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ProfessorPlum

(11,279 posts)
Wed Jun 28, 2023, 10:07 AM Jun 2023

did this latest SC decision kill the movement to make the Electoral College obsolete?

I support the movement to create a popular vote for president via having states representing the required number of EC votes pledge their electors to the winner of the national popular vote.

However, the mechanism - having states assign their electors not based on how their vote tallies come out but rather on some other basis - sounds very much like the schemes that were voted down this week. Where Republican-run states could just assign their electors arbitrarily.

Does this effectively kill the plan to end (the relevance of) the Electoral College?

47 replies = new reply since forum marked as read
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did this latest SC decision kill the movement to make the Electoral College obsolete? (Original Post) ProfessorPlum Jun 2023 OP
There was never a "movement to make the Electoral College obsolete" brooklynite Jun 2023 #1
I understand the writer to mean, gab13by13 Jun 2023 #7
But that wasn't a movement either. brooklynite Jun 2023 #9
It doesn't in itself treestar Jun 2023 #16
some states already do that, I think. Nebraska? ProfessorPlum Jun 2023 #17
Yes, and Maine treestar Jun 2023 #19
I disagree with this part In It to Win It Jun 2023 #24
Even that's not perfect. It's not proportional. In It to Win It Jun 2023 #23
They already have 205 of the 270 EC votes needed ProfessorPlum Jun 2023 #11
Its a question of WHICH States they have. brooklynite Jun 2023 #13
gee, they got the easy ones first. what a surprise ProfessorPlum Jun 2023 #15
In which case: share the current and future progress. brooklynite Jun 2023 #25
given that neither of us are Carnac the Magnificent ProfessorPlum Jun 2023 #36
I'm not speculating; I'm analyzing brooklynite Jun 2023 #38
we'll see. I think the overturning of Roe and their hateful homophobia ProfessorPlum Jun 2023 #47
Some of us hope that will eventually change, DemocraticPatriot Jun 2023 #40
I don't think Greg Abott or the Texas legislature have any intention, though Texas would benefit GregariousGroundhog Jun 2023 #21
Just had a discussion with Jocelyn Benson (MI-SOS) and Steve Simon (MN-SOS) on this topic... brooklynite Jun 2023 #34
Probably but you must wait until a Democrat wins the presidency that way so Republicans can appeal bucolic_frolic Jun 2023 #2
No, those are state laws. This ruling says state legislatures can't ignore state laws willy-nilly mathematic Jun 2023 #3
I see. thanks, that makes sense ProfessorPlum Jun 2023 #12
No, but that wasn't going to happen anyhow. Ocelot II Jun 2023 #4
Electoral votes are recalculated every 10 years with the census, no? NYC Liberal Jun 2023 #8
The total number of House seats was fixed at 435 in 1911. Ocelot II Jun 2023 #14
That statute needs to be changed Bettie Jun 2023 #20
Expanding the House solves many problems IMO Zeitghost Jun 2023 #27
Ultimately, it would make our overall political Bettie Jun 2023 #28
To Fix Congress, Make It Bigger. Much Bigger. Celerity Jun 2023 #45
Ah, ok, I see what you were referring to. NYC Liberal Jun 2023 #30
All state legislatures had to do was gab13by13 Jun 2023 #10
I took the SCOTUS decision to mean House of Roberts Jun 2023 #5
Except inthewind21 Jun 2023 #6
Which means whatever at least five of nine SCOTUS justices SAYS it means. House of Roberts Jun 2023 #33
But the federal courts can review state court decisions Ocelot II Jun 2023 #18
This is correct, as the NC Rethugs will now (after they went 5-2 RW on the NC SC and reversed the Celerity Jun 2023 #42
That could be a consequence MichMan Jun 2023 #22
Not unconstitutional but will never happen brooklynite Jun 2023 #26
Considering the Constitution Zeitghost Jun 2023 #29
A state could hardly pass laws for example that only Democrats could be awarded EC votes MichMan Jun 2023 #31
You would be shocked Zeitghost Jun 2023 #32
So a state could quit having a public vote at all, but courts won't let them require photo ID? MichMan Jun 2023 #35
For President Zeitghost Jun 2023 #37
Actually they could. brooklynite Jun 2023 #39
The Blue States should pass laws that votes for Dems count double in Presidential elections MichMan Jun 2023 #41
That doesn't double a Blue State's Electoral College vote total though. Celerity Jun 2023 #43
If the Popular Vote Compact ever got enough, it would MichMan Jun 2023 #44
The National Popular Vote Interstate Compact's unlikely to happen anytime soon as it would require Celerity Jun 2023 #46

brooklynite

(94,757 posts)
1. There was never a "movement to make the Electoral College obsolete"
Wed Jun 28, 2023, 10:10 AM
Jun 2023

Other than as an academic matter, there's no process underway to change the Constitution to replace the EC with a majority vote election, (reminder: there's NOTHING in the Constitution that talks about people voting for President), and the National Popular Vote Interstate Compact is never going to hits its "States with 270 TVs" threshold.

gab13by13

(21,420 posts)
7. I understand the writer to mean,
Wed Jun 28, 2023, 10:25 AM
Jun 2023

if states could select electors regardless of the popular vote it would destroy the legitimacy of the Electoral College.

brooklynite

(94,757 posts)
9. But that wasn't a movement either.
Wed Jun 28, 2023, 10:27 AM
Jun 2023

The EC allows disproportionate representation of smaller (mostly Republican) State; they have no desire to replace it.

treestar

(82,383 posts)
16. It doesn't in itself
Wed Jun 28, 2023, 10:55 AM
Jun 2023

It is the winner-take-all system adopted by most states. States could award them proportionate to the popular vote.

treestar

(82,383 posts)
19. Yes, and Maine
Wed Jun 28, 2023, 11:15 AM
Jun 2023

They give the 2 votes attributable to the 2 Senators to the state popular vote winner, and the remaining votes to the candidate each district wins in.

Nebraska has 5 votes. So if the state goes Republicans, than 2 go to the Republican. Then each district - sometimes one of them can go to the Democrat, since the largest city is there. (The largest city in even a red state can be blue).

Not totally proportionate, but better than winner take all. Even complete proportion, to the extent no fractions are allowed, would still give small states an edge, but less of one. As long as the number of EVs is based on the number of reps plus 2 for the Senators.

"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 it appears there is no way to change the number of electors without a change to the Constitution (say to make them in a number simply proportionate to the population without electors attributable to Senators).

In It to Win It

(8,293 posts)
24. I disagree with this part
Wed Jun 28, 2023, 12:30 PM
Jun 2023
Not totally proportionate, but better than winner take all. Even complete proportion, to the extent no fractions are allowed, would still give small states an edge, but less of one. As long as the number of EVs is based on the number of reps plus 2 for the Senators.


I only disagree because it would make redistricting (or gerrymandering) all that more essential and critical to our elections. Redistricting would play a much larger in Presidential elections, instead of just house elections. Giving politicians the ability to carve districts that will award electoral college votes seems to be a losing prospect. At least with winner-take-all, it leaves that off the table. I would rather a candidate be given EVs if they win the state, rather than winning gerrymandered districts.

ProfessorPlum

(11,279 posts)
11. They already have 205 of the 270 EC votes needed
Wed Jun 28, 2023, 10:31 AM
Jun 2023

that's quite a lot of progress, and a legitimate movement to make the electoral college obsolete, despite your assertion.

brooklynite

(94,757 posts)
13. Its a question of WHICH States they have.
Wed Jun 28, 2023, 10:47 AM
Jun 2023

Up till now, it's been low-hanging fruit in primarily Democratic States. Name the additional States with Republican Governors and/or legislatures that will sign on.

ProfessorPlum

(11,279 posts)
15. gee, they got the easy ones first. what a surprise
Wed Jun 28, 2023, 10:54 AM
Jun 2023

that doesn't mean there has been no progress, that it isn't a serious effort, and that it will "never" happen.

brooklynite

(94,757 posts)
25. In which case: share the current and future progress.
Wed Jun 28, 2023, 01:32 PM
Jun 2023

Pennsylvania: Republican Legislature
Wisconsin: Republican Legislature
New Hampshire: Republican Governor and Legislature
Arizona: Republican Legislature
Nevada: Republican Governor
North Carolina: Republican Legislature

ProfessorPlum

(11,279 posts)
36. given that neither of us are Carnac the Magnificent
Wed Jun 28, 2023, 05:24 PM
Jun 2023

all I can say is that every state that has a republican legislature will not always have a republican legislature from now until forever into the future. There's no reason to give up on something that has come so far already. Nevada, PA, even NC have massive populations of Democrats, and might swing the other way given some motivation.

brooklynite

(94,757 posts)
38. I'm not speculating; I'm analyzing
Wed Jun 28, 2023, 07:52 PM
Jun 2023

And my 40+ years in politics doesn’t suggest any of the States I pointed out will switch to all Democratic government any time soon.

ProfessorPlum

(11,279 posts)
47. we'll see. I think the overturning of Roe and their hateful homophobia
Thu Jun 29, 2023, 06:56 AM
Jun 2023

is going to have a very large effect going forward.

DemocraticPatriot

(4,431 posts)
40. Some of us hope that will eventually change,
Wed Jun 28, 2023, 08:04 PM
Jun 2023

and then those states would not be out of reach....


Republicans are certainly doing all they can to turn their own party into a 'dead letter'...

GregariousGroundhog

(7,526 posts)
21. I don't think Greg Abott or the Texas legislature have any intention, though Texas would benefit
Wed Jun 28, 2023, 11:30 AM
Jun 2023

Texas gets largely ignored in presidential elections. If the national popular vote compact were to come into effect, I doubt presidential candidates would ignore Texas and its 30 million people. Texas may be conservative, but there's still hundreds of thousands of swing votes there. If Texas ever wanted to increase its political importance on the national stage, this would be one mechanism to do it.

brooklynite

(94,757 posts)
34. Just had a discussion with Jocelyn Benson (MI-SOS) and Steve Simon (MN-SOS) on this topic...
Wed Jun 28, 2023, 03:50 PM
Jun 2023

Didn't hear a compelling pathway to 270 EV.

bucolic_frolic

(43,345 posts)
2. Probably but you must wait until a Democrat wins the presidency that way so Republicans can appeal
Wed Jun 28, 2023, 10:11 AM
Jun 2023

to their SCOTUS and throw it out.

mathematic

(1,440 posts)
3. No, those are state laws. This ruling says state legislatures can't ignore state laws willy-nilly
Wed Jun 28, 2023, 10:15 AM
Jun 2023

Every state has laws about how electors are assigned. This ruling prohibits state legislatures from ignoring those laws and simply assigning electors to their chosen candidate.

So a state can't have a law that says the popular vote winner gets the electors and then a republican legislature in december say, no, I think we'll give all the electors to the republican, thanks for voting better luck next time.

Ocelot II

(115,879 posts)
4. No, but that wasn't going to happen anyhow.
Wed Jun 28, 2023, 10:17 AM
Jun 2023

What can feasibly happen, though (though it's not really relevant to the Harper case) is the recalculation of electoral votes based on population, which hasn't been done in about 100 years.

NYC Liberal

(20,137 posts)
8. Electoral votes are recalculated every 10 years with the census, no?
Wed Jun 28, 2023, 10:25 AM
Jun 2023

They are equal to a state's total Congressional representation (senators + reps).

Ocelot II

(115,879 posts)
14. The total number of House seats was fixed at 435 in 1911.
Wed Jun 28, 2023, 10:52 AM
Jun 2023

The number each state gets can change based on the census every ten years, but the total number doesn't change. Some states' populations have grown exponentially since 1911 but the number of representatives allocated has not grown proportionately because the total number is stuck at 435. A state's electoral college votes are equal to its number of senators (each gets two) plus its representatives, so Wyoming, with a population of about 580,000, gets 3 electoral votes (2 senators and 1 representative). California has 2 senators and 53 representatives with a population of about 39 million, and therefore gets 55 electoral votes. So Wyoming gets 1 electoral vote per 193,000 people while California gets 1 per 709,000 people. Since CA can't get any more representatives because of the 1911 statute, it's stuck with 55 EVs. If those EVs were calculated by actual population and you used Wyoming, the smallest state, as the base number, CA should really get 204 EVs. As it is now, WY's much smaller population has far greater proportional weight than CA. And this is why the GOP doesn't want to change the apportionment statute.

Bettie

(16,130 posts)
20. That statute needs to be changed
Wed Jun 28, 2023, 11:25 AM
Jun 2023

that would also allow the EC to track with the pop vote.

Of course, you'd have to convince the House to allow each of their personal power to be diluted, which would not be easy.

There would also be whining about office space and space on the floor of the House, but frankly, that's something that can be dealt with.

Zeitghost

(3,873 posts)
27. Expanding the House solves many problems IMO
Wed Jun 28, 2023, 01:35 PM
Jun 2023

But neither major party, nor the financial interests that back them will allow it.

If a Congressional district was 75,000 people instead of 750,000 people, and the average number of votes cast per race was 25,000 instead of 250,000 campaign finance reform is a non issue. You can't buy an election when a candidate who is from your town or neighborhood can walk precincts and get to know constituents directly.

But it would lead to diluting the current power structure. Small 3rd parties would be able to gain seats and it would force compromise and coalitions in the House.

Bettie

(16,130 posts)
28. Ultimately, it would make our overall political
Wed Jun 28, 2023, 01:38 PM
Jun 2023

structure more robust as it would require electing people who can work together. It's also WAY easier to be accountable to your district when more people know you. Harder as well for billionaires to put tons of money into each house race.

Celerity

(43,581 posts)
45. To Fix Congress, Make It Bigger. Much Bigger.
Wed Jun 28, 2023, 09:37 PM
Jun 2023
Radically expanding the House of Representatives would help solve some of the biggest problems facing Congress and, by extension, the country.

https://washingtonmonthly.com/2018/10/28/to-fix-congress-make-it-bigger-much-bigger/

The First Amendment wasn’t supposed to be the first amendment. It’s mostly forgotten today, but Congress originally sent twelve of James Madison’s proposed constitutional amendments to the states for ratification; the ten that were ratified are what we now call the Bill of Rights. If all twelve had gotten through, the U.S. House of Representatives today might be at about 6,000 members, instead of 435. That’s because Madison’s original first amendment specified a precise formula for representation. Initially, each House member would represent 30,000 people. For the first Congress, this meant just sixty-five members. Then, when the House got to 100 members, the ratio would go to 40,000 to one. When it got to 200 members, the ratio would go to 50,000 to one. That was as far as it got.

“It is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents,” Madison wrote in Federalist 56. As the new nation’s population grew, then, the “People’s House” should stay close to the people. But Madison’s forward-looking amendment was always at least one state short of the three-quarters needed for ratification. Still, for the next 120 years, Congress generally acted in accordance with the spirit of the lost first amendment. While the number of senators remained constitutionally fixed at two per state, Congress passed decennial legislation to increase the size of the House following each census. By 1832, it had grown to 240 members. After some stasis in the mid-nineteenth century (Congress was preoccupied with other things then), the House grew consistently in the post–Civil War era, rising to 433 after the 1910 census.

The 1912 admission to the union of Arizona and New Mexico, which as states were constitutionally entitled to at least one representative, brought the number to 435, with one representative for every 211,000 constituents. But even as Congress passed the Apportionment Act of 1911, rumblings about a too-big House were growing. And so was the nation: between the 1910 and 1920 censuses, the population swelled by 15 percent, from 92 million to 106 million. Much of that growth came in the form of immigration to cities like New York and Chicago. To keep the ratio at 211,000 to one would have meant adding another seventy representatives. The House couldn’t agree on a plan, with representatives from less populous, rural states fearing a dilution of their power. So, for the first time following a census, it didn’t reapportion at all.

snip

Look across the globe, and you’ll see that the United States is an outlier. In the United Kingdom (population 66 million), the House of Commons has 650 members, one for every 101,000 Brits. Germany’s Bundestag has 709 members, one for every 116,000 Germans. Only India (population 1.3 billion) has more constituents per representative in its lower house, the Lok Sabha. But in India, individual state governments have more autonomy than in the U.S., making the national legislature less important.

snip


I think 250,000 people per House Rep is a good ratio.

The House grew consistently in the post–Civil War era, rising to 433 after the 1910 census. (around 213,000 to one House rep before AZ and NM joined as States to kick it to 435)

It was not increased after the 1920 Census

It was capped by Congressional Act in 1929 (when it was roughly 282,000 to 1)

213,000 + 282,000 is 495,000, so the average for that 20 years is almost 250,000 per House rep.


The US population at the time of the 2020 Census was 331,449,281.

That yields 1,326 US House reps, but you have to add ONE, so it's an odd number (so no ties).

1,327 member of the US House

(until the 2030 Census is finished and we will increase that a bit to keep the 250,000 to 1 ratio)

The US population is likely not going to keep increasing at the current rate over the next 50 to 100 years. It could be only around 236,000,000 by 2100, after an increase and then decrease, so we will not be setting upon a course where the House will someday hit 2,000 in size (the US would have to have 500 million people to do that).

NYC Liberal

(20,137 posts)
30. Ah, ok, I see what you were referring to.
Wed Jun 28, 2023, 01:58 PM
Jun 2023

I agree that we need to increase the cap. The GOP will never do it but the next time we control Congress, we should.

gab13by13

(21,420 posts)
10. All state legislatures had to do was
Wed Jun 28, 2023, 10:29 AM
Jun 2023

declare fraud in the election and thereby claim that the electors to the Electoral college will be chosen by them, regardless of the popular vote. The state Supreme Court could not overrule them and the SC could not overrule them.

House of Roberts

(5,188 posts)
5. I took the SCOTUS decision to mean
Wed Jun 28, 2023, 10:19 AM
Jun 2023

state legislatures couldn't pass laws that state courts couldn't decide on their constitutionality. If enough states had courts that supported the laws passed by their legislatures, it could still go either way.

House of Roberts

(5,188 posts)
33. Which means whatever at least five of nine SCOTUS justices SAYS it means.
Wed Jun 28, 2023, 03:10 PM
Jun 2023

Lionel used to say that on every one of his Air America shows.

In other words, it's only as pesky as they choose to let it.

Ocelot II

(115,879 posts)
18. But the federal courts can review state court decisions
Wed Jun 28, 2023, 11:07 AM
Jun 2023

and overturn them if they violate the federal constitution. The federal courts are still the bulwark against GOP oppression, which is why the appointment of liberal (or at least sane) federal judges is so important.

Celerity

(43,581 posts)
42. This is correct, as the NC Rethugs will now (after they went 5-2 RW on the NC SC and reversed the
Wed Jun 28, 2023, 08:26 PM
Jun 2023

Dem majority NC SC ruling on the US House district map that gave us a 7-7 tie in the NC US House delegation atm) redraw the map to give them a probable 11 Rethug - 3 Dem US House delegation post 2024 elections.


Why SCOTUS election law ruling doesn't stop North Carolina congressional map from being changed

https://www.democraticunderground.com/100218046871


As long as a Red State has a Red trifecta (or supermajorities in the legislature if they have a Dem governor) plus control of the State Supreme Court, they can still do all sorts of bad bad things.

IF a Red State (or States) that voted Blue for POTUS in the 2024 (or beyond) popular vote tries to send its own Electoral College slate of electors that will vote for the Rethug POTUS candidate (likely Trump if we are talking 2024) and they have their State Supreme Court's approval, then I fear the only thing that can stop it would be the SCOTUS.

Will THIS SCOTUS strike that down? I feel better after this ruling, but not at all 100 per cent certain they will.

MichMan

(11,988 posts)
22. That could be a consequence
Wed Jun 28, 2023, 12:24 PM
Jun 2023

You would be creating a system in some states that would award EC votes not based on how your state voted, but based on how people voted in other states. That could potentially be deemed unconstitutional

brooklynite

(94,757 posts)
26. Not unconstitutional but will never happen
Wed Jun 28, 2023, 01:34 PM
Jun 2023

The Constitution says nothing about voters selecting the EC. Just that the States have the authority.

That said: the moment a State votes for candidate A and the State's EVs go to candidate B is the day the compact will collapse.

Zeitghost

(3,873 posts)
29. Considering the Constitution
Wed Jun 28, 2023, 01:55 PM
Jun 2023

does not require a popular vote to begin with, it's unlikely.


All this decision says is that you have to allow state courts to determine if state law was followed in the election process. So legislatures can still determine how the EC electors are chosen. If the state laws says the EC votes go to the winner of a best 2 out of 3 in rock, paper scissors, then that's who wins.

MichMan

(11,988 posts)
31. A state could hardly pass laws for example that only Democrats could be awarded EC votes
Wed Jun 28, 2023, 02:03 PM
Jun 2023

Absurd I realize, but voters and candidates would argue that they were disenfranchised and the SC would clearly rule in their favor and deem it unconstitutional.

Zeitghost

(3,873 posts)
32. You would be shocked
Wed Jun 28, 2023, 02:16 PM
Jun 2023

Let me say it again; there is no requirement to hold a public vote for President. None. If the California State legislature passes a bill amending the State Constitution saying the EC votes go to the Democratic party candidate and it is signed by the Governor, then that's who gets the votes.


Remember, prior to populist movements in each state, the EC electors were chosen in smokey back rooms by the ruling party of each state's legislature. Nothing in federal law or the Constitution has changed since then. The only changes have been made in each of the 50 states who have chosen to award electors to the popular vote winner (with the exception of ME and NE who split votes). If they wanted to return to that system, they could. It would likely cost them their seats in the next election, but it would be legal.

MichMan

(11,988 posts)
35. So a state could quit having a public vote at all, but courts won't let them require photo ID?
Wed Jun 28, 2023, 05:22 PM
Jun 2023

That seems crazy

Zeitghost

(3,873 posts)
37. For President
Wed Jun 28, 2023, 06:31 PM
Jun 2023

Yes. There is no requirement for a public vote anywhere in federal law. The Constitution leaves it up to the states to determine how electors are selected.

brooklynite

(94,757 posts)
39. Actually they could.
Wed Jun 28, 2023, 07:55 PM
Jun 2023

The Constitution leaves the selection of EVs to the State, and says nothing about Political Parties.

You really have no rights absent those granted by the States with respect to participating in a Presidential Election.

MichMan

(11,988 posts)
41. The Blue States should pass laws that votes for Dems count double in Presidential elections
Wed Jun 28, 2023, 08:21 PM
Jun 2023

The popular vote would be a landslide of epic proportions.

MichMan

(11,988 posts)
44. If the Popular Vote Compact ever got enough, it would
Wed Jun 28, 2023, 08:40 PM
Jun 2023

Be impossible to ever lose another presidential election.

Celerity

(43,581 posts)
46. The National Popular Vote Interstate Compact's unlikely to happen anytime soon as it would require
Wed Jun 28, 2023, 10:15 PM
Jun 2023

multiple Red States (Red atm in terms of the Legislature and/or Governor) to sign on (to get to 270 EVs) to what would be, in most cases, a Blue Wall.

It also is likely unconstitutional, especially with this current SCOTUS.

some arguments here:

Why the National Popular Vote Compact is Unconstitutional

https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2686&context=lawreview


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