SCOTUS and Politics

[Sparko]

States don't do that, though. What they do (those that "bind" their electors anyway) is require them to vote for their pledged candidate, i.e. require the Republican electors to vote for the Republican or require the Democrat electors to vote for the Democrat. No state is or would be grabbing a bunch of Democrats and then forcing them to vote for a Republican or vice versa.

Unless the argument is that if states are allowed to bind electors, they could if they felt like it grab a bunch of Democrats and order them to vote Republican, or vice versa, and that doesn't make sense. But "doesn't make sense" doesn't mean "isn't constitutional", there's no practical reason for a state to do so, and even if they do then any elector who objects can just quit anyway and be replaced by someone else.

He is talking about the weird compact the states are entering into. The states in that compact are saying they will award their electoral votes to whoever wins the popular vote. So say for some reason Nevada voted for Trump and therefore chooses the Rebublican electors. Then Biden wins the electoral vote. Would they then be forcing those republican electors into voting for a democrat?

I think they would probably instead, not choose any electors until the popular vote was counted, then choose the democrat electors, despite their state having chosen the republican electors. Basically nullifying their state's actual choice. To me that sounds unconstitutional too.

[carpedm9587]

He is talking about the weird compact the states are entering into. The states in that compact are saying they will award their electoral votes to whoever wins the popular vote. So say for some reason Nevada voted for Trump and therefore chooses the Rebublican electors. Then Biden wins the electoral vote. Would they then be forcing those republican electors into voting for a democrat?

I think they would probably instead, not choose any electors until the popular vote was counted, then choose the democrat electors, despite their state having chosen the republican electors. Basically nullifying their state's actual choice. To me that sounds unconstitutional too.

That is essentially the plan, as I understand it: control of the electors will go to the party that wins the popular vote for those states that sign the compact. It shifts the election to the popular vote without the need for a constitutional amendment, since the constitution says nothing about how states allocate their electors and leaves that to the states to determine.

So far 196 electoral votes are committed to this, but the compact does not take effect unless/until that number climbs to 270. The probability of that is somewhat slim - but not zero. There are an increasing number of purple states. They are the most likely ones to join the compact.

ETA: BTW - it only "nullifies a state's actual choice" if you subscribe to the philosophy that "states choose a president." There is already a mechanism for state-level representation in government; it's called the Senate. The electoral college produces one and only one effect: it makes the votes of those in small states disproportionately powerful when compared to individuals in large states. If one wanted to balance state/individual in the election of the president, then all states would do what Nevada and Maine do: allocate two electors on the basis of the state-level popular vote and the remaining electors by congressional district. Thus each state and each district would be represented. Since districts are generally balanced based on population, it would also make each individual's vote roughly balanced while also having state-level representation. It would prevent things like all California electors going to one party while all Texas electors go to another. But that strategy requires all states to "get on board" and many states are unwilling to do that, so this is the next best strategy that can be implemented without all states agreeing.

[Terraceth]

He is talking about the weird compact the states are entering into. The states in that compact are saying they will award their electoral votes to whoever wins the popular vote. So say for some reason Nevada voted for Trump and therefore chooses the Rebublican electors. Then Biden wins the electoral vote. Would they then be forcing those republican electors into voting for a democrat?

No, as you suggest, what would happen is the electors wouldn't ever be given to Trump in the first place, but would go to Biden.

I think they would probably instead, not choose any electors until the popular vote was counted, then choose the democrat electors, despite their state having chosen the republican electors. Basically nullifying their state's actual choice. To me that sounds unconstitutional too.

Lots of states "nullified" their state's actual choice in the past by not having a popular election at all; the electors were chosen directly by the state legislature.

There is no requirement in the Constitution whatsoever that the electors reflect the choice of the state's overall population; in fact, the Constitution explicitly says the state legislature is the one that decides how it's done. Currently the various state legislatures have each decided to have them be decided by the state's popular vote (almost all use winner-take-all but a few have them selected proportionally), but they could decide on them in any other way. The legislatures could go back to choosing the electors themselves--that'd be tremendously unpopular, but they could. Alternatively, they could have them decided by the overall popular vote of the country, as has been suggested. Like I said, how it's done is left totally up to the legislatures; they can choose them however they want. They could just have a massive spelling bee and have the winners of that be the electors if they wanted.

[carpedm9587]

No, as you suggest, what would happen is the electors wouldn't ever be given to Trump in the first place, but would go to Biden.

Lots of states "nullified" their state's actual choice in the past by not having a popular election at all; the electors were chosen directly by the state legislature.

There is no requirement in the Constitution whatsoever that the electors reflect the choice of the state's overall population; in fact, the Constitution explicitly says the state legislature is the one that decides how it's done. Currently the various state legislatures have each decided to have them be decided by the state's popular vote (almost all use winner-take-all but a few have them selected proportionally), but they could decide on them in any other way. The legislatures could go back to choosing the electors themselves--that'd be tremendously unpopular, but they could. Alternatively, they could have them decided by the overall popular vote of the country, as has been suggested. Like I said, how it's done is left totally up to the legislatures; they can choose them however they want. They could just have a massive spelling bee and have the winners of that be the electors if they wanted.

I had completely forgotten that direct election of Senators was not how it was initially done.

[Sparko]

That is essentially the plan, as I understand it: control of the electors will go to the party that wins the popular vote for those states that sign the compact. It shifts the election to the popular vote without the need for a constitutional amendment, since the constitution says nothing about how states allocate their electors and leaves that to the states to determine.

So far 196 electoral votes are committed to this, but the compact does not take effect unless/until that number climbs to 270. The probability of that is somewhat slim - but not zero. There are an increasing number of purple states. They are the most likely ones to join the compact.

ETA: BTW - it only "nullifies a state's actual choice" if you subscribe to the philosophy that "states choose a president." There is already a mechanism for state-level representation in government; it's called the Senate. The electoral college produces one and only one effect: it makes the votes of those in small states disproportionately powerful when compared to individuals in large states. If one wanted to balance state/individual in the election of the president, then all states would do what Nevada and Maine do: allocate two electors on the basis of the state-level popular vote and the remaining electors by congressional district. Thus each state and each district would be represented. Since districts are generally balanced based on population, it would also make each individual's vote roughly balanced while also having state-level representation. It would prevent things like all California electors going to one party while all Texas electors go to another. But that strategy requires all states to "get on board" and many states are unwilling to do that, so this is the next best strategy that can be implemented without all states agreeing.

and I bet that the compact would mysteriously disappear if Trump wins the popular vote but not the electoral votes.

[carpedm9587]

and I bet that the compact would mysteriously disappear if Trump wins the popular vote but not the electoral votes.

This is a somewhat pointless position to take. You cannot show it to be true and I cannot refute it, so it basically amounts to partisan self-stimulation.


Meanwhile, there is almost no hope of Trump winning the popular vote. If anything, the gap will be even wider in 2020. What remains to see is if he squeaks by on the electoral college again. Give the battles that have been had in "certain" red states in the last 3+ years, I think it is going to be much harder for him this time.

But we will see...

[Sparko]

No, as you suggest, what would happen is the electors wouldn't ever be given to Trump in the first place, but would go to Biden.


Lots of states "nullified" their state's actual choice in the past by not having a popular election at all; the electors were chosen directly by the state legislature.

There is no requirement in the Constitution whatsoever that the electors reflect the choice of the state's overall population; in fact, the Constitution explicitly says the state legislature is the one that decides how it's done. Currently the various state legislatures have each decided to have them be decided by the state's popular vote (almost all use winner-take-all but a few have them selected proportionally), but they could decide on them in any other way. The legislatures could go back to choosing the electors themselves--that'd be tremendously unpopular, but they could. Alternatively, they could have them decided by the overall popular vote of the country, as has been suggested. Like I said, how it's done is left totally up to the legislatures; they can choose them however they want. They could just have a massive spelling bee and have the winners of that be the electors if they wanted.

The irony would be that since each state election is by popular vote, a state would be nullifying their own state's popular vote for this sham.

[Sparko]

This is a somewhat pointless position to take. You cannot show it to be true and I cannot refute it, so it basically amounts to partisan self-stimulation.

It allows me to say "Told you so!" if it happens and be righteously indignant.

[carpedm9587]

It allows me to say "Told you so!" if it happens and be righteously indignant.

Oh, one of us will definitely be saying "I told you so" on November 4th!