It turns out there's another potential Constitutional objection to the proposal to turn our electoral votes over to other states - vagueness. There's only a minimal definition of what the term "national popular vote" means, and even less of what criteria are used to determine it.
By turning Colorado's electoral votes over to California and New York, Lois Court has also voted to turn them over to processes not in control of Colorado voters. Neither state has any signification controls against voter fraud. There are no uniform standards, indeed, no real standards at all, to make sure that Colorado's votes aren't diluted by lax procedures in other states, thus the definition of "national popular vote" becomes, I believe, intolerably vague.
Inevitably, this is going to result in a call for a national election authority, fully nationalizing even state and local election laws. In the absence of such an authority, our only recourse would be to sue other states who we felt were guilty of vote fraud. Dangerously, the reverse is also true. If other states decide that our processes are too restrictive, they likely could also sue on that basis, forcing looser, less reliable standards on Colorado.
The bill also states that:
This article shall govern the appointment of Presidential Electors in each member state in any year in which this agreement is, on July 20, in effect in states cumulatively possessing a majority of the electoral votes.
Meaning that the bill could change the rules after the presidential nominating process is complete. If there are a number of states waiting to ratify, then that year's presidential nominating contests will be held without knowing the rules of the general election.
If Bush v. Gore meant anything, it meant that you can't change the rules in the middle of the game. Why do I suspect that it's that, more than anything else, that galls the sponsors of this bill?
Comments
Current federal law (Title 3, chapter 1, section 6 of the United States Code) requires the states to report the November popular vote numbers (the "canvas") in what is called a "Certificate of Ascertainment." You can see the Certificates of Ascertainment for all 50 states and the District of Columbia containing the official count of the popular vote at the NARA web site at http://www.archives.gov/federal-register/electoral-college/2004/certificates_of_ascertainment.html
http://www.archives.gov/federal-register/electoral-college/2008/certificates-of-ascertainment.html
Posted by: mvymvy | March 16, 2009 11:46 AM
No withdrawal from the National Popular Vote compact can become effective between July 20 of a presidential election year and the inauguration on January 20 of the following year. This six-month “blackout” period was chosen because it encompasses six important events relating to presidential elections, namely the national nominating conventions, the fall general election campaign period, election day on the Tuesday after the first Monday in November, the meeting of the Electoral College on the first Monday after the second Wednesday in December, the counting of the electoral votes by Congress on January 6, and the inauguration of the President and Vice President for the new term on January 20.
Posted by: mvymvy | March 16, 2009 11:58 AM
, the U.S. Constitution does not require that the election laws of all 50 states are identical in virtually every respect. The Equal Protection Clause of the 14th Amendment only restricts a given state in the manner it treats persons “within its jurisdiction.” The Equal Protection Clause imposes no obligation on a given state concerning a “person” in another state who is not “within its [the first state’s] jurisdiction.” State election laws are not identical now nor is there anything in the National Popular Vote compact that would force them to become identical. Indeed, the U.S. Constitution specifically permits diversity of election laws among the states because it explicitly gives the states control over the conduct of presidential elections (article II) as well as congressional elections (article I). The fact is that the Founding Fathers and the U.S. Constitution permits states to conduct elections in varied ways.
The National Popular Vote bill does not violate the Equal Protection Clause of the 14th Amendment.
It is important to note that neither the current system nor the National Popular Vote compact permits any state to get involved in judging the election returns of other states. Existing federal law (the “safe harbor” provision in section 5 of title 3 of the United States Code) specifies that a state’s “final determination” of its presidential election returns is “conclusive” (if done in a timely manner and in accordance with laws that existed prior to Election Day).
The National Popular Vote compact is patterned directly after existing federal law and requires each state to treat as “conclusive” each other state’s “final determination” of its vote for President. No state has any power to examine or judge the presidential election returns of any other state under the National Popular Vote compact.
Posted by: mvymvy | March 16, 2009 12:00 PM
The potential for political fraud and mischief is not uniquely associated with either the current system or a national popular vote. In fact, the current system magnifies the incentive for fraud and mischief in closely divided battleground states because all of a state’s electoral votes are awarded to the candidate who receives a bare plurality of the votes in each state.
Under the current system, the national outcome can be affected by mischief in one of the closely divided battleground states (e.g., by overzealously or selectively purging voter rolls or by placing insufficient or defective voting equipment into the other party’s precincts). The accidental use of the butterfly ballot by a Democratic election official in one county in Florida cost Gore an estimated 6,000 votes ― far more than the 537 popular votes that Gore needed to carry Florida and win the White House. However, even an accident involving 6,000 votes would have been a mere footnote if a nationwide count were used (where Gore’s margin was 537,179). In the 7,645 statewide elections during the 26-year period from 1980 to 2006, the average change in the 23 recounts was a mere 274 votes.
Senator Birch Bayh (D–Indiana) summed up the concerns about possible fraud in a nationwide popular election for President in a Senate speech by saying in 1979, "one of the things we can do to limit fraud is to limit the benefits to be gained by fraud. Under a direct popular vote system, one fraudulent vote wins one vote in the return. In the electoral college system, one fraudulent vote could mean 45 electoral votes, 28 electoral votes."
Posted by: mvymvy | March 16, 2009 12:01 PM