

The effects of a Hurricane or other disaster hitting one area of the country on election day, by preventing voters from getting to the polls is also limited by the electoral college.
4.28.2009 10:18am
Oren:
Zarkov, I don't see how resolving the decision process* based on the random chance that a particular deciding State vote total which is within the standard error comes out one way is preferable to the random chance that the whole nation vote total comes out one way.

If anything, the larger the sample-size, the lower the probability that the result will be within the margin of error**.

* I'm assuming here that elections cannot have a null result, there must be one winner even if the vote tally is close.
** Given a fixed error rate per vote case.
4.28.2009 10:19am
LTEC (mail) (www):
Can we please distinguish between the Electoral System and the Electoral College? By the "College" I mean having particular individuals called electors casting votes that should, in my opinion, be completely determined (depending on how the electoral system in that state functions). Can we all agree that we should get rid of the College?
4.28.2009 10:23am
Gabriel McCall (mail):
The compact clause does not come into play unless a state conditions its participation in the scheme on any other state's participation. And even then, only if the agreement aggrandizes the power of the states at the expense of federal authority.

From Virginia v. Tennessee:

There are many matters upon which different states may agree that can in no respect concern the United States. If, for instance, Virginia should come into possession and ownership of a small parcel of land in New York, which the latter state might desire to acquire as a site for a public building, it would hardly be deemed essential for the latter state to obtain the consent of congress before it could make a valid agreement with Virginia for the purchase of the land...

If, then, the terms 'compact' or 'agreement' in the constitution do not apply to every possible compact or agreement between one state and another, for the validity of which the consent of congress must be obtained, to what compacts or agreements does the constitution apply?...

The legislative declaration will take the form of an agreement or compact when it recites some consideration for it from the other party affected by it; for example, as made upon a similar declaration of the border or contracting state. The mutual declarations may then be reasonably treated as made upon mutual considerations. The compact or agreement will then be within the prohibition of the constitution, or without it, according as the establishment of the boundary line may lead or not to the increase of the political power or influence of the states affected, and thus encroach or not upon the full and free exercise of federal authority.
4.28.2009 10:25am
geokstr (mail):
Is no one else here noticing the elephant in the room - ideology?

I have not even heard of this issue before, but because the result would obviously be to give more power to the most populous states where Democrats have a lock on the big cities, I'll bet you won't find too many on the right in favor of this plan.

I'm sure it grates on the left's nerves that rednecks in hick states in the South and Midwest can influence the choice of a president, when it's so obvious that all the real intellectuals and other important people live on the coasts. Too bad, so sad.
4.28.2009 10:26am
Marc W:
A couple points:
1) Regarding Brett Bellmore's comment,

As such, it can work if a state having a substantial number of electors join it, (Doesn't even require a majority of the electors, assuming the popular vote winner gets some electors elsewhere.) without requiring a supermajority.


I believe this compact is set up so that it only takes effect if it is agreed to by states with a majority of the total electoral votes.

2) One problem is the possibility of states having different rules for eligibility. I may be wrong about this, but I seem to recall talk of letting convicted felons vote in some states, or noncitizens vote in others? If we don't have national standards to define uniformly who can and who can't vote, this can lead to a mess wherein the states have incentive to widen eligibility as much as possible. One can argue whether or not that's a good thing. But it certainly should be acknowledged as a consequence of the compact.
4.28.2009 10:28am
cboldt (mail):
-- The Senate can get along just fine with one less senator, not so the presidency. --
.
the constitution anticipates a situation where no presidential candidate qualifies (e.g., fails to obtain a majority of electoral votes). Unlike a Senate seat, it is highly unlikely (the procedure aims to make it impossible) for the office of the presidency to go vacant.
4.28.2009 10:30am
martinned (mail) (www):

If we don't have national standards to define uniformly who can and who can't vote, this can lead to a mess wherein the states have incentive to widen eligibility as much as possible.

That depends on how those felons and noncitizens vote. Painting with a broad brush, I'd say that red states are more likely to exclude felons from voting, and that felons are more likely to vote democratic. If that is true, the problem you point to is unlikely to matter very much.

BTW, isn't it unconstitutional to let noncitizens vote in a federal election?
4.28.2009 10:34am
Dan28 (mail):

On the contrary, it is a good example of why to keep the electoral college. With the electoral college the fracas was isolated to one state. Without the electoral college there would have been recounts all over the place, including states that were not close. The candidates' local supporters would try to manufacture votes for their candidate in the process in places where they dominate the electoral boards. The process would increase the odds that the least honest candidate wins.

Nope. The electoral college created situations ilke the situation in Florida. As any statistician will tell you, when it comes to the margin of error with large group sets, the larger the group, the smaller the margin of error. The 2000 election was as close as it could possibly be, within a half of a percentage point, and still Al Gore's 500,000 vote margin in 2000 was well outside the margin of error nationwide, barring some knid of systematic fraud. But the margin inside the state of Florida was inside the margin of error.

To me, this is a pure matter of principle. It's absurd that a vote in Pennsylvania, or Florida, or wherever matters a thousand times more than a vote in Massachusetts or Utah. It results in the concerns of swing states getting vastly more attention from political candidates than the concerns of voters in solid red or solid blue states. That's manifestly unjust. Whatever advantages the electoral college have - and I personally don't think there are any advantages to the EC at all - they don't outweigh that huge disadvantage.

Also, when it comes to the view of the framers, remember two things. First, the framers famously failed to anticipate the rise of political parties. That more or less immediately changed the EC from an institution the provided a meaningful check on democracy by creating a deliberative body to make the decision to an institution that basically just ratified the will of the majority. But what about the extreme situation, where a populist demoagogue (like say Hitler) is able to win over the common rabble? Would the EC provide a way of checking that decision? The answer at this point is basically no, not only because that populist demagogue is likely to be supported by a party appratus that will be able to control the EC, but also because many states now have laws that actually forbid electors from voting against the will of their states anyway.

The EC is an archaic institution that has long outlived its usefulness.
4.28.2009 10:34am
Marc W:
martinned:


Constitutionally, the states are free to pick their electors by throwing darts at a phone book, if that strikes the legislature's fancy.




Actually, I don't think that is right. According to the constitution, the several states must have "a republican form of government", which presumably means that the method for choosing the electors has to be at least indirectly democratic in some sense. That said, I think the NPV is clearly constitutional. The only objection I can think of is that it violates the spirit (though not the letter) of article V.



If the legislature is elected, then their using the dart method is indirectly democratic. Fact is the legislature can make any number of decisions using similar methods.
4.28.2009 10:36am
Joseph Slater (mail):
Geokstr is right that we should be looking at the partisan side of this issue. The Electoral College essentially gives affirmative action to small states, because every state gets 2 EVs for having two Senators, regardless of population.. Indeed, if an E.C. system that had electoral votes proportional to population without the affirmative action bonus for small states, Gore would have won in 2000 even giving Florida to Bush.

We can debate the pros and cons of that in the abstract. But it would be naive to think that debate would take place without the background knowledge that most of the smaller-population states are "red" states, and that thus reforms that move more toward a "one-person one-vote, equally weighted" system would, at least in the current era, favor the Dems and hurt the Repubs.
4.28.2009 10:37am
Oren:

[In 2000] Without the electoral college there would have been recounts all over the place, including states that were not close.

No, there was no possible way Bush was going to close the popular vote gap. The national popular vote went to Gore with at least 3 sigma (99.8%) certainty.

This is an example of the principle that I stated earlier. Given a fixed error rate, the probability of getting an indeterminate result varies inversely with the square root of the sample size.
4.28.2009 10:37am
geokstr (mail):

Adam J:
Steve- care to elaborate? Why is it clearly unconstitutional?

Excellent question, since it has become clear that over time, given the right combination of judges, nothing is truly "unconstitutional" forever. The Constitution, along with duly enacted statutes at all levels of government, have been reduced to, or should I say expanded into, whatever lawyers and judges say it means, the clear intent of the authors of the document or legislation in question being totally irrelevant.

And you don't even have to search musty old writings of the Founders to find examples. There are many instances of courts turning legislation on its head when the people who wrote the danged things are still quite alive, and say the judge has deliberately reversed their intent. No matter, the judge wins every time.

Living documents, you see, "Just Words"...

And like everything else concerning government for a long, long time, the rachet only turns one way - to the left.
4.28.2009 10:38am
cboldt (mail):
-- Also, when it comes to the view of the framers, remember two things. First, the framers famously failed to anticipate the rise of political parties. --
.
They were keenly aware of such a tendency on the part of politicians. What of the original system for choosing Pres and VP? The ticket was -not- combined under the original document.
4.28.2009 10:40am
Dan28 (mail):

Is no one else here noticing the elephant in the room - ideology?

I have not even heard of this issue before, but because the result would obviously be to give more power to the most populous states where Democrats have a lock on the big cities, I'll bet you won't find too many on the right in favor of this plan.

I'm sure it grates on the left's nerves that rednecks in hick states in the South and Midwest can influence the choice of a president, when it's so obvious that all the real intellectuals and other important people live on the coasts. Too bad, so sad.

Totally ridiculous. Although I'm sure that some on the right view the NPV movement this way, 60% of Republcians support NPV. NPV wouldn't benefit big cities any more than rural areas, for the same reason that Democrats dominate big cities but still don't dominate the popular vote in all elections: because while more people live in one big city than one small town, there are only a handful of big cities and many, many small towns. The 2000 election happened to pit a popular vote winning Democrat against a electoral college winning Republican, but there is absolutely no reason why this couldn't happen in reverse.

The impact of NPV would be to make all politicians compete for all voters. The big winners would be residents of deep blue and deep red states.
http://nationalpopularvote.com/pages/polls.php#2007WPKHU
4.28.2009 10:40am
Marc W:
Marinned:

That depends on how those felons and noncitizens vote. Painting with a broad brush, I'd say that red states are more likely to exclude felons from voting, and that felons are more likely to vote democratic. If that is true, the problem you point to is unlikely to matter very much.

BTW, isn't it unconstitutional to let noncitizens vote in a federal election?

First, I don't know about felons and federal elections.
As to my first point being unlikely to matter, I'm not convinced. Your example is noted. Yes, the situation of felons in Wyoming may not be problematic. But how about resident aliens in noncitizens who live in California. If they are likely to vote democratic (which I think is likely), there's lots of additional incentive for California to extend the vote to them.
4.28.2009 10:43am
martinned (mail) (www):

If the legislature is elected, then their using the dart method is indirectly democratic. Fact is the legislature can make any number of decisions using similar methods.

I don't agree. Using the dart method completely severs the connection between the outcome of the vote for the state legislature and the allocation of the electoral college votes. Imho, for something to be "indirectly democratic", there has to be some connection, however weak, between the outcome of the vote and the result reached.

If the state legislature simply flipped a coin to decide which bills to pass, that wouldn't be democracy either, right?
4.28.2009 10:45am
Marc W:
That short second paragraph should have been in the blockquote. My bad and my apologies.
4.28.2009 10:46am
Joseph Slater (mail):
By the way, to be clear, in regard to geosktr's point about ideology mattering, his second point, about "hicks and redneks is to a large extent wrong, as Dan28 points out.

The E.C. gives affirmative action (weights more heavily) voters in small states over those in larger states. So the "hicks and rednecks" in Texas, Ohio, and central Pennsylvania get their votes weighted less than the votes of cultured coastal elites in Vermont, Connecticut, Rhode Island, and Oregon.
4.28.2009 10:49am
martinned (mail) (www):
@Marc W: But wouldn't you expect California to already extend the franchise as far as is allowed under federal law? Being a "blue state", one would expect that to be their policy preference regardless of any strategic considerations. (Hence my question about the constitutionality of letting noncitizens vote.)
4.28.2009 10:51am
cboldt (mail):
-- The Constitution, along with duly enacted statutes at all levels of government, have been reduced to, or should I say expanded into, whatever lawyers and judges say it means, the clear intent of the authors of the document or legislation in question being totally irrelevant. --
.
For the drinker, "It's always after 5 PM somewhere." For the adolescent out on a date, "It's always before midnight."
.
Lawyering attracts sophists, and often (but not always) rewards them for their sophistry. I see the "NPV is not unconstitutional" group as a bunch of clever (and dishonest) kooks.
4.28.2009 10:52am
rosetta's stones:

The impact of NPV would be to make all politicians compete for all voters.


Ridiculous.

Right now, campaigns must develop a state strategy, and they have to address the issues in enough states to get there. Thou must not ignore critical issues in thy critical states, or thy campaign shall surely crash in technicolor flames and be torn asunder.

Take that away, and I guarantee that the presidential campaigns will develop a 15 biggest media market strategy, and flood the zone in each of those media markets. Iowa? What's an Iowa? Is that a fruit? Sheeyit, those guys wouldn't step foot in 1/2 the states in the Union.
4.28.2009 10:53am
Matthew K:
I get the distinct sense that most of those commenting have not read the proposal.

National Popular Vote

I also get the distinct sense that most of those commenting don't understand statistics, but that's another issue and is more debatable (Dan28 is making an important point).


Gabriel McCall
The compact clause does not come into play unless a state conditions its participation in the scheme on any other state's participation. And even then, only if the agreement aggrandizes the power of the states at the expense of federal authority.

The plan as currently being implemented states that the mechanism of apportioning electors based on national popular vote will only take effect once states representing half of the EV+1 agree. Someone with a greater understanding of this area of law would have to comment on exactly what implications that has. The NPV people think that they're in the clear, but that isn't necessarily meaningful:
congressional consent
4.28.2009 10:54am
Marc W:

I don't agree. Using the dart method completely severs the connection between the outcome of the vote for the state legislature and the allocation of the electoral college votes. Imho, for something to be "indirectly democratic", there has to be some connection, however weak, between the outcome of the vote and the result reached.

If the state legislature simply flipped a coin to decide which bills to pass, that wouldn't be democracy either, right?




It's not direct democracy, but it is representative democracy, which is a form of indirect democracy. We elect leaders to make certain decisions for us. If we elect buffoons who make decisions by flipping coins, it is still representative democracy in action. If the people don't like it, well there's another election down the road. Certainly, the legislature can make decisions that are deeply unpopular. Are you sayingf that that's not democracy?
4.28.2009 10:55am
Oren:
Gabriel McCall, thanks for the cite. I'm still not sure if the NPV-compact is a compact under the meaning of the clause, but it helps to have on-point case law about how that is interpreted.


I don't agree. Using the dart method completely severs the connection between the outcome of the vote for the state legislature and the allocation of the electoral college votes.

Huh? If the legislature votes to implement the dart method, they have endorsed it in a democratic fashion. Whatever a majority of the legislature agrees to is, by definition, (indirectly) democratic.

There is a long tradition of letting deliberative bodies make their own rules by majority consent. The Constitution explicitly provides such an arrangement for the House and Senate, which has worked rather well so far.
4.28.2009 10:55am
CJColucci:
the Electoral College exists precisely because the Founder's did not want a direct democracy, fearing very reasonably from historical example that it would self-destruct in bread and circuses.

That's all very well, but it's hardly responsive. People who are opposed to the Electoral College know perfectly well why it exists. They just don't find those reasons persuasive, and if enough of them want change, what they want is, by definition, change. You can disagree with them on the merits of the proposed change, but it is no argument that the proposed change is a change.
On the merits, we've had three Presidential elections where the Electoral College winner beat the candidate who won the most popular votes. There are people who think this is a problem, and saying, "it's not a bug, it's a feature" doesn't advance the ball. How many Presidential elections have we had where the popular vote was so close as to be questionable?
4.28.2009 10:57am
rosetta's stones:
As I recall, the courts threw out individual state's attempts to implement term limits on Congressional reps and senators. Y'all lawyers might want to look there for their "guidance" on presidential elections, for whatever that's worth.
4.28.2009 10:59am
cboldt (mail):
-- There is a long tradition of letting deliberative bodies make their own rules by majority consent. --
.
Is there any reason they couldn't make the rules based on a coin flip?
.
But seriously, I find the assertion that "vote by random chance" is an acceptable form of representation, under a logic that resembles "it isn't forbidden by the constitution," to be utterly ludicrous. Not that a stupid populace wouldn't accept it, but to disconnect a deliberative decision from deliberation removes all accountability. Why have the politicians at all? Just elect the "coin" to the legislature and have some clerk flip it as needed.
4.28.2009 11:01am
Dan28 (mail):

Ridiculous.

Right now, campaigns must develop a state strategy, and they have to address the issues in enough states to get there. Thou must not ignore critical issues in thy critical states, or thy campaign shall surely crash in technicolor flames and be torn asunder.

Take that away, and I guarantee that the presidential campaigns will develop a 15 biggest media market strategy, and flood the zone in each of those media markets. Iowa? What's an Iowa? Is that a fruit? Sheeyit, those guys wouldn't step foot in 1/2 the states in the Union.

First of all, I think a candidate who did what you're saying here would get his/her ass kicked by a candidate who went after all voters in all states. Keep in mind that it's much more expensive to advertise in big media markets than small media markets. I have no idea why you would think a Big 15 / Ignore Iowa strategy would be more effective than a play for every vote strategy, but if you have an actual argument, I'd like to hear it. I can't imagine a worse state you could possibly pick as a candidate for under-representation than Iowa, the most overrepresented state of the union.

Second, right now every presidential candidate definitely is going for a strategy that basically ignores the voters of Hawaii, Alaska, Washington, Oregon, Idaho, California, Wyoming, Utah, Arizona, North Dakota, South Dakota, Nebraska (other than Omaha), Kansas, Oklahoma, Texas, Louisiana, Arkansas, Mississippi, Alabama, Tennessee, Kentucky, West Virginia (for the most part), South Carolina, Illinois, Maryland, Deleware, New York, Vermont, Massachusetts, Connecticut, Rhode Island and Maine. That's a majority of American voters.
4.28.2009 11:05am
Marc W:

@Marc W: But wouldn't you expect California to already extend the franchise as far as is allowed under federal law? Being a "blue state", one would expect that to be their policy preference regardless of any strategic considerations. (Hence my question about the constitutionality of letting noncitizens vote.)


But right now, if California extends the franchise as far as possible, that doesn't increase its influence on the Presidential election. They still get the same number of electoral votes. If we were to cut over to a NPV-based system, then extending the franchise extends their influence. And (unlike your red state felons example), here the group getting enfranchised is likely to lean in the same direction as the rest of the state.

I misread tyour question re the constitutionality of letting noncitizens vote. I thought you had asked about felons, and answered (with a resounding "I dunno") the question I thought you had asked. My mistake. Can't say I know about the constitutionality of letting noncitizens vote. But I do recall hearing talk of extending the vote to noncitizens. Sorry, I have no cites. Granted, lots of people talk about all sorts of things that are unconstitutional. Can anyone respond to that issue?
4.28.2009 11:06am
Joseph Slater (mail):
Ah, but what coin? I vote for the buffalo nickel!
4.28.2009 11:06am
martinned (mail) (www):
@Oren: You don't think that there are some decision rules that legislatures are not allowed to make? How about a rule where, instead of flipping a coin, the legislators simply choose one from among them who takes all the decisions. Let's say we call it the "Let Senator X take all the Decisions in 2009 Act". While democratically endorsed, surely that would not be constitutional?

rosetta's stones wrote:
Take that away, and I guarantee that the presidential campaigns will develop a 15 biggest media market strategy, and flood the zone in each of those media markets. Iowa? What's an Iowa? Is that a fruit? Sheeyit, those guys wouldn't step foot in 1/2 the states in the Union.

That isn't quite right. The decision rule would weigh the marginal costs and benefits of giving attention to one media market or another. The biggest markets are also the most expensive.

I would hypothesise that under NPV candidates would focus a) on markets that have a relatively high number of undecideds,
b) that they would focus their free publicity (= speeches, etc.) on large markets where they can reach a lot of voters, and
c) that they would focus their ad-buys, other than under rule a), on markets where the price of the ad per voter reached is lowest.

Rules a) and c) could point to any state. Rule b) points to larger states/markets, but then that is the idea of democracy, isn't it?
4.28.2009 11:07am
rosetta's stones:
Just elect the "coin" to the legislature and have some clerk flip it as needed.

I'd rather be governed by the first 50 quarters in the cash drawer, rather than the faculty at Harvard.
4.28.2009 11:09am
martinned (mail) (www):
@Marc W: I would suppose that letting noncitizens vote is unconstitutional. If it isn't, Congress could legislate to make it illegal under the 14th amendment. What you heard are problems with giving drivers licenses to noncitizens. That is not illegal under federal law, but might cause problems when those drivers licenses are used to attempt to register to vote.

BTW, taking away a felon's right to vote is certainly constitutional. There is SCOTUS case law to that effect, even if I don't have it handy right now.
4.28.2009 11:13am
martinned (mail) (www):

As I recall, the courts threw out individual state's attempts to implement term limits on Congressional reps and senators. Y'all lawyers might want to look there for their "guidance" on presidential elections, for whatever that's worth.

The case is US Term Limits v Thornton (1995). The wiki is here, here is the case on Findlaw. I haven't read the case, but looking at the passages quoted on the wiki page, it doesn't look like this precedent would forbid the NPV.
4.28.2009 11:18am
rosetta's stones:
Sure, the largest media markets are more expensive, and that's because there's more people there. And popular voting breaks the model, and forces campaigns to go after people... and they will do so. Like bees to honey, they will do so.

But even more, you're ignoring the strength of requiring a state strategy. Yes, that strategy, in any given era, will boil down to 10-20 "battleground states", where the issues are hottest, and the call is close. That promotes an issues-based election. If your're fat and happy in California... go for it and vote, and no reason for anybody to be concerned because you obviously aren't. But if you're in Pennsylvania, or Minnesota, now there's a different story. Issues matter, and the candidates are forced to address them.

It's not just a legal or procedural discussion. There's a bit of philosophy and yes, truly representative governance is at stake. Issues matter. It's not just about scabbling for votes, which is what national popular vote is about.
4.28.2009 11:21am
martinned (mail) (www):

If your're fat and happy in California... go for it and vote, and no reason for anybody to be concerned because you obviously aren't. But if you're in Pennsylvania, or Minnesota, now there's a different story. Issues matter, and the candidates are forced to address them.

So basically voters in Pennsylvania or Minnesota are better voters than California voters? Is that why the US spend so much money subsidising bioethanol?
4.28.2009 11:24am
cboldt (mail):
-- I do recall hearing talk of extending the vote to noncitizens. Sorry, I have no cites. Granted, lots of people talk about all sorts of things that are unconstitutional. Can anyone respond to that issue? --
.
Voting Rights for Resident Aliens: A Comparison of 25 Democracies
Immigrant Voting Project -- Democracy for All
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The US constitution provides that a citizen's right to vote is not to be "denied or abridged," but I see nothing that prohibits diluting the power of a citizens vote e.g, by permitting resident aliens to vote. Based on the statutes of all the states, I will guess that there is case law that limits the right to vote in elections for national office.
4.28.2009 11:28am
Joseph Slater (mail):
I'd rather be governed by the first 50 quarters in the cash drawer, rather than the faculty at Harvard.

Wins the thread.
4.28.2009 11:29am
pintler:
The electoral system, and the apportionment of Senate seats gives disproportionate influence to states with small populations. I submit that that is a feature rather than a bug. One man, one vote is obviously optimal when everyone lives in a uniform environment and culture, but e.g. Wyoming and the Bronx are very different places. The majorities in large urban areas are in general rather ignorant of life in WY, MT, ND, etc, and I fear they would simply impose their will without much consideration of the minority, and that doesn't do a lot for national harmony.

As a thought experiment, how would it work out for America if we adopted a one man, one vote world government?

As an aside, better adaptation to local conditions is one of the advantages of federalism that we are losing as power shifts to the national gov't.
4.28.2009 11:30am
Marc W:

@Marc W: I would suppose that letting noncitizens vote is unconstitutional. If it isn't, Congress could legislate to make it illegal under the 14th amendment. What you heard are problems with giving drivers licenses to noncitizens. That is not illegal under federal law, but might cause problems when those drivers licenses are used to attempt to register to vote.



No. What I heard wasn't about giving drivers licenses to noncitizens. I've heard about issues of giving drivers licenses to illegal aliens. For noncitizens who are here legally, I have been blissfully unaware of any controversy.

I know I have read arguments by people advocating extending the vote to noncitizens. The argument in favor was that they pay taxes and should therefore have the franchise. I'm not interested in discussing the merits of that issue. And certainly if it's unconstitutional it's a moot point. But I know that's what I heard people discussing.
4.28.2009 11:30am
Marc W:
@Martinned: See cdboldt at 11:28 am
4.28.2009 11:34am
Dan28 (mail):

But even more, you're ignoring the strength of requiring a state strategy. Yes, that strategy, in any given era, will boil down to 10-20 "battleground states", where the issues are hottest, and the call is close. That promotes an issues-based election. If your're fat and happy in California... go for it and vote, and no reason for anybody to be concerned because you obviously aren't. But if you're in Pennsylvania, or Minnesota, now there's a different story. Issues matter, and the candidates are forced to address them.

I'm not really understanding your point. I mean, I definitely agree that the current system leads to "state based strategies", in the sense that if your state matters, then you matter and so do your issues, and if it doesn't you don't. But I don't see how having politicians focus on all the voters in Pennsylvania and ignore all the voters in Mississippi helps build an "issues based" campaign. Pennsylvania aren't more important than other voters because voters in PA are any more in need than voters in MS, or because voters are more fat and happy in California than they are in PA, or because the issues facing PA voters are any more "hot" than the issues facing other voters. PA voters are given a hundred times more say in deciding the President because of the arbitrary fact that their state borders are drawn in a way to include a comparable number of "red" and "blue" demographic voters. If you were to redraw the boundaries in PA so that Philidelphia was in New Jersey, for example, PA would go to being a pure red state and Presidential candidates would start ignoring it. And not because the issues suddenly got less "hot" in Pennsylvania.

I do agree with you that focusing on individual battleground states dose change the way candidates run their campaigns. But I don't see the argument for why it makes it more substantive. What I see, instead, is that prseidential campaigns are more likely to focus on local issues and curry favor with local politicians - and by "local issues" and "curry favor", I mean corruption and pork.
4.28.2009 11:34am
ChrisIowa (mail):

Can't say I know about the constitutionality of letting noncitizens vote. But I do recall hearing talk of extending the vote to noncitizens. Sorry, I have no cites. Granted, lots of people talk about all sorts of things that are unconstitutional. Can anyone respond to that issue?

One of the issues in the 1850's was whether non-citizens (then primarily German and Irish) should be allowed to vote.

It's funny how the same issues keep coming up.
4.28.2009 11:35am
Joseph Slater (mail):
Pintler:

But folks in Wyoming, etc. are at least as ignorant of how life works in Brooklyn. That's not an argument for giving either community a bigger vote.

Also, folks in Texas probably know a lot about the lives of folks in Wyoming, but the folks in Wyoming still get a greater vote. And folks in liberal, urban areas like Portland, OR and Seattle, WA are getting more weight to their vote than rural folks in TX, PA, or OH.

Also, I'll note that we've now had two defenses of the E.C. that have been skeptical of giving people in "large urban areas" equal voting weight to people in rural areas.
4.28.2009 11:38am
martinned (mail) (www):

Also, I'll note that we've now had two defenses of the E.C. that have been skeptical of giving people in "large urban areas" equal voting weight to people in rural areas.

Haven't you heard? Only the latter are Real Americans...
4.28.2009 11:44am
rosetta's stones:

So basically voters in Pennsylvania or Minnesota are better voters than California voters? Is that why the US spend so much money subsidising bioethanol?


No, no voter is "better" than another. The voters in this era's battleground states just happen to be located in one of this era's battleground states. Perhaps 20 years from now, as the mosaic evolves and we enter into another era, other states will become battleground states, because they will be battlegrounds for the hot issues of the day. And that's the point, to drive an issues-based election, not have a national card check.

Iowa isn't the sole state supporter of the ethanol scam, btw. And if you notice, there's a small rumble brewing in oher states over this scam, and perhaps that will become one of the issues that will help evolve the battleground mosaic. Let's hope so.
4.28.2009 11:47am
cboldt (mail):
-- But folks in Wyoming, etc. are at least as ignorant of how life works in Brooklyn. That's not an argument for giving either community a bigger vote. --
.
But it is an argument for limiting federal control of issues, to those issues amenable to common solution between Brooklyn and Podunk; and insuring that the local politicians are responsible for addressing local issues.
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The public wouldn't much care who was in Congress, if Congress was as weak as the framers of the Constitution envisioned. Likewise with the presidency.
4.28.2009 11:47am
Dan28 (mail):

And that's the point, to drive an issues-based election, not have a national card check.

Hehe, you're really stretching to get that talking point in there. Help me out here:

1. EC causes politicians to focus on a state strategy.
2. ???
3. This promotes an issue-based campaign.

I got no idea what gets you from point 1 to point 3.
4.28.2009 11:53am
rosetta's stones:

What I see, instead, is that prseidential campaigns are more likely to focus on local issues and curry favor with local politicians - and by "local issues" and "curry favor", I mean corruption and pork.


So, the individual state legislators are bringing home the pork? If you believe in NPV, maybe we should have all of those legislators elected nationally as well. That'd solve that problem, wouldn't it?

Pork and corruption will be with us like the weather, no matter which presidential election system you bring on. Those 15 largest media markets are represented by 15 pork engulfment machines, and NPV will only enhance their capacity for engulfment.
4.28.2009 11:56am
Gabriel McCall (mail):
I see the "NPV is not unconstitutional" group as a bunch of clever (and dishonest) kooks.

It is possible to disagree on the substance of an argument without either party's stance being rooted in clever dishonesty. Sometimes there really are valid arguments on both sides.

I see the "NPV is unconstitutional" group as having conflated their general feelings about how government ought to be run, with the actual text of the Constitution. "Unconstitutional" does not mean "I wouldn't like that", it means "contrary to the text of the Constitution". I don't see any text in the Constitution which unequivocally bars NPV.

Article II section 1 says "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors..." The Constitution gives the federal government no authority to dictate or forbid a state's chosen method of selecting electors, so the 10th amendment comes into play.

And, even if a case can be made that NPV violates the Republican Government clause, the Compacts clause, or some other portion of the document, it seems obvious that there are reasonable arguments to be made for the other position as well. Simply assuming one's opponents are being facile when they have the effrontery to disagree with you is both unkind and unjust.


How about a rule where, instead of flipping a coin, the legislators simply choose one from among them who takes all the decisions. Let's say we call it the "Let Senator X take all the Decisions in 2009 Act". While democratically endorsed, surely that would not be constitutional?

Why not? Which clause of the Constitution is violated? Letting Senator X make all of the decisions may well be in the best interests of the state's people for the duration of some natural emergency in which he is particularly expert, and since he was chosen by the people's duly elected representatives this is not a violation of republicanism.

Again, "I think this is how things ought to be" is not the standard which defines constitutionality. You have to look to the text.

As I recall, the courts threw out individual state's attempts to implement term limits on Congressional reps and senators. Y'all lawyers might want to look there for their "guidance" on presidential elections, for whatever that's worth.

Thanks to martinned for finding the Thornton cite. Another distinction, though, is that while the Constitution explicitly specifies that Congressional seats shall be elected by the people of the state, it makes no such demand regarding the selection of presidential electors, which is explicitly left entirely in the hands of the state legislature.
4.28.2009 11:56am
einhverfr (mail) (www):
I think that abolishing the electoral college would more or less end any case for federalism.

I think a better option would be to make the electoral college a hybrid system where two seats are chosen by the state legislatures and the remaining seats are chosen by congressional district.
4.28.2009 12:00pm
Blue:
"60% of Republcians support NPV."

Evidence, please.
4.28.2009 12:05pm
Allan Walstad (mail):
The federal system was set up to respect the sovereignty of the various states, first of all by strictly limiting the range of federal powers, but also by ensuring that the country could not be controlled by large majorities in a few populous states. This was the price of having a union. Yes, those who don't like it can try to change it but there are rules, and the rules make it possible for smaller states to say no and make it stick. Any agreement among states to select their electors according to the popular vote is likely to fall apart as soon as it would become relevant, as others have noted.

The Founders worked pretty hard to devise a limited federal system requiring broad geographical support and respecting the sovereignty of the states. A keystone of the system was trashed when the Constitution was amended to provide for popular election of senators, rather than selection by the legislators. Abolishing or undermining the electoral system would be another big step down the path of diminishing the states and concentrating power in almighty DC. I hope enough sensible people remain willing to dig in their heels.
4.28.2009 12:05pm
cboldt (mail):
-- Simply assuming one's opponents are being facile when they have the effrontery to disagree with you is both unkind and unjust. --
.
Nonetheless, my point of view is unmoved by your argument. I find the "NPV is not unconstitutional" arguments to be sophistry, and invalid. Now, the kooks who engage in it may be lovable fuzzballs, and may sincerely believe they are right on the money, but I still think they are dishonest (intellectually), and kooks. If you are in the "NPV is not unconstitutional" camp, then I harbor that opinion toward you.
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The Constitution is built on some underlying assumptions, among them that states are to act independently and will act in their own self-interest when it comes to empowering a community federal government. NPV is an end-run around those principles. If those who favor NPV are to prevail, the honest way is to amend the Constitution.
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I don't think there is any way to "state the case" that would persuade an NPV-kook to change his/he point of view. Both sides are entrenched. It's not possible for both sides to be right.
4.28.2009 12:07pm
A. Zarkov (mail):
Oren:

Do you think a difference of 100 votes could be resolved out of 150 million votes cast? When an election gets sufficiently close, it's impossible to tell who "really" won. That happened in Florida. That happened in Minnesota. Perhaps it's not likely to occur in a national election, but it's theoretically possible. I would have flipped a coin to decide the 2000 Florida election-- it would have been equivalent.
4.28.2009 12:07pm
Dan28 (mail):

"60% of Republcians support NPV."

Evidence, please.

I linked to it at the bottom of that post. Here it is again:
http://nationalpopularvote.com/pages/polls.php#2007WPKHU

So, the individual state legislators are bringing home the pork? If you believe in NPV, maybe we should have all of those legislators elected nationally as well. That'd solve that problem, wouldn't it?

Sure, at the expense of abolishing local representation, which is a generally good thing for a lot of reasons. Of course pork is going to exist regardless of whether we move to NPV, that's not in dispute. But what YOU'RE saying is that the EC promotes a more substantive campaign, because it forces politicians to adopt a "state strategy" that for some reason is more substantive than a national strategy would be. What I'M saying is that, in fact, what "state strategies" mean is strategies built on prioritizing local issues for battleground states - e.g. pork.
4.28.2009 12:12pm
martinned (mail) (www):

How about a rule where, instead of flipping a coin, the legislators simply choose one from among them who takes all the decisions. Let's say we call it the "Let Senator X take all the Decisions in 2009 Act". While democratically endorsed, surely that would not be constitutional?

Why not? Which clause of the Constitution is violated? Letting Senator X make all of the decisions may well be in the best interests of the state's people for the duration of some natural emergency in which he is particularly expert, and since he was chosen by the people's duly elected representatives this is not a violation of republicanism.

If this were to happen at the federal level, art. I (7) of the Constitution, which at times explicitly and at times implicitly states that the Houses of Congress can only "pass" something if they actually voted.

If this were to happen at the state level, it would violate the rule that requires the states to have a "republican form of government", not to mention that it would quite likely violate the state constitution.
4.28.2009 12:16pm
Gabriel McCall (mail):
I find the "NPV is not unconstitutional" arguments to be sophistry, and invalid.

Can you explain why? None of your posts in this thread go into any detail about which specific clause of the Constitution you believe is being violated.

To me, the text "in such Manner as the Legislature thereof may direct" is straightforward and unequivocal: the Consitution says, explicitly, that the state legislatures may choose how they will appoint their electors. The burden of proof is on those who would maintain that a Manner which the Legislature may direct is nonetheless unconstitutional. What is your case for so maintaining?
4.28.2009 12:18pm
Dan28 (mail):

The Constitution is built on some underlying assumptions, among them that states are to act independently and will act in their own self-interest when it comes to empowering a community federal government. NPV is an end-run around those principles. If those who favor NPV are to prevail, the honest way is to amend the Constitution.

Keep in mind, first of all, that if you're arguing that the NPV is unconstitutional, the onus is on YOU to tell is what part of the constitution the NPV would violate. That is especially true since the text of the Constitution explicitly states "each state shall appoint, in such manner that the Legislature thereof may direct, a number of electors..." So it sounds like your argument is that the NPV is unconstitutional because the explicit Constitutional text that grants state legislatures the right to appointion delegates is in fact limited by "some underlying assumptions" that you have given no evidence for.

I don't think there is any way to "state the case" that would persuade an NPV-kook to change his/he point of view.

Well, asserting an argument without evidence and then calling people who disagree with you kooks, when they happen to have the plain meaning of the Constitutional text and Supreme Court precedent behind them certainly doesn't seem to be working for you.
4.28.2009 12:19pm
Jeff R.:
Abolishing the Electoral College may in fact be super-unconstitutional (not merely unpermissable, but no doable even through constitutional amendment.) if the advantages it provides to small states is construed as part of the states' 'equal sufferage in the Senate', which is no more unreasonable a constitutional theory than several which have succeeded.
4.28.2009 12:24pm
martinned (mail) (www):

Abolishing the Electoral College may in fact be super-unconstitutional (not merely unpermissable, but no doable even through constitutional amendment.) if the advantages it provides to small states is construed as part of the states' 'equal sufferage in the Senate', which is no more unreasonable a constitutional theory than several which have succeeded.

That's an interesting suggestion. What evidence do you have for the proposition that any part of the constitution, or the "equal sufferage in the Senate" rule in particular, is immune to amendment?
4.28.2009 12:29pm
Dan28 (mail):

Abolishing the Electoral College may in fact be super-unconstitutional (not merely unpermissable, but no doable even through constitutional amendment.)

Keep in mind, NPV doesn't abolish the electoral college. That would require a Constitutional Amendment. The electoral college will still exist in exactly the same form that it exists today. Small states will still get electors that represent their state's interests at the EC convention. All the NPV statutes do is instruct state electors to vote based on the national majority instead of just the majority of their state. Deleware would still have the exact same number of electors to the EC as they do now, and they could still tell those electors to vote however the citizens and legislature of Deleware chose. To argue that this is unconstitutional, you'd have to argue that the state of Deleware has some kind of Constitutional interest in how the legislature of California (or any other NPV state) decides to apportion the electors of California. That is a pretty serious Constitutional stretch. I don't see it.
4.28.2009 12:30pm
cboldt (mail):
-- Can you explain why? None of your posts in this thread go into any detail about which specific clause of the Constitution you believe is being violated. --
.
I did explain, in general terms. I also expressed my opinion that you aren't amenable to persuasion, so I'm reluctant to spend much time explaining my point of view for you.
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Having a state look outside itself, for a decision that is meant to be within itself is "wrong" on its face. It's as "wrong" as letting the country of Canada choose the president of the US. But, co-opting the form and style of your counterargument, nothing in the US Constitution forbids the country of Canada from choosing our president.
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-- So it sounds like your argument is that the NPV is unconstitutional because the explicit Constitutional text that grants state legislatures the right to appointion delegates is in fact limited by "some underlying assumptions" that you have given no evidence for. --
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I think the principles (and processes which naturally from from the principles) are self-evident, which is probably why I find those who make the counterargument to be intellectually dishonest (maybe intellectually incomplete would be better) and sophists.
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-- the plain meaning of the Constitutional text and Supreme Court precedent behind them --
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I missed the part of the Constitution and also the Supreme Court precedent that find NPV as the method of choosing the president to be "the method prescribed by the constitution." Your approach twists the clear intention of the interstate agreement (the Constitution) into a form not embodied in its original design. Electoral college and NPV are mutually exclusive options. The constitution sets out Electoral college. It can't be read (with anything resembling intellectual honesty) to, at the same time, admit NPV.
4.28.2009 12:33pm
rosetta's stones:

Sure, at the expense of abolishing local representation, which is a generally good thing for a lot of reasons.


I agree with you, and what's more "local" than having a presidential candidate be forced to come to a state locality, to address the hot issues of the day?



"Of course pork is going to exist regardless of whether we move to NPV, that's not in dispute."


Then why should pork be part of an argument in support of NPV? If the pork situation is static regardless of electoral system, then shouldn't we find another reason for NPV? They may be out there, but you seem to agree pork isn't one of them.
4.28.2009 12:37pm
cboldt (mail):
NPV proponents resort to the trick of converting an NPV decision into an "electoral vote," but the resulting "electoral vote" is in form only. It's a rhetorical cheat to take the bastardized "electoral vote " (bastardized because it looks outside the state in order to find the result), and claim it satisfies the structure of the Constitution.
4.28.2009 12:37pm
Dan28 (mail):

Then why should pork be part of an argument in support of NPV? If the pork situation is static regardless of electoral system, then shouldn't we find another reason for NPV? They may be out there, but you seem to agree pork isn't one of them.

It's not static. Accepting that some pork is inevitable, you can have more or less pork. EC arguably leads to more, NPV would arguably lead to less.

And again, this in response to your argument that EC leads to more substantive campaigns, which I still don't understand.
4.28.2009 12:43pm
rosetta's stones:

But, co-opting the form and style of your counterargument, nothing in the US Constitution forbids the country of Canada from choosing our president.


I do tend to think the state compact idea will never fly, for a lot of reasons, and the discussion will drag up a lot of the above in response.

Adding to that, people recognize the risk of shadowy dealmaking. We would need cooling off periods following state rule changes, and a whole 'nother layer of court review. This is amendment type stuff, clearly, no other legit way to handle it. If senatorial elections required amendment, and term limits, hard to see why this wouldn't.

I'd point out that Stevens' opinion off Martinned's Wiki article said this:


He further noted that sustaining Amendment 73 would result in "a patchwork of state qualifications" for U.S. Representatives, and described that consequence as inconsistent with "the uniformity and national character that the framers sought to insure." Concurring, Justice Anthony Kennedy wrote that the amendment would "interfere" with the "relationship between the people of the Nation and their National Government."


It was a 5-4 decision, and the next court may have Martians electing our president for all we know, but those quotes from Stevens and Kennedy do have potential impact on changes in the electoral college, I would think. Certainly those involving "state compacts".
4.28.2009 12:52pm
David M. Nieporent (www):
Actually, I don't think that is right. According to the constitution, the several states must have "a republican form of government", which presumably means that the method for choosing the electors has to be at least indirectly democratic in some sense.
I don't see why. The states must have a republican form of government; the electors are not part of the state government, however, and regardless of how a state picks them -- including throwing darts -- the state would still have a republican form of government.
4.28.2009 12:58pm
martinned (mail) (www):
@David M. Nieporent:

Just running through a few examples I gave above:

In your view, could they also:
- Decide which bills to pass by throwing darts?
- Decide which bills to pass by nominating one legislator to take all decisions during a whole year?

Having a republican form of government doesn't only mean that there has to be an elected legislature, it also means that there has to be some connection between the vote and the actual (policy) outcomes. Having the state legislature choose the electors for president is fine. Having the electors elected directly by the people somehow is also fine. Arguably, there is also no problem with having the electors appointed by the governor. Finally, I would argue that NPV is OK as well. But in my view "republican form of government" means that there has to be some causal connection between the vote of the people and the ultimate choice of which bills to pass and which electors to appoint.
4.28.2009 1:02pm
rosetta's stones:

It's not static. Accepting that some pork is inevitable, you can have more or less pork. EC arguably leads to more, NPV would arguably lead to less.


"arguably" being the proper characterization, I'd agree. So then, we can ignore it as a part of firm support of NPV, since it's arguable (but imo it's inarguable that the 15 largest media markets will rule the roost, on pork and much else, absent the EC).



And again, this in response to your argument that EC leads to more substantive campaigns, which I still don't understand.


You introduce another term, "substantive", but I believe I've characterized the importance of battleground states as being an efficient means of identifying and addressing politically the hot issues of the day. You may not agree, or you may think you have another better idea, but I'd certainly hope you understand the point. But if you still don't, then we better let it rest there.
4.28.2009 1:03pm
David M. Nieporent (www):
All the NPV statutes do is instruct state electors to vote based on the national majority instead of just the majority of their state.
Note that many states have so-called "faithless elector" laws that require electors to vote for the candidate who won the majority of the popular vote within the state, but there's widespread thought that these laws are themselves unconstitutional, or at least unenforceable. The same logic would apply to the NPV scheme: if (e.g.) DC's electors wanted to say, "Screw this; 90% of our electorate voted for Kerry, so no way in hell are we voting for George Bush," nothing could be done about it. Which could thwart the NPV scheme.



That's an interesting suggestion. What evidence do you have for the proposition that any part of the constitution, or the "equal sufferage in the Senate" rule in particular, is immune to amendment?
The text of Article V (which describes the amendment process), which says so explicitly. Of course, this rule could be amended extraconstitutionally, as the Constitution replaced the Articles of Confederation. But within the framework of the Constitution, it can't be.
4.28.2009 1:10pm
Floridan:
pintler: "The majorities in large urban areas are in general rather ignorant of life in WY, MT, ND, etc, . . ."

Having lived in both areas (albeit temporarily)I would say the opposite is more often the case.
4.28.2009 1:10pm
mvymvy:
The major shortcoming of the current system of electing the President is that presidential candidates concentrate their attention on a handful of closely divided "battleground" states. 98% of the 2008 campaign events involving a presidential or vice-presidential candidate occurred in just 15 closely divided "battleground" states. Over half (57%) of the events were in just four states (Ohio, Florida, Pennsylvania and Virginia). Similarly, 98% of ad spending took place in these 15 "battleground" states. Similarly, in 2004, candidates concentrated over two-thirds of their money and campaign visits in five states and over 99% of their money in 16 states.
Two-thirds of the states and people have been merely spectators to the presidential elections. Candidates have no reason to poll, visit, advertise, organize, campaign, or worry about the voter concerns in states where they are safely ahead or hopelessly behind. The reason for this is the winner-take-all rule enacted by 48 states, under which all of a state's electoral votes are awarded to the candidate who gets the most votes in each separate state.

Another shortcoming of the current system is that a candidate can win the Presidency without winning the most popular votes nationwide. This has occurred in one of every 14 presidential elections.

In the past six decades, there have been six presidential elections in which a shift of a relatively small number of votes in one or two states would have elected a presidential candidate who lost the popular vote nationwide.
4.28.2009 1:12pm
mvymvy:
The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

Every vote would be politically relevant and equal in presidential elections.

The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes--that is, enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).

The Constitution gives every state the power to allocate its electoral votes for president, as well as to change state law on how those votes are awarded.

The bill is currently endorsed by 1,659 state legislators — 763 sponsors (in 48 states) and an additional 896 legislators who have cast recorded votes in favor of the bill.

In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state's electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). The recent Washington Post, Kaiser Family Foundation, and Harvard University poll shows 72% support for direct nationwide election of the President. This national result is similar to recent polls in closely divided battleground states: Colorado-- 68%, Iowa --75%, Michigan-- 73%, Missouri-- 70%, New Hampshire-- 69%, Nevada-- 72%, New Mexico-- 76%, North Carolina-- 74%, Ohio-- 70%, Pennsylvania -- 78%, Virginia -- 74%, and Wisconsin -- 71%; in smaller states (3 to 5 electoral votes): Delaware --75%, Maine -- 71%, Nebraska -- 74%, New Hampshire --69%, Nevada -- 72%, New Mexico -- 76%, Rhode Island -- 74%, and Vermont -- 75%; in Southern and border states: Arkansas --80%, Kentucky -- 80%, Mississippi --77%, Missouri -- 70%, North Carolina -- 74%, and Virginia -- 74%; and in other states polled: California -- 70%, Connecticut -- 73% , Massachusetts -- 73%, New York -- 79%, and Washington -- 77%.

The National Popular Vote bill has passed 27 state legislative chambers, including one house in Arkansas, Maine, Michigan, Nevada, New Mexico, North Carolina, and Oregon, and both houses in California, Colorado, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, Rhode Island,, Vermont, and Washington. The bill has been enacted by Hawaii, Illinois, New Jersey, and Maryland. These four states possess 50 electoral votes -- 19% of the 270 necessary to bring the law into effect.

See http://www.NationalPopularVote.com
4.28.2009 1:13pm
mvymvy:
What the Founding Fathers said in the U.S. Constitution is "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . ." The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as "plenary" and "exclusive."

Neither of the two most important features of the current system of electing the President (namely, that the voters may vote and the winner-take-all rule) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation's first presidential election.

In 1789, in the nation's first election, the people had no vote for President in most states, it was necessary to own a substantial amount of property in order to vote.

In 1789 only three states used the winner-take-all rule.

There is no valid argument that the winner-take-all rule is entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The winner-take-all rule (i.e., awarding all of a state's electoral votes to the candidate who receives the most popular votes in a particular state) is not mentioned in the U.S. Constitution, the debates of the Constitutional Convention, or the Federalist Papers. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all rule.

As a result of changes in state laws, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the winner-take-all rule is used by 48 of the 50 states.


The normal process of effecting change in the method of electing the President is specified the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes.
4.28.2009 1:13pm
mvymvy:
The National Popular Vote bill concerns how votes are tallied, not how much power state governments possess relative to the national government. The powers of state governments are neither increased nor decreased based on whether presidential electors are selected along the state boundary lines, along district lines (as is currently the case in Maine and Nebraska), or national lines.
4.28.2009 1:14pm
mvymvy:
National Popular Vote has nothing to do with whether the country has a "republican" form of government or is a "democracy."

A "republican" form of government means that the voters do not make laws themselves but, instead, delegate the job to periodically elected officials (Congressmen, Senators, and the President). The United States has a "republican" form of government regardless of whether popular votes for presidential electors are tallied at the state-level (as is currently the case in 48 states) or at district-level (as is currently the case in Maine and Nebraska) or at 50-state-level (as under the National Popular Vote bill).

If a "republican" form of government means that the presidential electors exercise independent judgment (like the College of Cardinals that elects the Pope), we have had a "democratic" method of electing presidential electors since 1796 (the first contested presidential election). Ever since 1796, presidential candidates have been nominated by a central authority (originally congressional caucuses, and now party conventions) and electors are reliable rubberstamps for the voters of the district or state that elected them.
4.28.2009 1:15pm
mvymvy:
The people vote for President now in all 50 states and have done so in most states for 200 years.

So, the issue raised by the National Popular Vote legislation is not about whether there will be "mob rule" in presidential elections, but whether the "mob" in a handful of closely divided battleground states, such as Florida, get disproportionate attention from presidential candidates, while the "mobs" of the vast majority of states are ignored. In 2004, candidates spent over two thirds of their visits and two-thirds of their money in just 6 states and 99% of their money in just 16 states, while ignoring the rest of the country.

The current system does not provide some kind of check on the "mobs." There have been 22,000 electoral votes cast since presidential elections became competitive (in 1796), and only 10 have been cast for someone other than the candidate nominated by the elector's own political party. The electors are dedicated party activists who meet briefly in mid-December to cast their totally predictable votes in accordance with their pre-announced pledges.
4.28.2009 1:15pm
mvymvy:
The small states are the most disadvantaged of all under the current system of electing the President. Political clout comes from being a closely divided battleground state, not the two-vote bonus.

Small states are almost invariably non-competitive, and ignored, in presidential elections. Only 1 of the 13 smallest states are battleground states (and only 5 of the 25 smallest states are battlegrounds).

Of the 13 smallest states, Idaho, Montana, Wyoming, North Dakota, South Dakota, and Alaska regularly vote Republican, and Rhode Island, Delaware, Hawaii, Vermont, Maine, and DC regularly vote Democratic. These 12 states together contain 11 million people. Because of the two electoral-vote bonus that each state receives, the 12 non-competitive small states have 40 electoral votes. However, the two-vote bonus is an entirely illusory advantage to the small states. Ohio has 11 million people and has "only" 20 electoral votes. As we all know, the 11 million people in Ohio are the center of attention in presidential campaigns, while the 11 million people in the 12 non-competitive small states are utterly irrelevant. Nationwide election of the President would make each of the voters in the 12 smallest states as important as an Ohio voter.

The fact that the bonus of two electoral votes is an illusory benefit to the small states has been widely recognized by the small states for some time. In 1966, Delaware led a group of 12 predominantly low-population states (North Dakota, South Dakota, Wyoming, Utah, Arkansas, Kansas, Oklahoma, Iowa, Kentucky, Florida, Pennsylvania) in suing New York in the U.S. Supreme Court, arguing that New York's use of winner-take-all effectively disenfranchised voters in their states. The Court declined to hear the case (presumably because of the well-established constitutional provision that the manner of awarding electoral votes is exclusively a state decision). Ironically, defendant New York is no longer a battleground state (as it was in the 1960s) and today suffers the very same disenfranchisement as the 12 non-competitive low-population states. A vote in New York is, today, equal to a vote in Wyoming--both are equally worthless and irrelevant in presidential elections.

The concept of a national popular vote for President is far from being politically "radioactive" in small states, because the small states recognize they are the most disadvantaged group of states under the current system.

In small states, the National Popular Vote bill already has been approved by a total of seven state legislative chambers, including one house in Maine and both houses in Hawaii, Rhode Island, and Vermont. It has been enacted by Hawaii.
4.28.2009 1:16pm
mvymvy:
Most of the medium-small states (with five or six electoral votes) are similarly non-competitive in presidential elections (and therefore similarly disadvantaged). In fact, of the 22 medium-smallest states (those with three, four, five, or six electoral votes), only New Hampshire (with four electoral votes), New Mexico (five electoral votes), and Nevada (five electoral votes) have been battleground states in recent elections.

Because so few of the 22 small and medium-small states are closely divided battleground states in presidential elections, the current system actually shifts power from voters in the small and medium-small states to voters in a handful of big states. The New York Times reported early in 2008 (May 11, 2008) that both major political parties were already in agreement that there would be at most 14 battleground states in 2008 (involving only 166 of the 538 electoral votes). In other words, three-quarters of the states were ignored under the current system in the 2008 election. Michigan (17 electoral votes), Ohio (20), Pennsylvania (21), and Florida (27) contain over half of the electoral votes that mattered in 2008 (85 of the 166 electoral votes). There were only three battleground states among the 22 small and medium-small states (i.e., New Hampshire, New Mexico, and Nevada). These three states contain only 14 of the 166 electoral votes. Anyone concerned about the relative power of big states and small states should realize that the current system shifts power from voters in the small and medium-small states to voters in a handful of big states.
4.28.2009 1:17pm
mvymvy:
The 11 most populous states contain 56% of the population of the United States and that a candidate would win the Presidency if 100% of the voters in these 11 states voted for one candidate. However, if anyone is concerned about the this theoretical possibility, it should be pointed out that, under the current system, a candidate could win the Presidency by winning a mere 51% of the vote in these same 11 states -- that is, a mere 26% of the nation's votes.

Of course, the political reality is that the 11 largest states rarely act in concert on any political question. In terms of recent presidential elections, the 11 largest states include five "red" states (Texas, Florida, Ohio, North Carolina, and Georgia) and six "blue" states (California, New York, Illinois, Pennsylvania, Michigan, and New Jersey). The fact is that the big states are just about as closely divided as the rest of the country. For example, among the four largest states, the two largest Republican states (Texas and Florida) generated a total margin of 2.1 million votes for Bush, while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry.

Moreover, the notion that any candidate could win 100% of the vote in one group of states and 0% in another group of states is far-fetched. Indeed, among the 11 most populous states, the highest levels of popular support were found in the following seven non-battleground states:
* Texas (62% Republican),
* New York (59% Democratic),
* Georgia (58% Republican),
* North Carolina (56% Republican),
* Illinois (55% Democratic),
* California (55% Democratic), and
* New Jersey (53% Democratic).

In addition, the margins generated by the nation's largest states are hardly overwhelming in relation to the 122,000,000 votes cast nationally. Among the 11 most populous states, the highest margins were the following seven non-battleground states:
* Texas -- 1,691,267 Republican
* New York -- 1,192,436 Democratic
* Georgia -- 544,634 Republican
* North Carolina -- 426,778 Republican
* Illinois -- 513,342 Democratic
* California -- 1,023,560 Democratic
* New Jersey -- 211,826 Democratic

To put these numbers in perspective, Oklahoma (7 electoral votes) alone generated a margin of 455,000 votes for Bush in 2004 -- larger than the margin generated by the 9th and 10th largest states, namely New Jersey and North Carolina (each with 15 electoral votes). Utah (5 electoral votes) alone generated a margin of 385,000 votes for Bush in 2004.
4.28.2009 1:17pm
mvymvy:
When presidential candidates campaign to win the electoral votes of closely divided battleground states, such as in Ohio and Florida, the big cities in those battleground states do not receive all the attention, much less control the outcome. Cleveland and Miami certainly did not receive all the attention or control the outcome in Ohio and Florida in 2000 and 2004.

Likewise, under a national popular vote, every vote everywhere will be equally important politically. There will be nothing special about a vote cast in a big city or big state. When every vote is equal, candidates of both parties will seek out voters in small, medium, and large towns throughout the states in order to win. A vote cast in a big city or state will be equal to a vote cast in a small state, town, or rural area.

Further evidence of the way a nationwide presidential campaign would be run comes from the way that national advertisers conduct nationwide sales campaigns. National advertisers seek out customers in small, medium, and large towns of every small, medium, and large state. National advertisers do not advertise only in big cities. Instead, they go after every single possible customer, regardless of where the customer is located. National advertisers do not write off Indiana or Illinois merely because their competitor has an 8% lead in sales in those states. And, a national advertiser with an 8%-edge over its competitor does not stop trying to make additional sales in Indiana or Illinois merely because they are in the lead.
4.28.2009 1:18pm
mvymvy:
Keep in mind that the main media at the moment, namely TV, costs much more per impression in big cities than in smaller towns and rural area. So, if you just looked at TV, candidates get more bang for the buck in smaller towns and rural areas.

For example, in California state-wide elections, candidates for governor or U.S. Senate don't campaign just in Los Angeles and San Francisco, and those places don't control the outcome (otherwise California wouldn't have recently had Republican governors Reagan, Dukemejian, Wilson, and Schwarzenegger). A vote in rural Alpine county is just an important as a vote in Los Angeles.

If the National Popular Vote bill were to become law, it would not change the need for candidates to build a winning coalition across demographics. Any candidate who yielded, for example, the 21% of Americans who live in rural areas in favor of a "big city" approach would not likely win the national popular vote. Candidates would still have to appeal to a broad range of demographics, and perhaps even more so, because the election wouldn't be capable of coming down to just one demographic, such as voters in Ohio.
4.28.2009 1:18pm
mvymvy:
the U.S. Constitution does not require that the election laws of all 50 states are identical in virtually every respect. The Equal Protection Clause of the 14th Amendment only restricts a given state in the manner it treats persons "within its jurisdiction." The Equal Protection Clause imposes no obligation on a given state concerning a "person" in another state who is not "within its [the first state's] jurisdiction." State election laws are not identical now nor is there anything in the National Popular Vote compact that would force them to become identical. Indeed, the U.S. Constitution specifically permits diversity of election laws among the states because it explicitly gives the states control over the conduct of presidential elections (article II) as well as congressional elections (article I). The fact is that the Founding Fathers and the U.S. Constitution permits states to conduct elections in varied ways.

The National Popular Vote bill does not violate the Equal Protection Clause of the 14th Amendment.
4.28.2009 1:20pm
DerHahn (mail):
Since most of these provisions are activated when states with a majority of the EC adopt them, it's likely that during the first election affected by NPV a number states will still be allocating EC by vote within the state. Voters in those states are going to argue that they have been effectively disenfrachised in the Presidental election because there is no way for their vote to have any affect the outcome. The winner is being selected by the states adopting NPV, not the EC.

In light of the Equal Protection arguments being made in election disputes, I don't think that waving around the text of Article II is going to be very persuasive to the SC.
4.28.2009 1:20pm
rogerthis:
Hi cboldt.

.
Just curious, why do you have "." between every paragraph?

.
Is this automatically done by your computer?

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Or some sort of personal tic?

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Or some sort of personal trademarky thing like the "wet bandits" of Home Alone fame?

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Just wondering.
4.28.2009 1:21pm
mvymvy:
Current federal law (Title 3, chapter 1, section 6 of the United States Code) requires the states to report the November popular vote numbers (the "canvas") in what is called a "Certificate of Ascertainment." You can see the Certificates of Ascertainment for all 50 states and the District of Columbia containing the official count of the popular vote at the NARA web site at http://www.archives.gov/federal-register/ electoral-college/2004/certificates_of_ascertainment.html
http://www.archives.gov/federal-register/ electoral-college/2008/certificates-of-ascertainment.html

It is important to note that neither the current system nor the National Popular Vote compact permits any state to get involved in judging the election returns of other states. Existing federal law (the "safe harbor" provision in section 5 of title 3 of the United States Code) specifies that a state's "final determination" of its presidential election returns is "conclusive"(if done in a timely manner and in accordance with laws that existed prior to Election Day).

The National Popular Vote compact is patterned directly after existing federal law and requires each state to treat as "conclusive" each other state's "final determination" of its vote for President. No state has any power to examine or judge the presidential election returns of any other state under the National Popular Vote compact.
4.28.2009 1:22pm
Joseph Slater (mail):
cboldt:

Again, it's not entirely a big-city vs. small town thing. There are some big states with lots of rural areas (PA, Texas, Ohio), and some small states with relatively decent sized urban and/or elite populations.

Also, if a lot more people are in Big City than in Podunk, I'm not sure why Podunk should have an equal say. We don't do that for state governments. It's one person, one vote to elect the governors of states. Nobody has seriously proposed that rural PA voters should have their votes for governr weighted more heavily than urban PA voters.

In the big picture, I think that the electoral college is much less of a big deal than the Senate, which is really super-affirmative-action for small states. Especially given the filibuster rule tradition.
4.28.2009 1:23pm
mvymvy:
Article I-Section 10, Clause 3 of the U.S. Constitution specifically permits states enter interstate compacts. In fact, there are hundreds of major compacts currently in force (and thousands of minor ones), as can be seen at
http://www.csg.org/programs/ncic/default.aspx

Although some interstate compacts require congressional consent to become effective, Congress usually considers compacts only after the compact is approved by the combination of states specified in the compact required to bring the compact into effect. The absence of prior congressional consent is the norm.
4.28.2009 1:24pm
mvymvy:
Under the current system of electing the President, no state requires that a presidential candidate receive anything more than a plurality of the popular votes in order to receive all of the state's electoral votes.

Not a single legislative bill has been introduced in any state legislature in recent decades (among the more than 100,000 bills that are introduced in every two-year period by the nation's 7,300 state legislators) proposing to change the existing universal practice of the states to award electoral votes to the candidate who receives a plurality (as opposed to absolute majority) of the votes (statewide or district-wide). There is no evidence of any public sentiment in favor of imposing such a requirement.
4.28.2009 1:25pm
martinned (mail) (www):
@DerHahn: Nope. In a situation where the NPV is active but not yet universally adopted, the winner of the election would be the candidate with the most votes in all 50 states. No one would be disenfranchised.
4.28.2009 1:26pm
mvymvy:
The state-by-state winner-take-all system is not a firewall, but instead causes unnecessary fires.

Under the current system, there are 51 separate vote pools in every presidential election. Thus, our nation's 55 presidential elections have really been 2,084 separate elections. This is the reason why there have been five seriously disputed counts in the nation's 55 presidential elections. The 51 separate pools regularly create artificial crises in elections in which the vote is not at all close on a nationwide basis, but close in particular states.

A recount is not an unimaginable horror or logistical impossibility. A recount is a recognized contingency that is occasionally required (about once in 332 elections). All states routinely make arrangements for a recount in advance of every election. The personnel and resources necessary to conduct a recount are indigenous to each state. A state's ability to conduct a recount inside its own borders is unrelated to whether or not a recount may be occurring in another state.

If anyone is genuinely concerned about the possibility of recounts, then a single national pool of votes is the way to drastically reduce the likelihood of recounts and eliminate the artificial crises produced by the current system.

The U.S. Constitution, existing federal statutes, and independent state statutes guarantee "finality" in presidential elections long before the inauguration day in January. These constitutional provisions, statutes, and precedents apply equally to a presidential election conducted under the National Popular Vote legislation and an election conducted under the current system.

The U.S. Constitution (Article II, section 1, clause 4) provides:
"The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States."[Spelling as per original]

The common nationwide date for meeting of the Electoral College has been set by federal law as the first Monday after the second Wednesday in December.

Under both the current system and the National Popular Vote approach, all counting, recounting, and judicial proceedings must be conducted so as to reach a "final determination" prior to the common nationwide date for the meeting of the Electoral College. In particular, the U.S. Supreme Court has made it clear that the states are expected to make their "final determination" six days before the Electoral College meets (the so-called "safe harbor" date established by section 5 of title 3 of the United States Code).

In addition, in almost all states, state statutes already impose independent (typically earlier) deadlines for finalizing the count for the presidential election. The U.S. Supreme Court has also ruled that state election officials and the state judiciary must conduct counts and recounts in presidential elections within the confines of existing state election laws.

It may be argued that the schedule established by the U.S. Constitution may sometimes rush the count (and possibly even create injustice). However, there can be no argument that this schedule exists in the U.S. Constitution, federal statutes, and state statutes; that this schedule guarantees "finality" prior to the meeting of the Electoral College in mid-December. This existing constitutional schedule would govern the National Popular Vote compact in exactly the same way that it governs elections under the current system.
4.28.2009 1:26pm
Grigor:
mvymvy, there's this really cool thing called a "link" or "hyperlink" that enables you to make points without pasting huge shambling wads of text. And best of all, it's free! Check it out.
4.28.2009 1:26pm
trad and anon (mail):
Take that away, and I guarantee that the presidential campaigns will develop a 15 biggest media market strategy, and flood the zone in each of those media markets. Iowa? What's an Iowa? Is that a fruit? Sheeyit, those guys wouldn't step foot in 1/2 the states in the Union.

This is exactly what happens today, except replace "15 biggest media markets" with "ten or so swing states." Last year Colorado, Florida, and Nevada were flooded with ads, but how many times did the candidates visit Maine, Mississippi, or Nebraska?

In fact, the NPV system would produce much more of an incentive to appeal to voters nationwide. Under the current system, votes in Ohio are worth a lot and votes in Oklahoma are worth nothing. The result is that the candidates pay an enormous amount of attention to the concerns of Ohioans and ignore the concerns of Oklahomans.

The electoral system, and the apportionment of Senate seats gives disproportionate influence to states with small populations. I submit that that is a feature rather than a bug. One man, one vote is obviously optimal when everyone lives in a uniform environment and culture, but e.g. Wyoming and the Bronx are very different places. The majorities in large urban areas are in general rather ignorant of life in WY, MT, ND, etc, and I fear they would simply impose their will without much consideration of the minority, and that doesn't do a lot for national harmony.


I don't buy it. Under the current system, voters are weighted more or less depending on whether they happen to live in large or small states, not depending on whether they happen to live in rural or urban areas. California, Texas, New York, Florida, Illinois, and Pennsylvania all have large rural populations. But for Senate purposes all of their voters, rural and urban alike, get much less weight than voters in Nevada, whether those voters are in Vegas or a small town.

The result is that rural voters get vastly more or less weight depending on whether or not the state lines are drawn so that their area includes a large city. The population density of eastern California is extremely low, but because it's located in the same state as Los Angeles and San Francisco, the voters there are all but unrepresented in the Senate relative to voters in neighboring Nevada.
4.28.2009 1:29pm
cboldt (mail):
-- Just curious, why do you have "." between every paragraph? --
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I insert it manually. I use a text-only web browser for most of my web-based interaction, and it doesn't insert any blank space between paragraphs. At Volokh, the HTML paragraph separator, <p>, is "forbidden," so I use a dot to make roughly a blank line between paragraphs.
4.28.2009 1:29pm
DerHahn (mail):
The fact is that the Founding Fathers and the U.S. Constitution permits states to conduct elections in varied ways.

Elections may be conducted in different ways but the electoral results has to give an equal weight to each vote.

Unless *every* state adopts NPV, there are going to be a number of possible challenges relating to the impact of NPV on voters in states that didn't adopt it and states that adopted it where the popular vote is at odds with the overall popular vote.
4.28.2009 1:31pm
mvymvy:
The National Popular Vote compact has strong protection against the hypothetical maneuver of changing a state’s method of awarding its electoral votes in the five-week period between the day when the people cast their votes for President in November and the day when the Electoral College meets in December.

Like most interstate compacts, the National Popular Vote compact permits a state to withdraw from the compact (i.e., repeal the law by which the state joined the compact).

However, like most compacts, the National Popular Vote compact imposes a delay on the effectiveness of any withdrawal. Clause 2 of Article IV of the National Popular Vote compact provides:

“Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.”

That is, no withdrawal from the National Popular Vote compact can become effective between July 20 of a presidential election year and the inauguration on January 20 of the following year. This six-month “blackout” period was chosen because it encompasses six important events relating to presidential elections, namely the national nominating conventions, the fall general election campaign period, election day on the Tuesday after the first Monday in November, the meeting of the Electoral College on the first Monday after the second Wednesday in December, the counting of the electoral votes by Congress on January 6, and the inauguration of the President and Vice President for the new term on January 20.

Although it is true that a state legislature may not, by an ordinary statute, bind the hands of a future legislature, an interstate compact enacted by a state legislature does bind a future legislature. In fact, interstate compacts are among the few ways by which the actions of a future state legislature may be restricted. The National Popular Vote compact is an interstate compact, and an interstate compact is a contract. Withdrawal from any contract may only be made in accordance with the contract’s own terms. It is settled law that, once passed, an interstate compact takes precedence over all existing or future state laws. A compact takes precedence over all existing or future state laws until/unless a state withdraws from the compact under the terms provided in the compact.

The reason that the state legislature is bound to the terms of an interstate compact is the Impairments Clause of the U.S. Constitution (Article I, section 10, clause 1):

“No State shall … pass any … Law impairing the Obligation of Contracts.”

The Council of State Governments summarizes the nature of interstate compacts as follows:

“Compacts are agreements between two or more states that bind them to the compacts’ provisions, just as a contract binds two or more parties in a business deal. As such, compacts are subject to the substantive principles of contract law and are protected by the constitutional prohibition against laws that impair the obligations of contracts (U.S. Constitution, Article I, Section 10).

“That means that compacting states are bound to observe the terms of their agreements, even if those terms are inconsistent with other state laws. In short, compacts between states are somewhat like treaties between nations.

Compacts have the force and effect of statutory law (whether enacted by statute or not) and they take precedence over conflicting state laws, regardless of when those laws are enacted.

“However, unlike treaties, compacts are not dependent solely upon the good will of the parties. Once enacted, compacts may not be unilaterally renounced by a member state, except as provided by the compacts themselves. Moreover, Congress and the courts can compel compliance with the terms of interstate compacts.”

There has never been a court decision allowing a state to withdraw from an interstate compact without following the procedure for withdrawal specified by the compact. Indeed, courts have consistently rebuffed the occasional (sometimes creative) attempts by states to evade their obligations under interstate compacts.
4.28.2009 1:31pm
Marc W:
Out of curiosity:

Could a state extend the franchise to children in order to increase its influence on the NPV? As I read it, the 26th Ammendment (which lowered the voting age to 18) does not prohibit states from lowering it further, but I haven't read through the rest of the Constitution to see if there's anything else that would prohibit such a lowering of the voting age.
4.28.2009 1:36pm
cboldt (mail):
-- Also, if a lot more people are in Big City than in Podunk, I'm not sure why Podunk should have an equal say. --
.
The general principle that "pure democracy leads to bad outcomes," I would think would be sufficient. The only time the people in the big city object to Podunk voters is when the city-folk don't get their way with the Podunk-folk. Any individuals position on the issue will tend to follow their own self-interest. City folk want to have their way with the Podunk-folk, and the Podunk-folk want to be left alone. "Tyranny of the majority," for short. I understand that the majority of the voters is in favor of it.
4.28.2009 1:37pm
Gabriel McCall (mail):
Having a state look outside itself, for a decision that is meant to be within itself is "wrong" on its face. It's as "wrong" as letting the country of Canada choose the president of the US. But, co-opting the form and style of your counterargument, nothing in the US Constitution forbids the country of Canada from choosing our president.

First point: "wrong on its face" is not synonymous with "unconstitutional". It's possible to disagree with the results which the text leads to, while still acknowledging what the text actually says. If the language of the Constitution allows for undesirable outcomes, the correct response is to fix the language of the Constitution, not to assert without evidence that the Constitution itself forbids the outcome despite its own text.

I'm also unclear on the idea that a state is "meant" to choose its electors "within itself". The Constitution is clear that the state legislature may choose its electors by whatever method it deems appropriate. It doesn't say anything about what's "meant" with regard to the states' mental orientation in making those decisions. If the duly elected representatives of a state's populace agree to select their electors based on the results of a popular vote in Canada, as unlikely as that seems, I can find nothing in the Constitution on which to base an objection. That's not to say that there are not valid objections, just that those objections are not matters of constutionality.

I think the principles (and processes which naturally from from the principles) are self-evident, which is probably why I find those who make the counterargument to be intellectually dishonest (maybe intellectually incomplete would be better) and sophists.

There are two possibilities if I think that something is self-evident but someone argues against me: one possibility is that my opponent is dishonest or mentally deficient. The other possibility is that I was wrong about the "self-evident" bit.

An important part of my intellectual and social maturation was the realization that just because something seems blindingly obvious to me does not mean that everyone else, or even anyone else, will think the same way. I've learned that in order to make convincing arguments I have to be able to present rational arguments from objective evidence, not just maintain that the underlying principles on which my argument is based are self-evident. Because, the vast majority of the time, they aren't, except to me.

I have no dog in this fight. My personal feeling is that NPV is a horrible idea, and that the more populist our electoral system is the more our candidates will pander to the lowest common denominator. But, in spite of my own preferences, I have to try to read the actual text of the Constitution as it is written rather than as I imagine to be, and I can find no constitutional barrier to the proposed plan.

NPV proponents resort to the trick of converting an NPV decision into an "electoral vote," but the resulting "electoral vote" is in form only. It's a rhetorical cheat to take the bastardized "electoral vote " (bastardized because it looks outside the state in order to find the result), and claim it satisfies the structure of the Constitution.

I could just as easily argue that our current party-based sham of an electoral college is a bastardized, "in form only" system, and that the only way to satisfy the spirit of the Constitutional language is for the states to choose uncommitted, non-partisan electors who will carefully deliberate over the candidates presented to the college. The current almost-a-popular-vote system is so far removed from the originally-conceived electoral college that I find it hard to muster much moral outrage over further incremental change.
4.28.2009 1:38pm
Jam:
Eliminating the Electoral College another nail in the coffin of the republic. It is like its counterpart, the 17th amendment.

On another issue: Gen. Grant, uSA was president of the NRA? Another reason to rather support Guns Owners of America and Jews For The Preservation Of Firearms Ownership.
4.28.2009 1:42pm
Oren:

Do you think a difference of 100 votes could be resolved out of 150 million votes cast? When an election gets sufficiently close, it's impossible to tell who "really" won. That happened in Florida. That happened in Minnesota. Perhaps it's not likely to occur in a national election, but it's theoretically possible. I would have flipped a coin to decide the 2000 Florida election-- it would have been equivalent.

Oh hell no. The margin of error is probably ~.1%.

It's just more likely to come within .1% in Florida than it is for the nation at large prortional to 1 / sqrt(n).
4.28.2009 1:44pm
Oren:

If this were to happen at the federal level, art. I (7) of the Constitution, which at times explicitly and at times implicitly states that the Houses of Congress can only "pass" something if they actually voted.

The House makes its own rules as to what constitutes "pass".


If this were to happen at the state level, it would violate the rule that requires the states to have a "republican form of government", not to mention that it would quite likely violate the state constitution.


It's perfectly republican to have elected representatives decide how they want to dispose of the issues.

How about this, suppose each member of the legislature secretly flipped a coin and voted as to its outcome. That's the same as one coin flip (assume an odd # of voters). There's nothing magical about "voting" -- it's the process in which the legislature agrees to do something that counts.
4.28.2009 1:46pm
trad and anon (mail):
City folk want to have their way with the Podunk-folk, and the Podunk-folk want to be left alone.


This one is definitely unsupported by evidence. The Podunkers want to have their way with the city-folk as well: San Francisco wants to impose gay marriage on the central valley and the central valley wants to ban gay marriage in San Francisco. Whether the city-folk or the Podunkers get their way depends on how many Podunks there are and how big the cities are.
4.28.2009 1:48pm
Dan28 (mail):

The general principle that "pure democracy leads to bad outcomes," I would think would be sufficient. The only time the people in the big city object to Podunk voters is when the city-folk don't get their way with the Podunk-folk. Any individuals position on the issue will tend to follow their own self-interest. City folk want to have their way with the Podunk-folk, and the Podunk-folk want to be left alone. "Tyranny of the majority," for short. I understand that the majority of the voters is in favor of it.

So your argument is an urban voter should have less input on electing the president than a rural voter because that is less democratic, and therefore leads to better outcomes?

I can understand the argument that because a popular majority could respond to the whims of the moment and elect a tyrant, there should be some intermediary between the electorate and the selection of President. The electoral college doesn't actually do this anymore, but at least it's a sensible argument. But arguing that we should give rural voters more of a say just because... well, just because, is pretty lame.
4.28.2009 1:49pm
A. Zarkov (mail):
Approximately 1.5 million (both legal and illegal) Hispanics emigrate to the US each year. The Democrats get approximately 60% of the Hispanic vote. As this group grows so will the popular vote for Democrats. The total fertility rate (TFR) for Latinas stands at 2.96, which implies a yearly increase of 1.2%. On the other hand, white women have a TFR pf 1.86, which implies a population that shrinks at .47% per year. If you add immigration to reproduction you get a rapidly expanding population of Democrat voters.

If you like the idea of a one party country, then support NPV.
4.28.2009 1:49pm
Oren:

That's an interesting suggestion. What evidence do you have for the proposition that any part of the constitution, or the "equal sufferage in the Senate" rule in particular, is immune to amendment?

Read Art V, although I personally think it has no teeth.

An amendment can remove the provision in Art V that prevents amendments from changing the Senate. The absolute worst case, IMO, is that you need two amendments to make it formally correct. The first removes the restriction in Art V (which it can, because the Constitution does not say "No amendment shall remove the restrictions in Art V about what an amendment may amend") and the second does so.
4.28.2009 1:50pm
Oren:


Having a state look outside itself, for a decision that is meant to be within itself is "wrong" on its face.

The Constitution has many provisions that are "wrong" -- when it granted State legislators the right to determine electors, it did not place a restriction on the criteria that they may use. In fact, the Supreme Court has ruled that that the power to chose electors is plenary.
4.28.2009 1:52pm
Joseph Slater (mail):
Cboldt:

OK, you are skeptical of "pure democracy," but two questions.

First, why don't we do this in state-wide elections? By your logic, shouldn't folks in rural PA get their votes for governor weighted more heavily than folks in Philly and Pittsburgh?

Second, if we think that some groups should get more heavily weighted votes in presidential elections, why give this affirmative action to residents of small states, as opposed to any other group? Again, it's not affirmative action for rural voters generally (see, e.g., rural voters in PA or TX), it's affirmative action to folks who live in smaller states, including urban folks and elites in those states. But more broadly, why not give affirmative action to folks who have suffered much more discrimination at the hands of the government than "folks in small states"? I can think of a several categories of such folks, some of whom are clustered in those "urban areas" some posters are concerned about.
4.28.2009 1:53pm
Oren:

It's a rhetorical cheat to take the bastardized "electoral vote " (bastardized because it looks outside the state in order to find the result), and claim it satisfies the structure of the Constitution.

It doesn't need to satisfy the structure of the Constitution. It needs to satisfy the text of the Constitution. We aren't governed by structures, ideals or principles but by laws.
4.28.2009 1:53pm
CJColucci:
City folk want to have their way with the Podunk-folk, and the Podunk-folk want to be left alone.

Having spent a fair amount of time in both places, I have serious doubts about this.
4.28.2009 1:54pm
DerHahn (mail):
Since everybody here supporting NPV loves to point out that states have discretion in chosing their electors...

Martinned, what if enough states to win the EC decided that they will instruct their Presidental electors to vote for the winner of a pancake-flipping race run down Pennsylvania Ave on July 4th every four years and that you live in one of the states that doesn't adopt the National Pancake-Flipping Vote?

Are you still going to say that you're not disenfranchised?
4.28.2009 1:55pm
martinned (mail) (www):
@Oren: On the Republican form of government point, we'll probably have to agree to disagree. But art I (7) of the constitution clearly allows individual coin tossing, but not one big coin toss. Consider how it describes the veto override:


But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.

I can think of no system of constitutional interpretation that would lead to the conclusion that a bill that has not been voted for by at least 50% + 1 members of each house can be law. Such a thing would be a legal nullity, no matter how many coins are tossed.
4.28.2009 1:55pm
Dan28 (mail):

I also expressed my opinion that you aren't amenable to persuasion, so I'm reluctant to spend much time explaining my point of view for you.
.
Having a state look outside itself, for a decision that is meant to be within itself is "wrong" on its face. It's as "wrong" as letting the country of Canada choose the president of the US. But, co-opting the form and style of your counterargument, nothing in the US Constitution forbids the country of Canada from choosing our president.

And its true that if "wrong on its face" is your best argument, you probably aren't going to persuade many people.

The original idea behind the electoral college was that states would selected learned political elders, who would go and deliberate and select the best person for the job without any direct concern for the interests of the voters. That idea didn't survive the election of John Adams and the splintering of American politics into political parties, much less the past 200 years of history. But if you're talking about the intent of the framers, I would think their basic view of the electoral college is entirely consistant with what's written in the Constitution - that states should have essentially unlimited authority to decide who is an elector, and how they make their decision. Inserting a limitation that you can't make the decision based on events other than what is happening in your state is bizarre, and runs totally against the original idea.
4.28.2009 1:55pm
Oren:


In your view, could they also:
- Decide which bills to pass by throwing darts?
- Decide which bills to pass by nominating one legislator to take all decisions during a whole year?

Sure, so long as they decided to do those things by majority vote and, can at any time, reverse those decision by majority vote.

That's what it means to be a deliberative body.
4.28.2009 1:56pm
A. Zarkov (mail):
Dan28:

"But arguing that we should give rural voters more of a say just because... well, just because, is pretty lame."


I don't think that's the argument. He argues that rural voters tend to want limited government to a greater extent than urban voters. If you believe limited government is a good thing and the US federal system is based on that idea, then the argument makes sense. We might not agree with it, but it's not "lame."
4.28.2009 1:57pm
DerHanh (mail):
Oren:

It doesn't need to satisfy the structure of the Constitution. It needs to satisfy the text of the Constitution. We aren't governed by structures, ideals or principles but by laws.

Point me to the Constitutional text (not penumbras) that guarentees a right to an abortion.
4.28.2009 1:57pm
martinned (mail) (www):
@DerHahn: Thank you for adding another example to the discussion I've been having in this thread about the limits of how electors may be appointed. See my most recent comment for an update.

I think, though, that NPV passes muster. Under that system, no one is disenfranchesed. (Unlike in the case of a decision by coin toss or pankace-flipping race.)
4.28.2009 1:57pm
cboldt (mail):
-- If the language of the Constitution allows for undesirable outcomes, the correct response is to fix the language of the Constitution, not to assert without evidence that the Constitution itself forbids the outcome despite its own text. --
.
I hardly think the fact that 13 states organized under the constitution, with certain "assumptions" being unstated, amount to an absence of evidence. That you can't and don't read the US Constitution to forbid the country of Canada from choosing the president of the US is about all that needs to be noticed. That's pure kookery, regardless of your outstanding manners and good grammar.
4.28.2009 1:58pm
Oren:



Are you still going to say that you're not disenfranchised?

I wouldn't, but that's because I voted for the State legislature and if I vote for buffoons, I deserve whatever pancakes they serve.
4.28.2009 1:58pm
Oren:

That you can't and don't read the US Constitution to forbid the country of Canada from choosing the president of the US is about all that needs to be noticed.

You still don't read "in such Manner as the Legislature [of that State] thereof may direct" to mean what it obviously means.

It does not say "in such Manner as the Legislature thereof may direct except that they may not look outside the borders of their state in doing so" or anything of the sort. The power granted is, absolutely plenary (yes, that's redundant) in every possible sense.
4.28.2009 2:01pm
Dan28 (mail):

I don't think that's the argument. He argues that rural voters tend to want limited government to a greater extent than urban voters. If you believe limited government is a good thing and the US federal system is based on that idea, then the argument makes sense. We might not agree with it, but it's not "lame."

No, if that's his argument it's much worse than just lame. I mean, I'd like to have more Democratic votes, but I'm not going to argue that the state of New York should get twice as many evs as Texas because New Yorkers are more liberal.
4.28.2009 2:01pm
A. Zarkov (mail):
Oren:

"It's just more likely to come within .1% in Florida than it is for the nation at large prortional to 1 / sqrt(n)."


Yes. But as I said in Florida, which is not a small state, the election was close enough to be non-resolvable.
4.28.2009 2:03pm
martinned (mail) (www):

Sure, so long as they decided to do those things by majority vote and, can at any time, reverse those decision by majority vote.

That's what it means to be a deliberative body.

@Oren: Actually, it is what it means to be a deliberative body in name only. The reason why your stance is problematic is that it would be OK with a 1933 Germany type arrangement, as long as in theory the legislature stays in charge. (I beg forgiveness in case anyone considers this a violation of Godwin's Law. I think in this case the example is legitimate.)
4.28.2009 2:04pm
Gabriel McCall (mail):
what if enough states to win the EC decided that they will instruct their Presidental electors to vote for the winner of a pancake-flipping race run down Pennsylvania Ave on July 4th every four years and that you live in one of the states that doesn't adopt the National Pancake-Flipping Vote?

Are you still going to say that you're not disenfranchised?


No more or less disenfranchised than the losers of any other election. Were the voters in 2008 red states disenfranchised by the more numerous blue states? After all, once the EC majority is reached, it doesn't matter what anyone else does or did. If an EC majority of states agrees on the next president, the remaining states don't get a vote... and that's true whether the agreement is "Barack Obama" or "Pancake winner to be named later".
4.28.2009 2:04pm
cboldt (mail):
-- And its true that if "wrong on its face" is your best argument, you probably aren't going to persuade many people. --
.
Yeah., But those who bother to "read on" found an expression of why I find it "wrong on it's face." The best I can accomplish in writing here is to clearly express what I hold, and why. That's unattainable even on my best day, so, I poke away at this site mostly for entertainment. That some people are unmoved by the resulting prose and arguments is not surprising.
.
-- Inserting a limitation that you can't make the decision based on events other than what is happening in your state is bizarre, and runs totally against the original idea. --
.
No, but giving outside interests the power to choose a state's own electors is bizarre.
4.28.2009 2:08pm
Joseph Slater (mail):
He argues that rural voters tend to want limited government to a greater extent than urban voters. If you believe limited government is a good thing and the US federal system is based on that idea, then the argument makes sense. We might not agree with it, but it's not "lame."

(1) What Dan28 said about favoring a system because it gives affirmative action to voters with a particular type of politics;

(2) For the umpteenth time, the EC doesn't favor RURAL voters per se, it favors VOTERS IN SMALL STATES. There are LOTS of rural voters in Texas, PA, Ohio, etc. whose votes are weighted LESS than latte-sipping elites in, e.g., Portland OR and those scary "urban" voters, in, say, New Haven Conn.

(3) I also don't buy the "rural voters want limited government" idea, given the push for farm subsidies and other federal money that flows to a number of small states.
4.28.2009 2:08pm
A. Zarkov (mail):
Dan28:

Do you want a one party state? Because that's where we are headed. Already about half the population pays no income tax, and with an increase in the earned income tax credit that will go up.
4.28.2009 2:09pm
A. Zarkov (mail):
"(3) I also don't buy the "rural voters want limited government" idea, given the push for farm subsidies and other federal money that flows to a number of small states."

That's true. The rural voters are schizophrenic on some things. But I do think the divide is along lines of expansive versus limited government, despite their contradictory attitude on farm subsidies.
4.28.2009 2:14pm
cboldt (mail):
-- First, why don't we do this in state-wide elections? By your logic, shouldn't folks in rural PA get their votes for governor weighted more heavily than folks in Philly and Pittsburgh? --
.
Governors elections aren't operated under an electoral system that gives equal representation on e.g. a county-by-county or township-by-township basis. Your question gets into why individual states are given so much power in presidential elections. As a matter of history, probably in order to entice smaller states to sign-on to the Constitution in the first place. Counties, OTOH, don't get to opt-out of being under a state's thumb at the time of state formation.
.
-- Second, if we think that some groups should get more heavily weighted votes in presidential elections, why give this affirmative action to residents of small states, as opposed to any other group? --
.
In order to preserve the power of the states (each of them, not just the smaller ones) as against the federal government.
4.28.2009 2:14pm
pintler:

Also, if a lot more people are in Big City than in Podunk, I'm not sure why Podunk should have an equal say.


By way of background, I have lived in places from somewhat big (Wash DC, Denver, Seattle) to small (25 miles outside Meeteetse, WY, pop 365).

To try and capture the flavor of the difference, consider the 55 mph speed limit. If you live in most major cities, that has almost no effect on you - traffic congestion generally makes getting up to 55 an impossible dream :-). If you live 25 miles outside Meeteetse, traffic congestion is pretty rare, other that when someone is driving a herd down the road, but you have driven 15 miles of gravel and 10 miles of paved roads just to get to the Meeteetse Mercantile. That's a nice place, which packs everything from deer rifles to dungarees to groceries into a building smaller than most 7-11's - but if the Merc doesn't have it, you have to drive another hour to Cody (pop 8800). When the nearest drug store is 100 miles away, over straight, deserted roads, the 55 mph limit is a little irksome to most people.

So people from the Bronx are likely to say '55 MPH, Sure, why not!', without much consideration of the impact on folks in WY. Now, you can say that inconsiderate majorities can always trample minorities, but I submit that if people in the Bronx decide to trample on a minority, say Hasidic Jews, at least they will know they are doing it, whereas they are so disconnected from Meeteetse they won't even realize the impact they are having. A couple of thousand miles matters in a very real sense, I think.

It works the other way only to a lesser degree, in my experience. I have known people from AK who have been asked, with a straight face, whether they lived in an igloo. People in AK or WY, in my experience, aren't that ignorant of life in the big city because, among other reasons, they do have electricity and TV in many parts of AK and WY :-).

I think this is less of an issue intrastate because the distances are an order of magnitude less.
4.28.2009 2:15pm
Dan28 (mail):

Do you want a one party state? Because that's where we are headed. Already about half the population pays no income tax, and with an increase in the earned income tax credit that will go up.

Yep, you conservatives have a real problem on your hands with your total inability to appeal to latino voters, shrinking base, incompetent politicians, a pragmatic Democratic opponent, and the way you're driving the moderates out of the Republican party with great force. I don't by any means think this will lead to a one-party state; eventually, the Republican party will get its act together and find a way to appeal to non-white voters, non-southern voters. The two party system is inherent to the American electoral process. Parties will go up and down, but eventually they come back again.

As far as my personal preferences go, in my ideal universe, a strong Democratic party would be in competition with a smaller opposition Green party. But no, I don't think a single party state is ever a good idea.
4.28.2009 2:15pm
Oren:

Yes. But as I said in Florida, which is not a small state, the election was close enough to be non-resolvable.

But is the smaller odds of a worse outcome better that better odds but less bad outcome?
4.28.2009 2:15pm
martinned (mail) (www):

In order to preserve the power of the states (each of them, not just the smaller ones) as against the federal government.

This was true before the ratification of the 17th amendment, but now it makes no sense.
4.28.2009 2:16pm
gasman (mail):
Just how does one actually arrive at a national popular vote.
Each state is free to set its own eligibility criteria for voters, and nothing at the national level, either by law or by usual practices, prevents a person from voting in two states (or more) should an individual simultaneously meet the eligibility criteria of two or more states.
Thus, the best way for these states making a compact to pool their electoral votes based on the national vote totals with the minimal required number of states is to allow liberal voting criteria. They could allow as eligible voters any resident of the block of electoral states to cast votes in any and all states of that block. Ten states with 10 percent of the population could generate, at one vote per citizen per state, more total votes than the other 40 states combined.
There is no method to determine the national vote now, nor likely ever. This small block of states would be incented to permit people to vote often and in every state possible.
4.28.2009 2:18pm
Oren:


@Oren: Actually, it is what it means to be a deliberative body in name only. The reason why your stance is problematic is that it would be OK with a 1933 Germany type arrangement, as long as in theory the legislature stays in charge.

That's precisely why I don't believe in parliamentary sovereignty of the form common in Westminster systems (although the Israeli Supreme Court just sort invented itself, which is nice). It's dangerous to let a simple majority of the legislature amend the Constitution without limit and it's not made any more or less dangerous by imposing silly procedural methods on how they may do so.


IOW, I believe the legislature ought to be able to do, by whatever majoritarian procedure it likes, whatever the legislature is empowered to do because I believe that legislatures ought to be limited by what they do (in the US, we have fairly strict limits on the delegation of powers -- having a power does NOT mean you can delegate that power to someone else). Citing an example of what a legislature unencumbered by limits of delegation does not persuade me.
4.28.2009 2:19pm
Oren:

Just how does one actually arrive at a national popular vote.

Dude, RTFA. The NPV compact specifies that each Secretary of Elections (whatever the actual title) must accept as binding the vote totals from all the other, respective, Secretaries of Elections.
4.28.2009 2:20pm
Oren:

No, but giving outside interests the power to choose a state's own electors is bizarre.

Indeed. "In a manner that the legislature thereof shall perscribe", however, does not exclude the bizarre.
4.28.2009 2:21pm
Joseph Slater (mail):
Cboldt:

Yeah, I get the idea that the E.C. was an inducement for smaller states to join the federal government. I'm not sure that's a sufficient reason to keep it. But again, I think the E.C. is relatively small change next to the Senate, where the real affirmative action for small states is.

Pintler:

I grew up in a very small town in rural central Michigan, and lived a chunk of my adult life in DC, and now I'm in mid-sized Toledo. So I think I know where you're coming from. Sure, big town folk don't always understand small town folk. Unlike you, I think that's just as true the other way around. My home town had NO black residents for much of the time I was there, for example, and that's hardly the only thing they had little/no experience with.

Also, again (i) I'm not sure that's a reason why rural folks should get more heavily weighted than urban folks in Presidential elections, and (ii) the E.C. doesn't give extra weight to rural folks as such, but rather to residents of small states, which is not the same thing.
4.28.2009 2:22pm
Dan28 (mail):

They could allow as eligible voters any resident of the block of electoral states to cast votes in any and all states of that block. Ten states with 10 percent of the population could generate, at one vote per citizen per state, more total votes than the other 40 states combined.

So states are going to commit voter fraud on a massive scale just to, what? Marginally increase the amount of attention they get from presidential candidates? And meanwhile, the rival campaigns aren't going to try to put any check on this at all? This strikes me as a very unrealistic scenario. What will happen is what is happening already - the big push for more voters will come from the campaigns, each of which will have lawyers looking for fraud among demographics that support the other candidate.
4.28.2009 2:24pm
Oren:


To try and capture the flavor of the difference, consider the 55 mph speed limit.

Except that the speed limit is enforced by local law enforcement, which has the discretion to let it slide independent of Congress strong-arming the States into making a 55mph legal limit.
4.28.2009 2:24pm
Oren:


There is no method to determine the national vote now, nor likely ever.

Seriously? Do you not have the imagination to think of, say, totaling the certified totals from the various States or are you implying that such a total is not national popular vote, as we understand the term?
4.28.2009 2:26pm
Oren:

That's true. The rural voters are schizophrenic on some things. But I do think the divide is along lines of expansive versus limited government, despite their contradictory attitude on farm subsidies.

Given the (maybe now cliche) correlation between voting red and having the Federales spend more in your State than it sends back in Federal taxes, perhaps you should rethink this "divide".
4.28.2009 2:27pm
Joseph Slater (mail):
I was in France during the Sarkozy-Royale election. On election night, I was watching TV. Moments after the polls closed, they posted the national vote numbers. France is a big country. You can't tell me that sort of thing would be impossible in the U.S.
4.28.2009 2:28pm
cboldt (mail):
-- "In a manner that the legislature thereof shall perscribe", however, does not exclude the bizarre. --
.
I'm not interested in debating the point with you, but I firmly believe your conclusion is wrong. The point of my post is just to acknowledge reading your point, and to register strenuous disagreement. We're both entrenched on this point, and I'm sure you have better things to do than waste time in a futile effort to convince me that you are right.
4.28.2009 2:31pm
martinned (mail) (www):
@Joseph Slater: I suspect those were the exit polls. Even in France, it takes a few hours to get all the official numbers together.

A simpler system still will be used in next month's German presidential election:


Bundesversammlung (Germany)

The Federal Assembly (a.k.a. Federal Convention; German: Bundesversammlung) is a special body in the institutional system of Germany, convened solely for the purpose of electing the German President Bundespräsident every five years.

The Bundesversammlung includes the entire membership of the Bundestag, and an equal number of state delegates selected by the state or 'Länder' parliaments specifically for this purpose, proportional to their population. The Länder representatives are not solely politicians: it is customary for the some states to nominate celebrities or other prominent and notable people. From the time of their nomination, until the closing of the session of the Federal Convention, its members enjoy parliamentary immunity with regard to prosecution by public authorities in very much the same way as members of the Bundestag do.

Since 1979, the Bundesversammlung has traditionally met on May 23, the anniversary of the founding of the Federal Republic of Germany and the coming-into-force of the Basic Law in 1949. It is chaired by the President of the Bundestag and is dissolved once the elected President declares that he accepts his election, which decision he can delay for up to two days (however, no president has ever done so).

Each member of the Bundesversammlung may suggest candidates for the office of the Federal President. In practice however only the candidates in advance designated by the parliamentary groups are suggested.

The procedure of the election of the Bundespräsident consists of - at the most - three secret votes by written ballot. If one of the first two votes ends with an absolute majority for one of the candidates, this candidate is elected immediately. If the first two votes do not lead to an absolute majority, a plurality is sufficient in the third and final vote. According to the Grundgesetz, the President is elected without a debate at the 'Federal Convention'. The candidates are usually nominated by one or more parties, but do not generally run a campaign. The candidate whose party or parties have the majority in the Bundestag is considered to be the likely winner and, in the main, has achieved the necessary majority. The Speaker of the Bundestag closes the session of the Bundesversammlung once the elected candidate accepts.

The last assembly of the Bundesversammlung was held on May 23, 2004, when Horst Köhler was elected by the slender majority of 604 out of 1205 votes (603 votes were needed).

On the 12th September 1949, the first Bundesversammlung met in Bonn. From 1954-1969 the Bundesversammlung was convened at the Ostpreußenhalle in Berlin; where the German Democratic Republic protested against this on each occasion it met - as a consequence, on March 5 1969 the Soviet Union overflew the venue (and West Berlin) with some MiG-21 war planes. From 1974 to 1989, the Bundesversammlung met in the Beethovenhalle in Bonn. Since 1994 the meeting-place has been the Reichstag in Berlin.

Then again, such a system is probably not appropriate in a country where the president has real power.
4.28.2009 2:35pm
Gabriel McCall (mail):
Except that the speed limit is enforced by local law enforcement, which has the discretion to let it slide independent of Congress strong-arming the States into making a 55mph legal limit.


Very limited discretion. Congress threatened to withhold highway funds from states which had inadequate enforcement of the 55mph limit. At one point, Virginia instituted a program of "rolling roadblocks", police cars doing 55 side-by-side down the highway, in order to avert such a threat.
4.28.2009 2:35pm
Oren:

We're both entrenched on this point, and I'm sure you have better things to do than waste time in a futile effort to convince me that you are right.

I had no illusion of convincing you, I just want to understand how you start with "in a manner ..." and arrive at the conclusion you did. With the presumption that you are writing honestly and in good faith, it is genuinely interesting how you could come to that conclusion.
4.28.2009 2:38pm
Oren:

Very limited discretion. Congress threatened to withhold highway funds from states which had inadequate enforcement of the 55mph limit. At one point, Virginia instituted a program of "rolling roadblocks", police cars doing 55 side-by-side down the highway, in order to avert such a threat.

Do what my home-town did -- define an equivalent offense under the town code but with much lower penalties. Let officers decide whether to charge under the State law or the local ordinance (added bonus: cops get an easy way to throw the book at uncooperative motorists).

That way, you can report to Congress that you wrote X speeding tickets, even if a majority are for local ordinances with a $25 fine and no record.
4.28.2009 2:43pm
rosetta's stones:

The NPV compact specifies that each Secretary of Elections (whatever the actual title) must accept as binding the vote totals from all the other, respective, Secretaries of Elections.


I'm sorry, but in my thankfully unlawyered eyes, this statement doesn't comport itself with the constitution, yes, on its face.
4.28.2009 2:44pm
martinned (mail) (www):

I'm sorry, but in my thankfully unlawyered eyes, this statement doesn't comport itself with the constitution, yes, on its face.

How so? There are a number of places in the constitution where states are asked to trust each other, most notably the full faith &credit clause.
4.28.2009 2:45pm
ShelbyC:

Read Art V, although I personally think it has no teeth.

An amendment can remove the provision in Art V that prevents amendments from changing the Senate.


Tribe says the same thing in his treatis, but I'm not sure I buy it for a couple of reasons:

1) The implication that the founders in article V tried to entrench equal suffrage in the senate, but botched it, seems untenable

2) The actual text, closely examined, doesn't work that way.
It says something like, "all amendments shall be treated as a part of the constitution, provided that no amendment deprives a state without its consent of equal sufferage in the senate." Now, litteraly interpreted, that would mean that if any amendment deprived a state of equal sufferage, then no amendment would be valid. But I think we can extend some license to interpret that to mean that only the two amendments that, together, deprive the state of equal suffrage would be invalid.
4.28.2009 2:48pm
Gabriel McCall (mail):
That way, you can report to Congress that you wrote X speeding tickets, even if a majority are for local ordinances with a $25 fine and no record.


Congress doesn't (or at least didn't) care how many tickets you write; the relevant measure is actual motorise compliance. With regard to the Virginia situation as I recall it, the conversation was "X% of motorists on I-95 are speeding. Reduce that to Y% or lose your money." $25 fines wouldn't help with that.
4.28.2009 2:50pm
cboldt (mail):
-- I just want to understand how you start with "in a manner ..." and arrive at the conclusion you did. --
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I don't give "in a manner" the breadth of scope that you do. I think "in a manner" has inherent, unstated constraints that revolve around accountability to the electorate.
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If I read your right, you agree that "in a manner" allows a state legislature to choose a presidential elector based on a popular vote held in a foreign country. I can't point to a clause in the constitution that forbids this; and you read "in a manner" as admitting it. We do agree that this sort of rationale would be politically unpopular. Where we differ is that I firmly hold the practice is prohibited by the function of the constitution; and you firmly hold that the practice is permitted by the plain language of the constitution. The unconstrained literal interpretation of "in a manner" produces an outcome that is anathema to the function of the constitution.
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Same root of irreconcilable disagreement exists in our debate over the scope of activity properly read into "House and Senate can make their own rules."
4.28.2009 2:54pm
cboldt (mail):
Oren - A point of clarification: If I read you right, you agree [with Gabriel McCall] that "in a manner" allows a state legislature to choose a presidential elector based on a popular vote held in a foreign country.
4.28.2009 2:59pm
Dan28 (mail):

If I read your right, you agree that "in a manner" allows a state legislature to choose a presidential elector based on a popular vote held in a foreign country. I can't point to a clause in the constitution that forbids this; and you read "in a manner" as admitting it. We do agree that this sort of rationale would be politically unpopular. Where we differ is that I firmly hold the practice is prohibited by the function of the constitution; and you firmly hold that the practice is permitted by the plain language of the constitution. The unconstrained literal interpretation of "in a manner" produces an outcome that is anathema to the function of the constitution.

It's nice that you have an opinion on what "the function of the constitution" consists of and what is permitted and forbidden according to that structure. Do you have an argument as to WHY the constitution's function is the way you say it is that doesn't essentially come down to a "A is A, I said so, therefore it is true" assertion?
4.28.2009 3:05pm
Gabriel McCall (mail):
Where we differ is that I firmly hold the practice is prohibited by the function of the constitution; and you firmly hold that the practice is permitted by the plain language of the constitution. The unconstrained literal interpretation of "in a manner" produces an outcome that is anathema to the function of the constitution.

If a law is passed which says "it shall be a felony to shoot, knife, or bludgeon anyone to death", that law does not say anything about murder by poison. One might argue that murder by poison is immoral and that permitting murder by any means is anathema to the function of the justice system; however, it is unarguable that murder by poison is not made illegal by the statute against murder by shooting, knifing, or bludgeoning. "The law should forbid this" is a very different statement from "the law DOES forbid this even though its text does not."

In exactly the same way, the NPV coalition may lead to undesirable or even nonsensical results, and may be a perversion of the intent of the founders and the will of the people, but it is not unconstitutional in reference to the written text of the Constitution. It violates the principles of an abstract, intangible constitution which exists as an intuitive ideal of American governance in your mind, but that intuitive, intangible constitution cannot and should not be referred to as authoritative; when people talk about what is or is not constitutional, that question has to be resolved according to the written text of the actual, substantive Constitution.
4.28.2009 3:07pm
Oren:

The unconstrained literal interpretation of "in a manner" produces an outcome that is anathema to the function of the constitution.

I never considered the Constitution have function only procedures that are amenable to whatever function the electorate intends.

That is, indeed, irreconcilable.
4.28.2009 3:09pm
rosetta's stones:

There are a number of places in the constitution where states are asked to trust each other, most notably the full faith &credit clause.


Dang it, martinned, I said "on its face", and you were suppposed to just somberly nod your head and not ask that question! Now I do need some lawyering to answer properly.

Unlike recognition of another state's laws, contracts, etc., isn't an NPV state compact something different, which places a state's electoral outcome and fate in another state(s) hands? Their state law and sovereignity surrendered to an outside entity? Their charter, granted under specific and precise conditions, given away to others, extraconstitutionally? Have this generation in that state the right to do this?

If the states are sovereign, only within a constitutional structure (see the case of Lincoln vs. Davis), how can we legitimize an extraconstitutional relationship between any sum of those states? They can't engage in treaty arrangements, can they? (although the Governator made one with Blair a while back I notice).

And the Lincoln vs. Davis thing sorta strikes a chord with me, now that I think about it. This thing just don't feel right, on its face.
4.28.2009 3:22pm
rosetta's stones:
...and to amend my previous statements, I'd also rather by governed by the first 50 pancake race finishers than the faculty at Harvard.
4.28.2009 3:31pm
martinned (mail) (www):
@rosetta's stones: States do enjoy a degree of sovereignty, but that sovereignty is not logically connected to their ability to exercise plenary power over they manner in which their electoral college representatives are chosen. It might have been different before the 17th amendment, but so it goes. Given the situation as it is, amending the constitution to abolish the electoral college altogether would not represent a reduction in state sovereignty. It is the people whose sovereignty is expressed in the election process. The states simply make certain laws to make elections possible.

If the legislature of a state made its lawmaking procedure somehow dependent on an official act by an official of another state, that would be a problem. Here, the state simply uses its power to decide how the popular vote gets translated into an electoral college delegation. Its power to do so certainly has limits, imho, but NPV is OK because it is still democratic, in a general sense, and it still gives weight to the votes cast in the state itself. The fact that each state's certification of the result binds all other states does not seem particularly problematic, since no element of state sovereignty is involved here.
4.28.2009 3:39pm
cboldt (mail):
I never considered the Constitution have function only procedures that are amenable to whatever function the electorate intends.
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I would focus on the phrase "whatever function the electorate intends," and if the intention of the electorate is overlooked or thwarted, then I would fine a problem - and I think you would say "no problem, as long as the literal text can be forced to fit."
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I can see how you defend the principle that a state could be free to assign Canadians the role of choosing a state's electors, without running afoul of the constitution, but I find the method you are using to be void of the (not directly stated in the constitution) principle of accountability to the electorate.
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As you say, our positions are irreconcilable; and hopefully the basis for that difference is clear to casual readers.
4.28.2009 3:41pm
trad and anon (mail):
Yeah, I get the idea that the E.C. was an inducement for smaller states to join the federal government. I'm not sure that's a sufficient reason to keep it. But again, I think the E.C. is relatively small change next to the Senate, where the real affirmative action for small states is.

Neither the EC nor the Senate were actually the result of adherence to some grand matter of principle. They were the result of compromises between representatives of the large and small states. Of course, rhetoric about principles was fabricated to defend the EC and the House/Senate system, but in reality it was all about unprincipled compromises between political factions, the same way politics works today.

The Framers were politicians, not gods. If their system were perfect, we wouldn't have had to amend it so many times. Note in particular Amendments 1-10, 13-15, 17, 19, 23-26.
4.28.2009 3:50pm
Joseph Slater (mail):
Trad and anon:

Oh yeah, absolutely. And to get specific, there was the whole slave state / non-slave state thing too. . . .
4.28.2009 4:08pm
snark 57:
Re: "The Senate can get along just fine with one less senator, not so the presidency."

I dunno, I'd like to see us try. Granted, no one would be around to run General Motors, but so what?
4.28.2009 4:11pm
Oren:

I would focus on the phrase "whatever function the electorate intends," and if the intention of the electorate is overlooked or thwarted, then I would fine a problem - and I think you would say "no problem, as long as the literal text can be forced to fit."

Interesting, since I was going to post earlier in the thread about my preference for enacting the NPV by initiative or ballot petition in each state rather than by legislature. What does that do for you?
4.28.2009 4:18pm
Dan28 (mail):

Unlike recognition of another state's laws, contracts, etc., isn't an NPV state compact something different, which places a state's electoral outcome and fate in another state(s) hands? Their state law and sovereignity surrendered to an outside entity? Their charter, granted under specific and precise conditions, given away to others, extraconstitutionally? Have this generation in that state the right to do this?

Not really. The state isn't giving anything away. The state gets to decide how they will appoint their electors. When they decide to appoint their electors by considering the overall national vote of the country, they are exercising their Constitutional authority. But the sovereignty remains with the state. You can tell that the sovereignty remains with the state because if they subsequently decided to change their process and return back to the current system, they would be free to do so.

The reason people see this as a Constitutional problem is, IMO, basically just inertia - we've been dealing with the electoral college as it is for so long that it feels like that process is an inherent part of our government. But it is NOT the system designed by the framers, and it is not a system mandated by our Constitution. It's just tradition. And specifically, it's a bad tradition.
4.28.2009 4:25pm
Oren:

I find the method you are using to be void of the (not directly stated in the constitution) principle of accountability to the electorate.

Suppose arguendo that a State legislature assigns the job of deciding the electors to Canadians and then a popular election of the State legislature intervenes and the people of the State reelect that same exact legislature. What does that do for you?
4.28.2009 4:25pm
D.O.:
May I ask NVP supporters to stay they opinion on how national elections will affect two-party system.
4.28.2009 4:35pm
Dan28 (mail):

May I ask NVP supporters to stay they opinion on how national elections will affect two-party system

Hm? I don't think there would be much of an impact either way. Presumably, the NPV statutes would be written in a way that would award votes to the popular vote winner, even if that winner received only a plurality. So the same factors that lead towards a two party system today - e.g. the fact that a vote for a fringe candidate who might be a first order preference would take away votes from a mainstream candidate who is a second-order preference - would still be in effect in a NPV system. I suppose there are some in deep red or blue states that currently vote for third party canidates in part because they know that their votes don't actually matter anyway, and those people might end up voting for mainstream candidates instead. And the NPV system would pretty much end any hope of a purely regional third party candidate, such as George Wallace, Strom Thurmond, etc. But IMO that's no great loss. So generally I'd say if there's an impact, NPV would slightly reinforce the dominance of the two party system, but that impact would be mild (in part because the two party system is so entrenched that it is virtually unassailable).

At least, that's what I would think.
4.28.2009 4:41pm
cboldt (mail):
-- my preference for enacting the NPV by initiative or ballot petition in each state rather than by legislature. What does that do for you? --

The Constitution is built on some underlying assumptions, among them that states are to act independently and will act in their own self-interest when it comes to empowering a community federal government. NPV is an end-run around those principles. If those who favor NPV are to prevail, the honest way is to amend the Constitution.
@ 12:07pm
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The constitution sets out Electoral college. It can't be read (with anything resembling intellectual honesty) to, at the same time, admit NPV.
@ 12:33pm

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-- Suppose arguendo that a State legislature assigns the job of deciding the electors to Canadians and then a popular election of the State legislature intervenes and the people of the State reelect that same exact legislature. What does that do for you? --
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Your hypo doesn't cure my complaint. 1) Legislatures have been known to enact individual matters that run afoul of the constitution, and then become re-elected, but more directly to my beef, 2) in your hypo, the legislators are executing an assignment that isn't theirs to make. Not that it's impossible for a legislature to enact an unconstitutional matter; my point is simply that avoiding the EC by means other than constitutional amendment is unconstitutional.
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On a much smaller scale, I have a beef with the way the Senate abuses cloture. Obviously, it's possible for them to do so, it's been used hundreds of times in order to avoid taking a vote when all the (Senate) voters know exactly how they would come down. It's the not-uncommon character flaw of elevating form over substance.
4.28.2009 4:41pm
rosetta's stones:
OK, let's scrap winner take all of a state's electoral votes, and just elect members of the electoral college by Congressional district, like they do in at least a couple states as I recall (Nebraka and Maine?). The extra 2 per state go with the state total vote %.

I'm assuming that'd pass constitutional muster, as it's current practice to some extent.

No state compact. The people are sovereign, as martinned mentions. Let's let those states who want this push for it, as a far simpler course than I see being charted above.

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And I have another rabblerousing, anarchical amendment to offer. I want this nonsense of each Congressional rep representing 3/4 million people to end. That number should never have been frozen at 435, and those guys should be repping no more than the original proportion of the population as 1789 or so.

Fire as many Congressional staffers as we add Reps, to pay for it. Those new Reps can work for a living, and some of that work can take place back in their districts as they telecommute. And we can haul them out of office easier this way, if they're less entrenched. /rant
4.28.2009 4:50pm
Oren:

Your hypo doesn't cure my complaint.

Well, they cured one of your complaints. To wit:

I don't give "in a manner" the breadth of scope that you do. I think "in a manner" has inherent, unstated constraints that revolve around accountability to the electorate.

Both the initiative-NPV and the re-elected-legislature-NPV are cured the deficiency of not being accountable to the electorate -- at least I think they do.

Sorry if I wasted clear which principle I was trying to vindicate.
4.28.2009 4:59pm
Oren:

Those new Reps can work for a living, and some of that work can take place back in their districts as they telecommute.

I'm not sure the House can do business by telecommunication for the purposes of a Quorum as described in Art I.
4.28.2009 5:02pm
Oren:

On a much smaller scale, I have a beef with the way the Senate abuses cloture.

If we accept that a majority of the Senate would be sufficient to amend the Senate rules, isn't it effectively the same then? I mean, if 51 Senators are opposed to revoking the cloture rule aren't they endorsing whatever outcome comes of that rule?

Suppose Moe, Larry and Curly used to rule by unanimous consent only and Moe wants to change the rule to simple majority and takes a vote on changing the procedural rule with Larry &Curly opposed. When they later vote, if Moe and Larry vote for X and Curly opposes, isn't Larry's endorsement of the rules effectively an endorsement of ~X.

IOW, can't Curly say "I support X but I don't think it should be law unless it gets 3/3 votes"?
4.28.2009 5:06pm
trad and anon (mail):
May I ask NVP supporters to stay they opinion on how national elections will affect two-party system.

It will make it marginally more difficult for a third-party candidate to act as a spoiler. Nader pushed the 2000 election to Bush by impacting the result in Florida, but that wouldn't have mattered under NPV. For practical purposes this doesn't change much since third-party spoiler candidates are quite rare anyway.

The other effect would be that the Presidential candidates' concerns (and the President's concerns) would be less weighted towards swing states. No more of this nonsense where it impacts the President's NCAA bracket. This doesn't really change the two-party system though.
4.28.2009 5:10pm
cboldt (mail):
Well, they cured one of your complaints. To wit:
I don't give "in a manner" the breadth of scope that you do. I think "in a manner" has inherent, unstated constraints that revolve around accountability to the electorate.

You haven't grasped my complaint. Your hypothetical "they got elected (ergo they obtained accountability) after erring" didn't cure it (my contention that letting Canadians choose electors would be unconstitutional), period. You're just playing a sophists game of conflating rationale with result, etc., in order to defend your stance. Have at it. You know what I think of that form of argument, and the result that flows from it.
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Suppose Moe, Larry and Curly used to rule by unanimous consent only and Moe wants to change the rule to simple majority and takes a vote on changing the procedural rule with Larry &Curly opposed.
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We're just treading water on the same irreconcilable difference. The nominal function of cloture is to belay taking a vote until enough of the body has deliberated and reached a principled (and accountable) conclusion. I.e., "I know how I'm going to vote, and I'm able to defend my position." To have that state of mind, and still refuse to vote, is an abuse of the nominal function of cloture. Regardless of the cloture rule being 60%, 2/3rds (e.g., Robert's Rules of Order), 90% or 100%, a person who says "No vote" when he knows his position is abusing the literal language of the process. It's elevating "form" over the purpose/function. It's a sophist's game.
4.28.2009 5:25pm
Oren:

You haven't grasped my complaint.

Perhaps you haven't stated it clearly then. You complained that letting the legislature base their decision on external factors removes the fundamental principle of accountability to the electorate. However, if they approve (either method works), then it is accountable.

Approval (knowingly) is transitive. If A approves B and B did action C then A approves actions C. If the voters say they approve of the legislature after the legislature does X, then the voters approve X.


We're just treading water on the same irreconcilable difference. The nominal function of cloture

My example was actually about a body without cloture but that actually required unanimous consent in the final vote.


The nominal function of cloture is to belay taking a vote until enough of the body has deliberated and reached a principled (and accountable) conclusion.

What about a different function from cloture: the desire to have broad support for measures? That is, the cloture rule is functionally no different than a rule of the Senate that would require 60 votes to pass a bill on the final vote.

Now, perhaps that runs afoul of the non-supermajority requirements for bills in the Constitution (although it's an exclusio argument that I don't quite buy, accepting it for now). In that case, the solution is fairly simple -- there will be an "unofficial pre-vote" and 51 Senators agree amongst themselves that if the pre-vote doesn't get to 60, they will oppose the bill.

If the Senate can accomplish 60-votes-for-passage by this method, which is undoubtedly Constitutional, then it ought to be able to do so by any other means, since you said that form matters less than purpose and function.
4.28.2009 5:45pm
D.O.:
cboldt: but if it were true that 60% for cloture is needed only for substantial debate, the senate could easily amend the rule and say "60% for cloture or 50% after X hours of debate", but they didn't. Ergo, there is another reason.
4.28.2009 5:46pm
gasman (mail):

Just how does one actually arrive at a national popular vote.

Dude, RTFA. The NPV compact specifies that each Secretary of Elections (whatever the actual title) must accept as binding the vote totals from all the other, respective, Secretaries of Elections.

Don't cop 'tude with me dude.
Oren: I was asking a rhetorical question. I know what the text said and how they define a vote total. But the political definition of a vote total, while determining the outcome, is not necessarily the vote total that the average joe might rightfully expect to be the vote total. But we all know that those vote totals can be inflated by liberal use of multiple voting. My point was then that once in place, this system has the potential for substantial gaming.
4.28.2009 5:47pm
D.O.:
Oren:

the cloture rule is functionally no different than a rule of the Senate that would require 60 votes to pass a bill on the final vote.

It denies senators "voted for it before voting against it" rational that they like so much. And real cloture rule is used in between "need more debate/want more concessions" and "60 is a threshold".
4.28.2009 5:53pm
D.O.:
One of the problems with NPV is that it establishes national elections without national system to control the elections. There will be a lot of abuse of the system because of that. For now, the states (who have the power to police elections) are interested (at least in principle) to know how actually the majority votes, under NPV they might be interested more in beefing up preexisting majorities and those who will be unsatisfied will be in (quite obviously) minority.
4.28.2009 6:01pm
cboldt (mail):
-- Perhaps you haven't stated it clearly then. You complained that letting the legislature base their decision on external factors removes the fundamental principle of accountability to the electorate. However, if they approve (either method works), then it is accountable. --
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That argument proves too much. By equating "accountable because of re-election," with "constitutional," everything passed becomes constitutional. My objection is on a fundamentally different level, although I can't point to constitutional text for the proposition. The proposition being that a body charged with making a choice should itself make that choice, and be accountable for it. A body that gives (or assigns) it's duty (and power) to choose away is in fact completely avoiding accountability (Hey, I didn't make this choice). Re-electing an "unaccountable scoundrel" doesn't render that past decision (made by others) into one that they made.
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IOW, you are finding "accountability" in a macro sense, while I am complaining about accountability in the sense of [not] taking a [direct] position on a discrete matter. I'm not measuring accountability by re-election, I'm taking stock of the legislator openly adopting a position, independent of inquiry into their ability to obtain personal electoral success.
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-- If the Senate can accomplish 60-votes-for-passage by this method, which is undoubtedly Constitutional --
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We've debated this in the context of "the House and Senate may make their own rules," and the result is the same. We're at loggerheads, and on the same general device of form vs. function.
4.28.2009 6:06pm
Oren:

We've debated this in the context of "the House and Senate may make their own rules," and the result is the same. We're at loggerheads, and on the same general device of form vs. function.

Except in this discussion you accuse me of elevating form over function, whereas I've shown that a majority of the Senate can require 60 votes for passage of a bill as a matter of function and it doesn't matter what form that restriction takes.


That argument proves too much. By equating "accountable because of re-election," with "constitutional," everything passed becomes constitutional.

You were the one that found an unstated principle hidden in the text that requires accountability to the electorate:

... but I find the method you are using to be void of the (not directly stated in the constitution) principle of accountability to the electorate.

I never had such a notion that the Constitution requires anything other than what the text commands. I was attempting to discern what sort of accountability would satisfy the principle that you stated is in there. IOW, I'm trying to feel for the contours of this principle and it's force.


The proposition being that a body charged with making a choice should itself make that choice, and be accountable for it.

I support that proposition -- to wit that the legislatures that direct the manner of choosing electors make the choice on how electors are chosen.


A body that gives (or assigns) it's duty (and power) to choose away is in fact completely avoiding accountability

Delegated power is still ultimately accountable though. If I leave the kids with the babysitter and he defers to my son about what to eat for dinner, I'm going to hold him accountable when they eat nothing but ice cream.

My boss delegated to me purchasing decision under his NIH grant. When the grant renewal comes up and the NIH is unhappy with the results, do you think "Hey, I didn't make this choice" is going to fly? Who would buy such an excuse?

How exactly does anyone delegate power to anyone under your theory of accountability? Mid-level managers could never let their underlings do anything. . .


Re-electing an "unaccountable scoundrel" doesn't render that past decision (made by others) into one that they made.

No, but it indicates approval of the choice to delegate and, by implication, approval of the ultimate choice made by the entity to which power was delegated.

If I keep hiring the delegating babysitter (in a crowded field of competing babysitters), doesn't that mean that I approve how he babysat?
4.28.2009 6:39pm
Oren:


IOW, you are finding "accountability" in a macro sense, while I am complaining about accountability in the sense of [not] taking a [direct] position on a discrete matter. I'm not measuring accountability by re-election, I'm taking stock of the legislator openly adopting a position, independent of inquiry into their ability to obtain personal electoral success.

But if I delegate a discrete matter to someone else, I'm still accountable (at least as I understand the word) for whatever direct position he ends up deciding. That is, there is an unbroken chain of accountability between myself, the delegatee, and the decision.
4.28.2009 6:52pm
cboldt (mail):
-- How exactly does anyone delegate power to anyone under your theory of accountability --
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That's a far cry from your straight-faced contention that it would be perfectly constitutional for state legislators to permit Canada to choose the president of the United States. Frankly, I'm at a loss to further rebut your conclusion. Just the same, I find your conclusion absurd.
4.28.2009 7:00pm
Gabriel McCall (mail):
The proposition being that a body charged with making a choice should itself make that choice, and be accountable for it. A body that gives (or assigns) it's duty (and power) to choose away is in fact completely avoiding accountability (Hey, I didn't make this choice).

According to this rule, there should be no popular vote for President. The constitution assigns the job of choosing electors to the state legislatures. For the state legislature to pass the buck to the populace is an evasion of its responsibility, right?
4.28.2009 7:02pm
rosetta's stones:
If we do decide to elect presidents by popular vote, we need to go back to the good old days and make the 2nd place guy the vice president. Be good to see the VP out sniping at the president, doing something useful for our politics, rather than hiding in the secure undisclosed location.
4.28.2009 7:03pm
Matthew Carberry (mail):

Given the (maybe now cliche) correlation between voting red and having the Federales spend more in your State than it sends back in Federal taxes, perhaps you should rethink this "divide".


Federal money is not apportioned per capita thus to use a per capita method to compare states' receipt of it is meaningless if not outright deceptive.

Compare rather the amount of Federally-owned land and property in a given state, land which both costs the Feds money to maintain and which is at least partly removed from being a self-support income source for the individuals and government of that state and you'd have a more accurate comparison.

Federal Lands in The US

Throw in the staggering comparative logistical costs of maintaining large amounts of Federal property in remote areas, often with adverse climates, versus more developed states and the raw numbers become a whole lot less convincing source of snark.
4.28.2009 8:29pm
Cornfed (mail):
Dan, the last federal Democratic Primary season showed that neither Iowa nor New Hampshire are unduly over-represented in the electoral system.

To the extent one might think they are, I would posit that our lazy media, which can't bother to "report" on anything other than the latest poll results coupled with an electorate that is typically disinterested in politics until shortly before the election are to blame for "crowning" and following the winners of the early primaries.
4.28.2009 8:38pm
Allan Walstad (mail):

In order to preserve the power of the states (each of them, not just the smaller ones) as against the federal government.

This was true before the ratification of the 17th amendment, but now it makes no sense.

No, THAT claim is what makes no sense. Just because states (foolishly) gave up some of their power via the 17th amendment does not mean they gave up other power.

An amendment can remove the provision in Art V that prevents amendments from changing the Senate.

Nonsense on stilts. If the provision in Article 5 guaranteeing equal suffrage in the Senate could be removed by the amendment process, it would never have had any more meaning that an inkblot. The Constitution provides a mechanism for amendment, with two specific exceptions, one of which expired in 1808. The other is that equal state suffrage in the Senate cannot be amended away. Don't like that? Be my guest and secede, start your own country with a different constitution.
4.28.2009 8:44pm
trad and anon (mail):
Either way it seems easier to amend the Constitution to turn the Senate into a mostly ceremonial body. We can still let it vote on Cheese Appreciation Month.
4.28.2009 9:36pm
Oren:

Throw in the staggering comparative logistical costs of maintaining large amounts of Federal property in remote areas, often with adverse climates, versus more developed states and the raw numbers become a whole lot less convincing source of snark.

The total budget for the BLM + USFS + USFWS +NPS is < $10B. The total budget of the US is $3000B.

I can safely say that your objection to not counting 0.3% of the total budget properly is totally meaningless and that my snark thankfully remains entirely intact.
4.28.2009 9:44pm
Oren:

Nonsense on stilts. If the provision in Article 5 guaranteeing equal suffrage in the Senate could be removed by the amendment process, it would never have had any more meaning that an inkblot.

Where does it say I can't amend Article 5 by the usual (Article V) process? I mean, I understand liberals find hidden meaning and words in the Constitution but I'm finding, from this thread, that Conservatives can invent clauses out of thin air.
4.28.2009 9:46pm
Oren:
Incidentally, our esteemed TZ does not agree with your characterization. It's an open question whether Art V can be amended by the usual amendment process.
4.28.2009 9:51pm
Allan Walstad (mail):

Where does it say I can't amend Article 5 by the usual (Article V) process?

In Article 5.
4.28.2009 9:58pm
Oren:

In Article 5.

You must have a different Article V than mine.

Mine says you can't remove equal suffrage in the Senate or abolish the slave trade before 1808. What does your say?

[ Note here the tension between textualism and original intent originalism.]
4.28.2009 10:00pm
Allan Walstad (mail):
Ore,

I have a little maroon book from the CATO Institute with the Constitution. In it Article 5 reads:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of the Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification my be proposed by the Congress; Provided that no amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Maybe those libertarians at CATO tried to pull a fast one by sneaking extra verbiage?
4.28.2009 10:11pm
Allan Walstad (mail):
I could have saved myself the trouble--mine says what yours says, namely that Article 5 can't be amended to deprive a state of equal suffrage in the Senate.
4.28.2009 10:14pm
Oren:

I could have saved myself the trouble--mine says what yours says, namely that Article 5 can't be amended to deprive a state of equal suffrage in the Senate.

You are right. An amendment that removed the last clause "and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." does not deprive any state of equal suffrage in the Senate. In fact, it does not modify the Senate at all!
4.28.2009 10:20pm
Allan Walstad (mail):
The passage in Article 5 forecloses using the amendment process to deny a state's equal suffrage in the Senate. That's why you can't amend it for the purpose of denying a state's equal suffrage in the Senate. I suppose the Framers could have anticipated your silly little wordplay by adding a line to the effect that Article 5 itself could not be amended--but perhaps they assumed their writing would be interpreted by honorable men, not shysters. As I pointed out earlier, the equal suffrage line would have been a nullity from the start if it could be amended away. If Constitutional provisions can be reduced to inkblots, then there is no Constitution. Maybe that's what we're coming to. Is that what you want?
4.28.2009 10:45pm
Oren:
Silly little wordplay, of course, being reasoning adopted by Akhil Amar and countless other Constitutional scholars.

Let's try something else. The Art V amendment process can be used to create a new legislative body with non-equal State representation, call it the "Renate" and transfer to it all the Senatorial duties. Treaties: advise and consent, the whole shebang (simple find + replace). Does that pass Art V muster, or does the "intent" of the Article V clause also limit changing the powers of the Senate itself?

This is why I am a textualist, not an originalist. Originalism is fraught with impossible limiting-case problems like this -- we know the intent but we don't know how far its scope goes. It's cleaner, unambiguous and does not lead to logic problems where form matters more than function since, in my example, I've accomplished everything except in name.

At least in my version of logic, changing the name of something but leaving the properties intact ought not to make a difference as to whether it passes Constitutional muster.
4.28.2009 10:59pm
Oren:

If Constitutional provisions can be reduced to inkblots, then there is no Constitution. Maybe that's what we're coming to. Is that what you want?

And if brand-new Constitutional limitations can invented out of thin air, then there is no Constitution either. I could be pedantic and ask if that's what you want, but I know it isn't.

You think you can apply some intent-based analysis in a systematic way, but it will get away from you.
4.28.2009 11:00pm
Oren:
... It's cleaner, unambiguous to rely solely on the text and does not lead to logic problems ...
4.28.2009 11:01pm
Allan Walstad (mail):
Whatever may be said for "relying on the text," conjuring up gimmicks to turn the Constitution on its head is something else. The Constitution provides a mechanism for amendment with two exceptions. Those are the rules. Obey them. Don't try to find clever ways to get around them. Save that for divorce court.

If there ever was an argument for following the clear intent, you've made it here. It is unfathomable to me that you could seriously believe that that tawdry "two amendments" ploy could be valid. If Akhil Amar and others would go that route, so much the worse for them. And if this is the state of Constitutional law, thank God Madison and the others aren't here to witness the hash to which their work has been reduced.

"Renate" indeed.
4.28.2009 11:34pm
Oren:
So do you seriously contend that Art V cannot be used to create the Renate will all the powers of the Senate, or do you think we should not do so as a matter of policy.

Policy and law are quite different ya know.
4.29.2009 9:13am
rosetta's stones:
Oren, will the renators now be submitting rue slips to block judicial nominees? ;-)
4.29.2009 9:36am
cboldt (mail):
-- It's cleaner, unambiguous to rely solely on the text and does not lead to logic problems where form matters more than function --
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Fealty to textualism is precisely the elevation of form over substance. E.g., you find the bizarre [Canada choosing the president of the United States] to be perfectly constitutional.

[cboldt] giving outside interests the power to choose a state's own electors is bizarre.
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[Oren] Indeed. "In a manner that the legislature thereof shall perscribe", however, does not exclude the bizarre. @ 4.28.2009 2:21pm
4.29.2009 9:42am
Dan28 (mail):

Fealty to textualism is precisely the elevation of form over substance

Man, where do you get this stuff from? The text of the Constitution IS the substance. I'm not a textualist in the formal way that Oren is - I think the idea of a pure interpretation of Constitutional text independent of context is unrealistic - but clearly any matter of Constitutional interpretation starts with what the document actually says, not with vague, unattributed and undefended assertions about the meaning of sovereignty.
4.29.2009 10:25am
cboldt (mail):
-- The text of the Constitution IS the substance --
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On the off chance that you really didn't understand my comment, feel free to subsstitute "function" for "substance" in my original.
4.29.2009 10:36am
Oren:

Oren, will the renators now be submitting rue slips to block judicial nominees? ;-)

The Renate has the authority to define its rules, much to cboldt's dismay.
4.29.2009 11:18am
Oren:

I'm not a textualist in the formal way that Oren is - I think the idea of a pure interpretation of Constitutional text independent of context is unrealistic - but clearly any matter of Constitutional interpretation starts with what the document actually says, not with vague, unattributed and undefended assertions about the meaning of sovereignty.

I would add that, if "what the document actually says" is clear enough to construct in the case or controversy, that's both the start and the end of the interpretation.

In cases where "what the document actually says" is insufficient to construct ("unreasonable search and seizure", "due process") then you have license to start fishing for historical intent.
4.29.2009 11:23am
Dan28 (mail):

I would add that, if "what the document actually says" is clear enough to construct in the case or controversy, that's both the start and the end of the interpretation.

I agree. And I think that principle applies perfectly to the question at hand based on the clear text of Art. II Sec. 1.
4.29.2009 11:35am
cboldt (mail):
-- The Renate has the authority to define its rules, much to cboldt's dismay. --
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LOL.
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As a matter of repetition though, our irreconcilable difference is rooted in the scope of authority. I don't give "determine the Rules of its Proceedings" the breadth of scope that you do. I'm not dismayed at "Each House may determine the Rules of its Proceedings," per se. What I find as ridiculous is your extension of that power to admit a minority of the Senate to obliterate a constitutional power of the executive.
4.29.2009 11:40am
Oren:

What I find as ridiculous is your extension of that power to admit a minority of the Senate to obliterate a constitutional power of the executive.

Except it's not the minority. If 51 Senators agreed, the could abolish cloture. It's THOSE 51 Senators that refuse to abolish cloture that are the ultimate (not proximate!) cause of the nominations to fail.

It's a bit like the transitive authority we were talking about earlier. If you support a rule that leads to an outcome, you support that outcome. When the Gang of 14 agreed not to abolish cloture, each and every one of them are individually responsible for the failure to get the filibustered nominees confirmation.

The Senate majority determines the rules, and by extension every outcome of the rules they determined.
4.29.2009 11:53am
Oren:
Quick Edit:

to get the filibustered nominees confirmed.


This is another case of form v. function. You contend that a minority is blocking the nominations. I contend that a majority is because, no matter what the form of the refusal is, it's clear that if 51 Senators wanted them confirmed, they could be confirmed.
4.29.2009 11:56am
cboldt (mail):
-- The Senate majority determines the rules, and by extension every outcome of the rules they determined. --
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Which is exactly what "extension of that [rulemaking] power to admit a minority of the Senate to obliterate a constitutional power of the executive" is. And so, by Senate rule, and your logic, you find it perfectly constitutional for a minority of Senators to obliterate the power of the executive to appoint. In fact, IIRC, you find that giving this power to a single Senator would be constitutional, if the Senate decided to establish a "unanimity for confirmation" rule under the constitutional "Each House may determine the Rules of its Proceedings" power.
4.29.2009 12:14pm
rosetta's stones:
cboldt, I have to agree with you here, the filibuster is often abused.

But we can fix that, by changing the rules. When we amend the constitution to create the Renate, we'll add in the formal rules for a rilibuster, so we can pour regislation into the Renatorial raucer to cool. That makes it all Ronstitutional.
4.29.2009 12:16pm
cboldt (mail):
-- That makes it all Ronstitutional. --
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I'm envisioning Ron Popeil!
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On the subject of interpretation of the Constitution, I'm mindful that my opponent holds that "Decide which bills to pass by throwing darts is what it means to be a deliberative body" (conditional on the body agreeing to "deliberate by not deliberating").
4.29.2009 12:29pm
rosetta's stones:
Carry on, and never mind my smartass remarks. This is a very interesting discussion you guys are having here, civil and informative (those torture threads are torture).
4.29.2009 12:53pm
mvymvy:
the U.S. Constitution does not require that the election laws of all 50 states are identical in virtually every respect. The Equal Protection Clause of the 14th Amendment only restricts a given state in the manner it treats persons "within its jurisdiction." The Equal Protection Clause imposes no obligation on a given state concerning a "person" in another state who is not "within its [the first state's] jurisdiction." State election laws are not identical now nor is there anything in the National Popular Vote compact that would force them to become identical. Indeed, the U.S. Constitution specifically permits diversity of election laws among the states because it explicitly gives the states control over the conduct of presidential elections (article II) as well as congressional elections (article I). The fact is that the Founding Fathers and the U.S. Constitution permits states to conduct elections in varied ways.

It is important to note that neither the current system nor the National Popular Vote compact permits any state to get involved in judging the election returns of other states. Existing federal law (the "safe harbor" provision in section 5 of title 3 of the United States Code) specifies that a state's "final determination" of its presidential election returns is "conclusive"(if done in a timely manner and in accordance with laws that existed prior to Election Day).

The National Popular Vote compact is patterned directly after existing federal law and requires each state to treat as "conclusive" each other state's "final determination" of its vote for President. No state has any power to examine or judge the presidential election returns of any other state under the National Popular Vote compact.

Current federal law (Title 3, chapter 1, section 6 of the United States Code) requires the states to report the November popular vote numbers (the "canvas") in what is called a "Certificate of Ascertainment." You can see the Certificates of Ascertainment for all 50 states and the District of Columbia containing the official count of the popular vote at the NARA web site at http://www.archives.gov/federal-register/ electoral-college/2004/certificates_of_ascertainment.html
http://www.archives.gov/federal-register/ electoral-college/2008/certificates-of-ascertainment.html
4.29.2009 1:13pm
Oren:

And so, by Senate rule, and your logic, you find it perfectly constitutional for a minority of Senators to obliterate the power of the executive to appoint. In fact, IIRC, you find that giving this power to a single Senator would be constitutional, if the Senate decided to establish a "unanimity for confirmation" rule under the constitutional "Each House may determine the Rules of its Proceedings" power.

Except that I would no attribute that refusal to the minority, but to the majority that allows it to happen. A minority of Senators cannot do anything because 51 Senators can, at any time, rewrite the rules.


if the Senate decided to establish a "unanimity for confirmation" rule

Then, in any instance where 1 Senators holds up a confirmation, I would attribute that refusal not to him individually but to the 51 Senators that established the rule.
4.29.2009 2:27pm
Oren:

(conditional on the body agreeing to "deliberate by not deliberating")

You enclose it in a parenthesis, I want to bold it.
4.29.2009 2:34pm
Oren:
Another hypo. Let's say A,B,C,D and E are in a deliberative body. ABC vote for an 80% threshold for passage, DE vote for majority passage. A bill comes up. AB vote against, CDE vote for -- the bill fails.

cboltd said: "The minority killed this bill, that's not right"

I said: "The majority (ABC) killed this bill"

Now I'm rethinking it in terms of my (initially blase) distinction between proximate and ultimate causes. There are a number of factually correct but seemingly contradictory statements that can be made.

(1) A majority (ABC) has empowered a minority (AB) to kill the bill.

(2) A majority (CDE) could have passed the bill, had they all voted for majority passage.

(3) A minority (DE) want to allow a majority (CDE) to pass bills over the objections of another minority (AB).

Hmmm, this is actually trickier than I originally thought. It's starting to sound like a species of Arrow's impossibility theorem ...
4.29.2009 3:10pm
David Schwartz (mail):
I think the compact would reach a majority much faster if States agreed to give their electoral votes to the candidate that received the largest popular vote in only the States that are members of the compact. And in that case, it could take effect before it even reached majority -- say by making the compact mandatory once it has a majority but allowing States to opt in the year before each election until it does.
4.29.2009 3:54pm
Oren:


(3) A minority (DE) want to allow a majority (CDE) to pass bills over the objections of another minority (AB).

Interestingly, as my colleague over here with whom I was discussing this pointed out, cboltd's point of view is that the minority of Senators that want simple-majority-passage (as evidence by the G14) ought to override the majority. Of course, they are doing so with the aim of allowing a different majority to override a different minority in an entirely different situation.

The more I think about it, the more it hurts my head. My position is contra-majoritarian because a majority empowers a minority to override a majority, cboltd's position is contra-majoritarian because, in it, a minority has the right to override a majority on the issue of whether a minority has the right to override the majority.

This is the cleanest way to prove, essentially, that "majoritarian" is mathematically impossible in the situation where the majority of the body in the Senate prefers a non-majoritarian ruleset.
4.29.2009 4:06pm
cboldt (mail):
My construction of our argument comes, I think, from a radically different perspective.

.

You say the Senate can, without running afoul of the constitution, make and apply a rule that says "unanimity is required for confirmation." You find authority for the proposition in "Each House may determine the Rules of its Proceedings." So, as far as you are concerned, the unanimity rule is constitutional. Period. It matters not if it can be reversed, or on the contrary, if there is no inclination to reverse it. The mere fact that it exists pursuant to "Each House may determine the Rules of its Proceedings" makes it constitutional.

.

To go on one step deeper, assume this rule is in place for 10 years (or perpetually, it doesn't matter for purposes of analysis). During this period, a minority of the Senate has and exercises the power to obstruct appointments. "Constitutional obstruction" says you (and at this point, a minority of the Senate is obstructing the executive appointment power), because the rule was placed pursuant to a constitutional power of the Senate.

.

The argument that "the obstruction is by the majority, because the majority made the rule" doesn't address the constitutionality of the rule itself. There is direct parallel in legislation, when a majority of Congress passes an unconstitutional law. The fact that a majority passed the law pursuant to the power to legislate doesn't make the law constitutional.

.

My point: even if a majority of the Senate has the constitutional power to erect a unanimity rule for confirmations doesn't mean that a unanimity rule for confirmations is constitutional. I think the scope of "Each House may determine the Rules of its Proceedings" is constrained. In the area of nomination, confirmation and appointment, I think a unanimity (or supermajority) rule for confirmation represents an unconstitutional encroachment on the executive's appointment power.

.

Separately, I'm incredulous that you would emphasize "deliberate by not deliberating" as somehow validating your argument. "Deliberate by not deliberating" is nonsense, not a point of logically coherent thought.
.
One fine day in the middle of the night,
two dead men got up to fight.
Back to back they faced each other,
Drew their swords and shot each other.
4.29.2009 5:18pm
rosetta's stones:
I don't think recognizing the f'buster as being sometimes abused is so much pro or contra majoritarian as it is pro-constitutional, i.e. why scrap over the reasons why we're curbing it, if we can find constitutional agreement that that's what we should be doing. That pulls a few of those "contra" variables out of your equation, and it becomes just a 1st degree polynomial.

I appreciate the Senate as a place for passions to cool, and think it still performs that function yet today, with the filibuster sometimes (illegitimately?) being a part of that cooling process. But the f'buster does seem to have been introduced into these executive appointment confirmations only recently, and not sure that serves us well, and it raises the hackles of those who think the executive should get a guy after advise and consent (advice and a vote, rather than a no comment, which implies they are permitted to define what is advise and consent).

As for the legislation they produce themselves, as a body? Have at it, gang, and break out the dartboard and flipcoins if you dare. Although I believe there's sometimes constitutional mischiefmaking there too, when the bodies get into those reconciliation meetings and start jacking with the work products from the individual bodies.

Not that any of the congresscritters bother reading those work products, but still they voted on them or at least witnessed the coinflip, so that should be respected.
4.29.2009 5:32pm
Oren:

During this period, a minority of the Senate has and exercises the power to obstruct appointments with the implied consent of the majority that continue to shoot down attempts to change the rule.

.

The argument that "the obstruction is by the majority, because the majority made the rule" doesn't address the constitutionality of the rule itself. There is direct parallel in legislation, when a majority of Congress passes an unconstitutional law. The fact that a majority passed the law pursuant to the power to legislate doesn't make the law constitutional.

But the power of the Congress to legislate is limited to enumerated powers whereas there are no enumerated limitations on the latter (let alone a situation where it is restricted to enumerated powers!).


In the area of nomination, confirmation and appointment, I think a unanimity (or supermajority) rule for confirmation represents an unconstitutional encroachment on the executive's appointment power.

Except that I still contend there is not now and cannot ever be such a unanimity rule or supermajority rule for confirmation or appointment. There is only the rule by which a bare majority of Senators prevents it from going to a vote. Does not a bare-majority of Senators has the right to prevent an appointment from coming up for a vote?

How is this any different from a gentleman's agreement between a majority of the Senators that says this:

(1) We shall all vote for a rule change that provides for automatic cloture after $SMALL_NUMBER hours of debate.

(2) During the first 10 minutes of each vote, none of us will vote Aye. If, at the end of the first 10 minutes, there are any Nay votes, we each pledge by our honor to vote Nay as well.

I grant that it is a dick move (for lack of a more precise formal term), but is this agreement an unconstitutional encroachment on the executive power?

If so, what support do you have for the right of the Executive to forbid the Senators making a private oath on their honor?

If not, then by what logic do you forbid the Senator from encoding their agreement as a "rule of the Senate". As I understand it, the rules of the Senate are nothing more than a gentleman's agreement anyway, except that they survive intact between sessions by custom. When a Senate changes a rule, the old rule is void and the new procedure is now part of the official "rules of the Senate".

IOW, it seems to me the "rules of the Senate" no more bind the majority of Senators sworn than a gentleman's agreement anyway.
4.29.2009 5:59pm
cboldt (mail):
-- cboltd said: "The minority killed this bill, that's not right" --
.
My initial comment, [] additions for clarity, was:
I find as ridiculous is your extension of that [rulemaking] power to [create a rule that will] admit a minority of the Senate to obliterate a constitutional power of the executive.

Your example is not parallel with that comment. Substitute "confirmation" for "pass the bill." The question becomes whether or not the 80% rule erected by ABC (which in fact permits 21% of the voting body to withhold the body's confirmation) is "right" in light of the power the constitution gives to the executive, to appoint officers. Is the rule in harmony with the constitution?
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Anytime the process for passage or approval involves a supermajority threshold, the minority has the power to withhold passage. Before I started debating with you, I thought that would go without argument.
4.29.2009 6:01pm
Oren:
#define simple-majority-up-or-down SMUD


[Declaring anything but SMUD unconstitutional] pulls a few of those "contra" variables out of your equation, and it becomes just a 1st degree polynomial.

No it doesn't. It empowers the minority of Senators that want SMUD to overrule the majority of Senators that don't want SMUD. That's just not how deliberative bodies work -- the minority is not allowed to set the rules in defiance of the wishes of the majority.

At any rate, declare it unconstitutional and force the Senators to do it informally. Their right to logroll amongst themselves (and, by extension, to negate SMUD) is protected by speech &debate.

On a more political level, even if you could do it, what good does imposing SMUD on an unwilling Senate accomplish? If the Senate is already inclined to play hardball, surely outlawing their (from their POV) venerable rules and traditional prerogatives isn't going to ingratiate you any more. You are going to get even harder ball played against you and alienate whatever (minority) support you had in the Senate in the first place.
4.29.2009 6:08pm
Oren:

The question becomes whether or not the 80% rule erected by ABC (which in fact permits 21% of the voting body to withhold the body's confirmation) is "right" in light of the power the constitution gives to the executive, to appoint officers.

The Constitution gives to the Executive the right to appoint officers with the consent of the majority of the Senate. If ABC don't consent, he has no right to make that appointment. ABC don't consent that CDE-alone should be sufficient for consent. Therefore ABC don't consent.

Why should it matter if ABC make a rule that 80% is required or if, seeing that only 60% vote are voting in favor, C switches his vote to ensure the 80% rule remains intact?
4.29.2009 6:13pm
Oren:


Anytime the process for passage or approval involves a supermajority threshold, the minority has the power to withhold passage. Before I started debating with you, I thought that would go without argument.

Your view of "process" is too rigid here. The process include both the rules themselves and the meta-rules by which the rules are changed (and the meta-meta-rules by which the meta-rules are changed, ad infinatum, but past n=2, there is no point).

The process is always that the majority controls the outcome entirely and without limitation. The fact that they chose to do so by convoluted means is irrelevant.
4.29.2009 6:17pm
Oren:
Just to clarify, I would agree with that statement if "process" were something fixed at the beginning of each Senate term (some Senators used to believe that, unfortunately, which clouds the debate).

Otherwise, what you refer to as "process" is really "normal sub-process" than can be modified by this larger process that sits on top of it (and is logically superior, in a sense). And that larger process is the normal procedure by which a bare majority of the Senate may amend it as they please.

What you've identified is not the "process", it's just something that the Senators have created voluntarily amonst themselves as a matter of collegiality.
4.29.2009 6:24pm
cboldt (mail):
-- But the power of the Congress to legislate is limited to enumerated powers whereas there are no enumerated limitations on the latter --
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I agree. But you are holding firm that there is no constraint on the Senate's rulemaking power, and it is that point (constraint on rulemaking power) where you and I are in disagreement.
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-- Except that I still contend there is not now and cannot ever be such a unanimity rule or supermajority rule for confirmation or appointment. --
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Perhaps I have you mixed up with somebody else. From memory, you held that the Senate could, without offending any aspect of the constitution, erect a unanimity rule for confirmation. This holding being based on the provision of the constitution that Each House may determine the Rules of its Proceedings, and an absence of constitutional text that prohibits the Senate from erecting a unanimity for confirmation rule.
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Or, perhaps you are arguing a technicality that is meaningless to the point. The technicality being that since there is no supermajority required for the confirmation vote proper, the existence of a supermajority requirement to get to the confirmation vote proper doesn't represent a supermajority requirement for confirmation. I don't think one can make a good faith argument that the cloture widget hasn't been wielded to give a minority of Senators the power to effectively block confirmation.
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-- If so, what support do you have for the right of the Executive to forbid the Senators making a private oath on their honor? If not, then by what logic do you forbid the Senator from encoding their agreement as a "rule of the Senate". --
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My point of view is that a unanimity rule for confirmation, if erected, would not be in harmony with the constitution, because it would empower a minority of the Senate to obliterate the power of the executive to appoint. I know of no device, other than the constitution itself, which stands in the way of erecting a unanimity rule for confirmation. That is to say, the Senate could erect such a rule, just as it is free to pass unconstitutional laws.
4.29.2009 6:30pm
cboldt (mail):
-- The Constitution gives to the Executive the right to appoint officers with the consent of the majority of the Senate. --
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The constitution doesn't have the word "majority" in there. It's simply "he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ..."
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In fact, the absence of the word "majority" is used by "minority power" proponents, in combination with the rulemaking power, to find that supermajority confirmation is perfectly inoffensive to the constitution, even to the extent that supermajority might become unanimity. "Not prohibited by the plain language."
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-- The process is always that the majority controls the outcome entirely and without limitation. --
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So the use of cloture to stifle getting to a confirmation vote is unconstitutional? Anytime a majority of Senators says "limit debate," that's it, contrary to the 60 vote line drawn by Rule XXII? What about Rule XXII that says 2/3rd are required to change the rule? How do you square that with your "majority controls" assertion?
4.29.2009 6:43pm
rosetta's stones:
I find myself agreeing with both of you, for the practical reasons Oren lays out re inter-branch comity and legislative body perogative, and the structural requirements cboldt sees as part of democratic process in a constitutional republic. I guess we were given inherent tensions to be continually resolved anew.

That said, I'd like to apply some extra-constitutional rope tension to a few necks in Washington, people who stay long enough to learn how to game a body's rules.
4.29.2009 7:00pm
cboldt (mail):
cboldt: Anytime the process for passage or approval involves a supermajority threshold, the minority has the power to withhold passage. Before I started debating with you, I thought that would go without argument.
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Oren: Your view of "process" is too rigid here.

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I was trying to make a simple statement of fact, and I had a particular "process" in mind in making the statement. Perhaps if I just flesh out the statement, you'll agree that it represents reality.
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In the Senate, the process for confirming a nominee involves obtaining unanimous consent to take the ultimate vote, or failing to get unanimous consent, the invoking of cloture, which requires 60 votes in the affirmative. This process permits a minority of Senators (40 now, 41 when the Senate is at its full 100 member complement) to prevent the Senate from voting on the confirmation of a nominee. Absent a vote on the nominee, the president is unable to appoint the nominee.
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This same power of withholding consent to take the vote on passage can also be used by a minority of Senators to withhold passage of an amendment or a bill, even though a simple majority is all that is required for ultimate passage.
4.29.2009 7:01pm
cboldt (mail):
-- The process is always that the majority controls the outcome entirely and without limitation. --
Directly butts heads with ...
-- ABC vote for an 80% threshold for passage --
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Because if 51% always controls the outcome entirely and without limitation, then 51% are free to ignore the 80% rule on account of it limits their power to entirely determine the outcome.
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I think I see where you're coming from (using "ability to make/change the rule" as a sort of surrogate for legitimizing the rule itself), and I'm not buying the argument that "all rules are inoffensive to the constitutional because any rule can be reversed" either.
4.29.2009 7:23pm
Rich Rostrom (mail):
A small point: Article V states

no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Therefore, the distribution of Senate seats could be altered provided all states consent. It might even be possible to do so with less than unanimous consent, provided that none of the non-consenting states lost representation relative to the others. Although it says "deprived of its equal suffrage", which might be interpreted to exclude granting increased representation without consent.

The suggestion that this prohibition could be worked around by multiple amendments is reprehensible.

There is a side point. Suppose the Constitution were amended to alter in some way the structure and poweres of the Houses of Congress. For instance, suppose the consent of the House of Representatives was additionally required for Supreme Court appointments. This would dilute the Senate's power, and diminish the power of each state's Senators. The small states would thus be deprived of their equal representation in that process. Would Article V prohibit such an Amendment?
4.29.2009 10:40pm
David Schwartz (mail):
RR: I think so, though it's far from clear.
4.30.2009 5:24am
Oren:

Perhaps if I just flesh out the statement, you'll agree that it represents reality.
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In the Senate, the process for confirming a nominee involves obtaining unanimous consent to take the ultimate vote, or failing to get unanimous consent, the invoking of cloture, which requires 60 votes in the affirmative. Or, failing to get cloture, the invoking of a motion to the chair to remove the cloture rule, which requires 51 votes in the affirmative.

Now it represent reality.
4.30.2009 8:03am
Oren:

From memory, you held that the Senate could, without offending any aspect of the constitution, erect a unanimity rule for confirmation. This holding being based on the provision of the constitution that Each House may determine the Rules of its Proceedings, and an absence of constitutional text that prohibits the Senate from erecting a unanimity for confirmation rule.

I'm not arguing a technicality, I'm arguing what I feel is a damn near fundamental point: A supermajority requirement that a bare majority can eliminate at any point is just not a real supermajority requirement. It represents no tangible restriction on the power of the majority.

Contrast the Senate minority's "power" to derail a confirmation with a minority of State's power to derail a Constitutional amendment. If the majority of the Senate gets sick of the cloture rule, they can remove it without the consent of the obstinate minority. If the majority of States get sick of the 3/4ths standard, they have to suck it up.
4.30.2009 8:12am
Oren:

I don't think one can make a good faith argument that the cloture widget hasn't been wielded to give a minority of Senators the power to effectively block confirmation.

I think it has, of course, not because the minority really has any power to do so, but because a majority of Senators prefer the combination 'cloture rule stays + derail nomination' over the combination 'cloture rule goes + confirmation stays'. Thus, a majority of senators have signed off on "derail nomination" as part of a combination deal no different than an omnibus spending bill.

Many times when a bare majority prefers a provision, it doesn't get passed because of a compromise. In the House, Speakers routinely refuse to bring up for discussion bills or amendments that have a majority support but that the party leadership opposes. When a bill gets passed to committee, the majority is sending it to a very small minority to decide its fate. The examples of this sort of thing are legion. The power vested in the speaker of the house, a distinct minority of one, to control the proceedings and thus, in many cases, to frustrate the majority, is enormous.
4.30.2009 8:17am
Oren:

Or, perhaps you are arguing a technicality that is meaningless to the point. The technicality being that since there is no supermajority required for the confirmation vote proper.

I'm arguing that there is no supermajority for the whole process, because of the existence of a motion to the chair to remove the cloture requirement (which requires 51 votes).
4.30.2009 8:18am
Oren:


The Constitution gives to the Executive the right to appoint officers with the consent of the majority of the Senate. --

The constitution doesn't have the word "majority" in there. It's simply "he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ..."

How else could you parse "consent of the Senate"? One Senator? 20 Senators? I think the only reasonable parsing is "majority of the Senators".
4.30.2009 8:20am
Oren:

So the use of cloture to stifle getting to a confirmation vote is unconstitutional? Anytime a majority of Senators says "limit debate," that's it, contrary to the 60 vote line drawn by Rule XXII? What about Rule XXII that says 2/3rd are required to change the rule? How do you square that with your "majority controls" assertion?

Rule XXII can be amended by a motion to the chair that requires a simple majority to pass, despite its claim to the contrary. This is a basic principle of deliberative bodies that dates back to the Roman Senate that holds that no Senate can bind future Senates.

There are some Senators that think that Rule XXII is binding on a bare majority and cannot be amended except by the procedure of rule XXII. I think they are wrong. There are some wacky middle positions that state that a bare majority can rewrite rule XXII, but only if they do so as the first piece of business in the new Senate (every 2 years) -- LBJ was in that camp. I reject that position as well.

Just to recapitulate: IMO, the Senate can, at any time, make a motion to the chair to amend the rules in an unlimited fashion. This motion cannot be filibustered because the Senate is not operating under the normal rules when there is a motion to the chair to amend the rules of the Senate.

[Incidentally, this is exactly the scenario that Frist, McConnel &Cheney had in mind in 2005 before the G14 frustrated them. Ever wonder why it was essential to get 7 GOP Senators on board if Rule XXII really applied? Because Rule XXII is of no binding force on a bare majority! ]
4.30.2009 8:29am
cboldt (mail):
Oren, I'm not going to continue debate with you. I find your resort to sophistry and literal textualism on this subject tedious and vacuous. I recently (as in the last hour) re-read our historical debates on the same subject, and I'm satisfied that I've fully and fairly expressed my point of view.
4.30.2009 8:38am
cboldt (mail):
Oren: I'll also say that I notice you have avoided addressing certain points I've raised, and have also modified context of my my statements in order to "score." I see evasion and misdirection in your style of argument. It's cheap tactics. You've earned my personal "jukeboxgrad" award for persistence though.
4.30.2009 8:42am
cboldt (mail):
s/vacuous/non-responsive/
4.30.2009 8:55am
Oren:
I was attempting to score points, I was editing your statement because you missed an important fact about the nature of a motion to the chair.
4.30.2009 9:23am
Oren:
*not* attempting to score point.

If you want me to address any particular point, I will. I've tried to get at what I thought was fundamental -- the power of the majority to advance any bill at any time over the objection of the minority under all situations whatsoever.
4.30.2009 9:26am
Oren:
If you're willing to address just one issue, let it be this:

Why does it matter that a bare majority that wants to advance the confirmation of an appointment must make a "motion to the chair to amend the rules of debate" instead of a "motion for cloture" (the former requiring 51 votes, the latter 60)?

Just because a majority of Senators don't want to make a motion to the chair to amend the rules of the debate doesn't mean they cannot do so.
4.30.2009 9:30am
cboldt (mail):
-- I was editing your statement because you missed an important fact about the nature of a motion to the chair. --
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FWIW, I had and have no objection to that, other than it's repetitive of the same point you're focusing on, i.e., that the ability to change the rule addresses the questions about putting the rule into effect. My general complaint about "modified context" is where you omit the specific overreach that is the subject of discussion (e.g., a legislature using Canadian voters as a substitute for their own direct deliberation); and in the case of the constitution's recitation of "by and with the Advice and Consent of the Senate," omitting [and thereby avoiding] the point of my comment, that the omission of "majority" is used to justify a supermajority hurdle.
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I think you've fully expressed how you arrive at your conclusion. I see your argument as essentially "all Senate rules and all effects flowing from them are constitutional because 1) the Constitution empowers the Senate to make its own rules, and 2) a majority of the Senate can modify the rule, if they want to." That makes as much sense as "deliberate by not deliberating." IOW, it's utter nonsense, on stilts even.
4.30.2009 11:34am
Oren:

My general complaint about "modified context" is where you omit the specific overreach that is the subject of discussion (e.g., a legislature using Canadian voters as a substitute for their own direct deliberation)

Because that entails some sort of magical ability to enter into the mind of legislators to determine why they voted some way. They could just ask for the Canadian voters' opinion as a non-binding "report" (or some such, committees prepare reports all the time) and then vote based on that report. That part of the debate was always silly, IMO. If you require that someone deliberate, they will just tell you they deliberated and came to the same conclusion. IOW, the imperative form of the verb "deliberate" is meaningless -- it's unenforceable even in principle, let alone in practice.

More interesting is your insistence that cloture that can be ended by 51 Senators (provided they utter the magic words "motion to appeal from the decision of the chair" or somesuch) still represents a requirement of a real supermajority.

I concede that a super-majority requirement would be unconstitutional, I dispute the factual matter that the cloture rule as implemented in the US Senate is supermajority. A bare majority can ram through a confirmation -- Frist threatened to do just that and was only foiled because he didn't actually have a majority of the votes to ram through.
4.30.2009 11:56am
Oren:
If you are sick of the debate, I'll let you have the last word if you explain Frist's actions under your interpretation. If the Senate was really 60/100 for confirmation, his threats were meaningless and the G14 meaningless and the whole thing was a tempest in a teapot because there was nothing he could have done anyway (assuming, as was the case, that 41 Dems refused under any circumstances to play ball).

Frist's threat to ram the confirmations through was entirely real and would have succeeded if he could have actually maintained the support of 51 GOP Senators.
4.30.2009 12:03pm
cboldt (mail):
I concede that a super-majority requirement would be unconstitutional, I dispute the factual matter that the cloture rule as implemented in the US Senate is supermajority. A bare majority can ram through a confirmation — Frist threatened to do just that and was only foiled because he didn't actually have a majority of the votes to ram through.
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Color me gobsmacked, in part. That's one hell of a contingent concession, of sorts. So, a super-majority requirement for confirmation would be unconstitutional, but somehow the super-majority requirement for confirmation, which exists in practice and is memorialized in written rules, is rendered constitutional because a majority of senators refuse to jettison application of the rule to confirmation votes. More nonsense on stilts.
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Same [nonsense on stilts] for "I dispute the factual matter that the cloture rule as implemented in the US Senate is supermajority." The rule says 3/5ths. Are you contending that Rule XXII is a figment of my imagination? Or that 3/5ths isn't a supermajority? Or that the Senate hasn't used the 3/5th requirement as a hurdle for confirmation? The rule in fact recites a supermajority, and in fact is practiced as imposing a supermajority hurdle. You yourself find this to be a good thing, preferable to simple majority; and that any hurdle passes constitutional muster provided the Senators that erect it aren't voted out of office:

[Oren] They could also raise the bar to 3/4 for advice and consent. If you don't like what they are doing, you are welcome to vote for someone else. (4.2.2008 7:58pm)
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[cboldt] The Democrats hold that rejection of a nominee by a minority of the Senate, for whatever reason, is justifiable, constitutional, and the proper thing to do. I urge the Republicans to adopt the same rules ...
[Oren] Of course they should. Supreme Court nominees should be broadly acceptable to at least 60 Senators or they shouldn't really be on the court. (9.13.2008 8:33pm)


And another thing. The observation that one who makes and lives by the rule endorses the outcomes produced is not-responsive to my beef that the Senate is stepping on the executive's toes. Of course a majority of Senators likes/endorses having veto power from minority status. It's a power thing. Liking/endorsing/not-objecting to an outcome doesn't make the rule or the outcome constitutional.
4.30.2009 2:01pm
cboldt (mail):
-- Because that entails some sort of magical ability to enter into the mind of legislators to determine why they voted some way. They could just ask for the Canadian voters' opinion as a non-binding "report" (or some such, committees prepare reports all the time) and then vote based on that report. --
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No such "magical divining" is necessary when the subject is direct public voting for electors, and one state's electors are chosen by an aggregate that runs against that state's majority. Again you transmogrify the item under discussion into something different, in order to defend. At least the "throwing darts" example is a transparent absence of deliberation. My objection to the NPV compact follows a fact pattern where the process of reaching the outcome is completely transparent; contrasted with your "they deliberated and were persuaded by a report" counterexample.
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-- More interesting is your insistence that cloture that can be ended by 51 Senators (provided they utter the magic words "motion to appeal from the decision of the chair" or somesuch) still represents a requirement of a real supermajority. --
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As long as (and when) the rule is adhered to, it imposes a supermajority requirement. When the cloture threshold has been modified, it has always taken a supermajority to perform the modification, as well. That you imply I am unreasonably-entrenched for not finding that a simple majority will always be able to obtain rule changes (at will) is, well, odd.
4.30.2009 2:17pm
Oren:
Rule XXII, as with all the other rules of the Senate, can be amended by a simple majority, period. Reid thinks so. Frist thinks so. The Senate Parliamentarian thinks so. Constitutional scholars thinks so.
4.30.2009 3:13pm
cboldt (mail):
-- Reid thinks so --
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You're just persisting in blowing a smoke screen; wherein you make the fantastic logical leap that if a Senate rule can be changed, then the unchanged rule is constitutional.
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On the subject of your smoke-screen diversion that a majority can change the rules at-will, the historical record shows the modifications of Rule XXII, and the careful accounting to supermajority in order to effect the changes. Are you going to tell me that I am imagining that, too? That the clause of Rule XXII providing a 2/3rds threshold to limit debate on a rules change is a practical nullity?
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Reid in an inconsistent, often incoherent, bumbling fool. As majority leader, He's bitched about not being able to get what he wants via simple majority. He chronically complained about "having to file cloture" as he filed 100+ cloture motions. I'll look for his comments during the confirmation wars, but here's one of his from last year, when he expressed a desire to be rid Republican filibusters that were enabled by Rule XXII:

September 29, 2008 - S10026 Mr. REID. Mr. President, I have served in the House of Representatives. My friend, the distinguished Senator from Arizona, has served in the House of Representatives. I understand the House. I loved my experience in the House, but their rules of engagement are different than ours. And if it were up to me, I would accept this [bill] in a second. I think it is fine. But, Mr. President, I don't have that ability here. I do not have the strength and the power legislatively and procedurally that they have in the House.
The House is like the British Parliament. If you are in the majority there, you can get a lot of things done that we can't being in the majority here. And my majority is extremely slim; it is 51 to 49 when everybody is here. ...
So I say to my colleagues: I wish we had more votes [i.e., 60] and we could just run over you, like they do in the House [with a simple majority], but we [the majority!] can't do that.


As for Frist and the parliamentarian's thoughts on the subject, at this point I'm going to chalk up your confident assertion as utter fabrication. You might be right, but I'd be a fool to take you at your word.
4.30.2009 4:10pm
Oren:
Fine, forget Reid (who, you are correct, flip-flopped on the matter).

Frist threatened the "nuclear option" with 55 Senators. He was going to do it. The parliamentarian (who gets to referee the rules) was going to allow it. If he hadn't bumbled away his majority, it would have been history by now.
5.1.2009 10:50am
cboldt (mail):
I think you need to scratch "parliamentarian" from your list of instant-advocates -- those who, in May 2005, articulated and/or stood ready to articulate the proposition that under senate precedent and practice (and adherence to rules), a simple majority can change the "limit debate" rule in the context of confirmation.
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Senate - May 23, 2005
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The plan was to have the decision emanate from the chair (which would have been occupied by Cheney) without consultation with the parliamentarian. IIRC, the parliamentarian had expressed he would not rule in favor of the rule that you assert is roughly universally understood and accepted by the Senate.
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The legality of the nuclear option has been challenged. The Senate parliamentarian, Alan Frumin, was appointed by Senator Lott. Furmin is an ostensibly neutral staff member and appointed keeper of the Senate's rules, and is opposed to the nuclear option. Wiki-crap summary


Reid told reporters last month that the parliamentarian, Alan S. Frumin, had told him that he opposed the Republicans' plan and that "if they do this, they will have to overrule him."

Frumin, who was appointed by Republican leaders in 2001, has not been granting interviews. But a senior Republican Senate aide confirmed that Frist does not plan to consult Frumin at the time the nuclear option is deployed. "He has nothing to do with this," the aide said. "He's a staffer, and we don't have to ask his opinion." Washington Post - May 18, 2005


In this course of this debate, I distinguish "theory" from "practice." History shows that a majority of the Senate is so far unable or unwilling to put an unfettered "majority rules" procedure into practice. As this pertains specifically to confirmations, the Senate effectively has, in practice, a supermajority hurdle. That they could, in theory, remove that is interesting, but describes a remote contingency that is of value to academics and sophists. The real people who run the Senate are not bound by "theory," and in this case, do not follow it.
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As for the third of your named "advocates of simple majority can change any rule," Frist, I note that his proposed point of order was exceptionally narrow. I may or may not read more of the Congressional Record to find his comments on the general point of "threshold and process for circumventing the power of a veto-determined minority."
5.1.2009 11:46am
cboldt (mail):
-- forget Reid (who, you are correct, flip-flopped on the matter) --
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I haven't found any evidence of a Reid flip-flop. Best I can discern, he's always been of the mind that it takes a 2/3rd majority of Senators to change a Senate rule (certainly to dispose of cloture in the context of confirmation).
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Lautenberg, Kennedy and Kerry are flip-floppers on this point, Boxer too - and she stated, on the Record, that her 1995 position was WRONG, and that it takes a supermajority of Senators to change the rules.
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I haven't so far found a concise expression by Frist that clearly illuminates his respect (or lack thereof) for the "2/3rds to change the rules" rule - except to repeat my observation that in the context of the confirmation wars, the stifling of cloture was to be limited to circuit court and supreme court nominees.
5.1.2009 2:20pm

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