4

Consider this scenario: a state passes an amendment which automatically allocates all electoral votes to a given Party candidate for all future elections, ignoring the result of each election. Or equivalently, future elections (for President) are canceled.

Is this Constitutional?

  • Why the close vote? This can be answered with a legal opinion, no? – user4012 Nov 10 '16 at 22:08
  • It's a clear violation of Article 1, Article 2, the 14th Amendment and the Voting Rights Act, so no. – K Dog Nov 10 '16 at 22:44
  • @KDog I disagree. Posted a comment on your answer. – David says Reinstate Monica Nov 10 '16 at 23:15
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    This is the political equivalent of asking if God can make a stone too heavy for him to lift. – K Dog Nov 10 '16 at 23:28
  • Why would anyone be in favor of this? – acpilot Nov 11 '16 at 2:22
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Yes, this complies with the US constitution

The constitution defines how electoral college representatives vote, but not who they must vote for (see more details here). Combine that with the 10th amendment that gives states any powers not defined in the constitution, and you can have a state force their electoral college representatives to vote for in any way the state legislatures please.

However

Each state has its own constitution and laws. For example, in Delaware there is a law that states:

§ 4303 Meeting and voting of electors.

(a) The electors chosen or appointed in this State for the election of a President and Vice-President of the United States shall meet and give their votes at Dover on the day determined by Congress for that purpose.

(b) In all cases, the electors chosen or appointed in this State for the election of a President and Vice-President of the United States under this chapter shall be required to cast their individual votes in accordance with the plurality vote of the voters in this State.

As such, Delaware legislatures could not write a new law forcing their electoral college representatives to vote a specific way without first repealing the existing law somehow.

And of course no one would support this because its political suicide.

  • Is a forced vote actually a vote? No, it's something else. – K Dog Nov 10 '16 at 23:46
  • I think the courts would generally find a big difference between obligating the electors to follow the popular vote (i.e you were elected on the idea you would support the democrat candidate, so you must vote for the democrat candidate) and a law requiring all electors going forwards to elect the democrat candidate. Since faithless elector laws haven't really been enforced, I doubt they have been tested in court. It's quite possible that faithless elector laws would be found unconstitutional – eques Nov 10 '16 at 23:48
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    @KDog Many states already force electoral candidates to vote a certain way (by binding them to the popular vote). – David says Reinstate Monica Nov 10 '16 at 23:54
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    @eques This already happens though with states that bind electors to popular vote results. We still consider these people electors even though they legally have no option for who they elect. – David says Reinstate Monica Nov 11 '16 at 0:06
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    @KDog No, Delaware legally binds their delegates to the popular vote. They make no mention of a pledge. See the passage I quoted in my answer. – David says Reinstate Monica Nov 11 '16 at 1:21
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Those are two quite different scenarios.

a state passes a law which automatically allocates all electoral votes

This is not constitutional. States do not have the power to allocate votes. The U.S. Constitution requires them to make the law stating how Presidential Electors are chosen, but it itself says what those Electors' job is and distinctly gives the vote to the Electors. See the 12th Amendment:

The electors shall meet in their respective states and vote by ballot for President and Vice-President […]; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists 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; […]

future elections for President are canceled

This is theoretically constitutional. States do have the power to determine how Presidential Electors are chosen, and that method is not required to be itself an election. Indeed, the U.S. Constitution says "appoint".

Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, […]

In practice, it has always been an election; the framers of the Constitution argued long and hard that it should be an election and that that was their intention; and it would be politically repugnant in a society that views itself as a democracy to replace a popular vote with something else.

But there's a wrinkle in what the results of the election mean.

a state passes a law which chooses a biased set of electors

This is how states use your second scenario to avoid the unconstitutionality of your first scenario, and what several states do today. Ironically, they do it in order to be more democratic than the system that the framers of the Constitution envisioned, which gave the vote (as aforementioned) to just a few hundred people rather than to the population at large.

Candidates to be a Presidential Elector are chosen by party primary, and are required in that primary to pledge themselves to the party's Presidential and Vice-Presidential candidates for office. Each party thus gets itself a set of Elector candidates. The state's chosen method of appointing Electors is to appoint all of the electors elected, in the primaries, by the party that won the popular vote in the state.

In Alabama, for example, one may think that one is voting for President and for Vice-President directly. But in fact (Alabama Code § 17–14–32) one is voting for the entire block of Electors from the party of the particular President and Vice-President candidates. The popular vote is among each party's entire blocks of Electors.

A vote for a candidate for President or Vice President shall be counted as a vote for the electors of the political party or independent body by which such candidates were named, as listed on the certificate of nomination or nominating petition.

The electors are required (Alabama Code § 17–14–31) to promise to support the party line. They are elected party agents. The General Election chooses which party's agents get to be the voters in the Electoral College.

Thus, by this roundabout subterfuge, a system that the U.S. Constitution's framers intended not to be a direct popular vote, but an indirect popular vote for people who were in turn supposed to know better than the average voter in the street whom to choose for President and Vice-President, is shoe-horned into being a direct popular vote.

Of course, the way that this square peg is hammered into a round hole does result in some unfortunate arthmetical byproducts relating to how the proportions in the popular vote are not accurately represented by the proportions in the Electoral College vote.

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    The state laws can bind elector votes however. Many states already bind their elector votes to the general vote results. In theory there is nothing stopping states from binding electoral votes to whatever the state wants. – David says Reinstate Monica Nov 10 '16 at 23:18
  • That has not been the opinion of several courts, however, starting with the opinion that it is unconstitutional of the Alabama State Supreme Court cited by the U.S. Supreme Court in the majority decision in Ray v. Blair. It's precisely that problem that caused states to resort to appointing biased electors, who had been elected as party agents and made to promise in writing beforehand to toe the party line. The constitutionality of the Alabama interpretation has most definitely been tested in court. You should try to find out whether Delaware's has been before giving it as much weight. – JdeBP Nov 10 '16 at 23:38
  • You can't cancel future elections for President. It's in Article 2 – K Dog Nov 10 '16 at 23:39
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    "In practice, it has always been an election" that's not strictly true. The 1824 presidential election had 6 states where the electors were appointed by the legislature (I'm not sure how the legislature itself decided who their electors would be). – eques Nov 10 '16 at 23:42
  • You are confusing two different elections. The questioner is asking about the other one. – JdeBP Nov 10 '16 at 23:42
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NO, it violates Article 1, Article 2, the 12th Amendment, the 14th Amendment and Voting Rights Act

It'a violation of Article 1 of the Constitution:(there is similar language for the Senate)

Section. 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Article 2

Section. 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

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.

It violates The Twelfth Amendment

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists 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 for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. --]* The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. *Superseded by section 3 of the 20th amendment.

It violates the 14th Amendment

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It violates the Voting Rights Act

Section 2 prohibits any jurisdiction from implementing a "voting qualification or prerequisite to voting, or standard, practice, or procedure ... in a manner which results in a denial or abridgement of the right ... to vote on account of race," color, or language minority status.[43]:37[50] The Supreme Court has allowed private plaintiffs to sue to enforce this prohibition.[51]:138 In Mobile v. Bolden (1980), the Supreme Court held that as originally enacted in 1965, Section 2 simply restated the Fifteenth Amendment and thus prohibited only those voting laws that were intentionally enacted or maintained for a discriminatory purpose.[52]:60–61[53] In 1982, Congress amended Section 2 to create a "results" test, which prohibits any voting law that has a discriminatory effect irrespective of whether the law was intentionally enacted or maintained for a discriminatory purpose.[54][55]:3 The 1982 amendments provided that the results test does not guarantee protected minorities a right to proportional representation.[56]

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    It is unclear how that violates article 1 and 2, and amendment 12. For amendment 14 I think you are saying that this would be illegal because it hampers you ability to vote for president? If this is the case you are wrong because you never had an ability to vote for president, just for the electoral college (and that is defined by state constitutions). This also doesn't violate the VRA because it doesn't discriminate against race, color, language, minority status, etc. The VRA just isn't designed to handle this case (because its so silly). – David says Reinstate Monica Nov 10 '16 at 23:13
  • @DavidGrinberg Well, the 14th amendment does punish a state for denial of the right to vote for electors for the President and VP, among others. It doesn't state they straight up can't do it, though. Just that there's a cost for it. In practice, though, the courts have seemed happy to largely ignore this, as well as any number of interpretations of the mentions of the right to vote in the 15th amendment. – zibadawa timmy Nov 10 '16 at 23:30
  • The 14th Amendment doesn't have a cost penalty or whatever else you are stating. Its a complete and utter prohibition against rights abridgment. – K Dog Nov 10 '16 at 23:43
  • @DavidGrinberg It's not unclear at all. There is a very detailed process to allow Electors to Vote. Not for allocation to some pre-determined scheme. – K Dog Nov 10 '16 at 23:44
  • @KDog Its a detailed process for how to vote, note who to vote for. I'm not saying the law is unclear, I'm saying the point you are making in your post is unclear. – David says Reinstate Monica Nov 10 '16 at 23:47

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