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Here's one for the Constitution wonks.

OscarLevant

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Hi!

I was postulating a situation in which one party -- that's party, not Democratic Party or Republican Party -- has control of a sufficient number of State legislatures and, perhaps, the governorships of those states, to permit passing state laws permitting the legislature to name and instruct the members of their state's electors without respect to any vote of the state's citizens.. I know of nothing in the Constitution which prevents this. My reason for posting was to note how the United States of America could become a single-party nation even though it is a republic form of democracy. It has nothing to do with 'faithless' electors. The selected electors would be entirely faithful to their marching orders.


Regards, stay safe 'n well. Remember the prophylactic Big 3: masks, hand washing and physical distancing.


Reminder. I try to respond to all who quote my posts. If you do not get a response from me, it may be that you've made it onto my 'Ignore' list.
The trouble with your "IF" suggestion is public outcry. It would be like saying, let's make a law that says only people who can pass a civics test can vote.

Sure you could, but there would be a huge public backlash.

Moreover, those electors who choose the candidate who didn't win the popular vote, without regard to the method of their selection, are still called faithless electors.
 

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The SC has held that the ex post facto clause only applies to criminal law. See Calder v Bull. https://www.oyez.org/cases/1789-1850/3us386
Ah so you think the SC would be OK with changing election law to effect an election that already took place?

I highly doubt it, given we're talking about a hyper-partisan attempt to change the law to betray a majority of voters in a state, which betrays basic bedrock principles of representative democracy.

I doubt it would get much love from the supreme court even in it's current form, and If it did, I don't think such a republic would last under the unrest and lack of legitimacy it would cause. Basically the partisans are asking to rewrite the rules after the game was played, and that bodes very poorly for the rule of law or the claims of being a republic at all.
 
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Gaius46

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Ah so you think the SC would be OK with changing election law to effect an election that already took place?

I highly doubt it, given we're talking about a hyper-partisan attempt to change the law to betray a majority of voters in a state, which betrays basic bedrock principles of representative democracy.

I doubt it would get much love from the supreme court even in it's current form, and If it did, I don't think such a republic would last under the unrest and lack of legitimacy it would cause. Basically the partisans are asking to rewrite the rules after the game was played, and that bodes very poorly for the rule of law or the claims of being a republic at all.
I don't know what the SC would be okay or not okay with though I suspect you're right as individuals the justices would, like most people, be horrified by the thought.

That doesn't change the fact that it's been established since 1800 or so that the ex post facto clause does not apply. Someone arguing against such an attempt would need to find something other than the ex post facto clause to hang their hat on.
 

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With due respect, Torus, Electors who do not choose the candidate who won the popular vote are called 'faithless electors'. In other words, it doesn't matter how you get there, the result is still the same, they are faithless electors. All you are suggesting is making the selection of faithless electors legal, or at the minimum, you are suggesting legalizing the unbinding of them which means they can become faithless with impunity if they so decided. The idea is absurd, because you don't have to make a law that does this, all you have to do is repeal the law that binds them to the popular vote, as without state law, that IS the default state of the constitution (if I understand the Constitution, correctly).
Hi!

I disagree with your evaluation of the possibility and legality of my supposition. That's what makes horse races, nu?

Regards, stay safe 'n well.
 

Torus34

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The trouble with your "IF" suggestion is public outcry. It would be like saying, let's make a law that says only people who can pass a civics test can vote.

Sure you could, but there would be a huge public backlash.

Moreover, those electors who choose the candidate who didn't win the popular vote, without regard to the method of their selection, are still called faithless electors.
Hi!

We are seeing a public outcry from the pro-President of the United States of America Donald Trump people [They're a rather significant group as far as size goes, right?] about a fraudulent election. We'll see how far that goes, nu?

Regards, stay safe 'n well.
 
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Deuce

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Acts can be made illegal at anytime, providing that said act isn't constitutionally protected. There's nothing in The Constitution prohibiting the outlawing of acts after the fact.
Article 1, Section 9. " No Bill of attainder or ex post facto Law shall be passed. "

You can outlaw an act after the fact, but it's explicitly not allowed to be retroactive.

In the context of faithless electors, this means you will not be able to pass a law today to change how electors work in 2020's election because there's no way to enforce it Ex Post Facto.
 

apdst

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Article 1, Section 9. " No Bill of attainder or ex post facto Law shall be passed. "

You can outlaw an act after the fact, but it's explicitly not allowed to be retroactive.

In the context of faithless electors, this means you will not be able to pass a law today to change how electors work in 2020's election because there's no way to enforce it Ex Post Facto.
Just what I ****ing said...lol
 

Variant

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I don't know what the SC would be okay or not okay with though I suspect you're right as individuals the justices would, like most people, be horrified by the thought.

That doesn't change the fact that it's been established since 1800 or so that the ex post facto clause does not apply. Someone arguing against such an attempt would need to find something other than the ex post facto clause to hang their hat on.
I think that in the context the justices might rethink the 1800 decision to limit the constitutions prohibition to criminal offences.

That case was one about some guys inheritance rights and the legislature changing the law so he could bring the suit. It wasn't about trying to change the law to overturn a popular election after the fact.

Or, they could simply say that the election was and should be governed under the laws of the states that were in place when it was held, since the constitution states that the states have the right to decide how electors should be apportioned and they already have, legally, before the election was held. They could then cite their previous ruling that the states can and have legally required that faithless electors can be prohibited by the states and have been in many of these cases.

I don't of course think this is going to come up because I don't think these legislatures are looking to end the republic.

The state legislature of Michigan said to Trump that they are going to follow the law, and I respect their dedication to the rule of law and the republic over a populist demagogue like Trump.

I expect other legislatures to do the same.
 
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Gaius46

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I think that in the context the justices might rethink the 1800 decision to limit the constitutions prohibition to criminal offences.

That case was one about some guys inheritance rights and the legislature changing the law so he could bring the suit. It wasn't about trying to change the law to overturn a popular election after the fact.

Or, they could simply say that the election was and should be governed under the laws of the states that were in place when it was held, since the constitution states that the states have the right to decide how electors should be apportioned and they already have, legally, before the election was held. They could then cite their previous ruling that the states can and have legally required that faithless electors can be prohibited by the states and have been in many of these cases.

I don't of course think this is going to come up because I don't think these legislatures are looking to end the republic.

The state legislature of Michigan said to Trump that they are going to follow the law, and I respect their dedication to the rule of law and the republic over a populist demagogue like Trump.

I expect other legislatures to do the same.
I agree that no legislature is likely to ever try to pull what we’re talking about - I’d expect at a minimum they’d all be voted out of office immediately if it didn’t lead to insurrection.

i don’t think a 230 year precedent would ever be overruled no matter how grave the circumstance. It would lead to a host of other problems in civil and administrative law and who knows what it might do to the legal system generally. Interesting to think about. Would rather not live through it.
 

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I agree that no legislature is likely to ever try to pull what we’re talking about - I’d expect at a minimum they’d all be voted out of office immediately if it didn’t lead to insurrection.

i don’t think a 230 year precedent would ever be overruled no matter how grave the circumstance. It would lead to a host of other problems in civil and administrative law and who knows what it might do to the legal system generally. Interesting to think about. Would rather not live through it.
It wouldn't have to be overruled completely, just an addendum added that it covers elections/time sensitive rights granted directly by the constitution already past.

It's definitely not the same as changing the rules in a civil suit so that someone can claim an inheritance. So, there is probably another case more recent and comparable to overrule on the issue as well.
 

NWRatCon

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The Compact was dinner table conversation the other night. IMO, it's a brilliant bit of Constitutional gymnastics, but I think it's supporters aren't considering where it will lead.

Let's imagine that, say, 272 electoral votes worth of states sign on. Voila, we now elect a President based on the popular vote total by making the majority of the EC entirely subordinate to the popular vote. But in all likelihood, there will be a few states where the Compact passed by the slimmest of margins, and where that support may evaporate with the next state election. Maybe Nebraska is the state that put the Compact over the top and maybe it's the first to repeal its support. We could create a scenario where we toggle between a popular vote and electoral vote process indefinitely based on the political machinations in a handful of states.

Then imagine if a September death-in-office of some local rep tips the balance in that state and quick action has that state leaving the Compact and swinging us back to an EC vote with just weeks to go in the Presidential campaign. Further, imagine the kinds of national money that will be thrown at local races all over the country to try and enable or disable the Compact if we're hanging around that 270 vote threshold.

IMO, the moment the Compact comes close to passing it will be an utter mess.
I recognize that concern, as, I suspect, do the drafters. I think, though, that like the ACA, it will gain adherents and popularity the longer it is in place. Over time, people will forget that we didn't always do it that way. It just makes sense. It sshouldalso be remembered that at the beginning of our nation no State had popular elections for President. "In 1800, only five of the 16 states chose electors by a popular vote; by 1824, after the rise of Jacksonian democracy, the proportion of states that chose electors by popular vote had sharply risen to 18 out of 24 states." (Wikipedia) Now, of course, "everyone does it." Primaries, too, are a relatively recent invention.

Moreover, if more than the bare 270 EC votes are committed to it, the defection of a State or two would not affect it substantially.
The National Popular Vote bill has been enacted by 16 jurisdictions possessing 196 electoral votes, including 4 small states (DE, HI, RI, VT), 8 medium-sized states (CO, CT, MD, MA, NJ, NM, OR, WA), 3 big states (CA, IL, NY), and the District of Columbia. The bill will take effect when enacted by states with 74 more electoral votes. The bill has passed at least one chamber in 9 additional states with 88 more electoral votes (AR, AZ, ME, MI, MN, NC, NV, OK, VA). A total of 3,408 state legislators from all 50 states have endorsed it.
(NationalPopularVote.com)

Your concern is real, even likely, but not necessarily dispositive.
 

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I had a brain cramp, earlier, when I wrote this:
The Ex Post Facto constitutional provision is the greatest exemplar of the principle. Its applicability in this instance may turn on interpretation of the 14th Amendment: does it apply to the States through the 14th Amendment as a " "privilege or immunity" of citizenship? (I think it does.)
I had forgotten, frankly, that Article I, §10 already does this.
 

NWRatCon

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I don’t think the ex post facto provision is applicable since the SC has held since 1800 or so that the ex post facto clause applies on to criminal law.
I don't want to take this discussion too far off topic. My raising of the Ex Post Facto provisions was to note that it was a concept of fairness enshrined in the Constitution itself. Its applicability outside of the criminal context is actually still a live, if murky, issue. See Air and Liquid Cooled systems v DeVries. I expect this is an issue that at least 4 current Justices want to revisit, even 200 years on.
 

less right

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The legislature chooses electors. Electors vote in accordance with the state's popular vote. The legislature can't change electors to overrule the popular vote.
Trump doesn't know this or he wouldn't be trying to get legislatures to replace electors who would honor the popular vote.
 

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Consider a situation in which one political party controls the state legislatures of enough states so that their electors -- those the states name as members of the Electoral College -- are more than 270 in number. Now suppose the state houses of those states specifically designate as electors people who will vote for the presidential candidate of their party without regard for the popular vote in their states.

The Electoral College will then select the president of the United States of America even if almost all of the voters in those specific states voted for the candidate of the other major party.

Interesting, nu?


Regards, stay safe 'n well. Remember the prophylactic Big 3: masks, hand washing and physical distancing.


Reminder. I try to respond to all who quote my posts. If you do not get a response from me, it may be that you've made it onto my 'Ignore' list.
Maybe not. The link below has two attorneys who argue why the very scenario you described cannot lawfully transpire.


One will have to be familiar with Chiafalo and maybe Rhenquist’s opinion in Bush v Gore to evaluate the strength of their view.
 

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Most states now have laws on the books clearly stating that the vote of the people determines electors. But, even if they did not, legislators cannot simply overturn the votes of the people. It's a due process issue.
Generally, this sentiment is probably right, based on Chiafalo, but I question whether there is a due process claim.
 

apdst

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Trump doesn't know this or he wouldn't be trying to get legislatures to replace electors who would honor the popular vote.
The Leftists were all for faithless electors four years ago.
 

apdst

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I'm concerned about what this President is trying to do this election and I don't hear anybody saying he's not.
He's making sure it's legit. What's wrong with that?
 

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Generally, this sentiment is probably right, based on Chiafalo, but I question whether there is a due process claim.
I'd approach it, possibly a little differently, as a "privileges" issue, voting being a privilege of citizenship. I believe nullifying that vote would amount to a denial of the franchise, and prohibited, directly, by the 14th Amendment. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States[.]"
 

less right

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He's making sure it's legit. What's wrong with that?
How does frivolous suit after frivolous suit ensure it's legit? He's trying to delegitimize the election for your benefit (and his)... and you're buying it.
 

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That case treated of a different issue.

Regards, stay safe 'n well.
Sort of, the reasoning the Court ultimately determined as unpersuasive in the Chiafalo case is parallel to the reasoning to allow legislatures to perform an 11th hour switch.
 

Captain Adverse

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Maybe not. The link below has two attorneys who argue why the very scenario you described cannot lawfully transpire.


One will have to be familiar with Chiafalo and maybe Rhenquist’s opinion in Bush v Gore to evaluate the strength of their view.
IMO the article's position is presented on the basis of a fallacious "argument to authority," i.e. "we brought a case to SCOTUS so that means we can tell you what it means."

Actually a review of their "argument" shows that the presenters article assumes much on the basis of little evidence, i.e. that SCOTUS changed the terms of Article II, Section I in any way, shape, or form preventing a State Legislature from determining how their Electors can be selected. Basically they argue that once a State Legislature has established a type of methodology, SCOTUS says they cannot change it.

But the Article still reads Electors shall be selected by the State Legislatures. State Legislatures can still determine how they are selected, and can enact legislation which changes the method any time prior to seating Electors.

Otherwise, they could not assert that any State can "ratify" the National Popular Vote initiative because that action would essentially change the entire process currently established effectively disenfranchising their own State's majority vote.

Thus by that same reasoning if State Legislatures have the power to enforce that initiative, they must perforce also retain the power to change the internal process in other ways if they so choose.
 
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Torus34

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Maybe not. The link below has two attorneys who argue why the very scenario you described cannot lawfully transpire.


One will have to be familiar with Chiafalo and maybe Rhenquist’s opinion in Bush v Gore to evaluate the strength of their view.
Hi!

Thank you for the response and, most especially, for the link. My proposed 'What if' may not be anywhere near as clear cut as I thought. Looks like it may be back to researching for me.



Regards, stay safe 'n well. Remember the prophylactic Big 3: masks, hand washing and physical distancing.



Reminder. I try to respond to all who quote my posts. If you do not get a response from me, it may be that you've made it onto my 'Ignore' list.
 
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