You mean there’s nothing in the Constitution’s text. That doesn’t mean the Constitution’s text overrides the ECA or states’ pledges.
If you agree with the idea that the Constitution doesn’t end with its text, what stops states/Congress from refusing faithless votes?
If you haven’t noticed, the “it’s not in the Constitution’s text” argument has been losing for quite a while now. Like the same sex marriage decision. The Constitution’s text was silent as to same sex marriage. That didn’t stop the Court, did it?
And you don’t have to eliminate the EC wholesale to solve the faithless elector problem. Interpreting the ECA to allow Congress to refuse faithless votes solves that. Faithless electors don’t “come with the package” that is the EC the same way wheels are integral to the concept of a car. The EC is merely silent as to faithless electors.
SCOTUS upheld the ACA under the Tax Clause, right? No one says you need to amend the Constitution to throw out the Tax Clause entirely to repeal the ACA. No, Congress just needs to enact a new statute.
Federal laws, too. Here’s an analogy to your proposal: the Act of July 12, 1876. It required Senate approval for the President to fire Postmasters of certain ranks. Problem is, the Constitution gives the President alone the power to appoint federal officials. When the matter went before SCOTUS in Myers v United States, they found that the 1876 law violated the separation of powers, and was thus unconstitutional.
It doesn’t end with the text; factors like original intent, precedent, many other things are considered. Problem is, in this case, original intent isn’t on your side, nor is precedent, nor much of anything beyond your opinion of what the law ought to be.
Congress is stopped by the text, and original intent, of the Constitution, as well as the common sense notion that letting Congress choose the President is a very bad idea.
Perhaps the states could do something, as choosing electors is within their power, but it’s hard to imagine what. Replacing electors with notarized election results, or robots?
What’s the point of an EC, then? States can just transmit the data of who won their electoral votes directly, no need to actually select people to meet in the statehouse and pretend to vote.
Statutes can modify statutes, they can’t modify the Constitution.
Where in the Constitution’s text does it protect electors’ right to be faithless?
Where in the Constitution’s text does it forbid Congress from enacting the ECA to govern votes “not regularly given”? Precedent & historical practice both support the ECA’s validity.
You argument seems to be “the Constitution’s text doesn’t mention X, therefore X is allowed.” But the Constitution’s text not mentioning it means just that–that the text is inconclusive as to both faithless electors & the ECA.
You also ignore the legal realism aspect at play: there’s no way Ryan & McConnell’s Congress or a majority of SCOTUS will accept that mindlessly pasting the Constitution’s scant text forces them to permit mass faithlessness.
Ok, a new approach. You’re asking the wrong question. A “faithless” vote is just a vote for President. The Constitution gives electors the right to vote for President.
The part where states choose electors, and electors choose the president.
What if Congress passed a law, allowing it to set aside SCOTUS decisions and Presidential vetoes it judged as “not regularly given”? Kosher, or no?
Remember how zero electoral votes have been rejected by Congress under the ECA? Not a precedent. Laws are not evaluated as monolithic blocs; typically only certain sections are struck down as unconstitutional. Just because the Congress has used the procedure outlined in the ECA (two tellers, the date and time, etc), it doesn’t follow that there’s precedent for their supposed right to discard electoral votes for an extra-constitutional reason.
Not really, no. My argument is that Constitution empowers the states to vote for the President, via electors, and Congress taking over this duty would be unconstitutional on separation-of-powers grounds.
Time for another analogy!
The Constitution doesn’t mention the Air Force (for the same reason it doesn’t mention faithless electors - the concept didn’t exist at the time). Therefore, by your reasoning, the text is inconclusive as to the Air Force and the National Security Act of 1947.
Therefore, Congress can, by statute, create an Air Force, which Congress would be commander-in-chief of. Agree or disagree?
Again, I disagree. SCOTUS doesn’t often ignore the law (though it has happened, eg Dred Scott). And I certainly can’t imagine the states going along with the forfeiture of their right to elect the President. That’d be severing one’s arm to cure a hangnail, as, again, the President can already be removed by Congress.
But the Constitution’s text does not confer an absolute right for the electors to vote in Joe the Plumber.
The 1st Amendment is about as absolute as you can get. “Congress shall pass no law…” Congress then passes a law that implicates the 1st Amendment. Would you be screeching “but but but, the Constitution’s text confers an absolute right to free speech/exercise/etc”?
But if you did think that states did have an absolute right to choose their electors, wouldn’t that cover a requirement that electors be faithful to the party, the same way they can require the electors be older than a certain age, haved lived in the state for a number of years, etc?
No, because the Constitution’s text, intent, precedents, historical practice, & basically everything else are pretty clear about endowing the veto power in a POTUS. The same can’t be said for faithless voters.
Except Congress literally threw out ALL of Louisiana & Arkansas’s EVs in 1872 under the ECA of 1845 (which the 1887 Act amended). Was this bloody murder?
And Congress tried to reject a faithless Nixon voter who wrote in George Wallace. Then Reps GHW Bush & G Ford voted to correct the faithless vote. But the attempt failed because Congress half-assed it because 1 faithless vote didn’t alter Nixon’s commanding EC margin.
If 37+ electors went faithless this year, Ryan & McConnell won’t be moved by your plea to the Constitution’s text.
Dred Scott was a bad decision. It didn’t “ignore” the existing law at the time though. That’s why the 14th Amendment specifically overruled Dred Scott by providing Citizenship to everyone.
What law would SCOTUS be “ignoring” in ruling that the ECA allows Congress to reject faithless votes?
What would it have to say to confer an absolute right for electors to vote for any (eligible) person?
No, because we know the First Amendment wasn’t intended to be absolute, based on the words of the Founders and the other laws that existed at the time.
Similarly, the words of the Founders lead one to the conclusion that electors were meant to vote as they pleased.
As I’ve said repeatedly, if there’s a way short of an amendment to forbid faithless votes, it lies with the states and not with Congress.
Oh, the text is quite clear about electors, as is the original intent, and there is no precedent for rejecting duly elected electors for voting the wrong way.
Well, let’s talk about that. Why were Arkansas’ and Louisiana’s electors rejected?
Louisiana had a disputed election, with both parties claiming victory, and both parties setting up election return boards. The election result wasn’t sorted out until September 1873.
Arkansas also had a disputed election, which was also unsolved until late '73, and an insurrection.
Note that neither case involved a dispute over which candidate an elector voted for, but rather the validity of the entire state’s slate of electors, given that the election results were in dispute.
Considering throwing out a vote, and then not doing it, doesn’t set a precedent. Nor does it create a “case or controversy” that can be litigated.
Congress could debate putting all Methodists in labor camps; that doesn’t create a precedent for the First Amendment allowing Methodists to be placed in labor camps.
They would if it was Clinton voters defecting for Trump. Either way, it doesn’t matter what Congress thinks, the decision would lie with SCOTUS.
Taney found that Scott didn’t have standing to bring the case, then ruled on the case anyway. Then as now, that’s unacceptable.
Same answer: Article II, section 1 of the Constitution.
And I was proud of that Air Force analogy, and you went and ignored it! Sad.
The Constitution gives electors the power to vote for President. If someone else can compel them to vote in a particular way, or count their votes as if they had voted differently, then they don’t have that power. Therefore, any measure that proposes to do so is unconstitutional.
That said, if Congress attempted to override the electors in this way, the Constitutionality of their action wouldn’t matter, because it would be the start of a new American Revolution, and the only Constitution that would matter would be the one that would eventually be drafted by the winners, whoever they were.
Here’s why it might end up in SCOTUS if it happens.
First of all, what does “not regularly given” mean. Historically, it has been when multiple slates of electors have been sent to the President of the Senate or in one case the elector was ineligible. It has never meant “voted in a way that Congress disagrees with” and honestly you are suggesting that Congress is effectively arranging a coup.
But SCOTUS loves to punt these as a political question right? Not this time. You cannot have the Judicial branch condoning the Legislative branch installing the person they want, rather than the person elected under the Constitution, as President. It would be a direct violation of the 10th and 12th Amendment so any of those electors would have standing. I also believe any state whose voted were dismissed would have standing but how far would they go to support a faithless elector.
Not a comment on your statement per se, I just will point out that anyone (OK any Democrat) supporting this is actually favoring having the EVs (if it were successful) giving a different President than the popular vote.
I think some things in the Constitution are “it goes without saying” and is covered in the 9th Amendment. The right to vote how you want, whether a voter, Elector or legislator (State or Federal) without the duress of Law or intimidation has got to be on that list.
Please show me where “regularly given” is discussed and defined in the opinion because I can’t find it. Also, where in either opinion or dissent does it talk about Congress? Stevens and Ginsberg who from Day 1 was trying to swing the election to Gore discussed deferring to SCOFla. Souter and Breyer concurred in the decision and only dissented from stopping the recount and the majority opinion says that they must defer to the Florida Legislature (i.e. state laws in effect at the time) and equal protection laws (14th Amendment and case law)
Do you believe that Ray v. Blair also implicitly allows a party or state to disallow a vote provided they do not vote according to the pledge? If the Colorado Independence Party required me to pledge to vote for their candidate to be a member would that be legal? Yes (Freedom of Association) but then I vote Democrat, should they or the state be allowed to not count my vote because I broke my pledge?
Except Art. II & the 12th Amendment also gives Congress the power to “count” electoral votes.
If the EC’s role isn’t to just rubber-stamp the states’ popular vote, then it’s also true that Congress’s role isn’t to just rubber-stamp the EC. The Constitution’s text doesn’t favor faithless electors’ interpretation any more than it favors Congress’s power to reject faithless votes under its counting function.
So resolution of this would have to look elsewhere. There’s little precedent for either mass faithlessness OR Congress’s using the ECA to reject mass faithlessness.
If 2016 is the year to invoke this “one-weird-trick” that’s been overlooked for 2 centuries and let the EC override the states’ popular vote, then do the lunatics expect Congress to just sit idly and let that happen?
And isn’t it disquieting to think that some 20-something electors who fell ass backwards into the role of an elector, who probably didn’t even know anything about the Federalist papers a month ago, can start the new American Revolution based on their cherry-picking of Federalist Papers?
I would seriously disagree with this. Counting and certifying votes while disallowing illegal votes IS a rubber stamp. You cannot compare that to the freedoms allowed in voting.
Agree. A sports referee certifies whether a play is good or no good. The referee cannot or should not try to insert his or her own preference into the outcome.
Individual citizens have almost complete freedom in casting ballots. They can write in Mickey Mouse.
State laws & tradition direct EC electors to vote by their states’ winner.
I’m not saying Congress is definitively more than a rubber stamp. Tradition has it that their role is ceremonial, b/c the EC has been ceremonial. But one unprecedented move (40 electors go faithless) will invite another (Congress).
Ryan & McConnell will strongly disagree with your interpretation. And on something of this magnitude, as a Coordinate branch to SCOTUS, I highly doubt the Judiciary will want to force Congress’s hand, esp since the constituional issue is far from clear.
See Noah Feldman’s piece about faithless electors in Bloomberg