If I’m reading this right, states have pretty ridiculous electoral power. Other than not being able to set the day and time, and the fact that they can’t appoint elected officials, they can do whatever they damn well please. If that’s so, is there anything legal preventing a state congress with a supermajority from passing a law or amending the state constitution to say “The potential electors to be on the ballot will be chosen by the Republican party.” Or more egregiously, “the state electors will be chosen by registered members of the state Democratic party.” Or even “fuck all y’all, the Governor/Congress/Representative Brown’s buddy Mike will appoint electors in a manner they deem fit, deal with it .”
Is there anything legally preventing this? Obviously the public eating them alive would prevent it pretty handily, but even the recent stuff about getting Obama off the ballot were mostly ways of working with loopholes – like declaring the Democratic Party a non-major party so they had to be a write in candidate or some similar nonsense. It doesn’t seem like there’s been a real attempt to just say “fuck it, we’re completely changing how selecting electors works in a way that makes it literally impossible for anything that we don’t want to happen happen.”
That’s pretty much exactly what they used to do, although it wasn’t worded so egregiously. Most states simply had their legislators appoint whatever electors they wanted. The popular vote for president is a more recent invention.
They can sill legally do this. In fact in Florida in 2000, the state legislature were ready to pass a law declaring that the state’s electoral votes were to go to Bush. The only reason that this may not have been legal is a Federal law stating that the method for choosing electors must be in place on election day. Constitutionally there would be nothing wrong with such a method.
Well, states have their own constitutions and laws, including ones governing this sort of issue. Just because something is not prohibited by the U.S. constitution, or by federal law, come to that, it does not follow that it is legal.
Of course, state laws and constitutions can be changed, but so can the U.S. laws and even the U.S. constitution.
Legally, it would be fine. Politically, it would cause a massive "They can do WHAT!?" on the part of the American electorate, and the Constitution would be amended to prevent anything like that from ever happening again. Whether this would modify the Electoral College to always be a proxy for the popular vote or get rid of the Electoral College entirely is a different matter.
Fun fact: We’ve already done this with how we elect Senators.
Er which is why I said “pass a law or change the state constitution” and specified that the congress of the state has a supermajority of one party (which isn’t strictly necessary, but I figured it would head off “do you know how hard it would be to get a bipartisan legislature to do that!?”). I was mostly seeing if there was any federal prohibition, obviously it may be easier or harder in some states depending on local laws about how you change the constitution or whether the process is written as law or into the constitution etc.
Yeah, I know, the original idea was that Senators represented “the state’s” interests (meaning elected by officials of the state) and the house represented “the people’s interests”*. Then that kind of died, though I’ve forgotten the exact circumstances that provoked that amendment.
That is, in addition to all the small state/big state interests things.
Which is why I pointed out that the U.S. constitution, and federal laws, can be changed too, if the right people agree to do it. There is noting magic about something being permissible under the U.S. constitution that makes it legally permissible tout court. By the same token, no law or constitution can have any effect at all if the relevant community as a whole does not respect it and want to uphold it.
You might as well ask why can’t the U.S. constitution be changed so that only Harvard educated Kenyans can become President. It could be. It won’t be.
Well, I figured that changing a state’s laws and constitution is a might bit easier than doing the same for the Federal constitution. And as was pointed out above – Florida almost did it (albeit that case might have been justified), and states used to have ways other than popular vote for selecting electors. That combined with all the recent “get Obama off the ballot” kerfluffle simply made me wonder if there was anything at the federal level preventing Arizona or wherever else from simply just legally saying “nope, there’s no way Obama’s even getting and elector now.” (not that he has much hope in AZ anyway)
Obviously we could reject and change the whole US Constitution if you completely ignore Public Opinion. I was just wondering if there was any immediate recourse if a state’s congress ACTUALLY got that crazy (which I find a lot more plausible – not that I think it WILL happen, just like, a 3 rather than a 1 on the plausibility scale – than 2/3ds of the US legislature being completely insane).
Immediate recourse? Sue to overturn the law on the basis it is discriminatory, since it automatically disenfranchises voters who choose to vote for the other candidate. You’d get an immediate injunction, and the law would eventually be overturned.
While it’s true that the federal and state constitutions can both be amended, some state constitutions are far, far easier than the federal to amend. In some states, the bar is barely higher than that for an ordinary law.
You think folks in Oregon are going to change their vote once they find out how folks in Alabama voted?
People want to know what happened as soon as possible, especially in the intenet age. Nobody wants to wait until the polls close in Hawaii (2am east coast time). That’d be as crazy as tape-delaying Olympic events.
Except the voters do not elect presidents they elect electors. Under Ray v. Blair, states can require to promise to vote for an candidate and punish them if they don’t but only two states can actually change an elector’s vote after it is cast so in 48 states and DC an elector could still vote for Obama even if the law said they couldn’t.
As for who can get on a ballot, some states do have rules that anyone who is uncorrectably ineligible for president cannot be on the ballot. If a state claimed that a candidte did not meet the same standard everyone else did to prove eligibility then I assume that it would be upheld.
If a group of legislator passed a law assigning electors in this way, you can be guarantied that there would be a movement for the Constitutional amendment and those legislators would be out of a job.
As it happens there is a large conspiracy to permanently rig the Electoral College vote. It’s called the National Popular Vote Interstate Compact. So far eight states and the District of Columbia have agreed to assign their Electors according to the national popular vote once enough states have done so to ensure that the leader in the nationwide popular vote will always win a majority of electoral votes.
I don’t think most of these extreme examples would be considered legal in fact. While I’ll leave it to the experts to cite actual laws and precedents, the current interpretation of various Constitutional amendments and federal voting laws is that the state must provide all voters equal opportunity to vote and a fair process. The federal government can and has sued states to require them to meet their constitutional requirements for voting. These examples would be even easier and more clear-cut than many of the cases that the federal government has already won on, so while you can’t ever say anything for certain about what the courts (especially this Supreme Court!) will say on election law, as much as you can say anything is illegal without a specific court case, these kinds of laws are illegal.
Nitpick: The federal law says that if a state chooses electors in a method consistent with state law as it was on election day, they cannot be refused to be seated by Congress. If they are selected by a method created AFTER election day, Congress may challenge that slate of electors.
The debate at the time was that since the FL Supreme Court was ordering recounts and changing standards for a vote, that a Gore slate could be challenged. Therefore, the legislature was prepared to simply nominate a Bush slate that could also be challenged, throwing the debate between competing slates into the House. If anything, this is why the Supreme Court stepped in.
would almost certainly be dismissed forthwith as a violation of the Equal Protection clause. Of course there are no precedents because no state has ever attempted something so foolish, but we do know that malapportioned state legislatures violate Equal Protection.
Many posters are conflating legislative appointment of electors with the rigged-election examples cited in the OP. Legislative appointment would probably still be constitutional; as noted many states practiced this in the early republic with the most recent example occurring in 1876. It doesn’t follow from the fact that the legislature can appoint the electors itself, that it can order a rigged and arbitrary election in which some voters can participate but not others.
You think voters would get upset if a state simply appointed a slate of electors? Well, Pennsylvania just passed a law that will have the effect of depriving 10% of its citizens (the poorest 10% of course) of the right to vote. As far as I know this solicited mainly yawns from the electorate. The governor licked his chops as he signed it and said, “Well this will guarantee the state for Romney”. The Supreme Court thinks this kind of law is just fine.
Not a nitpick. My understanding is that there was no state law viz. a backup plan for the legislature to pick the electors and therefore it was not in place on election day. Had there been such a backup plan in place then it would have been legal.
The FlaSC issue was that they had ruled that the voter equality laws in their Constitution overruled the election laws if necessary including the certification timeline. Since that opened the door to stop the recount being in the counties Gore cherry-picked, I think everyone was unhappy with that decision.
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