Thursday, August 5, 2010

Null Set

Nullification is all the rage these days -- especially among conservatives. And what is nullification? Simply the notion that if the federal government passes a law that blatantly violates the Constitution, the states have the right to, basically, ignore it. This ancient and venerable (and never used since the Civil War) idea has become popular due to ObamaCare, the idea being that the government cannot compel citizens to buy health insurance... and a number of states are taking the bull by the horns and declaring this law null and void.

But wait! Now comes Massachusetts -- which, let's admit -- seceded from the United States of Normal People decades ago -- with a nullification idea of its own. And no, it's not about "gay marriage". But it's about the Constitution itself. It has to do with the Electoral College -- remember, that thing that Hillary Clinton vowed she would absolutely, positively, do away with the minute she became president? Or senator? But Massachusetts is serious about this; they have just "passed legislation to nullify Article II, Section I, Clause 2 of the U.S. Constitution" -- that part providing for the Electoral College, i.e. for election not by direct democracy (i.e. the voters) but by "electors". And there are apparently five other states that have the same idea; it's all part of something called the National Popular Vote, which is a kind of piling-on, social metaphysics venture that says that all of a state's electoral votes should go to the candidate who wins the most popular votes. In other words, no more "states rights" or "regionalism" here! From now on it's, let the people speak and hinder then not, for they have the word of truth.

Now, granted that that premise is wildly untrue, and unlikely, and improbable in the extreme, let's at least give Massachusetts et al. credit for finally -- finally! -- seeing the value of nullification. But would they be willing to apply the same idea to ObamaCare, for instance, or to the commerce clause? Damned unlikely. And yet I can't help seeing this as a much-desired crack in the ice of federal tyranny. Today's nullfication when it comes to the Electoral College could become tomorrow's nullfication when it comes to the commerce clause... or any of countless other government inroads. And of course, my local paper, which has a conservative bent, is in a state of high dudgeon over all of this -- but I think they need to take a broader view of the situation. If the idea becomes popular -- and if it works! -- it could mean a significant turning point in the relationship between the federal government and the states, or localities. I say, let's give this a chance to work even if the specific issue is not one of our priorities... because our turn might come next, and if it works for "popular vote" buffs it could wind up working for anti-commerce clause buffs, anti-ObamaCare buffs, or any number of other praiseworthy causes.


toto said...

State-by-state winner-take-all laws to award electoral college votes were eventually enacted by 48 states AFTER the Founding Fathers wrote the Constitution, .

The Founding Fathers only said in the U.S. Constitution about presidential elections (only after debating among 60 ballots for choosing a method): "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . ." The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as "plenary" and "exclusive."

Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all rule) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation's first presidential election.

In 1789, in the nation's first election, the people had no vote for President in most states, Only men who owned a substantial amount of property could vote.

In 1789 only three states used the state-by-state winner-take-all rule to award electoral votes.

There is no valid argument that the winner-take-all rule is entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The current 48 state-by-state winner-take-all rule (i.e., awarding all of a state's electoral votes to the candidate who receives the most popular votes in a particular state) is not mentioned in the U.S. Constitution, the debates of the Constitutional Convention, or the Federalist Papers. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all rule.

The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding the state's electoral votes.

As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all rule is used by 48 of the 50 states.

toto said...

A survey of 800 Massachusetts voters conducted on May 23-24, 2010 showed 72% overall support for the idea that the President of the United States should be the candidate who receives the most popular votes in all 50 states.

Voters were asked

How do you think we should elect the President: Should it be the candidate who gets the most votes in all 50 states, or the current electoral college system?

By political affiliation, support for a national popular vote was 86% among Democrats, 54% among Republicans, and 68% among others. By gender, support was 85% among women and 60% among men. By age, support was 85% among 18-29 year olds, 75% among 30-45 year olds, 69% among 46-65 year olds, and 72% for those older than 65.

Massachusetts voters were also asked a 3-way question:

Do you prefer a system where the candidate who gets the most votes in all 50 states on a nationwide basis is elected President, or one like the one used in Nebraska and Maine where electoral voters are dispensed by Congressional district, or one in which all of the states electoral votes would be given to the statewide winner?

The results of this three-way question were that 68% favored a national popular vote, 16% favored awarding its electoral votes by congressional district, and 16% favored the existing statewide winner-take-all system (i.e., awarding all of a states electoral votes to the candidate who receives the most votes statewide).


With National Popular Vote, votes cast in Massachusetts for the Republican presidential candidate will be counted towards his or her national total. Republican votes for president will matter and be counted in blue states and Democratic votes will matter and be counted in red states.

Most voters don’t care whether their presidential candidate wins or loses in their state . . . they care whether he/she wins the White House. Voters want to know, that even if they were on the losing side, their vote actually was counted and mattered to their candidate.

toto said...

The National Popular Vote bill concerns how votes are tallied, not how much power state governments possess relative to the national government. The powers of state governments are neither increased nor decreased based on whether presidential electors are selected along the state boundary lines, along district lines (as has been the case in Maine and Nebraska), or national lines.

Iohannes said...

This is good news! If their efforts are successful, I foresee a great growth of respect for the states as of old. The more the states are viewed as separately sovereign cooperating entities, (if not countries like anti-bellum), the more balanced, I believe our government has the potential to become.