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Supreme Court “Faithless Electors” case has potential to destabilize 2020 election result

Supreme Court “Faithless Electors” case has potential to destabilize 2020 election result

Intimidation of electors was tried by Democrats in 2016. If given a legal green light, there’s no telling how much damage could be done to the stability of the nation if the electoral count is close and bullying a small number of electors to go faithless swings the Electoral College to Democrats. 

The Supreme Court has agreed to hear two cases presenting the issue of whether Electoral College electors can be bound by state law to vote consistent with the state popular vote winner. The concept of electors voting as the voters in their states voted is central to the viability of the Electoral College.

An argument can be made that the Electoral College favors Democrats and liberals, because they almost automatically win big states like California, New York and Illinois — so they start with a built-in Electoral College lead. It doesn’t always work that way, however, and 2016 was an example. Trump barely won states that usually easily got to Democrats, like Michigan, Pennsylvania and Wisconsin. Hillary won the national popular vote, but lost the Electoral College count by a landslide, leading to the mental and societal breakdown of Democrats, who now want to discard the Electoral College by any means possible.

In 2016, some Democrats resorted to trying to intimidate electors into changing their vote and going “faithless.” That attempt to undermine the Electoral College by intimidation was a pivotal moment for The Resistance, a sign that anything goes to get rid of Trump. I wrote on December 12, 2016, The one thing you must understand about the unfolding media-Democrat Electoral College coup attempt:

We are witnessing nothing short of an attempt to steal the election by some Democrats and a very supportive mainstream and leftwing media, by causing Electors in the Electoral College to go rogue and vote for Hillary, or at least not vote for Trump.

Legal support for rogue electors was promised by Laurence Tribe, the Harvard Law School professor who has gone off the rails with Trump Derangement.

https://twitter.com/tribelaw/status/799448083071455233

Tribe also has been leading the legal fight against efforts by states to enforce rules against faithless electors as part of this project. And now the Supreme Court will take up the issue.

In Chiafalo v. Washington, the following questions are presented:

QUESTION PRESENTED:

A Washington State law threatens a fine for presidential electors who vote contrary to how the law directs. RCW 29A.56.340 (2016). Petitioners are three 2016 presidential electors who were fined under this provision solely because they failed to vote as the law directs, namely for the presidential and vice presidential candidates who won a majority of the popular vote in the State.

The question presented is whether enforcement of this law is unconstitutional because:

(1) a State has no power to legally enforce how a presidential elector casts his or1 her ballot;
and

(2) a State penalizing an elector for exercising his or her constitutional discretion to vote violates the First Amendment.

The case has been consolidated for argument with Colorado v. Baca, which presents the following questions:

QUESTION PRESENTED:

Like most States, Colorado requires its presidential electors to follow the will of its voters when casting their Electoral College ballots for President. In the 2016 Electoral College, one of Colorado’s electors violated Colorado law by attempting to cast his presidential ballot for a candidate other than the one he pledged to vote for. Colorado removed him as an elector, declined to accept his ballot, and replaced him with an alternate elector who properly cast her ballot for the winner of the State’s popular vote, consistent with Colorado law. The removed elector later sued Colorado for nominal damages.

The questions presented are:

1. Whether a presidential elector who is prevented by their appointing State from casting an Electoral College ballot that violates state law lacks standing to sue their appointing State because they hold no constitutionally protected right to exercise discretion.

2. Does Article II or the Twelfth Amendment forbid a State from requiring its presidential electors to follow the State’s popular vote when casting their Electoral College ballots.

I don’t know enough about the legal issues to opine — I have some reading up to do.

But the politics are clear. This may be the single most important case this year. If the Supreme Court rules that electors can be faithless, then there is going to be mayhem in 2020 when Trump wins again. Those who sought to intimdate and bully electors in 2016 were largely viewed as being out of bounds.

But if given a legal green light, there’s no telling how much damage could be done to the stability of the nation if the electoral counts is close and bullying a small number of electors to go faithless swings the Electoral College to Democrats.

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Comments

My first thought against the faithless elector is agency or implied contract. You were hired to do a job, and knew the risks….

    Tom Servo in reply to rabid wombat. | January 18, 2020 at 10:25 am

    I’m surprised that no one has brought up Ray vs. Blair (1952), since that is the precedent that will decided this case, I’m betting by a 9-0 vote.

    In Ray vs Blair, the SCOTUS held that Electors answer to the State governments, not to the Federal Government, and that States and Parties may require their electors to pledge to vote for the winner of the race, as a condition of employment.

    That decision did not address the issue of whether or not a faithless elector could be punished for violating such a pledge, since it was not at issue in that case. Nevertheless, it is a long standing principle that the power to Require brings with it the power to enforce. I think the precedent is very clear, and this will be a 9-0 vote to uphold the Statutes applying penalties to faithless electors.

      Edward in reply to Tom Servo. | January 18, 2020 at 12:29 pm

      Hope you are correct, but I have to admit I’ll be surprised if all (some?) of the rabid Left Four agree with that decision. Obviously worse yet would be Roberts rounding up the four for a 5-4 decision the Electors can do their own thing. 1952 is so Truman & Eisenhower (and passé, like a “whole ‘nother country” (oh, that’s right – my recollection is it pretty well was).

        Edward in reply to Edward. | January 18, 2020 at 12:31 pm

        Sorry, didn’t keep up with the parentheses:

        (and passé, like a “whole ‘nother country”. Oh, that’s right – my recollection is it pretty well was).

      Milhouse in reply to Tom Servo. | January 18, 2020 at 7:37 pm

      Ray v Blair says that the states may allow political parties to require pledges from their endorsed candidates for elector. If a would-be elector refuses to pledge support for the party’s nominee, it’s the party’s right to refuse to include that person on its slate of candidates for elector.

      But this is no different from a party requiring a similar pledge of a congressional candidate. The party can say that unless you pledge to vote the party line we won’t let you run on our line. But once a congressman is elected he can vote however he likes. He can even cross the floor and join the opposite party. Similarly, back when state legislators elected the senators, once a senator was elected the state legislature could not tell him how to vote. Forcing an elector to vote the way the state wants is no different.

        Tom Servo in reply to Milhouse. | January 19, 2020 at 12:43 am

        good job of explaining the argument that will be made in favor of allowing the electors to vote however they choose. I don’t think the Court will choose to go that way, but if they did, that would be the line of reasoning they would follow.

        In actual practice the decision won’t change much no matter how it goes. Suppose the SCOTUS did allow Electors to vote however they choose; well the obvious response is that both parties will be diligent about *only* allowing dedicated party members of long standing to ever be on the slate of electors. I know that in Texas the last couple of decades, appointment as an elector has gotten to an honorific without much vetting done; that’ll change quick if they truly become free agents.

I’m confused. Don’t parties choose their electors based on loyalty and such?

    Dusty Pitts in reply to Petrushka. | January 17, 2020 at 10:19 pm

    In theory, yes — but if a state’s GOP establishment were overcome by TDS, the loyalty in question might not be to what that state’s voters have every right to expect.

      “but if a state’s GOP establishment were overcome by TDS…”

      Dusty, as we’ve learned, it’s not “TDS” – it’s corruption.

      Much of the GOP is on the money train, happily selling out our country.

      Romney, for example.

        “Romney, for example.”

        Ditto X 100.

        Dusty Pitts in reply to TheFineReport.com. | January 18, 2020 at 10:04 am

        Someone who is merely corrupt will still act rationally.

        At this point, with the results of the Trump presidency, the popular rejection of impeachment, and the failure of Republican would-be challengers to Trump for his own party’s nomination before a single delegate is selected, the rational thing for a merely corrupt Republican to do would be to at least pretend to embrace Trump until he leaves office, then throw their support behind some pro-Mandarin Establican preaching “kinder and gentler.”

        If they’re not doing that, they’re not merely corrupt, they are deranged.

        Red Team, Blue Team. Same league.

    Milhouse in reply to Petrushka. | January 18, 2020 at 7:38 pm

    Yes, which is why it’s very rare for an elector to change his mind between when he’s included on the slate and when the electors meet. But it happens with some regularity.

A Washington State law threatens a fine for presidential electors who vote contrary to how the law directs.

A fine seems pretty useless. The D’rats will happily pay whatever they need to grab control of the government. In fact they’d have no trouble arranging for a faithless elector to retire a wealthy man.

    I’m not sure even execution would be a strong enough penalty for someone with TDS. If the “wrong” candidate was installed as president due to faithless electors, that would certainly start CWII, and rightly so.

I remember the excretable Bob Beckel urging electors to “vote their conscience” in the Bush/Gore election.

It’s complete and total lunacy.

If electors can do whatever the hell they want, then why do we even have an election?

The only reason that this exists is because they EXPECT Trump to win in 2020.

The entire idea of an ‘elector’ is archaic anyway. It’s a relic of the era when travel and communication over long distances was slow and dangerous. You HAD to send a representative to deliver your votes because physically sending someone there was the only way to guarantee that your votes got delivered. Letters could be lost/stolen/forged easily.

Now that travel is easy and communication instantaneous, there is no longer a need for actual electors to cast votes.

Tally up the electoral college straight from the districts.

    Barry in reply to Olinser. | January 17, 2020 at 10:57 pm

    “It’s complete and total lunacy.”

    That’s the damnocrat communist party.

    Your exactly right.

    Edward in reply to Olinser. | January 18, 2020 at 12:33 am

    We have Electors because the Constitution requires that we have Electors to cast their vote at the Electoral College. The Socialist-Democrats want the whole thing gone and the big cities in the big states to determine the President’s election. Getting rid of the electors would require an Amendment to the Constitution and move the Socialist-Democrats a giant step closer to their goal. And the logic is exactly the same for eliminating the Electoral College – archaic, modern communication, etc. Don’t make their case for them.

      randian in reply to Edward. | January 18, 2020 at 12:39 am

      I don’t believe Olinser is arguing for eliminating the Electoral College, rather they are arguing that the actual electors be eliminated. Instead, directly add your state’s EC votes to the national total for its selected candidate. The electors themselves are superfluous.

        Dusty Pitts in reply to randian. | January 18, 2020 at 9:51 am

        In the Constitution it’s actually called “College of Electors.” No Electors, no College.

        A system that would simulate the College without Electors would still require a constitutional amendment.

    fscarn in reply to Olinser. | January 18, 2020 at 8:53 am

    “The only reason that this exists is because they EXPECT Trump to win in 2020.”

    Does that explain why the Court took this case? To affirm the constitutionality of these state laws which bind electors? And to make sure that we have a continuity and, most importantly, a dependability in our elections?

    If the Court rules that these state laws are unconstitutional, then all manner of chaos is gonna break out and Soros will be happy beyond measure.

      Dusty Pitts in reply to fscarn. | January 18, 2020 at 9:54 am

      It’ll also put an end to the National Popular Vote compact, since it depends on each state’s Electors being required to vote a certain way — but based on the illusory national popular vote instead of their own state’s popular vote.

      Best possible outcome: SCOTUS rules that Electors must vote according to the popular vote outcome in their own state.

      It won’t happen, but I can dream.

    Milhouse in reply to Olinser. | January 18, 2020 at 7:41 pm

    If electors can do whatever the hell they want, then why do we even have an election?

    For the same reason that we have elections for congress, and then let the congressmen do whatever the hell they want. We are a representative democracy, not a direct democracy, and that is what the electoral college is supposed to be: we elect electors, who then exercise their own judgment. Most of the time they vote as expected; sometimes they don’t, and that is their right.

      Barry in reply to Milhouse. | January 19, 2020 at 10:06 am

      Not even remotely the same.
      Electors were never meant to correct the “poor judgement” of those that approved of them being electors. They are a short term set of electors meant to transmit the result of the election. That’s it. Anything else is a perversion.

        Milhouse in reply to Barry. | January 19, 2020 at 8:58 pm

        That is just not true. Electors were meant to exercise their own judgment. They weren’t even supposed to announce in advance whom they supported.

          Barry in reply to Milhouse. | January 20, 2020 at 9:15 am

          Read the constitution and show me where it says the electors were meant to exercise their own judgment. It’s not there.

          “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…”

          The state, as directed by their respective legislatures, can appoint electors bound or unbound, subject to whatever restrictions or penalties the legislature chooses to impose.

Colonel Travis | January 17, 2020 at 10:35 pm

Tyrants trying to kill America.

“Hillary won the national popular vote, but lost the Electoral College count by a landslide”

Glad someone agrees with me that the Trump win was a “landslide” 🙂

And of course no one “won” the popular vote as we do not have a popular vote contest. Clinton received more votes* but she didn’t “win” the popular vote.

*possible only because of illegals voting in California, IMO.

Haven’t some states passed National Popular Vote laws? They basically mandate electors be faithless, though I would expect such laws to instead be treated as one-way ratchets by their state courts. That is, said state’s electors will be expected to ignore the NPV law if the national vote is Republican and obey it if the national vote is Democrat.

    stevewhitemd in reply to randian. | January 17, 2020 at 11:12 pm

    I’m certainly not a lawyer or legal expert, but such a vote under a state version of the NPV would be seen as “faithful” to the will of the legislature — indeed, an elector who tried to vote for the winner of the state vote, if different from the overall national vote, might be seen as the “faithless” elector.

      I thought the electors were supposed to be faithful to the voters, not the legislature. If not, then Michigan and Pennsylvania can prevent further “disasters” by the simple expedient of passing a law requiring its electors to vote Democrat regardless of how the state’s voters vote.

        malclave in reply to randian. | January 18, 2020 at 8:40 am

        Article 2, Section 1:

        “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”

    Edward in reply to randian. | January 18, 2020 at 12:35 am

    So far the NPV statutes which have passed all require states with sufficient Electoral College votes to choose the President be included before the statute becomes effective. So far that hasn’t happened and the statutes are null until enough states lose their minds and vote such laws into being.

    I just would like to point out a glaring weakness on this site: lawyers discussing legal solutions requiring court processes to enforce the law. Here is the problem facing us:

    What will stop the Democrats (again enabled by feckless Republicans) from just going ahead and moving ahead with their plan? So we end up with a communist president illegally. So we take it to the Supreme Court and let it fester for months or even years?

    Mark Levin is right. He has no confidence in the courts to save us. His solution is to turn out in November in huge numbers and vote our way out of the problem. But usurping the Electoral College takes that solution off of the table too!

    So knowing this, what would be stopping the “Gang of Romney”, aided and abetted by McConnell and Graham from allowing the impeachment trial to last through the summer and then voting to remove Trump in the fall before the elections? If they impeach now, Trump runs for re-election and wins in a landslide anyway. Impeach later, he cannot organize to run.

    It’s GO TIME! Very specific things have to happen to save our republic from this communist power grab and lawyers debating the niceties of law is not going to get it done.

    Let’s take off the gloves on McConnell, Graham and their RINO ilk. End the impeachment trial quickly (like yesterday) and move on to this Electoral College problem and the massive Democrat voter fraud effort also underway.

      Milhouse in reply to Pasadena Phil. | January 18, 2020 at 7:46 pm

      It doesn’t matter when the trial happens. Trump’s organization is not affected. He wins the election anyway, and his people in the state parties make sure the electoral slates are filled with people who are known loyalists.

      Tom Servo in reply to Pasadena Phil. | January 19, 2020 at 7:48 am

      I just would like to point out a glaring weakness on this site: lawyers discussing legal solutions requiring court processes to enforce the law.”

      It’s not a “flaw”, it’s a recognition of the fact that if you can’t use the courts, and you can’t trust the legislature, then the only move that’s left is the Oliver Cromwell option. Abolish the legislature, abolish the courts, and set up a Lord Protector backed by a military which will run the country directly through martial law. South American countries do it all the time.

      Cromwell had his own army which was fanatically loyal to him personally; but I don’t think Trump has quite the military support that would be needed to throw all of the Congressmen and Senators into military prisons.

There were two decisions on this. SC can go either way. The real problem here is JUSTICE ROBERTS, who has quite an elastic view of the law and the constitution. I see him as a wild card, and real trouble. I don’t like the idea the court is taking up this case now. They could have punted until after the election, since this is obviously about sabotaging DJT.

    Edward in reply to Titan28. | January 18, 2020 at 12:41 am

    Perhaps it should be explained to Roberts that should he vote to approve Electors casting faithless votes which are opposed to the state’s voters choice, he could well be guilty of initiating widespread violence and rebellion.

      Dusty Pitts in reply to Edward. | January 18, 2020 at 9:58 am

      One could have argued, in hindsight, that Chief Justice Roger Taney’s opinion in Dred Scott ultimately precipitated the Civil War.

      I don’t think Taney lost any sleep about it.

        Tom Servo in reply to Dusty Pitts. | January 18, 2020 at 6:10 pm

        That wasn’t just argued in hindsight – that argument was made vigorously by many Northerners at the time, and it’s fair to say the the most important parts of the Reconstruction Amendments – 13, 14, and 15 – were specifically written to overturn Dred Scott.

        And Taney held his position, but he was despised by everyone around him after war broke out, and he died in 1864, almost penniless. Only 3 members of Lincoln’s cabinet even bothered to attend his funeral, even though he was still Chief Justice.

    rookwood in reply to Titan28. | January 19, 2020 at 11:48 pm

    If it comes down to Roberts, he’ll be blackmailed as he was with Obamacare!

This is just one of the latest tricks the Dems are trying because they cannot win with their left-wing programs to change our country into something that we do not want. They threatened to “Pack” the SCOTUS with more judges when a Dem became president because of the judges Trump has appointed. They want to do away with the Electoral college because it maintains the basic structure of our Republic. They are now employing “Vote harvesting” in CA and NC to literally get votes that they want but not all votes. They constantly push for stronger federal laws that overwhelm state laws. And now we have an impeachment that is nothing like the ones of yore and any sense of fairness or ethics have been abandoned. There is no crime charged and if treated by the Senate as a real impeachment, will open the doors to an almost constant attack on any future presidents by unhappy political foes.

It’s worth noting that a majority of faithless electors in 2016 came out of *Clinton’s* camp.

This sworod very much cuts both ways.

So what is developing is an illogical new paradigm for our “democratic republic”. Billions is spent focusing our passions and intellect to the candidates themselves. An unknown elector gets elected(?) with no process for voters to get to know him/her. So come election day, motivated my the issues, we diligently vote for the candidate of our choice only to have our votes stolen by an unknown corrupt elector?

Guess what new path to corrupt wealth is emerging? A guy like Bloomberg (Mr. Insider Trading racketeer) buys off all the electors and buys the presidency. And this is legal?

Yep. This is exactly what the Founding Fathers had in mind. That is why they risked everything in the Revolutionary War. The “more perfect union” they were seeking. The missing element was massive, mind-blowing corruption. Yes Supreme Court, we are THAT stupid. Are you?

Close The Fed | January 18, 2020 at 9:31 am

If I recall correctly, the idea of the electors was that if somehow a man of worthless or dangerous character (Like Hillary Clinton) was chosen by the voters, then the electors would have the autonomy to vote for someone else. They were distinctly given discretion to avoid being governed by an unacceptable character.

Also, if I recall correctly (read this all decades ago), the idea was REALLY part of the time and technology, meaning, the Founding Fathers believed that since each state’s electors would be distant from each other when casting their votes, that no single faction would be capable of corrupting all of them or a large portion of them because of the distances between them, and the time it took to travel at that time.

So that, each would make an independent decision without pressure and corrupting influence. Therefore, our modern means of communication and the modern habit of bullying people via lightening quick threats via same, would be something the Founders didn’t anticipate and which works contrary to their intent.

If anything, I would say the electors have the Constitutional Duty to vote contrary to the popular vote of their state if they find said vote to be for a criminal (a la Hillary Clinton), and that to effectuate the Constitution intent, we should actually sequester them after election day so that they will NOT BE influenced by bullies in the intervening time period.

Caveat again: Best of my recollection.

William A. Jacobson: Intimidation of electors was tried by Democrats in 2016. If given a legal green light, there’s no telling how much damage could be done to the stability of the nation if the electoral count is close and bullying a small number of electors to go faithless swings the Electoral College to Democrats.

We agree that faithless electors could destabilize the electoral system. It would make the presidential election non-binding, a mere suggestion. As the U.S. Constitution gives the power to the legislature to determine how a state’s electoral votes are cast, it’s doubtful the Supreme Court will support faithless electors.

William A. Jacobson: An argument can be made that the Electoral College favors Democrats and liberals, because they almost automatically win big states like California, New York and Illinois — so they start with a built-in Electoral College lead.

That is not correct. Small, rural states have a significant advantage in the Electoral College due to having two Senators, the same as large, urbanized states. Given faithful electors, a voter in Wyoming has 3½ times the power as a voter in California.

    Edit would be nice, even if a short window.

    Z: the U.S. Constitution gives the power to the legislature to determine the state’s electors. Consequently, they should be able to require a binding pledge by the elector as a condition of their appointment.

      Tom Servo in reply to Zachriel. | January 18, 2020 at 12:08 pm

      Ray vs. Blair (1952) already decided that. The question now is, can electors be punished by the State for violating the pledge they made? I think the answer is obvious, and not a very difficult legal question at all.

    Edward in reply to Zachriel. | January 18, 2020 at 1:25 pm

    That often made argument* is rationally correct only when looking at the impact of each vote cast for any particular elector. But when viewed by state, which is how the College of Electors works, there aren’t only Senators in the calculation. Because Representatives are determined by population and each Representative is equal to one Elector CA will always have far, far more to “say” about who is elected President than Wyoming no matter how many people flee CA to WY. In fact the San Francisco SMSA alone has at least twice the number of Electors as the State of Wyoming (allowing for a part of a Representative by simple division of population 6.6 vs 3).

    * An argument any logical person with knowledge of how the College of Electors works can easily see is Bravo Sierra.

      Edward: Because Representatives are determined by population and each Representative is equal to one Elector CA will always have far, far more to “say” about who is elected President than Wyoming no matter how many people flee CA to WY.

      But not Californians. Wyomingites have more political power than Californians.

    Milhouse in reply to Zachriel. | January 18, 2020 at 7:55 pm

    As the U.S. Constitution gives the power to the legislature to determine how a state’s electoral votes are cast

    It does no such thing. It gives the legislature only the power to determine how the electors are chosen. Once it has determined that method it has no further power over the electors.

    Milhouse in reply to Zachriel. | January 18, 2020 at 8:01 pm

    That is not correct. Small, rural states have a significant advantage in the Electoral College due to having two Senators, the same as large, urbanized states. Given faithful electors, a voter in Wyoming has 3½ times the power as a voter in California.

    That would be true only if a state’s electors were awarded in proportion to the candidates’ vote in that state. But since almost all states, including all the big ones, have chosen to award all their electors to the first candidate past the post in their state, it follows that the marginal voter who tips California from one candidate to the other awards his chosen candidate 55 electors, while the one who tips Wyoming awards only 3.

      Milhouse: it follows that the marginal voter who tips California from one candidate to the other awards his chosen candidate 55 electors, while the one who tips Wyoming awards only 3.

      That doesn’t work either. Consider an exaggerated case, an electorate of three voters. The marginal voter in this case has more political power than a marginal voter is ever likely to have in California.

        Milhouse in reply to Zachriel. | January 19, 2020 at 9:01 pm

        The marginal voter is the voter who tips the election in that state. And the marginal voter in California tips 55 electors.

          Milhouse: The marginal voter is the voter who tips the election in that state. And the marginal voter in California tips 55 electors.

          It’s math, and depends on how you define marginal voter. Typically, marginal voter refers to the small percentage of voters who can swing a close election.

          Let’s say the election is within 0.1%. That would mean there are about 58 times more marginal voters in such an election in California than in Wyoming, so the Californian’s marginal vote is much more diluted.

          But what if we take the extreme case, the election is within one vote! The marginal voters have the exact same power in such a case. But there is a much greater chance of an election being that close when the population is small than when it is large.

Isn’t there another wrinkle to this? Didn’t some state decide to cast their electoral votes according to who wins the national popular vote? Isn’t that what Hillary and others
pushing?

Interesting how making such statements earns me a down twinkle from somebody on this site without offering a counter argument. Personally, I don’t believe Republicans have the balls to do the right thing. When the moment comes when we are forced to make a difficult choice, I fear we will weasel our way out.

It’s easy to say “Live Free or Die” or “Don’t Tread On Me” or “Molon Labe”. But actually doing it… well… Virginians are leading the way for us. That is probably the big reason why they were selected first for annihilation on 2nd amendment rights. They are now being gaslighted to be blamed for the institutional violence being threatened by Gov. Northham in an effort to keeping this from becoming a national cause with out-of-staters joining in the fight.

So do we wait for the fight to come to us (and it IS coming) or do we get involved now before we get steamrolled for failing to stop it when we could? Where are all the tough guys? Where did they go? Enough bumper stickers already.

    MrMichael in reply to Pasadena Phil. | January 19, 2020 at 3:55 am

    There IS a State by State compact where State Law would require those State’s Electoral College members to vote for the winner of the National Popular vote… BUT.

    It has only passed in 15 States and the District of Columbia. The total number of Electoral College votes totals 196… but according to the plan and the laws the States have passed, it will NOT go into effect until the total number of Electors represented equals 270… that is, until they have a majority of the Electors anyway.

    I live in Seattle… and I thought it would be funny as hell if Trump won the popular vote Nationwide due to extremely effective Get Out The Vote operations in deeply ‘red’ states… states that would likely have a lot of Trump voters neglect to vote because ‘he would win here anyways.’ Imagine if that were to happen…

    …and Washington, Oregon, New York, Massachusetts, and California’s Electoral College members were forced to vote for Donald Trump in 2020.

    BUT… Like I said, not enough States have passed it yet, so it won’t go into effect in time… and these rulings by the Supreme Court may make the whole effort Moot. We’ll have to wait to find out. Still. Get out the Vote.

    More details: https://www.nationalpopularvote.com/state-status

The Presidential election is a power of the states and each state determines how that state selects its electors and determines how those electors are to cast their ballots.

Currently, every state does holds a election, but this is not a requirement. It is perfectly legal for any state to amend its laws that determine how its electors are selected and how they vote. Of course, if the state’s citizens don’t like the changes, they can simply replace their elected officials at the next local election.

Should a faithless elector foolishly announce his intentions prior to the meeting of the electoral college, then the state may replace that elector. Once the vote is cast in the electoral college, the fuzzy fog of politics blurs the outcome.

    Yes. Let’s vote the communists out before November. How do you do that? There are too many levels of entrenched politicians, bureaucrats, judges etc… and too little time.

    We can’t “evolve” our way past this nor learn from our next big mistake. If we get it wrong this November, it may very well be the last time we vote. Then what? Stompy-footed finger-wagging tut-tutting by frowning people?

    Edward in reply to stablesort. | January 18, 2020 at 1:03 pm

    Frankly this is a very foolish argument to make: any state can do away with Presidential elections and simply require the Electors to vote the way the legislature tells them to. If the people don’t like it, they always can vote the legislators out the next election (normally one or two years after the national election, could be more).

    Seems like a good way to start a war. I don’t recommend war (been there, done that), but if any state went down that road I believe the outcome would be legislators and electors taking a long trip on a short rope (deservedly so), war or (most likely) both. But I could be wrong and enough people simply don’t care enough to bother. But less than a third of the population (IIRC) of the 13 colonies cared, and it was enough.

    Milhouse in reply to stablesort. | January 18, 2020 at 8:04 pm

    The Presidential election is a power of the states

    Specifically the state legislatures, not the state governor or courts. This was at issue in Bush v Gore.

    and each state determines how that state selects its electors

    True.

    and determines how those electors are to cast their ballots.

    False.

    Should a faithless elector foolishly announce his intentions prior to the meeting of the electoral college, then the state may replace that elector.

    No, it can’t. Once he’s been chosen in the manner the legislature determined in advance, it cannot unchoose him.

      Barry in reply to Milhouse. | January 20, 2020 at 9:18 am

      The legislature determines how the electors are appointed. They can choose to have the governor or mickey mouse appoint them.

Lucifer Morningstar | January 18, 2020 at 12:23 pm

1) a State has no power to legally enforce how a presidential elector casts his or1 her ballot;

The states have the power to enforce how a presidential elector casts their vote as the Constitution is silent on that matter and therefore the manner of enforcement (if any) is left up to the states.

2) a State penalizing an elector for exercising his or her constitutional discretion to vote violates the First Amendment

First Amendmnt doesn’t apply as there is no “freedom of expression” gauranteed as an Elector.

Lucifer Morningstar | January 18, 2020 at 12:34 pm

1. Whether a presidential elector who is prevented by their appointing State from casting an Electoral College ballot that violates state law lacks standing to sue their appointing State because they hold no constitutionally protected right to exercise discretion.

The individual states have the power to enforce how a presidential elector casts their electoral vote as the Constitution is silent on that matter and therefore under the operation of the 10th Amendment the manner of “enforcement (if any) is left up to the states.

2. Does Article II or the Twelfth Amendment forbid a State from requiring its presidential electors to follow the State’s popular vote when casting their Electoral College ballots.

No, neither forbid a State from requiring its presidential electors to follow the State’s popular vote.

This seems like a simple call, IMO.

1. The U.S. constitution requires a republic, not a direct democracy.
2. The U.S. constitution requires electors and leaves the manner of selecting electors to each state.
3. The electors act as an intermediary between their selectors regardless of the mechanism of their selection (popular vote, legislative or executive appointment).
4. The electors are therefore unbound from any requirements to reflect the preferences of their selectors. If not then the electors wouldn’t be exercising independent judgment.

Poorly decided case law aside, IMO arguments to the contrary are logically and constitutionally flawed.

As a thought exercise replace electors with members of the House. Your representative may state, during a campaign, that they will propose is support a particular policy/bill but they are not required to do so once in office.

Note that I am NOT arguing that faithless electors are a good thing, only that IMO the electors are supposed to be free to exercise independent judgment.

Another point is that the electors would then be able to nullify the silly popular vote compact.

    Milhouse in reply to CommoChief. | January 18, 2020 at 8:05 pm

    This is exactly right.

    OK, until 4.

    The states may require electors to be bound. The constitution does not dictate how the states bind them or if they bind them.

      Milhouse in reply to Barry. | January 19, 2020 at 9:05 pm

      The very definition of “elect” involves making a choice. If one is merely an automaton, who must vote as he is told, then he is not an elector at all. If you were right then the states could bind their representatives and senators as well. Especially back when the state legislators directly elected the senators; according to you they should have been able to tell the senators how to vote. They could certainly require advance pledges, if they liked, but once a senator was elected he was free to ignore his pledge.

        Barry in reply to Milhouse. | January 20, 2020 at 9:21 am

        Nope you’re wrong. Read the constitution.

        The legislature has free reign and could choose to bind or not. The constitution gives the power to the respective legislatures of each state without further guidance. The legislature could appoint mickey mouse to choose the electors.

My first exposure to the ‘faithless elector’ concept was during the Bush/Gore 2000 election when Al Gore and the DNC threw out every single concept of following election law in search of power. They threw out military absentee ballots, tried to get punchcard ballots interpreted differently for Bush and Gore, tried to get the ballots into small rooms with only Dem counters so they could manufacture a mere 500 or so votes, and when all that failed, they floated the concept of having *other* states that went Bush to cast their electoral votes for Gore because fairness and all that crap.

The Supremes should crush this like a noxious bug, 9-0. They won’t, of course, because there are a few members who have no problem with the Dems endless quest for raw power despite the law, but they *should*

Maybr Roberts will follow his dumb arse citizenship question opinion and rule that states can require electors to vote a certain way except when DJT is running.

Christopher B | January 18, 2020 at 8:50 pm

I’m with Dusty Pitts.

I fully expect a ruling that the legislature can force an elector to vote for whatever candidate the legislature decides but is silent on the question of whether that must be the popular vote winner in the state if that’s how the electors are chosen.

Basically a signal that the NPV compact would be ruled constitutional. Expect a flurry of states trying to put it in place before November 2020.

Eastwood Ravine | January 18, 2020 at 9:28 pm

Not that I’m an expert on the Constitution, but I suspect Federalism is the natural compromise; each State can decide if it wants its electors to held to the decision a majority of voters decided in said State.

Hannibal Electors will cannibalize the process.

William A. Jacobson: Hillary won the national popular vote, but lost the Electoral College count by a landslide

Trump’s Electoral College victory only ranks 46th out of 58.

    Barry in reply to Zachriel. | January 19, 2020 at 10:54 am

    Landslide!

    That there were larger landslides doesn’t negate the facts, commie.

      Milhouse in reply to Barry. | January 19, 2020 at 9:07 pm

      So you’re claiming that almost every presidential election is won by a landslide; that it’s almost unheard of for a president to win in less than a landslide. That just redefines the term out of existence.

        Barry in reply to Milhouse. | January 20, 2020 at 9:24 am

        Take it up with the professor:
        “Hillary won the national popular vote, but lost the Electoral College count by a landslide, leading to the mental and societal breakdown of Democrats, who now want to discard the Electoral College by any means possible.”

        It makes no difference how many were won by a landslide. You just don’t like to admit Trump won at all, you said he wouldn’t, and your still hoping he’ll be removed.

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