Wednesday, July 28, 2010

Massachusetts State Statute to Mandate Election of President By Popular Vote

The Massachusetts legislature has passed a “National Popular Vote” bill and sent it to the Governor.  The law, a part of an “Agreement Among The States To Elect The President By National Popular Vote,”  seeks to vitiate the Electoral College or at least dramatically change the way it operates.

The law provides in part:

Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a “national popular vote total” for each presidential slate.
The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the “national popular vote winner.”
The presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.

800px-Proposed_Electoral_College_2012.svg Massachusetts is the sixth state (after Maryland, New Jersey, Illinois, Hawai’i and Washington) to pass the law, which will only become effective when “states cumulatively possessing a majority of the electoral votes have enacted this agreement in substantially the same form and the enactments by such states have taken effect in each state.”

The National Popular Vote organization contents that 1,777 state legislators have endorsed the Interstate Agreement.  The organization also contends the law is constitutional in its  discussion memo.

The organization also contends the state compact is well within the ambit of Article II section 1 clause 2 : “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."    In brief, if the Legislature directs that the state electors cast their votes for whoever won the popular, then that would meet the constitutional requirement.

Subsequent constitutional amendments regarding presidential elections - - - Twelfth Amendment,Twentieth Amendment (regarding term to start in January),  Twenty-third Amendment (including the District of Columbia within the Electoral College - - - do not alter this state power.   

Congressional attempts to abolish the electoral college by constitutional amendment have not gained traction.



[image: 2012 electoral college map via]

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The problem, I think, is that the states entering into this agreement will need the consent of Congress (under Art. I, sect. 10, para. 3: "No state shall, without the consent of Congress, ... enter into any agreement or compact with another state...."), and the mathematics of it suggest that, while a majority of the House may approve, a majority of the Senate will not, as the least populous states (with, of course, the same representation in the Senate as the most populous) have little incentive to lose the disproportionate influence the present Electoral College system gives them.

Posted by: Patrick Wiseman | Jul 28, 2010 9:43:44 AM

In 1893 and 1978 the Supreme Court said that this Compacts Clause can "not be read literally," meaning the consent of Congress is not needed. The 1893 ruling (Virginia v. Tennessee) said "it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States." Since the power to allot electors however each state legislature decides is fully granted to the states and only the states, there is no encroachment on federal power.

Posted by: Alex | Jul 28, 2010 10:37:25 AM

In U.S. Steel Corp. v. Multistate Tax Comm'n (1973), the Court considered whether the compact in question "impairs the sovereign rights of nonmember States." The concerns underlying the Compact Clause are not simply related to the relationship between federal and State power, but also the power between compacting and non-compacting States. I've argued that there is a serious concern that non-compacting States, under the National Popular Vote, would effectively lose the political power of their electors. That is, compacting States' electoral votes are the only votes that mean anything, and non-compacting States' electoral votes are, effectively, wortheless; whereas, without the compact, all States' electoral votes have some kind of political worth.

Posted by: Derek T. Muller | Jul 28, 2010 11:41:44 AM

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