[EM] Electoral College

[Abd ul-Rahman Lomax]

At 10:13 PM 5/15/2006, Bob Richard wrote:
>I will go one step further than Steve Eppley does below, and predict
>that the Supreme Court would rule this particular compact
>unconsititutional in spite of the very learned arguments presented at
>www.every-vote-equal.com.  I think the current court would rule that,
>although interstate compacts can be used for many things, they cannot be
>used to alter the structure of government as established in the
>Constitution.  I'm not sure I believe this argument myself.

Once upon a time, in a land far, far away, I would have thought that 
the Court was above making blatant result-oriented decisions about 
political process.

But I learned, in late 2000, that it could. So I can't say that Mr. 
Richard is wrong.

However, it would be even more blatant, and "more blatant" could end 
up getting some Justices impeached.

The Court has mentioned that the Constitution leaves the matter of 
how electors are selected to the states, and that this power is 
unrestricted (provided that it does not violate some other provision 
under the Constitution, such as due process, which I think was the 
claim in Florida).

The so-called "Compact" is misnamed. It does not set up an agreement 
among the states. Rather, each state remains sovereign in how the 
electors are selected, and a state *could* renege on the "Compact." 
The Compact is unenforceable in that sense. It remains free up to the 
last minute (where due process considerations would indeed arise) to 
change the way it selects electors, as well as how the electors are 
pledged, or if they are pledged at all.

So a decision that this was unconstitutional would, in fact, be 
striking at the heart of what the Constitution *does* provide, by 
common agreement. In order to rule, as Mr. Richard suggests it would, 
that the Compact "alters the structure of government as established 
in the Constitution," it would have to hold that the methods by which 
electors are presently elected was established in the Constitution, 
which is pure nonsense, as is universally acknowledged. The present 
methods, not universal among the states, arose because of political 
considerations, state-by-state. If the argument were true, then the 
states that do *not* select their electors by the all-or-nothing rule 
would be in violation of the Constitution. But they are not.

There are lots of interesting questions. What if, for example, a 
state were to put the *candidates* on the ballot as electors? I don't 
think there is any Constitutional provision requiring the electors to 
actually reside in the states they represent. (It might exist in the 
state constitutions and thus could be changed by the states.) This 
alone would be an interesting shift in the process. (It could become 
like Asset Voting.) I have not attempted to analyze how such a system 
might behave, nor the political feasibility of such a suggestion.

The present initiative does leave the overall election as a plurality 
one. But is that essential? Could states change the way in which they 
determine who is the "winner"?

Once the compact exists, it becomes possible for states to experiment 
with how they select electors, especially smaller ones (which by 
doing so would not disturb the results that keep the compact in effect).