6 ms·

Probably unconstitutional as the constitution mandates that each state provide to its citizens a representative form of government, meaning the state's electora

Probably unconstitutional as the constitution mandates that each state provide to its citizens a representative form of government, meaning the state's electoral votes need to match the public's votes. It would be unconstitutional to apportion the state's representatives by vote of another state's voters.

timeon 2y ago
Seems like constitution should be changed then.
- anon291 2y ago
  Why? Representative forms of electing a head of state / government are the norm. For example, it's common practice in the Westminster system. In my opinion the only thing that ought to change is we ought to elect the elector directly. That would make it easier for them to make proper deals and compromises.
brookst 2y ago
But states' electoral votes don't match its public's votes. Most states are winner-take-all, which (if your constitutional understanding is correct) should be equally unconstitutional. But I think the "representative form of government" refers to state offices being elected and not hereditary/etc, and not how federal electoral votes are allocated. There are a lot of questions about its constitutionality, though. The Wikipedia page is quite good: https://en.wikipedia.org/wiki/Constitutionality_of_the_National_Popular_Vote_Interstate_Compact https://en.wikipedia.org/wiki/Constitutionality_of_the_Natio...
- anon291 2y ago
  The constitution requires a representative system of government. That is met with a winner take all situation because the electors are chosen in a system that only assesses the votes of the citizens of that state (you elect a whole slate of electors rather than a single one). Another representative system of choosing electors is having state senates just pick who the electors will vote for, because that is also representative of the citizens of the state (just multiple layers of representation). Choosing electors based on another state's vote however is not representative.
  - brookst 2y ago
    I mean it kinda sorta makes sense, but it is not an argument that anyone else has advanced. I think you're seeing a non-existent conflict between that state governments be representative (Article IV, Section 4) with the right for states to appoint electors "in such Manner as the Legislature thereof may direct" (Article II, Section 1).
pavlov 2y ago
In most states, all the electoral votes are assigned to one candidate, yet it often happens that 49.9% of the state’s electorate did not vote for that person. Why is that constitutional if the state’s electoral votes need to match the public’s votes?
- anon291 2y ago
  Because there's a clear chain of representation? Your complaint that 49.9% of the population will not get their way is a criticism of democracy.
homarano 2y ago
The constitution lets each state's legislature pick electors through whatever means it chooses. Popular vote, friends of the legislature, arm wrestling contest, winner of national popular vote, whatever. My main concern with the NPVIC is that legislatures might change their mind between election day and elector day if their electors go to the minority party in their state.
- owisd 2y ago
  They can set the rules however they like before the vote, but the Electoral Count Act prohibits states changing the rules around how they appoint electors once the votes have been cast.
- anon291 2y ago
  That is correct. The legislature can pick through whatever means it chooses. It cannot however ask the people to vote and then ignore the result because that is not a republican form of government, which the federal government is constitutionally required to guarantee to all citizens of a state. A wrestling contest between state legislators would be a perfectly legal way to choose electoral votes. Winner of a foreign vote would not be.
klyrs 2y ago
It's an interesting question. I'm reading article II of the constitution and I'm not finding text to directly support your claim. To the contrary, the "lazy justice" practice of textualism indicates that each State Legislature directs the manner of appointing electors. As I read it, a State Legislature could indeed appoint electors according to the national popular vote. > 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. Moreover, the constitution doesn't even tell the electors how to vote! > The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President... The question of faithless electors has been delegated to state law as well. https://en.wikipedia.org/wiki/Faithless_elector https://en.wikipedia.org/wiki/Faithless_elector
- anon291 2y ago
  Article IV, Section 4 (https://constitution.congress.gov/browse/article-4/section-4/ https://constitution.congress.gov/browse/article-4/section-4...) > The United States shall guarantee to every State in this Union a Republican Form of Government, I personally interpret that to mean that the feds will intervene should a state not provide a representative form of government. The Supreme Court kinda agrees. It's not a common clause that's ruled on, but in 1874, they did rule on it: https://constitution.congress.gov/browse/essay/artIV-S4-3/ALDE_00013637/['article',%20'1 https://constitution.congress.gov/browse/essay/artIV-S4-3/AL...'] > the Court stated that the Guarantee Clause leaves room for states to structure their governments in various ways yet remain republican. Which I take to mean that the Court will intervene should a state do something that is clearly not republican.
haroldp 2y ago
It has always been up to the states how they apportioned their electoral votes, and it has gone through many different versions to arrive where we are now, including electors being independent of the actual popular vote, and allowing faithless electors. It was only in the late 19th century that states began apportioning all of their electors as a block to the winner, rather than by district. The constitution leaves it to the states.
- anon291 2y ago
  I mean sure and I believe states do have a right to choose their own electors. However, the issue is running an election and then aggregating the results with the other states. An election is a legal event and the constitution requires the states to conduct elections in a representative format, which is violated if they then defer to the electoral results of another state. On the other hand if the representatives of that state decide who the electors will vote for, that is still a representative form of government in which only the citizens of that state are represented.
  - haroldp 2y ago
    > An election is a legal event and the constitution requires the states to conduct elections in a representative format, which is violated if they then defer to the electoral results of another state. The history of the Electoral College seems very much at odds with that notion. Indeed, the current state of the Electoral College is at odds with it, since the states mostly switched to winner-take-all apportionment about 100 years ago, and now we regularly get outcomes where the winner of the popular vote is not the winner of the Electoral College.
    - anon291 2y ago
      You're still electing representatives, but the scope of the election has changed (statewide rather than district wide). That's not the issue. The states can choose to elect electors statewide if they want to. The issue is choosing electors based on foreign voters. Here's another way to think about it. Is it legal for the American president to be chosen by worldwide vote? As far as the states are concerned, other states are a foreign sovereignty
jfengel 2y ago
Probably unconstitutional because five or six members of the Supreme Court don't like it. The actual justification will come later. Your version would probably work just fine. They might find a different one. It doesn't really matter.
- anon291 2y ago
  That's the amazing thing about American common law, isn't it!?
romwell 2y ago
>Probably unconstitutional as the constitution mandates that each state provide to its citizens a representative form of government, meaning the state's electoral votes need to match the public's votes. It would be unconstitutional to apportion the state's representatives by vote of another state's voters Umm, sorry, but if Faithless Electors are constitutional, then so is this. The Constitution doesn't regulate the choice the electors make. The electors can go by another state's voters, the phase of the moon, or what their pet frog is saying, as far as the Constitution is concerned. This country was not built as a democracy. [1] https://en.wikipedia.org/wiki/Faithless_elector https://en.wikipedia.org/wiki/Faithless_elector
- anon291 2y ago
  Faithless electors are constitutional but illegal, and most states ignore their votes. > The electors can go by another state's voters, the phase of the moon, or what their pet frog is saying, as far as the Constitution is concerned. Sure, but not as far as the law is concerned and the moment the states mandate an elector vote in accordance with a national interstate compact is the moment there's a constitutional issue, because the federal government guarantees to all citizens of states a representative form of government, which means their vote needs to choose a representative that represents them, not citizens of a foreign state. > This country was not built as a democracy. That's right, which is why we have representatives elect the president.
  - romwell 2y ago
    >Faithless electors are constitutional but illegal In some states, by the laws of those states, which is absolutely irrelevant when we're discussing the legality of the National Popular Vote compact (which is, obviously, kosher on the level of states that opted into it). >which means their vote needs to choose a representative that represents them, not citizens of a foreign state. By that logic, the Electoral College itself is unconstitutional. Or any election. "I didn't vote for X, so X doesn't represent me". Your interpretation of the word "represent" is not aligned with any real-world elections (including elections in the US). Also, let me remind you that the Congress exists, and provides two other ways that the states are represented. >which means their vote needs to choose a representative that represents them, not citizens of a foreign state. The electors in the electoral college represent citizens that voted for them. Whoever is decided to be the president by them is assumed to represent the people because it was a choice made by elected representatives. They can all, collectively, decide to appoint the person that Russia thinks is the best choice, and it will be constitutional. > which is why we have representatives elect the president. Which is why there isn't a problem in any criteria those representatives use to elect the president - including the National Vote. The problem is that what you think representation means and what the constitution codifies are two different things - which is exactly the problem that the National Vote is trying to address.

timeon 2y ago

Seems like constitution should be changed then.

anon291 2y ago
Why? Representative forms of electing a head of state / government are the norm. For example, it's common practice in the Westminster system. In my opinion the only thing that ought to change is we ought to elect the elector directly. That would make it easier for them to make proper deals and compromises.

brookst 2y ago

But states' electoral votes don't match its public's votes. Most states are winner-take-all, which (if your constitutional understanding is correct) should be equally unconstitutional. But I think the "representative form of government" refers to state offices being elected and not hereditary/etc, and not how federal electoral votes are allocated. There are a lot of questions about its constitutionality, though. The Wikipedia page is quite good: https://en.wikipedia.org/wiki/Constitutionality_of_the_National_Popular_Vote_Interstate_Compact https://en.wikipedia.org/wiki/Constitutionality_of_the_Natio...

anon291 2y ago
The constitution requires a representative system of government. That is met with a winner take all situation because the electors are chosen in a system that only assesses the votes of the citizens of that state (you elect a whole slate of electors rather than a single one). Another representative system of choosing electors is having state senates just pick who the electors will vote for, because that is also representative of the citizens of the state (just multiple layers of representation). Choosing electors based on another state's vote however is not representative.
- brookst 2y ago
  I mean it kinda sorta makes sense, but it is not an argument that anyone else has advanced. I think you're seeing a non-existent conflict between that state governments be representative (Article IV, Section 4) with the right for states to appoint electors "in such Manner as the Legislature thereof may direct" (Article II, Section 1).

pavlov 2y ago

In most states, all the electoral votes are assigned to one candidate, yet it often happens that 49.9% of the state’s electorate did not vote for that person. Why is that constitutional if the state’s electoral votes need to match the public’s votes?

anon291 2y ago
Because there's a clear chain of representation? Your complaint that 49.9% of the population will not get their way is a criticism of democracy.

homarano 2y ago

The constitution lets each state's legislature pick electors through whatever means it chooses. Popular vote, friends of the legislature, arm wrestling contest, winner of national popular vote, whatever. My main concern with the NPVIC is that legislatures might change their mind between election day and elector day if their electors go to the minority party in their state.

owisd 2y ago
They can set the rules however they like before the vote, but the Electoral Count Act prohibits states changing the rules around how they appoint electors once the votes have been cast.
anon291 2y ago
That is correct. The legislature can pick through whatever means it chooses. It cannot however ask the people to vote and then ignore the result because that is not a republican form of government, which the federal government is constitutionally required to guarantee to all citizens of a state. A wrestling contest between state legislators would be a perfectly legal way to choose electoral votes. Winner of a foreign vote would not be.

klyrs 2y ago

It's an interesting question. I'm reading article II of the constitution and I'm not finding text to directly support your claim. To the contrary, the "lazy justice" practice of textualism indicates that each State Legislature directs the manner of appointing electors. As I read it, a State Legislature could indeed appoint electors according to the national popular vote. > 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. Moreover, the constitution doesn't even tell the electors how to vote! > The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President... The question of faithless electors has been delegated to state law as well. https://en.wikipedia.org/wiki/Faithless_elector https://en.wikipedia.org/wiki/Faithless_elector

anon291 2y ago
Article IV, Section 4 (https://constitution.congress.gov/browse/article-4/section-4/ https://constitution.congress.gov/browse/article-4/section-4...) > The United States shall guarantee to every State in this Union a Republican Form of Government, I personally interpret that to mean that the feds will intervene should a state not provide a representative form of government. The Supreme Court kinda agrees. It's not a common clause that's ruled on, but in 1874, they did rule on it: https://constitution.congress.gov/browse/essay/artIV-S4-3/ALDE_00013637/['article',%20'1 https://constitution.congress.gov/browse/essay/artIV-S4-3/AL...'] > the Court stated that the Guarantee Clause leaves room for states to structure their governments in various ways yet remain republican. Which I take to mean that the Court will intervene should a state do something that is clearly not republican.

haroldp 2y ago

It has always been up to the states how they apportioned their electoral votes, and it has gone through many different versions to arrive where we are now, including electors being independent of the actual popular vote, and allowing faithless electors. It was only in the late 19th century that states began apportioning all of their electors as a block to the winner, rather than by district. The constitution leaves it to the states.

anon291 2y ago
I mean sure and I believe states do have a right to choose their own electors. However, the issue is running an election and then aggregating the results with the other states. An election is a legal event and the constitution requires the states to conduct elections in a representative format, which is violated if they then defer to the electoral results of another state. On the other hand if the representatives of that state decide who the electors will vote for, that is still a representative form of government in which only the citizens of that state are represented.
- haroldp 2y ago
  > An election is a legal event and the constitution requires the states to conduct elections in a representative format, which is violated if they then defer to the electoral results of another state. The history of the Electoral College seems very much at odds with that notion. Indeed, the current state of the Electoral College is at odds with it, since the states mostly switched to winner-take-all apportionment about 100 years ago, and now we regularly get outcomes where the winner of the popular vote is not the winner of the Electoral College.
  - anon291 2y ago
    You're still electing representatives, but the scope of the election has changed (statewide rather than district wide). That's not the issue. The states can choose to elect electors statewide if they want to. The issue is choosing electors based on foreign voters. Here's another way to think about it. Is it legal for the American president to be chosen by worldwide vote? As far as the states are concerned, other states are a foreign sovereignty

jfengel 2y ago

Probably unconstitutional because five or six members of the Supreme Court don't like it. The actual justification will come later. Your version would probably work just fine. They might find a different one. It doesn't really matter.

anon291 2y ago
That's the amazing thing about American common law, isn't it!?

romwell 2y ago

>Probably unconstitutional as the constitution mandates that each state provide to its citizens a representative form of government, meaning the state's electoral votes need to match the public's votes. It would be unconstitutional to apportion the state's representatives by vote of another state's voters Umm, sorry, but if Faithless Electors are constitutional, then so is this. The Constitution doesn't regulate the choice the electors make. The electors can go by another state's voters, the phase of the moon, or what their pet frog is saying, as far as the Constitution is concerned. This country was not built as a democracy. [1] https://en.wikipedia.org/wiki/Faithless_elector https://en.wikipedia.org/wiki/Faithless_elector

anon291 2y ago
Faithless electors are constitutional but illegal, and most states ignore their votes. > The electors can go by another state's voters, the phase of the moon, or what their pet frog is saying, as far as the Constitution is concerned. Sure, but not as far as the law is concerned and the moment the states mandate an elector vote in accordance with a national interstate compact is the moment there's a constitutional issue, because the federal government guarantees to all citizens of states a representative form of government, which means their vote needs to choose a representative that represents them, not citizens of a foreign state. > This country was not built as a democracy. That's right, which is why we have representatives elect the president.
- romwell 2y ago
  >Faithless electors are constitutional but illegal In some states, by the laws of those states, which is absolutely irrelevant when we're discussing the legality of the National Popular Vote compact (which is, obviously, kosher on the level of states that opted into it). >which means their vote needs to choose a representative that represents them, not citizens of a foreign state. By that logic, the Electoral College itself is unconstitutional. Or any election. "I didn't vote for X, so X doesn't represent me". Your interpretation of the word "represent" is not aligned with any real-world elections (including elections in the US). Also, let me remind you that the Congress exists, and provides two other ways that the states are represented. >which means their vote needs to choose a representative that represents them, not citizens of a foreign state. The electors in the electoral college represent citizens that voted for them. Whoever is decided to be the president by them is assumed to represent the people because it was a choice made by elected representatives. They can all, collectively, decide to appoint the person that Russia thinks is the best choice, and it will be constitutional. > which is why we have representatives elect the president. Which is why there isn't a problem in any criteria those representatives use to elect the president - including the National Vote. The problem is that what you think representation means and what the constitution codifies are two different things - which is exactly the problem that the National Vote is trying to address.