Massachusetts Attempts to Nullify Electoral College

by Sal on July 28, 2010

in Election 2012,Law,Politics

The People’s Republic of Massachusetts is at it again.  This time, they are trying to reverse two century’s of precedent and change the electoral college system.  They, along with several other states, have passed legislation that would award their 12 electoral votes to the winner of the national popular vote.  Massachusetts joins Illinois, New Jersey, Hawaii, Maryland, and Washington as states that have changed to this method of awarding the popular vote.

Mike and I discussed this topic once over lunch, and he had some interesting legal observations on the subject.  For one, who defines the certified popular vote?  There is no official popular vote total in the nation, as the Presidential election is made up of fifty separate state elections.  It also is rather stupid of Massachusetts, as it nullifies the will of the Massachusetts voter, while other states will have far more of a say in upcoming Presidential elections.  I could see a court challenge based on equal protection on this one (lawyers:  is there a case for that here?) based on the fact that Massachusetts voters are essentially having no say in their electors, leaving it to other states to decide who the electors will go to.

Or what about a court challenge if 2012 ends up looking like 2000?  What if a Republican wins the national popular vote (even though such a thing does not exist) but the Democrat would have one the electoral college if the old system had been retained?

In the end, I hope this does backfire.  Notice the states that have passed this law:  Massachusetts, Illinois, New Jersey, Hawaii, Maryland, and Washington are all Democrat-heavy states.  It will be fun to see them all go red in the next election, if the national popular vote goes to a Republican.  In that case, watch how quickly they switch it back.  It is yet another foolish move by Democrats that will be revoked as soon as it is inconvenient to their political fortunes.

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July 28, 2010 at 8:19 am

{ 2 comments… read them below or add one }

Ryan July 28, 2010 at 7:58 am

Very true — Jon Corzine pushed the national popular vote junk through the New Jersey legislature around the 2008 Election. It worked out in 2008 so there was no constitutional issue, but there may well be in 2012. When the bluest of blue states has to disenfranchise the majority of voters by giving their Electoral vote to a Republican in 2012, the futility of this movement will become clear to the Garden State. I can’t speak for the Bay State — you guys elected Mr. Hopes and Dreams!

Mark Levin made the point last night on his radio show that the Electoral vote was designed to reflect and protect diverse interests outside of the population centers. In effect, he says that when someone asks him if we need an Electoral College anymore he responds with “Do we need a Senate anymore?” The same concept of small state, diverse interests being represented is also at play in the concept of our Senate as in the Electoral College.

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kohler July 28, 2010 at 4:23 pm

Under both the current system and the National Popular Vote approach, all counting, recounting, and judicial proceedings must be conducted so as to reach a “final determination” prior to the common nationwide date for the meeting of the Electoral College. In particular, the U.S. Supreme Court has made it clear that the states are expected to make their “final determination” six days before the Electoral College meets.

Current federal law (Title 3, chapter 1, section 6 of the United States Code) requires the states to report the November popular vote numbers (the “canvas”) in what is called a “Certificate of Ascertainment.” You can see the Certificates of Ascertainment for all 50 states and the District of Columbia containing the official count of the popular vote at the NARA web site at
http://www.archives.gov/federal-register/electoral-college/2008/certificates-of-ascertainment.html

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