Dan McLaughlin:
Vox.com has published an “analysis” claiming that Republican-run states could legally just abolish the popular vote in presidential elections. It is obvious from the fact that this was actually published, and has not been corrected three days later, that neither the author, Vox Executive Editor Matthew Yglesias, nor anybody else in the site’s editorial chain has read the Fourteenth Amendment.
Yglesias starts out his post, alarmistly entitled “A totally legal, totally shady way that Republicans could ensure Hillary Clinton’s defeat,” by warning darkly:
Democrats have been consoling themselves with the idea that the 2016 election is likely to look a lot more favorable to them than 2014 did. And that’s true. Unless Republicans use their unprecedented sweep of state legislatures to change the rules and guarantee a victory for the GOP.
After a desultory whack at the perennial discussion of the (perfectly Constitutional, but flawed in other ways) possibility of having states give out electoral votes by Congressional District (as is done in Nebraska and Maine), Yglesias concedes that this is unlikely to happen. But at this point, with a post consisting of little over 300 words, a few charts, and a threat that doesn’t live up to the post title’s grim warning, Yglesias goes off the rails (screenshotted because you always screenshot Vox before they re-edit their posts):
[T]here’s nothing requiring Michigan (or any other state) from holding a presidential election at all. The state legislature could simply allocate its electoral votes to Mike Pence (or whomever) and tell angry liberals they should have thought about that when they decided not to turn out for the midterms.
Now first of all, “requiring…from holding”?
But that quibble aside, if you’re not familiar with the Constitution, you’re probably wondering right now why nobody has tried this before, in the long, dark history of partisan shenanigans. Actually, before about 1828, several states handed out electors this way, and South Carolina did so until the Civil War – so hey, why did that stop? Anyone who has read Section 2 of the Fourteenth Amendment can tell you the answer, because it is right there in black and white:
Yglesias is a fool who is completely ignorant about the Federal Constitution, and those of the individual states. Perhaps he is related to Greg, as this sounds like some of the drivel he posts.
I’m more concerned about those idiot states entering into a compact to give their electoral votes to the winner of some mythical national popular vote. Seems to me that 14th amendment argument could be used to cancel those state’s vote completely… after all, they are voiding the vote of all their citizens…. maybe we need amendments to the other states constitutions requiring them to reject the votes of any states participating in this sort of conspiracy.
Unable to agree on any particular method for selecting presidential electors, the Founding Fathers left the choice of method exclusively to the states in Article II, Section 1:
“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.”
The Constitution does not encourage, discourage, require, or prohibit the use of any particular method for how to award a state’s electoral votes
The National Popular Vote bill would replace state winner-take-all laws that award all of a state’s electoral votes to the candidate who get the most popular votes in each separate state (not mentioned in the U.S. Constitution, but later enacted by 48 states), to a system guaranteeing the majority of Electoral College votes for, and the Presidency to, the candidate getting the most popular votes in the entire United States.
The bill preserves the constitutionally mandated Electoral College and state control of elections. It ensures that every voter is equal, every voter will matter, in every state, in every presidential election, and the candidate with the most votes wins, as in virtually every other election in the country.
Under National Popular Vote, every voter, everywhere, would be politically relevant and equal in every presidential election. Every vote would be included in the state counts and national count.
When states with a combined total of at least 270 electoral votes enact the bill, the candidate with the most popular votes in all 50 states and DC would get the needed majority of 270+ electoral votes from the enacting states. The bill would thus guarantee the Presidency to the candidate who receives the most popular votes and the majority of Electoral College votes.
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.” They list the electors and the number of votes cast for each. The Congress meets in joint session to count the electoral votes reported in the Certificates 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
National Popular Vote would give a voice to the minority party voters in each state. Now their votes are counted only for the candidate they did not vote for. Now they don’t matter to their candidate. In 2012, 56,256,178 (44%) of the 128,954,498 voters had their vote diverted by the winner-take-all rule to a candidate they opposed (namely, their state’s first-place candidate).
And now votes, beyond the one needed to get the most votes in the state, for winning in a state are wasted and don’t matter to candidates. Utah (5 electoral votes) alone generated a margin of 385,000 “wasted” votes for Bush in 2004. 8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).
The Equal Protection Clause of the 14th Amendment says:
“no state [shall] deny to any person within its jurisdiction the equal protection of the laws”
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 in the U.S. Constitution permit states to conduct elections in varied ways. The National Popular Vote compact is patterned directly after existing federal law and preserves state control of elections and requires each state to treat as “conclusive” each other state’s “final determination” of its vote for President.
The National Popular Vote bill does not violate the Equal Protection Clause of the 14th Amendment.
“The bottom line is that the electors from those states who cast their ballot for the nationwide vote winner are completely accountable (to the extent that independent agents are ever accountable to anyone) to the people of those states. The National Popular Vote states aren’t delegating their Electoral College votes to voters outside the state; they have made a policy choice about the substantive intelligible criteria (i.e., national popularity) that they want to use to make their selection of electors. There is nothing in Article II (or elsewhere in the Constitution) that prevents them from making the decision that, in the Twenty-First Century, national voter popularity is a (or perhaps the) crucial factor in worthiness for the office of the President.”
– Vikram David Amar – professor and the Associate Dean for Academic Affairs at the UC Davis School of Law. Before becoming a professor, he clerked for Judge William A. Norris of the United States Court of Appeals for the Ninth Circuit and for Justice Harry Blackmun at the Supreme Court of the United States.
Support for a national popular vote is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in every state surveyed recently. In virtually every of the 39 states surveyed, overall support has been in the 70-80% range or higher. – in recent or past closely divided battleground states, in rural states, in small states, in Southern and border states, in big states, and in other states polled.
AK – 70%, AR – 80%, AZ – 67%, CA – 70%, CO – 68%, CT – 74%, DC – 76%, DE – 75%, FL – 78%, IA –75%, ID – 77%, KY- 80%, MA – 73%, ME – 77%, MI – 73%, MN – 75%, MO – 70%, MS – 77%, MT – 72%, NC – 74%, NE 74%, NH – 69%, NM– 76%, NV – 72%, NY – 79%, OH – 70%, OK – 81%, OR – 76%, PA – 78%, RI – 74%, SC – 71%, SD – 71%, TN – 83%, UT – 70%, VA – 74%, VT – 75%, WA – 77%, WI – 71%, WV – 81%, and WY – 69%.
In state polls of voters each with a second question that specifically emphasized that their state’s electoral votes would be awarded to the winner of the national popular vote in all 50 states, not necessarily their state’s winner, there was only a 4-8% decrease of support.
Question 1: “How do you think we should elect the President: Should it be the candidate who gets the most votes in all 50 states, or the current Electoral College system?”
Question 2: “Do you think it more important that a state’s electoral votes be cast for the presidential candidate who receives the most popular votes in that state, or is it more important to guarantee that the candidate who receives the most popular votes in all 50 states becomes president?”
Support for a National Popular Vote
South Dakota — 75% for Question 1, 67% for Question 2.
Connecticut — 74% for Question 1, 68% for Question 2
Utah — 70% for Question 1, 66% for Question 2
Americans believe that the candidate who receives the most votes should win.
The National Popular Vote bill has passed 33 state legislative chambers in 22 rural, small, medium, large, Democratic, Republican and purple states with 250 electoral votes, including one house in Arkansas (6), Maine (4), Michigan (16), Nevada (6), New Mexico (5), North Carolina (15), and Oklahoma (7), and both houses in Colorado (9). The bill has been enacted by 11 jurisdictions with 165 electoral votes – 61% of the 270 necessary to go into effect.
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