Activist Massachusetts By-Passes the Electoral College

[JackC]

I thought this was interesting. The Massachusetts legislature has approved a law whereby all of Massachusetts' electoral votes are awared to the person who wins the most popular votes nationwide.

The consequence of this is the potential that a candidate could win the most votes in Massachusetts but still have no electoral votes go to that candidate. So the "will of the people of Massachusetts" would be ignored.

Of course, if Florida had such a law in 2000, then Gore would have been president instead of Bush, which I suppose is the reason why Massachusetts felt the need to go down this road.

I wonder if the Obama Justice Depart will consider filing suit - a la its suit against New Mexico - against Massachusetts because this is a clear attempt to bypass the electoral college system, which is set out in our Constitution. Somehow I doubt much research will be done on this.

http://www.boston.com/news/local/breaki ... News_links

The Massachusetts Legislature has approved a new law intended to bypass the Electoral College system and ensure that the winner of the presidential election is determined by the national popular vote.

[jbuck919]

That would have made Massachusetts go for Nixon in 1972. (I am sorry to say they already went for Reagan in 1980.) This only works if all the states do the same thing, and somehow I don't see Florida and Texas cooperating.

[John F]

This from the state that went for George McGovern in 1972, alone of all the states in the Union? A couple of years later, Massachussets cars were carrying bumper stickers saying "Don't blame us!"

[JackC]

.. This only works if all the states do the same thing, and somehow I don't see Florida and Texas cooperating.

That is simply not true. In fact, this effort "works" if states with a simple majority (a total of 270) of the electoral votes pass similar laws. If that happens then the popular vote winner would be the President regardless of what the states with the other 269 electoral votes do.

That is why this is a blatant end run around the Constitution. A Constitutional amendment, which is the proper way to go for changing the system for electing our President that is expressly set out in the Constitution, requires that 3/4 of the state legislatures ratify amendments, which only get out of Congress inthe first place if 2/3 of both the House an Senate approve.

It was clearly written into the Constitution (Article V) that a simple majority could not change the provisions of the Constitution. That is what is so offensive about this. It is CLEARLY contrary to the Constitution. People ought to be troubled by this, regardless of whether they think doing away with the electoral congress is a good or bad thing.

As I said, or rather implied before, if I were the AG, I would be thinking hard about filing suit to stop this effort.

[jbuck919]

.. This only works if all the states do the same thing, and somehow I don't see Florida and Texas cooperating.

That is simply not true. In fact, this effort "works" if states with a simple majority (a total of 270) of the electoral votes pass similar laws. If that happens then the popular vote winner would be the President regardless of what the states with the other 269 electoral votes do.

OK, then all we need to do is cobble together 270 electoral votes that don't include said Texas and Florida, not to mention perennial swing states that might like to stay that way like Ohio, etc. A few dozen South Dakotas is all it will take!

That is why this is a blatant end run around the Constitution. A Constitutional amendment, which is the proper way to go for changing the system for electing our President that is expressly set out in the Constitution, requires that 3/4 of the state legislatures ratify amendments, which only get out of Congress inthe first place if 2/3 of both the House an Senate approve.

I've given up making pronouncements on what is strictly speaking constitutional (in the areas where you'd think things might still be strict) after having my hands slapped too many times by our magnificent Ralph, but my first impression is that there is a real conflict here between the right of the states to determine how their electoral votes go and the intention of the founding fathers for it to be a state-by-state contest. It would, of course, have to be settled by the Supreme Court, and I would just love to see Roberts et al. on the hot seat in terms of prognostication over which decision would in the long run benefit conservatives more. It is entirely possible, you know, that an election might turn in favor of the conservative (i.e., Republican) candidate because of this change.

[Cosima___J]

I PMed Ralph asking if he could come over to the Pub and give us his opinion as to the constitutionality of the Massachusetts law. Maybe some of you have done the same?

[Ralph]

It's an interesting idea. The requirement for the Electoral College is in the Constitution but the allocation of votes is based on state law. Since the electors can vote for someone who did not get a majority of popular votes in the states it would appear that the doctrine of One Person One Vote (Baker v. Carr) is inapplicable. That said I can't see why a state can't do that although it strikes meas grossly unfair to the voters of that state.

This is the first I've heard of the Massachusetts proposal and I'll research it further in the next day or so.

[John F]

It turns out that five other states had already passed such a law: Illinois, New Jersey, Hawaii, Maryland and Washington. All of these are "blue" states that gave Al Gore a majority in 2000, so the law wouldn't have tipped that election their way. They also voted for John Kerry in 2004, but the law would have delivered their electoral votes to George Bush, including those of Kerry's home state, in effect disenfranchising the voters. This is madness.

[JackC]

It's an interesting idea. The requirement for the Electoral College is in the Constitution but the allocation of votes is based on state law. Since the electors can vote for someone who did not get a majority of popular votes in the states it would appear that the doctrine of One Person One Vote (Baker v. Carr) is inapplicable. That said I can't see why a state can't do that although it strikes meas grossly unfair to the voters of that state.

This is the first I've heard of the Massachusetts proposal and I'll research it further in the next day or so.

Any state is free to screw the voters in that state anyway its pleases (as long as it does it Constitutionally). But it should not be free to screw the voters in OTHER states. If this effort suceeds, the election laws of the other states - with a total of 269 electoral votes - would be entirely meaningless. They can pass laws allocating their electoral votes any way they please, it could not possibly effect the election outcome. The only thing that would matter would be the popular vote totals in the entire nation.

I wouldn't have a problem with amending the Constitution to provide for the "direct" election of the President by nationwide popular vote, but this law is, or at east ought to be, offensive to anyone who cares that we follow the Constitution.

There could not be a more transparent attempt to circumvent the Constitution's express procedure for Presidential elections. Do you really think that the in laying out the electoral process for the President in the Constitution, the framers intended that states with a simple majority of the electoral votes could band together to render the whole process moot?

Even if you think that the Constitution's electoral process is flawed and an anachronism, people ought to at least have enough respect for the document that they change it properly, i.e., according to its terms.

(Moreover, declaring this law to be unconstitutional would not require anywhere near the "creativity" that it took to find laws banning abortion to be unconstitutional. )