Everyday Erinyes #181

Experts in autocracies have pointed out that it is, unfortunately, easy to slip into normalizing the tyrant, hence it is important to hang on to outrage. These incidents which seem to call for the efforts of the Greek Furies (Erinyes) to come and deal with them will, I hope, help with that. As a reminder, though no one really knows how many there were supposed to be, the three names we have are Alecto, Megaera, and Tisiphone. These roughly translate as “unceasing,” “grudging,” and “vengeful destruction.”

Since we all want an end to the Electoral College, and we all despair of obtaining a Constitutional Amendment; and, further, since the 10th Circuit Court of Appeals issued a ruling this week on Baca et al. v. Colorado Department of State et al., and there has been some noise that this verdict would torpedo the National Popular Vote Compact, I thought this might be a good time to revisit the compact in view of the ruling (particularly since I just received a detailed legal opinion from the Compact explaining what the verdict actually says, and more or less what the Compact actually would do – which I shall quote exhaustively between the lines.)

Of course, the caveat is that the 10th Circuit Court of Appeals is not the end of the line for this case. But I assure you that the Tenth Court of Appeals did NOT torpedo the National Popular Vote Compact – far from it.

The facts …

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The U.S. Court of Appeals in Denver on August 20 ruled, “states do not have the constitutional authority to interfere with presidential electors who exercise their constitutional right to vote for the President and Vice President candidates of their choice.” Page 93. Read the ruling at CNN

The court decision resulted from a lawsuit filed after 3 Democratic presidential electors from Colorado refused to vote for Hillary Clinton when the Electoral College met on December 19, 2016. New York Times article

The decision (if upheld after appeal to the U.S. Supreme Court) would negate existing laws in all 26 states that purport to require presidential electors to vote for their party’s nominee for President.

However, the decision does not affect the operation of the National Popular Vote interstate compact, because the compact does not rely on the state laws that purport to require presidential electors to vote a certain way. The compact does not try to tell presidential electors to vote a certain way.

Instead, the National Popular Vote Compact would operate in a manner identical to the system that has been used for over 200 years in the 24 or so states that do not have laws requiring presidential electors to vote a certain way. In these 24 states (which currently use the state-by-state winner-take-all method of awarding electoral votes), the presidential electors are the persons nominated by the political party whose presidential candidate receives the most popular votes inside the state. The National Popular Vote Compact would operate in an almost identical way, namely the presidential electors would be the persons nominated by the political party whose presidential candidate receives the most popular votes in all 50 states and the District of Columbia.

This system has worked very reliably over the years. After 23,529 electoral votes in 58 presidential elections between 1789 and 2016, the vote of Samuel Miles in 1796 was the only case when an electoral vote was cast in an unfaithful way by a presidential elector who might have thought, at the time he voted, that his vote might affect the outcome. See section 2.12 of Every Vote Equal book

The 7 faithless presidential electors in 2016 were among the 22 grandstanding presidential electors between 1789 and 2016. These are electors who have cast a deviant vote for President knowing, at the time they voted, that their vote would not affect the outcome of the election in the Electoral College.

Given the amount of publicity received by the 7 grandstanding faithless electors in 2016, both parties can be expected to be extremely careful in 2020 about vetting the people they nominate for the position of presidential elector. If the political parties do their job of vetting their nominees for the position of presidential electors, faithless electors cannot have any effect on the outcome — under either the current system or the National Popular Vote compact.

In any case, the 10th Circuit decision is likely to be reviewed by the U.S. Supreme Court because the Washington State Supreme Court reached the opposite conclusion concerning faithless electors.

It remains to be seen whether the U.S. Supreme Court would uphold the decision. As the 10th Circuit decision itself noted on page 67 of its decision, “The Supreme Court, however, has considered a closely analogous question — whether a primary candidate for party elector can be required to pledge to support the party’s candidate.” The Supreme Court concluded in that case that the state could require the pledge.

If there is any remaining concern, states that currently have laws purporting to require presidential electors to vote a certain way could enact Pennsylvania’s law in which the presidential candidate directly chooses the people to serve as his or her presidential electors (25 P.S. §2878).

Finally, keep in mind that this court decision was not about the National Popular Vote Compact. It was about the current state-by-state winner-take-all method of awarding electoral votes.

Meanwhile, former Michigan Republican Party Chair Saul Anuzis recently talked to NBC about National Popular Vote and faithless electors.

In summary, the recent court decision was not about the National Popular Vote Compact, and it had nothing to do with whether the statewide or national popular vote are used to determine a state’s presidential electors.

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I could put in a deal of “notice this” and “notice that,” but you all are noticing kinds of people, and I trust you.

Alecto, Megaera, and Tisiphone, nothing for you to do here. We are the ones who need to do the work and, if possible, make it happen. We can find more background and details, and information on who supports the Compact, at the National Popular Vote website.

The Furies and I will be back.