6 ms·

The Massachusetts proposal is less dumb than Maine's. It's for all elections except presidential. RCV is incompatible with the NPVIC, as well as with how the el

The Massachusetts proposal is less dumb than Maine's. It's for all elections except presidential. RCV is incompatible with the NPVIC, as well as with how the electoral college works in the interim. If Maine voted for a third-party without NPVIC, it would, in effect, waste its vote.

Karunamon 6y ago
As I understand it, the NPVIC will never happen. Its entire purpose, as expalained in a CGP Grey video, was creating a situation where no one state has to move first by making the agreement only take effect once a certain number of electoral votes are accounted for. The problem is that this agreement is expressly unconstitutional by way of article 1 section 10: No State shall, without the Consent of Congress, [...] enter into any Agreement or Compact with another State While states are allowed to divvy up their EVs within their own borders however they choose, this kind of interstate agreement to do so in a certain way is illegal, and bipartisan congressional support to circumvent the electoral college seems unlikely.
- akhosravian 6y ago
  What exactly could the federal government do about it? Force the states to nominate electors by some other process? Toss out the states votes? I’m not concern trolling I honestly can’t come up with a response that doesn’t seem like a disaster.
  - lostdog 6y ago
    The problem is what happens if a state that signed the compact decided to break it. Because the federal government considers the compact illegal, it won't enforce it, so any state can break it at will.
    - Karunamon 6y ago
      I'd imagine the electors, or quite possibly any voter in the state, would have standing to invalidate joining the agreement whether or not it's actually enforced.
    - dane-pgp 6y ago
      It might not actually matter if one state (or several) decided to break the compact, since the trigger condition for the compact coming into effect is that the compacting states have enough electoral votes to guarantee the outcome of the election. As long as the defecting state had fewer (or the same number of) electoral votes as the aggregate of the non-compacting states that happened to assign their electors in support of the popular vote winner, then the defection would not actually change the outcome of the election. This may reduce the incentive for states to defect from the compact, as might the possibility of electors from non-compacting states becoming faithless out of respect for the compact. Strategically I think the NPVIC shouldn't have been presented as a compact between states but as a set of individual pledges to the people of America that each pledging state would act in the necessary way once enough other states had made equivalent pledges. That would mean the states wouldn't have standing to sue each other, unlike in a compact, but it seems that their ability to do that is constitutionally questionable anyway.
  - dragonwriter 6y ago
    > What exactly could the federal government do about it? Force the states to nominate electors by some other process? Yes, with: > Toss out the states votes? ...as a fallback. That's actually how the norm of "have a vote of the people in your state with the actual voting on, or completed by, the standard 'election day', and assign electors by a procedure that exists in law prior to that election" rule works. Its a federal law directing what states should do, and threatening that their electoral votes might be disregarded when the electoral vote count occurs in Congress if they don't comply.
- eej71 6y ago
  Separately from any constitutional challenges at the federal level, I bet many state supreme courts will be faced with challenges based on the premise that the state legislatures reached beyond their state granted powers.
  - dragonwriter 6y ago
    > Separately from any constitutional challenges at the federal level, I bet many state supreme courts will be faced with challenges based on the premise that the state legislatures reached beyond their state granted powers. I'm pretty sure that in the cases around the 2000 Presidential election (and possibly previously) one of the key federal rulings is that because selection of Presidential electors is a power of state legislatures (not states as a whole) specifically granted by the federal Constitution, State Constitutions cannot trump the federal Constitution in how that authority is allocated.
- avsbst 6y ago
  > The problem is that this agreement is expressly unconstitutional I would disagree with that phrasing, and your final paragraph contradicts that statement. There is nothing unconstitutional about states entering into compacts. They merely require congressional consent to do so as the language of Article 1 Section 10 makes clear. Additionally, even without congressional consent the supreme court has ruled multiple times since the late 1800s that as long as an a compact is not: > "directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon. . . . the just supremacy of the United States" Then congressional consent is not required. [1][2][3] The argument then is whether the NPVIC violates that rule and encroaches on federal supremacy or grants additional power to the states. However, the power in question here relates to how states appoint electors. This is a power explicitly granted to the states under article 2 section 1 clause 2 [4]: > Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors Therefore, in my opinion, any compact regarding the power to select electors does not pass the tests laid out by previous case law, and the compact does not require congressional approval. Of course our opinions don't count, only the supreme courts opinion matters, but there is no indication from any case law that this compact is "explicitly unconstitutional" or "in a certain way illegal". If anything it is borderline, but supported by current caselaw. The supreme court will most likely take up any suit involving the compact for clarification, but they would need a novel justification for deciding that states exercising a power explicitly granted to the states somehow increases the power of states. Additionally, all of this is entirely moot if congress grants approval. For further reading I would look at the NPVIC's own FAQ which has detailed citations and caselaw supporting their argument as well as detailing counter arguments [5]. For an independent review of interstate compact caselaw see [1], [6], or [7]. [1] https://ballotpedia.org/Interstate_compact https://ballotpedia.org/Interstate_compact [2] https://ballotpedia.org/Virginia_v._Tennessee_(1893) https://ballotpedia.org/Virginia_v._Tennessee_(1893) [3] https://ballotpedia.org/New_Hampshire_v._Maine_(1976) https://ballotpedia.org/New_Hampshire_v._Maine_(1976) [4] https://en.wikipedia.org/wiki/Article_Two_of_the_United_States_Constitution#Clause_2:_Method_of_choosing_electors https://en.wikipedia.org/wiki/Article_Two_of_the_United_Stat... [5] https://www.nationalpopularvote.com/section_9.16#myth_9.16.5 https://www.nationalpopularvote.com/section_9.16#myth_9.16.5 [6] https://www.csg.org/knowledgecenter/docs/ncic/caselaw.pdf https://www.csg.org/knowledgecenter/docs/ncic/caselaw.pdf [7] https://ballotpedia.org/Congressional_consent https://ballotpedia.org/Congressional_consent
- jcranmer 6y ago
  The question of course is what constitutes an "Agreement or Compact" under constitutional terms. SCOTUS held in Virginia v Tennessee that an agreement is something that increases the power of a state in some fashion. The popular vote compact here may not meet that threshold. For comparison, note that a lot of what we think of as "treaties" (which require advice and consent of the Senate) aren't actually treaties per the constitutional interpretation, but done only with executive privilege.
  - woofie11 6y ago
    More fundamentally, NPVIC doesn't actually require an agreement or compact. States just need to pass a law which says: "If greater than [threshold] of states pass NPVIC-compliant laws, we will select electors based on popular vote of America, rather than on popular vote of [state]." This type of collusion very obviously doesn't meet the threshold under Constitutional terms, and continues to be a republican form of government. I don't see any issues. This sort of collusion is pretty common too. See local COVID19 response state consortia, codes like UCC, professional accreditations, etc. Without that, the US government would be impotent, since there are things which are outside of federal power, but which require coordination across states. If this were banned, the US would collapse.
- TheCoelacanth 6y ago
  Consent of Congress is a much lower bar than a constitutional amendment, though.
- deleted 6y ago
  [deleted]
kibwen 6y ago
NPVIC still assumes a two-party system, so it's fundamentally flawed. Of course, if the whole country used RCV (or any other non-FPTP system) for federal legislative elections, then the presidential election would be far less important, since one party would be less likely to control the legislature and might actually deign to exercise some oversight, unlike our current Senate.

Karunamon 6y ago

As I understand it, the NPVIC will never happen. Its entire purpose, as expalained in a CGP Grey video, was creating a situation where no one state has to move first by making the agreement only take effect once a certain number of electoral votes are accounted for. The problem is that this agreement is expressly unconstitutional by way of article 1 section 10: No State shall, without the Consent of Congress, [...] enter into any Agreement or Compact with another State While states are allowed to divvy up their EVs within their own borders however they choose, this kind of interstate agreement to do so in a certain way is illegal, and bipartisan congressional support to circumvent the electoral college seems unlikely.

akhosravian 6y ago
What exactly could the federal government do about it? Force the states to nominate electors by some other process? Toss out the states votes? I’m not concern trolling I honestly can’t come up with a response that doesn’t seem like a disaster.
- lostdog 6y ago
  The problem is what happens if a state that signed the compact decided to break it. Because the federal government considers the compact illegal, it won't enforce it, so any state can break it at will.
  - Karunamon 6y ago
    I'd imagine the electors, or quite possibly any voter in the state, would have standing to invalidate joining the agreement whether or not it's actually enforced.
  - dane-pgp 6y ago
    It might not actually matter if one state (or several) decided to break the compact, since the trigger condition for the compact coming into effect is that the compacting states have enough electoral votes to guarantee the outcome of the election. As long as the defecting state had fewer (or the same number of) electoral votes as the aggregate of the non-compacting states that happened to assign their electors in support of the popular vote winner, then the defection would not actually change the outcome of the election. This may reduce the incentive for states to defect from the compact, as might the possibility of electors from non-compacting states becoming faithless out of respect for the compact. Strategically I think the NPVIC shouldn't have been presented as a compact between states but as a set of individual pledges to the people of America that each pledging state would act in the necessary way once enough other states had made equivalent pledges. That would mean the states wouldn't have standing to sue each other, unlike in a compact, but it seems that their ability to do that is constitutionally questionable anyway.
- dragonwriter 6y ago
  > What exactly could the federal government do about it? Force the states to nominate electors by some other process? Yes, with: > Toss out the states votes? ...as a fallback. That's actually how the norm of "have a vote of the people in your state with the actual voting on, or completed by, the standard 'election day', and assign electors by a procedure that exists in law prior to that election" rule works. Its a federal law directing what states should do, and threatening that their electoral votes might be disregarded when the electoral vote count occurs in Congress if they don't comply.
eej71 6y ago
Separately from any constitutional challenges at the federal level, I bet many state supreme courts will be faced with challenges based on the premise that the state legislatures reached beyond their state granted powers.
- dragonwriter 6y ago
  > Separately from any constitutional challenges at the federal level, I bet many state supreme courts will be faced with challenges based on the premise that the state legislatures reached beyond their state granted powers. I'm pretty sure that in the cases around the 2000 Presidential election (and possibly previously) one of the key federal rulings is that because selection of Presidential electors is a power of state legislatures (not states as a whole) specifically granted by the federal Constitution, State Constitutions cannot trump the federal Constitution in how that authority is allocated.
avsbst 6y ago
> The problem is that this agreement is expressly unconstitutional I would disagree with that phrasing, and your final paragraph contradicts that statement. There is nothing unconstitutional about states entering into compacts. They merely require congressional consent to do so as the language of Article 1 Section 10 makes clear. Additionally, even without congressional consent the supreme court has ruled multiple times since the late 1800s that as long as an a compact is not: > "directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon. . . . the just supremacy of the United States" Then congressional consent is not required. [1][2][3] The argument then is whether the NPVIC violates that rule and encroaches on federal supremacy or grants additional power to the states. However, the power in question here relates to how states appoint electors. This is a power explicitly granted to the states under article 2 section 1 clause 2 [4]: > Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors Therefore, in my opinion, any compact regarding the power to select electors does not pass the tests laid out by previous case law, and the compact does not require congressional approval. Of course our opinions don't count, only the supreme courts opinion matters, but there is no indication from any case law that this compact is "explicitly unconstitutional" or "in a certain way illegal". If anything it is borderline, but supported by current caselaw. The supreme court will most likely take up any suit involving the compact for clarification, but they would need a novel justification for deciding that states exercising a power explicitly granted to the states somehow increases the power of states. Additionally, all of this is entirely moot if congress grants approval. For further reading I would look at the NPVIC's own FAQ which has detailed citations and caselaw supporting their argument as well as detailing counter arguments [5]. For an independent review of interstate compact caselaw see [1], [6], or [7]. [1] https://ballotpedia.org/Interstate_compact https://ballotpedia.org/Interstate_compact [2] https://ballotpedia.org/Virginia_v._Tennessee_(1893) https://ballotpedia.org/Virginia_v._Tennessee_(1893) [3] https://ballotpedia.org/New_Hampshire_v._Maine_(1976) https://ballotpedia.org/New_Hampshire_v._Maine_(1976) [4] https://en.wikipedia.org/wiki/Article_Two_of_the_United_States_Constitution#Clause_2:_Method_of_choosing_electors https://en.wikipedia.org/wiki/Article_Two_of_the_United_Stat... [5] https://www.nationalpopularvote.com/section_9.16#myth_9.16.5 https://www.nationalpopularvote.com/section_9.16#myth_9.16.5 [6] https://www.csg.org/knowledgecenter/docs/ncic/caselaw.pdf https://www.csg.org/knowledgecenter/docs/ncic/caselaw.pdf [7] https://ballotpedia.org/Congressional_consent https://ballotpedia.org/Congressional_consent
jcranmer 6y ago
The question of course is what constitutes an "Agreement or Compact" under constitutional terms. SCOTUS held in Virginia v Tennessee that an agreement is something that increases the power of a state in some fashion. The popular vote compact here may not meet that threshold. For comparison, note that a lot of what we think of as "treaties" (which require advice and consent of the Senate) aren't actually treaties per the constitutional interpretation, but done only with executive privilege.
- woofie11 6y ago
  More fundamentally, NPVIC doesn't actually require an agreement or compact. States just need to pass a law which says: "If greater than [threshold] of states pass NPVIC-compliant laws, we will select electors based on popular vote of America, rather than on popular vote of [state]." This type of collusion very obviously doesn't meet the threshold under Constitutional terms, and continues to be a republican form of government. I don't see any issues. This sort of collusion is pretty common too. See local COVID19 response state consortia, codes like UCC, professional accreditations, etc. Without that, the US government would be impotent, since there are things which are outside of federal power, but which require coordination across states. If this were banned, the US would collapse.
TheCoelacanth 6y ago
Consent of Congress is a much lower bar than a constitutional amendment, though.
deleted 6y ago
[deleted]

kibwen 6y ago

NPVIC still assumes a two-party system, so it's fundamentally flawed. Of course, if the whole country used RCV (or any other non-FPTP system) for federal legislative elections, then the presidential election would be far less important, since one party would be less likely to control the legislature and might actually deign to exercise some oversight, unlike our current Senate.