Wednesday, December 14, 2016



Based on an incredibly ignorant post by a reader which I rejected because he refused to address the theme of the post and tried to pretend this discussion is not happening anywhere by the BV, I went to a great MSNBC Interview of a Harvard professor dealing with this issue.

The Supreme Court, has addressed the 12th Amendment issue.  They made clear, while binding the Electors may not pass constitutional muster, the States can ask that the Electors sign pledges to vote for the person who won the popular vote in that state.  The reason is, a pledge does not become enforceable under the constitution.

"However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional."

At no time have I said the Electoral College will be moved, all I have done is bring an understanding to the process.  But you cannot reason with Fact Resistant people.

And for the record, I do not believe Harvard Law Professor that 20-30 Republican Electors have already agreed to not vote for Trump.  But if the Supreme Court releases the Electors things could but may not change.

The posters claim that I am some how trying to confuse the people of the LRGV with my post is just stupid.  This is a national discussion playing all over the news and in NYT OPED pieces.


This was not my intended post today, but while at the cemetery this morning watering Imani's plot [grass is coming in very nicely] I got an email which convinced me this needs to be explained.  

First and foremost presidential elections are governed by the Constitution, some federal law, and some state law.  The state law is subordinate to the constitution and federal law.  


" and they shall meet in the District and perform such duties as provided by the twelfth article of amendment."

This is clearly stated in the 23rd Amendment.  It is thereby binding on the states, regardless of any state law.

So what does the 12th Amendment say?  Well it does not help much.  There is nothing in the 12th Amendment which binds the Electors, and if anything it implies they should vote for the person who won the popular vote.  Note I said implies.  The 12th Amendment informs of us of nothing, except it does not bind the Electors to the popular vote of their state.

"The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President. "

See above source for 12th Amendment

Here is the problem, language changes.  When this was written it may have been coherent based on then understood rules of grammar.  For sure it says nothing about the Electors being bound by the popular vote of their state.  It simply says, " they shall name in their ballots the person voted for as President. "  I think a rational person can say the sentence means they should write down the name of the person they seek to vote for as president, and not the person voted for by the popular vote of the nation or the respective states.


Nothing in the 23rd or 12th Amendments empower the states with any authority as to how the Electors should vote.  The 23rd Amendment is clear, the 12th Amendment governors the process. Nothing in the 12th Amendment empowers to states to do anything, concerning the duties of the Electors.

There are three cases heading to the Supreme Court.  Here is the great tragedy.  If a court of appeals rules for the states, and the Supreme Court ties at 4/4 the states win.  No matter what happens whomever is president will always have a cloud over their head as to their legitimacy.

The numbers now show if the vote goes to the House Ohio Gov. John Kasich will become the POTUS.  Monday is going to be a wild ride.

As the three appellate courts possibly looking at the question rule the BV will report.  If you know the Supreme Court, the law clerks are already digging through the Constitutional Minutes, and the Federalist Papers for the answer.  I do not see it as complex.  The 23rd Amendment says look to the 12th Amendment.  Nothing in the 12th Amendment empowers the states to bind the Electors or do anything not outlined in another Amendment as to the process.

If the Electors are released, who will become president is any one's guess.

1 comment:

BobbyWC said...

In as much as as you say nothing but insults and fail to even discuss the constitutional provisions your comment is rejected. As to our bigotry to the LRGV, this is being discussed by top constitutional scholars all over the internet and news sources.

This argument is out there. This has played in the NYT's opinion page. University constitutional scholars are nearly unanimous the states cannot bind the electors. Show me where in the constitution the states are given this power? It does not exist, and there is nothing in the 12th Amendment which governs.

If you would get out of our little world and read outside the LRGV you would know this is playing out all over the US. A reader emailed asking for clarification. I kept it simpe. Where in the 12th Amendment does it allow the states to bind the Electors. It does not.

The fact it does not does not mean the electors will not follow the popular vote of of their state. Like I said in another post, this is an incredible long shot. But the Republicans are getting anxious and do not know what to do. If the Electors are released key Republicans may then put pressure on the electors to turn it over to the House which will still mean a Republican President.

I am bound by the Constitution, what are you bound by?

As to John Kasich he did in fact tell the Electors to not vote for him. But he said nothing about what would happen if the vote went to the House as to whether he would refuse to vote. Gov. Kasich will do what is best for the country. He will look to the options and then make a decision about a House vote. If he believes he can heal the country he will take it. If he believes he will only further divide the country he will tell the House he is not interested. It is not about what he said, it is about what he did not say.

Bobby WC