1. Will there’s a good one! Now the voters are not even allowed to vote on whether or not they want NPV which supposedly is for the benefit of the voters. Seems upside down and backwards to me. Politicians shoving an idea down our throats.

2. 1 –

   So…how many signatures are required in Washington to get a referendum on the ballot? 200,000? 20,000? 200?

   But your complaint shouldn’t be with “politicians.” It should be with the U.S Constitution, which gives to state legislatures the exclusive authority to determine how electors are chosen.

   Or am I mistaken? If so, please quote the appropriate passage, if you would.

   Thanks.

3. 2- The same Constitutional you are defending now is the same one your destroying with NPV! That’s really my point.

4. 3 –

   The Constitution is very clear on the matter of how electors are to be chosen. The words are concise and crystal clear. They’re easy to locate, and easy to understand. Again…I invite you to quote some other part of the Constitution than this:

   Article II, Section I

   “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

   So…got quote? Let’s see it!

5. Article I, Section 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

   NPV falls under the definition of Treaty, Alliance or Confederation between States. Which is also crystal clear.

6. 5-

   If you’re going to quote the Constitution, please quote the operative section in its entirety. The section you quote concludes with the following text, which you omitted:

   “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

   If the NPV is indeed triggered by a number of states signing on with sufficient Electoral College votes to constitute an Electoral majority, it might require the approval of Congress (see below). But it would indeed be constitutional, since the Section which you only partly quote (I assume by mistake and not with the intent to deceive) explicitly provides for interstate compacts. If it did not we would have never had the Colorado River Compact, The Delaware River Basin Commission, The Port Authority of New York and New Jersey, the Columbia River Gorge Association, and a host of other interstate compacts which were agreed by multiple states and approved by Congress. There have, in fact, been over 100 of these in our history.

   All interstate compacts. All constitutional.

   In fact, the Supreme Court has ruled that the assent of Congress is not even required to validate an interstate compact unless it can be shown that the effect of the compact is to supersede federal authority which is specifically granted to the federal government by the Constitution. Since the right to appoint electors is specifically granted by the Constitution to the states (there it is again…that nettlesome Section I of Article II that you so much want to pretend does not exist) it would be hard to argue that the intent is to usurp a federal authority in the matter of electing the president. After all – that’s what you guys tell us all the time in defending the winner-take-all EC system – that it is an expression of “states’ rights.”

   See: Virgina v. Tennessee (1893)

   So, then…what else have you got?

7. #4 If the Constitution were so very clear, Oregon v Mitchell and Anderson v. Celebrezze would have been decided differently and Tashjian v Republican Party might not have been decided at all.

8. May a State enter into an interstate compact if doing so would cause it to be in violation of some other provision of the Constitution, such as the 14th Amendment?

9. 8 –

   In Oregon v Mitchell, the Court ruled that the Federal government did not have the authority to restrict the states’ rights to set their own voting requirements. Since the NPV would reassert the states’ rights, as established in Article II, Section 10, to allocate their electoral votes in whatever manner they see fit, this case, if relevant at all to the matter of allocating electors, is only further affirmation of the position that the NPV is perfectly constitutional.

   The other case was a test of free speech, not a test of the states’ explicit right to determine their own electors.

   Now, is interpretation of the Constitution always/ever cut and dried? Of course not. That’s why myriad cases which have tested how particular parts of the Constitution should be interpreted have worked their way up to the USSC, some of which have been granted cert, heard and ruled upon. I freely concede that. Only an idiot would not. The specific question being debated here is whether this particular passage would be violated by the NPV.

   For my part I see the words “in such Manner as the Legislature thereof may direct, a Number of Electors” as being as close to unambiguous as any can possibly be. This may be why 1) above and others before him/her have chosen to ignore them; they do not support his position on the EC as it is currently implemented.

   But truly, you yourself have not been shy in reaching your own conclusions as to the constitutionality of the NPV. I disagree with you. And so we discuss the matter and make our own cases.

   If the NPV comes into effect, and it does result in a constitutional test in the USSC, I for one think it will make woozy any resolute “strict constructionist” who tries to spin away the words in Article II which are so abundantly plain. I think it’s also ironic that in this space I’ve heard strenuous protests against the NPV on the basis that it would weaken “states’ rights” when the operative sentence which creates the EC in the first place is as clear a definition of a right of states as can be found in the Constitution.

   Whether the NPV would be decided as a violation of the 14th amendment is, in the absence of a Supreme Court case to test the matter, mere speculation. In my own view, I don’t see any concern whatsoever. But let’s discuss it.

   The 14th amendment, which you have cited many times in this space, creates neither an inconsistency with Article II Section 10, nor does it negate any part of Article II, Section 10, nor would implementation of the NPV create a violation of the 14th amendment. The effect of the 14th amendment, and the purpose for passing it, was to protect the rights of voting citizens against laws passed to “deny to any person within its jurisdiction the equal protection of the laws,” and therefore, equality in exercising his/her franchise. Furthermore, the 14th amendment was passed during early Reconstruction. At that time some state legislatures were still appointing electors without heed to any popular vote results. Yet they all managed to subsequently change their method (See Article II Section 10 for their authority to do so) after the 14th amendment came into effect, with nary a whiff of “unconstitutionality.”

   So, I disagree with your assessment that the 14th amendment creates any constitutional impediment to enacting the NPV compact.

   As to the assertion by “1” above that the first sentence of Section 10 is inconsistent with implementation of the NPV, can you make a case to support it? Thus far he hasn’t.

10. Clarification –

    Instead of “they do not support his position on the EC as it is currently implemented” above, I meant to type “they do not support his position that the NPV would be unconstitutional.”

    Beg your indulgence…

11. Support for a national popular vote remained steady, at 77% overall, after the National Popular Vote Bill was signed by Washington Governor Chris Gregoire. A survey of 800 Washington state voters conducted on May 5–6, 2009 showed 77% overall support for the idea that the President of the United States should be the candidate who receives the most popular votes in all 50 states. This 77% support level is the same overall percentage registered on the identical question in a December 2–3, 2008 poll in Washington. Percentages by subgroups were similar in both polls.

    By political affiliation, support for a national popular vote in the May 2009 poll was 88% among Democrats, 65% among Republicans, and 73% among others.

    By gender, support in the May 2009 poll was 85% among women and 67% among men.

    By age, support in the May 2009 poll was 73% among 18-29 year olds, 76% among 30-45 year olds, 76% among 46-65 year olds, and 78% for those older than 65.

    By race, support in the May 2009 poll was 78% among white voters (representing 87% of the respondents), 45% among African-American voters (representing 10% of the respondents), and 71% among others (representing 3% of the respondents).

    The survey was conducted by Public Policy Polling, and has a margin of error of plus or minus 3 1/2%.

    An additional question was asked in the May 2009 poll in which respondents were asked to make a three-way choice among three alternative methods for awarding the state’s electoral votes, with the following results:

    * 73% favored a national popular vote;
    * 16% favored awarding its electoral votes by congressional district (as is currently done in Maine and Nebraska); and
    * 11% favored the statewide winner-take-all system (i.e., awarding all of a state’s electoral votes to the candidate who receives the most votes statewide).

    see http://www.NationalPopularVote.com

12. #11 How did Public Policy Polling determine that it was surveying 800 Washington state voters?

13. #9. Then why did Hugo Black decide that Congress could dictate that 18 YO could vote in presidential elections, and why did Thurgood Marshall then interpret that decision to permit different voter qualification in Connecticut?

    You sound like you are channeling Justices Rehnquist (Anderson v Celebrezze), Stewart (Oregon v Mitchell), and Stevens (Tashjian) and yet you forget they were on the losing side. BTW, what did you think of Tara Ross’s point that the NPV-schemers were planning to bring lawsuits arguing that it is the legislature proper and not the legislative process that may direct the manner in which a State’s electors are appointed?

14. #9 You need to look at Section 2 of the 14th Amendment, rather than Section 1.

    But more to the point, you do agree that a State may not enter into a interstate compact if the provisions of the compact violated some other provision of the Constitution, and this would be true regardless whether of not the Congress approved the compact. For example, you agree that two or more States could not enter into a compact to base their appointment of electors on the popular vote among their collective citizens who were over the age of 25. Agreed?

    Re 14th Amendment history:

    I think the last cases where the legislature appointed the electors were 1876 in Colorado, and in 1860 in Georgia and South Carolina. The latter were before Reconstruction, and the latter was at the tail end.

15. 14 –

    “Last cases?” You mean to say there were actually OTHER state legislatures that originally appointed electors themselves and then CHANGED the method to use the popular vote to determine the appointment? Really? OMG! How on earth did they manage to do THAT without a series of constitutional cataclysms erupting?

    OK. I re-read Section 2 the “Reconstruction” (14th) Amendment. Again. Odd section, that one, isn’t it? It makes protects the right to vote of not only 21 year olds, but also “males.” No mention of women. The 19th amendment was passed to grant the franchise to women, yet nothing in the text of the 19th amendment specifically invalidates any part of the 14th amendment. Wow! Somehow we’ve managed for almost a century with that internal inconsistency. So then, will I lose any sleep over the worry that the advent of NPV will invalidate women’s sufferage? I don’t think so. Nor will I fret over the possibility that it will cause some inner conflict with Section 2 of the 14th amendment, which was written to thwart Jim Crow laws. It had nothing whatsoever to do with preserving your very dear winner-take-all electoral college implementation.

    You’d better hope there are some extremely “activist” judges on the bench of the USSC if a case comes before them to invalidate the NPV on the basis you’ve formulated.

    As for Tara Ross I’m sure she, you and others have many ingenious ideas about how to thwart the NPV should it become operative. In fact, your worry is clearly not that implementing the NPV will cause a constitutional problem – it’s that you haven’t yet identified them in sufficient number. For instance, you earlier mentioned the possibility of states granting individual voters multiple ballots in order to confound the tabulation of a national popular vote total. That was a good one! That’ll teach ’em to play “strict constructionists” with Article II, Section 10, huh? I myself can envision embittered, partisan secretaries of states holding back their certifications or indeed even refusing to certify vote totals in some grand, self-imagined patriotic defense of the Constitution should the popular vote total not go “their way.” But what else do you folks have in mind? Obstructionism doesn’t come as easily to me as it does to others, so please…share!

16. #15 Let’s pretend for a moment that you are interested in discussing issues, OK? I’m sure that you can find other forums for your personal attacks.

    I’ll stipulate that you agree that an interstate compact would be void if it violated other provisions of the Constitution, though you have avoided directly admitting this. So there are restrictions on entering into interstate compacts, agreed?

    If someone goes to a polling and the voting machine was broken, so even though they pulled the lever next to a candidate’s name, nothing happened, it would be an abridgment of their right to vote, correct? Voting has to have deeper meaning than merely pulling levers.

    And if you can vote for a candidate for statewide office, such as governor or presidential elector, but persons in other counties may not, not only is their right to vote abridged, but so is yours. If your county casts 100,000 for John Doe, but other counties cast 0 votes, then your right to vote was abridged just as effectively as if the lever on your voting machine was broken, correct?

    So what if your State agrees to enter into NPV scheme compact? You vote for John Doe. But some other State does not permit Doe’s name to appear on the ballot. How is your State not abridging your right to vote by entering into an agreement with other States which may result in your vote not having any effect?

    Since the NPV Scheme would abridge your right to vote under the 14th Amendment, your State may not legally enter into the interstate compact.

    Your State can enter into an interstate compact that would provide for uniform ballot access, including nomination by direct primary, uniform voter qualification and registration, a unified system of canvassing the results including recount provisions, and providing for a majority election, that would protect and perhaps even enhance your right to vote.

    So why should your State enter into an inherently defective agreement?

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