The Supreme Court weighs whether to make the Electoral College even less democratic

Source: Vox - View Original Article
Published: May 06, 2020
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57% Conservative


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Electoral College

Sentiments

94% "Please consider making a contribution to Vox today.""
93% "But even if Hamilton is correct that the framers imagine men of such stature being appointed to the Electoral College, that is emphatically not ..."
91% "The two remaining states, Maine and Nebraska, award two electoral votes to the winner of the statewide popular vote and then one electoral vote ..."
89% "Every word of these two paragraphs may be true.""
87% "Vox's work is reaching more people than ever, but our distinctive brand of explanatory journalism takes resources -- particularly during a pandemic and an ..."
85% "Your financial contribution will not constitute a donation, but it will enable our staff to continue to offer free articles, videos, and podcasts at ..."
83% "Colorado and Washington, meanwhile, argue that senators and federal judges are exceptions to a broader rule.""

We have listed the top 10 sentiments. More sentiments do exist. Please review the full article for more information.



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Contributing sentiments towards policy:

94% : Please consider making a contribution to Vox today.
93% : All of which is a long way of saying that a Supreme Court justice who wants to allow faithless electors could draft a perfectly plausible opinion reaching that conclusion, while a justice who wants to forbid faithless electors could also draft a plausible opinion reaching the opposite conclusion.
93% : But even if Hamilton is correct that the framers imagine men of such stature being appointed to the Electoral College, that is emphatically not how the Electoral College operates today.
91% : Both cases involve "faithless electors" -- members of the Electoral College who go rogue and refuse to vote for the candidate who won their state. Washington and Colorado both have safeguards that are intended to prevent faithless electors.
91% : The two remaining states, Maine and Nebraska, award two electoral votes to the winner of the statewide popular vote and then one electoral vote to the popular vote winner in each of the state's congressional districts.
89% : Every word of these two paragraphs may be true.
87% : Vox's work is reaching more people than ever, but our distinctive brand of explanatory journalism takes resources -- particularly during a pandemic and an economic downturn.
85% : Your financial contribution will not constitute a donation, but it will enable our staff to continue to offer free articles, videos, and podcasts at the quality and volume that this moment requires.
83% : That question is now before the Supreme Court.
83% : Colorado and Washington, meanwhile, argue that senators and federal judges are exceptions to a broader rule.
83% : Setting aside the question of what the Constitution's text actually requires, the faithless electors' brief makes a strong argument that the Framers originally expected members of the Electoral College to exercise independent judgment.
80% : The legal dispute in both cases turns upon a narrow distinction between a state's power to appoint presidential electors, and its power to compel those electors to behave in a certain way after they are appointed.
79% : Judges cannot be removed by the person who appointed them because the Constitution explicitly states that federal judges "shall hold their offices during good behaviour," and senators could not be removed by a state legislature because the Constitution provides that senators shall serve "for six years.
79% : Our mission has never been more vital than it is in this moment: to empower you through understanding.
78% : Forty-eight states award all of a state's electoral votes to the candidate who wins the popular vote in that state.
76% : On the contrary, it provides that "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."
71% : Imagine that, when the votes are finally counted in the 2020 election, former Vice President Joe Biden squeezes out a narrow victory in the Electoral College.
67% : Then imagine that, weeks later, the nation is shocked to learn that President Donald Trump will receive a second term because a few previously unknown members of the Electoral College refused to vote for Biden.
65% : All 50 states choose members of the Electoral College through a popular election.
65% : This norm, that members of the Electoral College will be chosen by popular election, emerged very early in American history.
65% : As the Court stated in Myers v. United States (1926), "the right of removal ... inheres in the right to appoint, unless limited by Constitution or statute."
64% : Would Democrats simply throw up their hands and say "well, shucks, that's what the Constitution requires," or would many of them treat this event like an illegitimate coup?
64% : Support Vox's explanatory journalism Every day at Vox, we aim to answer your most important questions and provide you, and our audience around the world, with information that has the power to save lives.
63% : But absent explicit constitutional language indicating presidential electors must serve for a particular amount of time, the states argue, the default rule is that electors may be removed by the same body that appointed them.
62% : In Ray v. Blair (1952), the Supreme Court held that, before someone is appointed as an elector, they may be required to pledge that they will support their party's nominee.
62% : Yet, while they make a good case for why presidential electors should exercise independent judgment in 1787, they also cut fairly strongly against the case for allowing such discretion today.
62% : In 2020, the American people expect presidential electors to behave like robots, voting uncritically for whoever their state supported in the election.
61% : They possess none of the social capital Hamilton attributed to them.
59% : There are, indeed, a bevy of Supreme Court cases stating that the power to make an appointment typically includes the power to remove the person appointed.
59% : But most of these cases deal with the president's power to remove their own subordinates.
57% : The Framers' solution was to create an intermediate body, with members appointed within each state in the manner the legislatures might choose, that would "constitute a separate and coordinate branch of the Government of the United States.
54% : But the electors who wanted to vote for someone other than Clinton in 2016 argue, in their brief to the Supreme Court, that a state's power to control its presidential electors ceases the moment those electors are appointed.
53% : But the Constitution does not mandate popular elections for members of the Electoral College.
53% : The legitimacy of a president flows from more than just formal constitutional rules, it flows from a sense that the president was chosen in a fair and non-arbitrary process.
52% : Meanwhile, in Baca, an elector, also in 2016, attempted to vote for then-Ohio Gov. John Kasich, a Republican.
51% : South Carolina came around in the 1860s.
49% : Members of the Electoral College, this brief argues, are akin to federal judges, who are appointed by the president but cannot be removed from office if they displease that president.
49% : As Washington argues in its brief, "the 'default rule' is that the power to 'appoint' includes the power to remove."
47% : As it could take months for information to travel from one part of the nation to another, the realities of communication in 1787 would make any national campaign directed at the people impossibly difficult.
47% : Which brings us back to where this piece began.
46% : These faithless electors were each fined $1,000.
43% : Governments, as the Declaration of Independence proclaims, derive "their just powers from the consent of the governed."
42% : By 1832, every state except South Carolina chose electors by a statewide vote.
41% : Hillary Clinton.
40% : A pair of cases the Supreme Court will hear next week, Chiafalo v. Washington and Colorado Department of State v. Baca, will decide if this scenario is even possible.
40% : Ray held that "even if such promises of candidates for the electoral college are legally unenforceable ... it would not follow that the requirement of a pledge" is unconstitutional, a holding which explicitly avoids the question of whether an elector's pledge to support a particular candidate is "legally unenforceable."
38% : This is why Ray held that states could require potential electors to pledge to support a particular candidate before those electors were formally appointed.
38% : Alexander Hamilton famously wrote that the Electoral College would enable the president to be chosen "by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation."
36% : Members of the Electoral College are typically unknown, and their names rarely appear on any ballot.
34% : And, while there are profound practical reasons why the country shouldn't tolerate faithless electors, the legal issues presented by the Chiafalo and Baca cases are fraught and do not have clear answers.
33% : The idea was that, if they supported a relatively moderate Republican, maybe enough other members of the Electoral College would join them and place that person in the White House instead of Trump.
33% : Because states have a nearly limitless power to decide how to appoint electors, they may impose virtually any condition on someone hoping to become an elector up until the moment when that elector is appointed.
31% : Imagine that, weeks after Election Day, Democrats learn that Biden's victory was ripped from them and handed to Trump by some obscure elector hardly any voters have ever heard of.
30% : Or they are similar to senators, who prior to the ratification of the 17th Amendment were chosen by state legislatures -- but could not be removed or sanctioned if they violated the state legislature's wishes after their appointment.
30% : There is no good answer to the question of whether faithless electors are permitted, at least as a formal legal matter.
30% : But if the justices choose to allow them, they are potentially endorsing chaos.
29% : We no longer need an "intermediate body" to weigh information that is not readily available to the masses.
26% : But Ray left unanswered the question of what happens if an elector violates this pledge after they join the Electoral College.
26% : The states' reliance on these cases largely begs the question of whether presidential electors are subordinate to their state's legislature.
21% : (The same questions would apply to Republicans if it was Trump on the wrong end of electors' independence.)
17% : It no longer takes months for information about a presidential candidate to travel across the nation -- often it only takes minutes.
16% : In Chiafalo, three electors in 2016 cast their ballots for Republican former Secretary of State Colin Powell, as part of a quixotic effort to place someone other than Trump in the White House.
14% : But before this ballot could be cast, Colorado removed the elector and replaced him with someone who dutifully voted for Democratic nominee (and Colorado winner)
13% : If the state legislature agrees to it, a state could potentially pick members of the Electoral College randomly by throwing darts at a phone book.
8% : while some Framers supported the idea of the people electing the President directly, there was concern that the people would be unable to select a President given the practicalities of the time.

*Our bias meter rating uses data science including sentiment analysis, machine learning and our proprietary algorithm for determining biases in news articles. The rating is an independent analysis and is not affiliated nor sponsored by the news source or any other organization

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