Article 2.1.3-9: 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: but no
    Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed
    an Elector.

    The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not
    be an Inhabitant of the same State with themselves.  And they shall make a List of all the Persons voted for, and of
    the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the
    Government of the United States, directed to the President of the Senate.

    The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the
    Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the
    President, if such Number be a Majority of the whole Number of Electors appointed;

One of the most devious and cynical attempts to date for undermining our Constitution is taking place just below the radar,
totally unknown to the average American. A movement has been going on for the past several years to bypass the Electoral
College in the selection of the President by state law rather than a Constitutional Amendment. The most recent state to join in
the effort was New York, when its Senate passed the National Popular Vote Bill 52-7.

The effort was started by a California based group called the National Popular Vote (NPV).  NPV was organized in response
to the 2000 election when, they contend, Al Gore received 500,000 more popular votes than George Bush did, yet the
Electoral College gave the victory to Bush. The purpose of NPV is to nullify the Electoral College and elect the President
strictly on the results of the nationwide popular vote. The allure of the idea is that deciding the winner of the Presidential race
by popular vote seems more democratic. Direct democracy is one of the perennial goals of the progressive movement.

    According to NPV, “The National Popular Vote bill would guarantee a majority of the Electoral College to the
    presidential candidate who receives the most popular votes in all 50 states and the District of Columbia. The bill
    would reform the Electoral College so that the electoral vote in the Electoral College reflects the choice of the nation’
    s voters for President of the United States.”

The plan is quite simple, Get enough states with combined Electoral College votes amounting to more than 270 to pass a state
law allocating their state’s electoral votes to the candidate receiving the most national popular votes. The plan would make the
Electoral College irrelevant without the messy requirement of passing a Constitutional Amendment. To garner support for
their plan NPV claims…

    “Under the U.S. Constitution, the states have exclusive and plenary (complete) power to allocate their electoral votes,
    and may change their state laws concerning the awarding of their electoral votes at any time. Under the National
    Popular Vote bill, all of the state’s electoral votes would be awarded to the presidential candidate who receives the
    most popular votes in all 50 states and the District of Columbia. The bill would take effect only when enacted, in
    identical form, by states possessing a majority of the electoral votes—that is, enough electoral votes to elect a
    President (270 of 538).”  ~NPV Website

At the time of this writing, the bill has been signed into law in five states, Illinois, Hawaii, Maryland, New Jersey and
Washington. New York will be number six when passed by the lower House and signed by the Governor. These six states
account for 92 of the 270 electoral votes needed to put the plan into effect. An additional 30 legislative chambers representing
20 states have already passed the bill and are awaiting action by the other state chamber and/or the Governor’s signature.
At first glance, most Americans do not see anything wrong with the plan since it does make the election of the President
more democratic. For most of us, attempting to understand the Electoral College and its importance causes our brain to go
numb and our eyes to glaze over. Nevertheless, since it is the Electoral College that protects us from “a tyranny of the
majority”, we need to have at least a fundamental understanding of how it works and why.

When the Philadelphia Convention of 1787 was considering the method for selecting the Chief Executive, they were faced
with two choices. One, elect the President by the popular vote of the people or two; elect him by a vote of the national
legislature. To understand why this choice is important we have to remember that to the Founders, who were students of
both history and human nature, the thought of a pure democracy was anathema. Another important fact is that the Federal
Government was intended to represent the states, and the people only indirectly through their state governments.

The Electoral College plan was a compromise between the two choices. In the compromise, states were to be divided into
districts and voters in each district would choose electors who in turn would vote for the President. The rise in power of
political parties modified this plan somewhat but we still follow the general practice required by the Constitution, in form, if
not in substance. The most important point to consider is that the NPV bill is in direct opposition to the Founders desire to
avoid the election of the President by popular vote. Participants in the Constitution Convention considered that option and
rejected it as being too prone to corruption and abuse.

In the NPV plan quoted above it is claimed that, “the states have exclusive and plenary (complete) power to allocate their
electoral votes.” This is an outright misrepresentation of the clear text and intent of the Constitution. Article II section 1,
gives the states the authority to
“appoint, in such manner as the Legislature thereof may direct, a number of Electors,…”
The state Legislature only has the authority to determine the manner in which electors are appointed. It does not have the
authority to determine how they will vote once appointed. Neither does it have the power to “allocate” those votes to anyone
other that the person for whom they were cast.

This is shown by the carefully thought out procedures for protecting the integrity of Electoral College votes and transmitting
them to Congress. Both Article II and the Twelfth Amendment place the same requirements for protecting the integrity of the
vote. In legal terms, it is called the “chain of custody”.

    Article II: “And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List
    they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the
    President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of
    Representatives, open all the Certificates, and the Votes shall then be counted.”

    Twelfth Amendment: “and they shall make distinct lists of all persons voted for as President, and of all persons
    voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit
    sealed to the seat of the government of the United States, directed to the President of the Senate; The President of the
    Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall
    then be counted;”

Even IF the states were allowed to “allocate” the electoral votes as they saw fit, there are still some major ethical questions to
be considered. The “watchdog” over the Electoral Votes is the National Archives and Record’s Administration Office of the
Federal Register. (NARA) In its instructions to the states, the NARA requires each state to submit a “Certificate of
Ascertainment” immediately after the General Election as soon as the votes are counted and certified.

  • Each Certificate must list the names of the electors chosen by the voters and the number of votes received.
  • Each Certificate must list the names of all other candidates for elector and the number of votes received.
  • Each Certificate must be signed by the Governor and carry the seal of the State.

The Certificates of Ascertainment, are to be prepared “as soon as election results are final” and submitted to NARA. This
step is usually completed in early November. The Electors do not meet until mid-December. In order for the scheme of NPV
to work, many electors would have to vote contrary to the pledge they made to the voters who elected them in the General
Election. While this may be legal, no one can claim that it is ethical.

Another Constitutional hurdle the NPV must overcome is found in
Article I, Section 10 that requires the approval of
Congress before a state can
“enter into any agreement or compact with another state”.

Based on the rate the bills have been moving, it could well be in place for the 2012 elections. Why, you may ask, are the
progressives so eager to get this scheme in place as quickly as possible?  To answer this question, we only have to look at
the geographical layout of the country.  Under this scheme, the President could be elected by just the voters of the most
populous states. The majority of the voters in those states are located in large metropolitan areas. Nineteen of the twenty-five
largest cities in the U.S. have Democratic Mayors and are dominated by Democratic political machines, many of them almost
as corrupt as the Chicago machine that gave us Rod Blagojevich, Barack Obama, Rahm Emanuel, and Tony Rezko.  These
large Metropolitan Centers are strategically located to maximize Democrat votes.

On the East Coast, there is New York that has a Democrat-Republican-Independent Mayor. The rest, Philadelphia, Balti-
more, Boston and Washington all have Democrat Mayors. In the Midwest, Columbus, Indianapolis, Detroit, Chicago and
Milwaukee all have Democrat Mayors. On the West Coast, there are Los Angeles, San Jose, San Francisco, and Seattle.
Once the NPV plan is in place campaign money and effort need only be concentrated in the large population centers. By
coincidence, it is these large population centers, controlled by progressives that are most susceptible to voter fraud, especially
with organizations like ACORN, and similar groups conducting “get out the vote“ campaigns.

It is likely that the only way Obama can win reelection in 2012, unless things change, is by massive voter fraud. The NPV
plan is designed to facilitate just such an outcome. It is doubtful that the National Popular Vote Bills can pass Supreme Court
muster. However, by the time it gets to the Supreme Court it will be too late for the 2012 election.

Article III, Section 2: Jurisdiction of Supreme Court

    3.2.9  In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be
    Party, the Supreme Court shall have original Jurisdiction.

    3.2.10  In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law
    and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

At the present time there are more than two dozen lawsuits involving states, wending their way through the federal court
system. Eventually some of them are expected to reach the Supreme Court. The Justice Department has filed a suit against
the state of Arizona challenging its immigration laws. Other states have filed suits against the federal government challenging
the mandatory insurance requirement in the health care bill.

Cases involving states have become commonplace in response to the federal governments repeated violations of the
enumerated powers doctrine and the Tenth Amendment. For the sake of expediency and to avoid overloading the Supreme
Court these cases are handled in the same manner as any other case. They are filed in District Federal Court and appeals are
heard in the Appellate Court for the District involved. The Supreme Court then decides whether it will hear appeals from the
Appellate Court. This practice has been going on for so long, it is accepted as standard operating procedure and is seldom
questioned.

However, cases “in which a State shall be party” is one of the four classes of cases where the Supreme Court is given
“original jurisdiction”. The current practice of the courts may be more efficient, but it is not constitutional. The clear
language of Article III, requires that all cases to which a state is party “shall” be originally heard by the Supreme Court. The
word “shall” precludes the Court delegating this responsibility to lower courts. Article III allows Congress to make
“exceptions” in cases where the Supreme Court has appellate jurisdiction, but not in cases where it has original jurisdiction.
The Supreme Court’s obligation to hear original arguments in cases involving states can only be changed by a constitutional
amendment.

Cases brought against the federal government or against state governments involving the Constitution are usually of an urgent
nature. Permitting them to languish on lower court dockets for months or years allows the possible violation of the
Constitution that prompted the case to continue, often at a great sacrifice of liberty by the Citizens.
E-mail address
jfm@illinoisconservative.com
Philosophy of
Evil
Socialism in America

"The struggle of History is not
between the bourgeoisie and the
proletariat; it is between government
and the governed."

Jerry McDaniel
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Philosophy of Evil
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Chapter 19
Electoral College and Supreme Court
The Illinois Conservative