Mitch McConnell flunks College

>> Thursday, December 08, 2011

Addressing what he called "the most important issue in America that nobody is talking about," Senate Republican Leader Mitch McConnell warned Wednesday that the National Popular Vote movement is "getting dangerously close to achieving their goal of eliminating the Electoral College without actually amending the Constitution--without anybody even noticing, unfortunately, what they’re up to."

The National Popular Vote is a compact among state legislatures under which they pledge that they’ll award their electoral votes to the presidential candidate who wins the most popular votes nationwide, even if that candidate was not the majority choice of their state’s voters.


Oh, well--then by all means, let's talk about the issue, then: why does Mitch McConnell, the Senate majority leader, hate the Constitution, federalism, and states' rights so much whenever it suits him and bangs his little fists about how important they are whenever that suits him?

It happens that the Constitution doesn't specify how states allocate their electoral votes aside from the requirement that the electors have to choose at least one of whom isn't from their home state and the 1804 amendment requiring them to assign their electoral votes to a unified ticket. That's it. Hell, the title "Electoral College" itself is a statutory and cultural term, not a strictly Constitutional one; what McConnell is dishonestly and incorrectly claiming is threatened doesn't, from a certain point-of-view, actually exist, being essentially a statutory term of venery as opposed to a single formal body constructed along the lines of The College Of Cardinals, say.

In many respects, the framers of the Constitution of the United States conceived of the country they were creating as an elitist, anti-democratic republic. That's a bit of an extreme statement and in some ways inaccurate, but no more inaccurate than most folks' apparent idea of what kind of country the founding fathers invented. The founders didn't trust mobs, didn't trust the ordinary rabble, wanted to put in stopgaps, speedbumps and obstacles between the people and the rods and levers of governance. First, they created a representative democracy, obviously, and not a direct democracy. Moreover, secondly, they deliberately set things up so the executive branch and the superior house of the legislative branch would be chosen by the states, with the representative house chosen for the people being the inferior house. It has even been contended that the system devised to select the President and Vice-President was intentionally broken by design so as to require Congress to select the executive, the state electors serving essentially as nominating bodies.

There's nothing illegal or unconstitutional about The National Popular Vote (NPV) compact. Indeed, constitutionally speaking, it would be perfectly within the power of a state to dispense with a popular vote for the presidency altogether. The only restrictions are those set forth in state constitutions. There's no reason, assuming their state constitution permitted it, a legislature couldn't pass a law giving themselves appointment of the state's electors, or delegating the selection of electors to the governor, or appointing electors in some other fashion (e.g. by picking electors at random from the lists of licensed drivers, or by auctioning off electoral seats to the highest bidders).

Similarly, it's entirely a matter of state law as to whether or not an elector has to cast his vote for anyone in particular. I.e. most states have a winner-take-all system in which all of the electors are expected to vote for the winner of the popular vote in their state election, but only slightly less than half of the states have laws that punish an elector if he or she actually fails to do so. I'm not sure there's any particular reason, for instance, that any or all of Texas' electors couldn't go rogue in the next Presidential election and cast their votes for Chuck Norris despite the likelihood he won't actually be on the state's ballots in the election, and if there is a reason, it's a matter of Texas law and has nothing to do with the Constitution of the United States.

So what is Mitch McConnell on about? Does he not know his Constitution? Is he merely pandering to the crowd he was addressing? Is he driven by a practical concern that population growth in blue states increases the likelihood of more elections like 2000, in which the Republican candidate loses the popular vote but wins the electoral vote because a narrow (or even questionable) margin in a state throws all of that state's electoral votes to him? (If Florida had been part of some kind of NPV compact in 2000, its electoral votes would have gone to Al Gore no matter how many chads were hanging.)

The more salient point, naturally, is that whatever inspires McConnell's comments, his commitment to the Constitution is a matter of personal convenience. This goes beyond broad or narrow constructions of ambiguous provisions, beyond originalism and strict constructionism versus a living Constitution and penumbras surrounding the Bill Of Rights and XIVth Amendment. The Constitution simply flat-out says states can choose presidential electors pretty much however the hell they want to and doesn't require them to base their decision on any popular vote at all. In sum, McConnell's position is part of a prevailing hypocrisy seen in so many of our leaders these days, especially among the supposed "conservatives" who fervently profess to cling to reactionary ideals while in fact they cherry-pick to suit whichever members of their queued-up coalition of theological primitives, libertarian anarchists and imperialistic cryptofascists have just had their number called. It ought to be embarrassing to them, but hardly anybody knows a damn thing anymore, and so they don't suffer much chance of being called out on it.





3 comments:

Warner Thursday, December 8, 2011 at 3:16:00 PM EST  

12th Amend. is explicit that a state may split its electoral vote.

I have vague recollection (I was about 10) of a case in the 50s where a Federal judge threw out a case against an elector who didn't vote for the person who won his/her state on the grounds there is no such constitutional requirement.

Random Michelle K Thursday, December 8, 2011 at 3:49:00 PM EST  

I can't remember if it was changed or not, but in WV an elector is not required to vote according to the results. There was a big stink a couple years ago when one elector threatened to vote his conscience and not the "will of the people".

WV is a fun state in which to live.

Eric Thursday, December 8, 2011 at 6:03:00 PM EST  

Mileage varies from state to state. Per Wikipedia, there are 24 states where an elector can be punished (after the fact) for not voting as they would be required to under state law (West Virginia is not one of them). The SCOTUS has apparently never decided whether faithless elector laws are Constitutional, but they did hold in Ray v. Blair that a state can require an elector to pledge in advance to vote in accordance with state rules and laws in order to be certified as an elector. I would assume that because electors can be required to pledge their vote and because their function is to serve as a proxy for a state's right to help elect the President and Vice-President (and not to exercise a personal right of any nature), a faithless elector law would be upheld if challenged.

In any case--and possibly ironically, given the GOP's usual posturing on states' rights that don't involve drug use, abortion or marriage--we're talking about states' rights that McConnell apparently would somehow mysteriously revoke, unless he wants to amend the Constitution to take away a state's right to choose electors in any manner the state sees fit and replace it with some kind of regime in which a state is required to hold a popular vote and require their electors to pledge to the winner of that vote. Please note the further ironic wrinkle that by forcing states to hew to a "state popular vote determines electors", he would be implicitly changing the way states choose electors (the change would not be obvious because most states more-or-less do what McConnell would force them to do; the change would be that the legislatures would no longer be able to establish their own elector laws at will as they can now), which is exactly what he's concerned the NPV states might do (which, conversely, is what they're already allowed to do, since the legislatures can use any criteria they wish to nominate electors).

I hope that made sense. It was actually kind of confusing to write.

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