Saturday, December 24

Democrats and liberals pushing to abolish the electoral college system--without amending Constitution

A hallmark of great generals (and good executives) is the ability to anticipate challenges before they arrive, and to have a response already shaped (though not necessarily in final form).

Accordingly, conservatives should know that the Left is getting ready to spring another surprise on the nation:  "National Popular Vote."  As the name implies, it's their plan to change our system so the president is determined by the winner of the national popular vote rather than by the Constitutionally-prescribed electoral college system.

Moreover, their plan proposes doing this without amending the Constitution.

Of course you're thinking "That's ridiculous:  The Constitution specifies in great detail how the president is to be chosen by the electoral college system.  How could the Democrats eliminate that without a Constitutional amendment?"

That's logical, but you need to understand that the Left doesn't see the Constitution as the supreme law of the land.  Democrats and liberals regard the Constitution as flexible, malleable.  Many liberal judges and law professors have described it as a "living document," which sounds like a compliment until you realize that what they really mean is that it doesn't mean what it clearly says, but needs to be re-interpreted to mean whatever they can get a judge to say it means.

As should be obvious, Dems and liberals want the presidency decided by the winner of the national popular vote because that would ensure they'd win far more often.  (Indeed, based on current trends, Democrats are likely to win the future national total vote almost every time.) 

The Dem plan for getting this result without having to amend the Constitution is quite clever:  Because the smaller of the original 13 states understandably feared that the high-population states would quickly dominate the proposed federal government, one of the many compromises made by the Founders to get the small states to ratify the Constitution was the electoral-college system.  To further assuage the concerns of the small states, the founders added a provision that states could instruct their electors to vote in any manner each state believed reasonable.

The authors of the NPV movement have used this last provision to urge states to pass a state law that would order their electors to vote for the candidate who wins the national vote.

The creators of this scheme claim that even though the Constitution explicitly established the electoral-college system in great detail, the inclusion of the provision allowing states to instruct their electors any way they wish means their popular-vote scheme is constitutional--despite negating hundreds of words of Article 2. 

This is how they plan to kill the electoral-college system wihout amending the Constitution.

This scheme been underway--quietly--for several years now.  And while you might think it wouldn't pass in conservative states, last February Arizona's legislature passed the bill in that state, joining Oklahoma and the nominally Republican state senate of New York.

While I'm totally skeptical of statements by liberals and communists, the NPV website features a letter alleged to be from former House speaker Newt Gingrich supporting the idea.

Now we need to walk through a few legal principles to understand how horribly this type of reasoning damages the law: 

There is a principle in law that holds that clear, explicit provisions of laws or contracts mean what they say.  There's another that holds that when a law or contract goes to great lengths to prohibit someone from doing X, one can't legally get around that prohibition by interpreting other language in the same law or contract as allowing you to do what the clear, explicit language prohibited.

The reason is obvious:  Why would any legislature or party to a contract go to the trouble of saying "You can't do X" if they really intended that a clever attorney could claim that some other, minor provision changed the entire meaning of the law or contract?

If the courts allowed that sort of "reasoning," many laws would be rendered meaningless.

Yet that's exactly what the proponents of NPV are pushing.  When a conservative legal scholar described this as "an end-run around the Constitution"--which is clearly true--a proponent of the scheme (former law professor Jamie Raskin of Maryland) responded:
The term 'end run' has no known constitutional or legal meaning.  [Ignoring the ordinary meaning.]  More to the point, to the extent that we follow its meaning in real usage, the 'end run' is a perfectly lawful play."  The adoption of the term "end run" by the compact's opponents is a tacit acknowledgment of the plan's legality.
It's no such thing, of course.  Raskin's clever phrase is a standard debating tactic.

According to Wiki (I know), states controlling 165 electoral votes have already passed an NPV law.  In states with another 49 votes Wiki shows the law as "pending in the current legislative session."  With polls showing over half of respondents favoring election by the winner of the national popular vote it seems likely that the scheme will reach the 270 figure within the next four years.

If NPV succeeds in getting states with 270 electoral votes to pass laws signing on to their scheme, as a matter of law the courts should easily reject the scheme as a violation of the clear, explicit provisions of the Constitution, as noted above.  But tragically, a majority of the members of the supreme court often rule for the liberal position regardless of the principles of law.



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