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Author Topic: Major campaign underway to nullify Electoral College  (Read 88939 times)
beneficii
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« Reply #200 on: May 23, 2010, 03:59:05 pm »
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Here is a discussion that should give a good introduction to the question:

http://www.cga.ct.gov/2008/rpt/2008-R-0221.htm

Not really, because it does not touch upon the sole point of disagreement between us concerning the constitutionality of the NPVIC, the six month waiting period to revoke membership.  The rest of the NPVIC is constitutional, but the severable provision that bars a State from exiting the Compact in that six month window is not unless Congress gives its assent to the Compact.  That limitation on when a State can withdraw is what makes the NPVIC a delegation of sovereign power, which under the holding of the U.S. Steel makes it a compact that requires Congressional approval.

I found a source that didn't bring it up.  Perhaps it was just an omission?  Here is another source:

http://www.columbialawreview.org/assets/pdfs/108/1/Gringer.pdf

The author at this source is opposed to the NPVIC.  It's published at the Columbia Law Review, so you would expect a pretty well-detailed essay, and it is 230 pages long, but the article did not mention your concern at all, or at least I couldn't find it.  Perhaps he didn't find it that substantial, or perhaps he just forgot?

This detailed book, written by proponents of NPVIC, seems to omit mentioning it as well.  One would think it would be found in one of the following places:

http://www.every-vote-equal.com/pdf/EVECh5new_web.pdf

http://www.every-vote-equal.com/pdf/EVE-CH-8.pdf

http://www.every-vote-equal.com/pdf/EVECh10new_web.pdf

This is a document that was jointly written by at least a couple lawyers, and a political science professor who has published books on interstate compacts:

http://www.every-vote-equal.com/pdf/EVEBios_web.pdf

Perhaps that was just an omission too?

I mean, where in the literature could one find this concern?  None of my sources seem to be any good, but they do seem to be otherwise good sources on the subject, both supportive and opposed.  Perhaps you know where to find this concern?

EDIT: Modified with some slight wording changes, and then here is the book published online:

http://www.every-vote-equal.com/tableofcontents.htm

« Last Edit: May 23, 2010, 04:14:06 pm by beneficii »Logged
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« Reply #201 on: May 23, 2010, 06:58:24 pm »
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To be fair, it is a very minor concern, as it would be unlikely that the timing issue would be significant unless a State were already in the process of considering withdrawing from the NPVIC at the time before the July 20 deadline but did not do so until after July 20, and such State's withdrawal would affect whether the agreement was in force.  I don't see a State likely considering withdrawal from scratch after July 20.

In any case, my main objections to the NPVIC aren't constitutional at all, rather they are:
1. Ballot Access
The NPVIC strongly assumes that only the Republican and Democratic parties matter.  The agreeing States are not having to adopt identical ballot access rules (and even if they did, the non compacting States are not).  Not only that, but in the circumstances that major (i.e. they got EVs) third party efforts have been made, they regularly do not end up on the ballot in every state, and in some cases have displaced the major party candidates from the ballot in that State so that they were not on the ballot everywhere.

2. Close Elections
The NPVIC makes the problem of a close election national and provides no mechanism to effectively deal with it. In 1960, the national PV margin was less than 0.2%, a margin that in many States would trigger an automatic recount and in the remainder would usually allow the loser to demand a recount.  In 1880, the margin was less than 0.1%. Yet there is no provision for recounts being triggered in such a close election, and even if they were, no way to get the noncompacting states to join in on a recount.
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« Reply #202 on: May 23, 2010, 10:47:49 pm »
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1. Ballot Access
The NPVIC strongly assumes that only the Republican and Democratic parties matter.  The agreeing States are not having to adopt identical ballot access rules (and even if they did, the non compacting States are not).  Not only that, but in the circumstances that major (i.e. they got EVs) third party efforts have been made, they regularly do not end up on the ballot in every state, and in some cases have displaced the major party candidates from the ballot in that State so that they were not on the ballot everywhere.

2. Close Elections
The NPVIC makes the problem of a close election national and provides no mechanism to effectively deal with it. In 1960, the national PV margin was less than 0.2%, a margin that in many States would trigger an automatic recount and in the remainder would usually allow the loser to demand a recount.  In 1880, the margin was less than 0.1%. Yet there is no provision for recounts being triggered in such a close election, and even if they were, no way to get the noncompacting states to join in on a recount.

I find point 2 troubling as well. I wonder what would happen to the electors of a state that provides for an automatic recount in close elections. With the NPVIC the electors would presumably need a recount from other states since the election depends on the national vote. This looks like certain litigation should it occur.

My other concern is related to point 1 but perhaps in a different way - there is no runoff provision for candidates in a large field. If there is an election with multiple candidates it's quite possible that none come close to a majority. There's no runoff or IRV in the NPVIC so there is no way to create a majority as the EC has presently. The proposed constitutional amendment in 1969 to replace the EC set a 40% threshold to identify a popular vote winner and a runoff otherwise; it passed the House but was killed in the Senate.
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« Reply #203 on: May 25, 2010, 11:20:46 pm »
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To be fair, it is a very minor concern, as it would be unlikely that the timing issue would be significant unless a State were already in the process of considering withdrawing from the NPVIC at the time before the July 20 deadline but did not do so until after July 20, and such State's withdrawal would affect whether the agreement was in force.  I don't see a State likely considering withdrawal from scratch after July 20.

In any case, my main objections to the NPVIC aren't constitutional at all, rather they are:
1. Ballot Access
The NPVIC strongly assumes that only the Republican and Democratic parties matter.  The agreeing States are not having to adopt identical ballot access rules (and even if they did, the non compacting States are not).  Not only that, but in the circumstances that major (i.e. they got EVs) third party efforts have been made, they regularly do not end up on the ballot in every state, and in some cases have displaced the major party candidates from the ballot in that State so that they were not on the ballot everywhere.

2. Close Elections
The NPVIC makes the problem of a close election national and provides no mechanism to effectively deal with it. In 1960, the national PV margin was less than 0.2%, a margin that in many States would trigger an automatic recount and in the remainder would usually allow the loser to demand a recount.  In 1880, the margin was less than 0.1%. Yet there is no provision for recounts being triggered in such a close election, and even if they were, no way to get the noncompacting states to join in on a recount.

You keep raising the question.  Is your concern even valid?  What is the source for your concern?
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« Reply #204 on: May 25, 2010, 11:35:26 pm »
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To be fair, it is a very minor concern, as it would be unlikely that the timing issue would be significant unless a State were already in the process of considering withdrawing from the NPVIC at the time before the July 20 deadline but did not do so until after July 20, and such State's withdrawal would affect whether the agreement was in force.  I don't see a State likely considering withdrawal from scratch after July 20.

You keep raising the question.  Is your concern even valid?  What is the source for your concern?

My concern over the six month limit is valid, and I've quoted the parts of previous Supreme Court rulings that support my opinion on the issue.  Granted, it is unlikely to be a concern that will matter since a very specific set of circumstances would have to happen for it to matter, even assuming the NPVIC effort ever crosses the 270EV threshold.
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« Reply #205 on: May 26, 2010, 12:58:10 am »
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To be fair, it is a very minor concern, as it would be unlikely that the timing issue would be significant unless a State were already in the process of considering withdrawing from the NPVIC at the time before the July 20 deadline but did not do so until after July 20, and such State's withdrawal would affect whether the agreement was in force.  I don't see a State likely considering withdrawal from scratch after July 20.

You keep raising the question.  Is your concern even valid?  What is the source for your concern?

My concern over the six month limit is valid, and I've quoted the parts of previous Supreme Court rulings that support my opinion on the issue.  Granted, it is unlikely to be a concern that will matter since a very specific set of circumstances would have to happen for it to matter, even assuming the NPVIC effort ever crosses the 270EV threshold.

Are you talking about the leap of logic where you take this paragraph:

Quote
Under the test of whether the particular compact enhances state power quoad the Federal Government, this Compact does not purport to authorize member States to exercise any powers they could not exercise in its absence, nor is there any delegation of sovereign power to the Commission, each State being free to adopt or reject the Commission's rules and regulations and to withdraw from the Compact at any time.

and make it say that Congressional consent can be required for just the part that puts provisos on withdrawal, if there's a severability clause, but where there are cases the rest of the compact can just go ahead and take effect, because of the severability clause?  Tell me, have you ever heard of a court case where the argument was that only part of a compact required Congressional consent to take effect, and the rest could just take effect, as long as there is a severability clause?

And then, you dismiss the one proviso on withdrawal that did exist in the case the Supreme Court quotation came from by saying it is simply a restatement of the ex post facto clause of the Constitution, so it is not a real proviso on withdrawal?  (The proviso in the MTC keeps the states from throwing away their obligations when it matters the most to the operation of the compact, just like the proviso in the NPVIC does.  That is, it simply binds the states to their compact while they are part of it, which is like a contract, one which they cannot break or else they violate the Contract Clause.)

EDIT: Slight wording change that better clarifies what I'm saying.
« Last Edit: May 26, 2010, 01:37:40 am by beneficii »Logged
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« Reply #206 on: May 26, 2010, 01:03:10 am »
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If the compact gets 270 EV worth of states signed on, it should become a lot easier to amend the Constitution to have the same effect as the compact.
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« Reply #207 on: May 26, 2010, 01:05:03 am »
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If the compact gets 270 EV worth of states signed on, it should become a lot easier to amend the Constitution to have the same effect as the compact.


Only problem is that it is far easier to repeal a national popular vote if it doesn't work, when you only have to get enough states to jump ship on the NPVIC versus having to repeal an Amendment to the Constitution.

EDIT: Also, the threshold of support is lower, using the flexibility of the electoral college.
« Last Edit: May 26, 2010, 01:08:29 am by beneficii »Logged
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« Reply #208 on: May 26, 2010, 02:32:28 pm »
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To be fair, it is a very minor concern, as it would be unlikely that the timing issue would be significant unless a State were already in the process of considering withdrawing from the NPVIC at the time before the July 20 deadline but did not do so until after July 20, and such State's withdrawal would affect whether the agreement was in force.  I don't see a State likely considering withdrawal from scratch after July 20.

You keep raising the question.  Is your concern even valid?  What is the source for your concern?

My concern over the six month limit is valid, and I've quoted the parts of previous Supreme Court rulings that support my opinion on the issue.  Granted, it is unlikely to be a concern that will matter since a very specific set of circumstances would have to happen for it to matter, even assuming the NPVIC effort ever crosses the 270EV threshold.

Are you talking about the leap of logic where you take this paragraph:

Quote
Under the test of whether the particular compact enhances state power quoad the Federal Government, this Compact does not purport to authorize member States to exercise any powers they could not exercise in its absence, nor is there any delegation of sovereign power to the Commission, each State being free to adopt or reject the Commission's rules and regulations and to withdraw from the Compact at any time.

and make it say that Congressional consent can be required for just the part that puts provisos on withdrawal, if there's a severability clause, but where there are cases the rest of the compact can just go ahead and take effect, because of the severability clause?  Tell me, have you ever heard of a court case where the argument was that only part of a compact required Congressional consent to take effect, and the rest could just take effect, as long as there is a severability clause?

And then, you dismiss the one proviso on withdrawal that did exist in the case the Supreme Court quotation came from by saying it is simply a restatement of the ex post facto clause of the Constitution, so it is not a real proviso on withdrawal?  (The proviso in the MTC keeps the states from throwing away their obligations when it matters the most to the operation of the compact, just like the proviso in the NPVIC does.  That is, it simply binds the states to their compact while they are part of it, which is like a contract, one which they cannot break or else they violate the Contract Clause.)

EDIT: Slight wording change that better clarifies what I'm saying.


The court has routinely used the presence of a severability clause to decide whether to toss an entire law or just parts of it, so once a part that causes a constitutional problem is severed, the rest would be acceptable.  The compact clause makes its clear that enforceable contracts between States require the Consent of Congress.  The only provision of the NPVIC that males it a enforceable contract instead of State law is the withdrawl proviso. The Constitution and existing federal law allow a State to change its method of choosing electors up until election day.  Setting an earlier date makes it a compact that requires Congressional approval instead of being a collection of States that have chosen to use the same method of selecting electors.

The MTC proviso wasn't litigated in the U.S.Steel case as State withdrawal was not at issue in that case.  However, even if it had been, its withdrawl proviso isn't equivalent to that in the NPVIC.  The NPVIC attempts to control how a State selects its electors for a period of time after the State withdraws from the NPVIC.  The MTC does not attempt to control how a State adjudicates tax cases for any period of time after a State withdraws from the MTC.  It only specifies that rulings prior to the withdrawl (i.e. prior to the change in State law) remain in force, which they would have to as States are forbidden from passing ex post facto laws,  In short, the MTC withdrawl provisio imposes no obligation on a State.  The NPVIC withdrawl proviso does impose obligations on a State and restricts what it can do.  Such restrictions require Congressional approval under the compact clause.
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« Reply #209 on: May 26, 2010, 08:31:58 pm »
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To be fair, it is a very minor concern, as it would be unlikely that the timing issue would be significant unless a State were already in the process of considering withdrawing from the NPVIC at the time before the July 20 deadline but did not do so until after July 20, and such State's withdrawal would affect whether the agreement was in force.  I don't see a State likely considering withdrawal from scratch after July 20.

You keep raising the question.  Is your concern even valid?  What is the source for your concern?

My concern over the six month limit is valid, and I've quoted the parts of previous Supreme Court rulings that support my opinion on the issue.  Granted, it is unlikely to be a concern that will matter since a very specific set of circumstances would have to happen for it to matter, even assuming the NPVIC effort ever crosses the 270EV threshold.

Are you talking about the leap of logic where you take this paragraph:

Quote
Under the test of whether the particular compact enhances state power quoad the Federal Government, this Compact does not purport to authorize member States to exercise any powers they could not exercise in its absence, nor is there any delegation of sovereign power to the Commission, each State being free to adopt or reject the Commission's rules and regulations and to withdraw from the Compact at any time.

and make it say that Congressional consent can be required for just the part that puts provisos on withdrawal, if there's a severability clause, but where there are cases the rest of the compact can just go ahead and take effect, because of the severability clause?  Tell me, have you ever heard of a court case where the argument was that only part of a compact required Congressional consent to take effect, and the rest could just take effect, as long as there is a severability clause?

And then, you dismiss the one proviso on withdrawal that did exist in the case the Supreme Court quotation came from by saying it is simply a restatement of the ex post facto clause of the Constitution, so it is not a real proviso on withdrawal?  (The proviso in the MTC keeps the states from throwing away their obligations when it matters the most to the operation of the compact, just like the proviso in the NPVIC does.  That is, it simply binds the states to their compact while they are part of it, which is like a contract, one which they cannot break or else they violate the Contract Clause.)

EDIT: Slight wording change that better clarifies what I'm saying.


The court has routinely used the presence of a severability clause to decide whether to toss an entire law or just parts of it, so once a part that causes a constitutional problem is severed, the rest would be acceptable.  The compact clause makes its clear that enforceable contracts between States require the Consent of Congress.  The only provision of the NPVIC that males it a enforceable contract instead of State law is the withdrawl proviso. The Constitution and existing federal law allow a State to change its method of choosing electors up until election day.  Setting an earlier date makes it a compact that requires Congressional approval instead of being a collection of States that have chosen to use the same method of selecting electors.


So it's not just about imposing some limits on withdrawal, it's about enforcing the whole thing.  So now, it seems, not only have you taken the quoted paragraph from the Supreme Court decision to make it say that, hey, there can be no provisos on withdrawal or when a state can withdraw, but that now in order for any compact to be enforceable, it must be consented to by Congress.  So, where the compacting states come together, but don't intend to seek Congressional consent, they don't care if it's enforceable or not?  I mean, I guess sometimes someone may enter into a contract, where they don't care where it's enforceable.

Also, I'm still waiting for that court case which wrestles with question about whether only part of a compact needs Congressional consent (because of the severability clause), but not the whole thing.

Quote
The MTC proviso wasn't litigated in the U.S.Steel case as State withdrawal was not at issue in that case.  However, even if it had been, its withdrawl proviso isn't equivalent to that in the NPVIC.  The NPVIC attempts to control how a State selects its electors for a period of time after the State withdraws from the NPVIC.  The MTC does not attempt to control how a State adjudicates tax cases for any period of time after a State withdraws from the MTC.  It only specifies that rulings prior to the withdrawl (i.e. prior to the change in State law) remain in force, which they would have to as States are forbidden from passing ex post facto laws,  In short, the MTC withdrawl provisio imposes no obligation on a State.  The NPVIC withdrawl proviso does impose obligations on a State and restricts what it can do.  Such restrictions require Congressional approval under the compact clause.

True, but you yourself quoted the case mentioning withdrawal.  Clearly, withdrawal was used in that case.  If you read back, the main concern of the court in deciding the question of whether consent was needed was not whether it placed provisos on withdrawal, though of course being able to withdraw at any time helped the case for the compact not needing Congressional consent, but whether the provisions of the compact had the effect of increasing the member states powers "quoad the national government."  The court looked at several aspects in that case.

Also, you seem to have returned to saying that a compact is enforceable, by saying that the MTC can cause a state to incur liability, but only if it does not limit the withdrawal at all, while ignoring the fact that there are provisos in the MTC relating to withdrawal, as well.

You also bring up again that seemingly ridiculous ex post facto point, while ignoring the fact that the state cannot do it because it cannot violate the Contract and Impairments Clause, and without providing any source yourself in support.

Please tell me, What have you read regarding Interstate compacts?  Make sure to include what supports your points.
« Last Edit: May 26, 2010, 09:11:12 pm by beneficii »Logged
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« Reply #210 on: May 26, 2010, 09:52:22 pm »
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Why would a Court case deal with whether severability is applicable to state compacts in particular?  Severability clauses, such as that included in the NPVIC are a standard feature of most legislation so that if a portion is ruled invalid what remains can still take effect.  The only time a severability clause isn't included is if the law is so simple there is only one issue at stake, or the drafters want it to be all or nothing.  Once the withdrawal limitation is severed from the NPVIC, what remains is not a contract, but a bunch of identically worded State laws, that would still be valid in any State that hadn't repealed the law that caused the State to adopt the NPVIC.

The NPVIC doesn't need enforcing by an outside agency if no State chooses to repeal the law that had it join the NPVIC.  It is a State law in each of the States that adopts it, and as such it is just as enforceable as any other State law would be.

The MTC provisio only details the effects of limitations that arise from the ex post facto prohibition, and would be just as applicable even if they weren't there.  The State would be just as liable for any payment whether that law had specified it was owed to a non-State entity.
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« Reply #211 on: May 26, 2010, 10:09:40 pm »
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Why would a Court case deal with whether severability is applicable to state compacts in particular?  Severability clauses, such as that included in the NPVIC are a standard feature of most legislation so that if a portion is ruled invalid what remains can still take effect.  The only time a severability clause isn't included is if the law is so simple there is only one issue at stake, or the drafters want it to be all or nothing.  Once the withdrawal limitation is severed from the NPVIC, what remains is not a contract, but a bunch of identically worded State laws, that would still be valid in any State that hadn't repealed the law that caused the State to adopt the NPVIC.

Do you have that court case talking about where only part of a compact clause needs Congressional consent?  Or even barring that, do you have any academic source that states that compacts may only partly need Congressional consent if they have a severability clause?  And for academic sources that do mention the severability clauses, what do they say?  Every source I've read on Interstate compacts, including every source I've provided here, only ever deals with whether a compact as a whole requires complete Congressional consent.

If you look more closely at the wording of such severability clauses, you see that severability applies in cases where that part is found to be "invalid"?  But would you consider a part of a compact to be "invalid" just because Congress has yet to give consent to it?  Would you consider an amendment to a bill that has passed only one house of Congress, even though the bill itself has passed both houses of Congresses, do be "invalid" until the other house passes it too?

Quote
The NPVIC doesn't need enforcing by an outside agency if no State chooses to repeal the law that had it join the NPVIC.  It is a State law in each of the States that adopts it, and as such it is just as enforceable as any other State law would be.

Again, why would states enter into a compact if there is nothing to enforce, (EDIT: if there is nothing they want to make sure that the other states provide in return for what they provide)?

Quote
The MTC provisio only details the effects of limitations that arise from the ex post facto prohibition, and would be just as applicable even if they weren't there.  The State would be just as liable for any payment whether that law had specified it was owed to a non-State entity.

Your behavior in this thread has been appalling.  You again bring up the clause dealing with ex post facto laws, when I already asked for a source on your assertion of its relation to the MTC, and when it clearly is because of the Contracts and Impairments Clause instead that a state cannot just shirk its liability incurred under the MTC (and I have presented reliable sources mentioning the Contract Clause), meaning that the MTC is/has been enforceable, even though it has not obtained Congressional consent.

Your attempts to make the ex post facto laws apply to a compact that doesn't have anything to do with ex post facto laws are worse than your attempts to stretch the meaning of the quoted paragraph in the SCOTUS's ruling on the MTC case to make it so there can be no provisos on withdrawal.  Do you have any desire to seriously read up on the subject, or to read and understand the sources that introduce the concepts of interstate compacts and how the NPVIC falls under the law, that I have posted?
« Last Edit: May 26, 2010, 10:14:04 pm by beneficii »Logged
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« Reply #212 on: May 26, 2010, 11:25:44 pm »
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True Federalist,

If you're looking to read further, read this by the Council of State Governments:

Quote
Although compact clause appears to require congressional consent in every case, the
Supreme Court has determined that the clause is activated only by those agreements that
would alter the balance of political power between the states and federal government or
intrude on a power reserved to Congress. Virginia v. Tennessee, 148 U.S. 503 (1893).
Thus, where an interstate agreement accomplishes nothing more than what the states are
otherwise empowered to do unilaterally, the compact does not intrude on federal interests
requiring congressional consent. U.S. Steel Corp. v. Multistate Tax Commín, 434 U.S.
452 (1978). In this circumstance, the compact continues to be a contract between the
states, the meaning of which may be subject to the Supreme Courtís original jurisdiction
over disputes between the states. The compact is not, however, ďfederalizedĒ for purposes
of enforcement and interpretation.
However, where congressional consent is required because the compact intrudes on
federal interests, the lack of congressional consent renders the agreement void as between
the states. By contrast, where the compact does not intrude on federal interests, the
agreement is not invalid for lack of congressional consent. New Hampshire v. Maine, 426
U.S. 363 (1976).

http://www.cglg.org/projects/water/CompactEducation/Congressional_Consent_and_other_Legal_Issues-CSGNCIC.pdf

This restates the concern of the SCOTUS relating to whether the compact increases powers quoad the national government, but does not rip some phrases from the last sentence relating to time limits from the opening sentence of the quoted paragraph we have discussed so much from the context set by the first, as you have done.  Congressional consent being required or not, it is still a contract, and so the member states are subject to the Contract Clause regarding it.

EDIT: Forgot to add link.
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« Reply #213 on: May 27, 2010, 12:55:02 am »
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Even if one takes the view that the NPVIC is a contract does not require Congressional approval, it does not follow that if a State broke the contract before Election Day that the State could be obligated to cast its votes for the NPV winner, so long as the other States still have the option of selecting their electors the old way.

If a State withdraws between July 20 and Election Day, thereby causing the number of agreeing EV's to fall below 270, what action would the other States had done in anticipation of the withdrawing State remaining in the NPVIC?  None, as electors aren't appointed until after Election Day.  Hence, there is no harm done, as the remaining States can appoint electors using their own popular votes.

It may well be that one or more of the candidates is inconvenienced, but they aren't a party to the agreement.
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Sellers(D) Lt. Gov.
Hammond(R) Sec. of State
Diggs(D) Att. Gen.
Herbert(D) Comptroller Gen.
Spearman(R) Supt. of Education
DeFelice(American) Commissioner of Agriculture
Hutto(D) US Sen (full)
Scott(R) US Sen (special)
Geddings(Labor) US House SC-2
Quinn(R) SC House District 69
Yes: Amendment 1 (Gen. Assembly may allow and regulate charity raffles)
No: Amendment 2 (end election of the Adjutant General)
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« Reply #214 on: May 27, 2010, 01:24:11 am »
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Even if one takes the view that the NPVIC is a contract does not require Congressional approval, it does not follow that if a State broke the contract before Election Day that the State could be obligated to cast its votes for the NPV winner, so long as the other States still have the option of selecting their electors the old way.

If a State withdraws between July 20 and Election Day, thereby causing the number of agreeing EV's to fall below 270, what action would the other States had done in anticipation of the withdrawing State remaining in the NPVIC?  None, as electors aren't appointed until after Election Day.  Hence, there is no harm done, as the remaining States can appoint electors using their own popular votes.

It may well be that one or more of the candidates is inconvenienced, but they aren't a party to the agreement.

The state in question would have violated the Contract Clause of the Constitution ("No State shall...pass any...Law impairing the Obligation of Contracts") and been subject to suit by other member states seeking enforcement.  If the Supreme Court says that no Congressional consent is needed for the Compact to take effect (or the Compact has received consent) and the Compact is constitutional, and the court finds that the defendant is violating the Compact, then the Court will order that the violating state comply with the Compact.  (Now, if all member states unanimously agreed to ditch the Compact, that would be different, as there would be no state that would seek enforcement; therefore, no one would have standing.)

It's just like a contract.  If you're party to a contract, and the other side isn't keeping up their end of the bargain, wouldn't you seek enforcement and wouldn't you have the right to bring suit requesting that enforcement?  But if all parties agree to ditch the contract, that would be the end of it, right?
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« Reply #215 on: May 27, 2010, 02:16:16 am »
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In order for there to be a tort, there must be a specific harm.  So long as the other States have not already selected their electors, and know that the withdrawing State will not be using the national popular vote to select its electors, what harm has been caused? Even if there were a harm, why must the redress be enforcement of the NPVIC?  I finally got around to noticing the link you posted to Every Vote Equal.  But in the case it cites, West Virginia ex rel. Dyer v. Sims, the issue was over money. West Virginia Auditor's decision to not pay, meant that when he was found to be in the wrong, there was a specific harm to redress.

I can't see a non-Congressionally approved the NPVIC overriding "Each State shall appoint, in such Manner as the Legislature thereof may direct," in the  case where a State withdraws before Election Day and clearly states it's not going to use the NPV to select electors, then it would be acting in accordance with its Constitutional prerogatives.

Still, as I said earlier, we're bothering with what is an obscure possibility that will likely never come up.  The NPVIC is likely never going to get to 270 until we have another case of the PV and the EV disagreeing, and maybe not even then.  It's no coincidence that every State that has adopted it so far is solidly Democratic, as the Democrats were the ones who were on the wrong end of the split last time.  The farther we get from the Bush presidency, the less important this will seem.
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Hammond(R) Sec. of State
Diggs(D) Att. Gen.
Herbert(D) Comptroller Gen.
Spearman(R) Supt. of Education
DeFelice(American) Commissioner of Agriculture
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Scott(R) US Sen (special)
Geddings(Labor) US House SC-2
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« Reply #216 on: May 27, 2010, 09:34:38 am »
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So long as the other States have not already selected their electors, and know that the withdrawing State will not be using the national popular vote to select its electors, what harm has been caused? Even if there were a harm, why must the redress be enforcement of the NPVIC?

Good God!  Your behavior has gotten even more appalling, as you are now denying knowledge of the basic principles of contracts!  Of course the redress would be the enforcement of the NPVIC, because that is the contract the state signed!  The state agreed to do it, and now the state would be violating the contract they signed!  Sure, the suing states wouldn't be able to get money out of it, but assuming the conditions I laid out in my previous post were true they'd get enforcement of the contract.  That is, they'd get an injunction ordering the state to follow the contract, exactly what they would have sought.

Why are you being like this on this issue?  Are you that opposed to the NPVIC that you'd thought to encourage opposition with bogus statements?  You are a moderator and you seem to be present yourself as someone with good knowledge of the Constitution and other matters!  What is with your behavior!  Until you explain to me this, I refuse to engage in any more discussion with you on this matter!
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« Reply #217 on: May 27, 2010, 10:42:50 am »
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I am not a lawyer, nor have I ever claimed to be one.  I do have a strong respect for individual State sovereignty, and July 20 deadline is an arbitrary, capricious restraint on that sovereignty.  This discussion has proved useful, as it has given me a chance to refine my gut feeling on this side issue of the NPVIC.

If were I making a fresh argument against the validity of the July 20 proviso,  it would be as follows.

1. Article II Section 1 Clause 2 provides that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors".

2. Article II Section 1 Clause 4 provides that "The Congress may determine the Time of chusing the Electors".

3. Congress has used its Clause 4 power to provide in 3 USC 1 that "The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President."

4. Congress has further reinforced the importance of Election Day in by providing in 3 USC 5 that "If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State,"  (Emphasis mine.)  Clearly Congress has provided that States are free to change the method used to select electors up until Election.

Therefore, any purported State contract or State law that prevents a State from changing the method of selecting electors at any time prior to Election Day, infringes upon Congress' power under Article II Section 1 Clause 4 to determine when Electors will be chosen.

Hence, the July 20 provsio in the NPVIC can only be enforceable if Congress assents.  This is not only because of any implications of the Compact Clause, but because that proviso touches upon Congress' authority under Article II Section 1 Clause 4.

True Federalist,

If you're looking to read further, read this by the Council of State Governments:

Quote
However, where congressional consent is required because the compact intrudes on
federal interests, the lack of congressional consent renders the agreement void as between
the states. By contrast, where the compact does not intrude on federal interests, the
agreement is not invalid for lack of congressional consent. New Hampshire v. Maine, 426
U.S. 363 (1976).

http://www.cglg.org/projects/water/CompactEducation/Congressional_Consent_and_other_Legal_Issues-CSGNCIC.pdf

As I have shown, there is a federal interest being intruded upon by the July 20 proviso of the NPVIC.
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Ervin(I) Gov.
Sellers(D) Lt. Gov.
Hammond(R) Sec. of State
Diggs(D) Att. Gen.
Herbert(D) Comptroller Gen.
Spearman(R) Supt. of Education
DeFelice(American) Commissioner of Agriculture
Hutto(D) US Sen (full)
Scott(R) US Sen (special)
Geddings(Labor) US House SC-2
Quinn(R) SC House District 69
Yes: Amendment 1 (Gen. Assembly may allow and regulate charity raffles)
No: Amendment 2 (end election of the Adjutant General)
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« Reply #218 on: May 30, 2010, 11:36:39 pm »
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I am not a lawyer, nor have I ever claimed to be one.  I do have a strong respect for individual State sovereignty, and July 20 deadline is an arbitrary, capricious restraint on that sovereignty.  This discussion has proved useful, as it has given me a chance to refine my gut feeling on this side issue of the NPVIC.

If were I making a fresh argument against the validity of the July 20 proviso,  it would be as follows.

1. Article II Section 1 Clause 2 provides that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors".

2. Article II Section 1 Clause 4 provides that "The Congress may determine the Time of chusing the Electors".

3. Congress has used its Clause 4 power to provide in 3 USC 1 that "The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President."

4. Congress has further reinforced the importance of Election Day in by providing in 3 USC 5 that "If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State,"  (Emphasis mine.)  Clearly Congress has provided that States are free to change the method used to select electors up until Election.

Therefore, any purported State contract or State law that prevents a State from changing the method of selecting electors at any time prior to Election Day, infringes upon Congress' power under Article II Section 1 Clause 4 to determine when Electors will be chosen.

Hence, the July 20 provsio in the NPVIC can only be enforceable if Congress assents.  This is not only because of any implications of the Compact Clause, but because that proviso touches upon Congress' authority under Article II Section 1 Clause 4.

True Federalist,

If you're looking to read further, read this by the Council of State Governments:

Quote
However, where congressional consent is required because the compact intrudes on
federal interests, the lack of congressional consent renders the agreement void as between
the states. By contrast, where the compact does not intrude on federal interests, the
agreement is not invalid for lack of congressional consent. New Hampshire v. Maine, 426
U.S. 363 (1976).

http://www.cglg.org/projects/water/CompactEducation/Congressional_Consent_and_other_Legal_Issues-CSGNCIC.pdf

As I have shown, there is a federal interest being intruded upon by the July 20 proviso of the NPVIC.

In your post you fail to distinguish directing the manner in which the electors are appointed and the choosing of electors.  After the day for choosing electors has passed, of course a state can't change its manner of appointing the elections, because the day for choosing the electors has passed, unless it intends to have that enactment be for the following election!  So if a state failed to choose its electors on that day, of course that would be an issue for Congress to be involved in.

But we're focused on the period before the day for choosing electors, and we're talking about the manner that the state legislature may direct to be used, which is granted to that legislature.  When a state legislature signs onto the Compact and the Compact takes effect and it is now 6 months until the next Presidential inauguration, it is agreeing that from 6 months before the inauguration until a president-elect shall have qualified, it will keep its state's manner of appointing electors the same as specified in the Compact.  The Supreme Court has ruled repeatedly, and the Impairments Clause shows, that a Compact is the same as a contract and a state cannot violate it.  The electors would still be chosen on the day selected by Congress, so there would be no infringement on Congress's power under Art. II, Sec. 1, Cl. 4.

Also, as I have repeatedly pointed out and provided supporting evidence for, there are compacts that do not need Congressional consent to take effect.  If this Compact does require Congressional consent, it would not be because of infringement upon Congress's power under Art. II, Sec. 1, Cl. 4.

You also bring up the issue of state sovereignty, but fail to note one of the important aspects of that sovereignty, the ability to enter into compacts with other sovereigns.  2 or more parties will not enter into a contract unless the agreement is somehow binding on the other parties.  If states could not reasonably expect to hold other states accountable for the compacts they signed, then the compact system would fail, and states would either be forced to solve many of their problems in an uncoordinated manner or Congress would be forced to directly regulate those issues that have an effect on interstate commerce for which a compact might have been more effective or doable instead.

As pointed out in the case of regarding the MTC, the Compact Clause applies to those compacts that would tend to increase state power relative to federal power, or would interfere with the exercise of federal power.  The NPVIC does not do that--it is an agreement among state legislatures for a certain period to direct a specific manner for appointing electors, which is within the power of those legislatures.

As for the date July 20th, here is a good introduction to the reasons behind the choosing of that date, and why it isn't arbitrary and capricious, but is rather necessary to the proper functioning of the NPVIC:

Quote
That is, no withdrawal from the National Popular Vote compact can become effective between July 20 of a presidential election year and the inauguration on January 20 of the following year. This six-month "blackout" period was chosen because it encompasses six important events relating to presidential elections, namely, the national nominating conventions, the fall general-election campaign period, Election Day on the Tuesday after the first Monday in November, the meeting of the Electoral College on the first Monday after the second Wednesday in December, the counting of the electoral votes by Congress on January 6, and the inauguration of the President and Vice President for the new term on January 20.

http://www.nationalpopularvote.com/pages/answers/m9.php#m9_2
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« Reply #219 on: May 31, 2010, 03:45:27 pm »
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It's clear neither of us is going to convince the other of the validity of the six month proviso.

However, I will make one last effort on one point, that July 20 clearly is an arbitrary date for locking the method in. There is no reason concerning ease of implementation of the NPVIC, since there is no problem implementing NPV selection of the electors, even if the date were Election Day itself.  If the intent is to prevent campaign strategies from being affected by the adoption of the NPVIC in the middle of the campaign, then the primary season should also be covered.  After all, the later primaries, held after the nominees are usually known, serve mainly to make preparations for the general election campaign in the battleground states.  In the early primaries, one factor that some voters use to choose between the candidates is how electable they believe them to be in the battleground states.  Any change from per state elections to a national popular vote election will impact the primaries.

So why exclude the primary season from coverage?  First off, there is the fact that the longer the lock in period, the harder it would be to sell this.  But also consider when this was put forth.  There were hopes that this could be in place in time for the 2008 election. The time when most Legislatures might pass something like this would be during a second session after having been introduced in the first. , A lock-in date of January 20, 2008 would have made passage impossible in time for 2008.  July 20, 2008 was ambitious, but not impossible.

And now, the NPVIC will go through a long period of somnolence.  Because of the fact that its effect is quite partisan, enough time has passed since 2000, that it will not be adopted soon. (In the current political climate, going to the NPV is advantageous for the Democrats and all of the States that have adopted it so far are Democratic.) The outrage from what happened in 2000 is mostly dissipated.  It likely will pass in California next year if Brown is elected governor, but after that I can't see it reaching even 200 EV's in time for 2012, and 150 EV's, while possible, isn't certain.

It may get adopted after the next 2000-type election, especially if the political landscape has changed by then so that a different set of States form the solid support of the two main parties, so that the dominant party in some the States that adopt it now would be disadvantaged by its adoption then.  The other possibility is that if we enter an extended period in which adoption of the NPVIC would not have a partisan effect, then it might get adopted like the 27th Amendment did.
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My November ballot:
Ervin(I) Gov.
Sellers(D) Lt. Gov.
Hammond(R) Sec. of State
Diggs(D) Att. Gen.
Herbert(D) Comptroller Gen.
Spearman(R) Supt. of Education
DeFelice(American) Commissioner of Agriculture
Hutto(D) US Sen (full)
Scott(R) US Sen (special)
Geddings(Labor) US House SC-2
Quinn(R) SC House District 69
Yes: Amendment 1 (Gen. Assembly may allow and regulate charity raffles)
No: Amendment 2 (end election of the Adjutant General)
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« Reply #220 on: June 01, 2010, 03:34:59 am »
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Tell me, in 2004 and 2008, which party did the electoral college favor relative to the popular vote?  I think that by doing so you can dispel a lot of myths Republican opponents of the NPV have on this issue, namely the idea that the electoral college structurally favors Republicans or the idea that implementing a NPV would favor the Democrats.

Bush nearly lost the 2004 election despite winning a majority of the popular vote!

Here are some more:

http://writ.news.findlaw.com/amar/20041112.html
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« Reply #221 on: June 01, 2010, 04:02:12 pm »
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Those who try to argue that 2004 indicates that the EV isn't currently stacked in favor of the Republicans neglect one salient fact: voter turnout.  The solid states have lower than average voter turnout (measured as a percentage of all who are eligible to register and vote.)  California and New York would have higher participation in Presidential elections if who their State's EV's would be going to wasn't a foregone conclusion.  Greater voter participation is certainly one argument in favor of using the NPV, but it makes a proper analysis of the political implications more complicated than simply applying a uniform national swing, since it will not act uniformly to increase voter turnout.
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My November ballot:
Ervin(I) Gov.
Sellers(D) Lt. Gov.
Hammond(R) Sec. of State
Diggs(D) Att. Gen.
Herbert(D) Comptroller Gen.
Spearman(R) Supt. of Education
DeFelice(American) Commissioner of Agriculture
Hutto(D) US Sen (full)
Scott(R) US Sen (special)
Geddings(Labor) US House SC-2
Quinn(R) SC House District 69
Yes: Amendment 1 (Gen. Assembly may allow and regulate charity raffles)
No: Amendment 2 (end election of the Adjutant General)
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« Reply #222 on: August 04, 2010, 08:14:48 pm »
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Mass becomes the 6th state to pass this Compact, when the Governor signed it into law today.  The six states account for 73 EV of the 270 needed to trigger the compact.
I still think its unconstitutional since this compact effectively nullifies all the EV of the non-compact states.  And destroys one aspect of the Federal-State balance of power embedded into the Constitution, since states would no longer matter only the popular vote when electing the President
If enough states sign on I guess we'll need to wait to see what the Supremes say.
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« Reply #223 on: August 07, 2010, 03:44:03 pm »
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Mass becomes the 6th state to pass this Compact, when the Governor signed it into law today.  The six states account for 73 EV of the 270 needed to trigger the compact.
I still think its unconstitutional since this compact effectively nullifies all the EV of the non-compact states.  And destroys one aspect of the Federal-State balance of power embedded into the Constitution, since states would no longer matter only the popular vote when electing the President
If enough states sign on I guess we'll need to wait to see what the Supremes say.

Do you personally think that the SC will declare it unconstitutional or not?
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« Reply #224 on: October 10, 2010, 10:30:49 am »
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The SC should declare it unconstitutional, but historically they have avoided "political" issues, so they may refuse to take a case.  Then again there is Gore v Bush as precedent for intervention, so perhaps they would take the case.
I expect that if they did they do take the case they would strike it down.

The plain language of the constitution would seem to invalidate this compact, (unless Congress approves it):

Article 1 section 8:
"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,"
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