[EL] An Electoral College Tie?

Thu Dec 15 12:11:03 PST 2011

One of the problems is that as the election nears, and as heavily Democratic Massachusetts realizes that its electoral votes likely will be cast for Newt Gingrich, the Mass. legislature may well pull out of the compact. The most vulnerable part of the compact is its provision prohibiting states, during a pre-election blackout period, from changing their method of choosing electors (that is, from pulling out of the compact). As noted in McPherson v. Blacker, and reaffirmed at least in dicta in the 2000 election dispute cases, state legislatures have plenary power to determine the manner by which their states choose electors. (Whether choice by national popular vote is a choice by a state is a separate issue that we discussed previously on this list.) It is highly unlikely that a court would enforce the compact's blackout provision against a withdrawing state. The NPVIC does have a severability clause, but we need to think about whether the NPVIC is a good idea without an enforceable blackout period.

Mark

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: Rob Richie [mailto:rr at fairvote.org]
Sent: Thursday, December 15, 2011 11:58 AM
To: Frank Askin
Cc: richard winger; law-election at department-lists.uci.edu; Scarberry, Mark
Subject: Re: [EL] An Electoral College Tie?

Yes, that's wrong, Frank. Getting rid of human electors would take a constitutional amendment.

But again, NPV is not going to change the voting behavior of electors. Let's say the compact is in place, with heavily Democratic Massachusetts a participating state. If a Republican wins the national popular vote, it will be that Republican candidate's Massachusetts electors who will earn the state's electoral votes. They will happily (and quietly, as hardly anyone notices what electors do) vote for their candidate come December.

Lots of info about all the particulars at the NationalPopularVote.com website.

Rob
On Thu, Dec 15, 2011 at 2:52 PM, Frank Askin <faskin at kinoy.rutgers.edu<mailto:faskin at kinoy.rutgers.edu>> wrote:
I was under then impression that under the National Popular Vote Plan,
there would no longer be individual Electors - that electoral votes
would be assigned automatically.  Do I have that wrong? FRANK

Prof. Frank Askin
Distinguished Professor of Law       and Director
Constitutional Litigation Clinic
Rutgers Law School/Newark
(973) 353-5687<tel:%28973%29%20353-5687>>>> Rob Richie <rr at fairvote.org<mailto:rr at fairvote.org>> 12/15/2011 2:36 PM >>>
To pick up on a couple points/questions:

1. Relating to Jerry Goldeder's email about faithless electors, once
the
National Popular Vote plan is in place, the electors casting votes in
a
state in the NPV compact would be associated with the national popular
vote
winner. They have no more likelihood of being "faithless" than
electors
under the current system.

2. Relating to Richard's point, here's an excerpt from a short report
we
did on the 918 gubernatorial elections from 1948 to 2009:
http://www.fairvote.org/majority-and-plurality-in-u-s-gubernatorial-elections#.TupK1TVAaRg

In a FairVote study of all gubernatorial general elections over a
62-year
span (1948-2009) - 918 total races -  it was found that in 90.4
percent of
races, the winner received an outright majority of all votes cast.
Among
the other races, 7.2 percent were won with 45-49.9 percent of votes
cast,
1.1 percent were won with 40-44.9 percent of votes cast, and 1.3
percent
were won with 35-39.9 percent of votes. No races were won with less
than 35
percent of the total vote.  Most recently, of the 16 gubernatorial
general
elections nationwide between 2007 and 2009, one (Christopher Christie
of
New Jersey in 2009 - 48.8 percent) was won with less than an
outright
majority of votes.

- Rob

On Thu, Dec 15, 2011 at 2:25 PM, Richard Winger
<richardwinger at yahoo.com<mailto:richardwinger at yahoo.com>>wrote:

> I don't believe we should be so frightened of the idea that a
winning
> presidential candidate might have received only 40% of the total
popular
> vote.  45 of the 50 states elect their Governors like that.  Whoever
gets
> the most votes wins, period.  Louisiana, Washington, California and
Georgia
> force a majority vote by having a round with only two candidates on
the
> ballot, and Vermont lets the legislature choose when no one gets a
majority
> for Governor.  In the other 45 states, a winning gubernatorial
candidate
> just needs more votes than anyone else.
>
> The lowest share of the popular vote any winning gubernatorial
candidate
> ever got in the last 170 years was in Washington state in 1912, when
the
> Democratic nominee, Ernest Lister, won with only 30.6% of the
popular
> vote.  In that election, the Republican nominee got 30.4% and the
> Progressive nominee got 24.4%.
>
> Richard Winger
> 415-922-9779<tel:415-922-9779>
> PO Box 470296, San Francisco Ca 94147
>
> --- On *Thu, 12/15/11, Scarberry, Mark
<Mark.Scarberry at pepperdine.edu<mailto:Mark.Scarberry at pepperdine.edu>>*wrote:
>
>
> From: Scarberry, Mark <Mark.Scarberry at pepperdine.edu<mailto:Mark.Scarberry at pepperdine.edu>>
>
> Subject: Re: [EL] An Electoral College Tie?
> To: "law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>" <
> law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>>
> Date: Thursday, December 15, 2011, 11:02 AM
>
>
> In such a case, would we really want the national plurality vote
winner
> (perhaps with 40% of the vote) to become President?
>
>
>
> Perhaps if no candidate receives a majority of the electoral vote
then,
> instead of the current system or the national popular vote system,
there
> should be a choice of the President either by a joint session of
Congress
> or by vote of the House (with each member having one vote).
>
>
>
> Of course that would require a constitutional amendment, but in my
view it
> would also take a constitutional amendment to move to a popular vote
> system, at least to one that has a blackout period like the proposed
NPVIC.
>
>
>
> Mark
>
>
>
> Mark S. Scarberry
>
> Pepperdine Univ. School of Law
>
> Malibu, CA 90263
>
> (310)506-4667<tel:%28310%29506-4667>
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:
> law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] *On Behalf Of *Justin
> Levitt
> *Sent:* Thursday, December 15, 2011 10:23 AM
> *To:* law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
> *Subject:* Re: [EL] An Electoral College Tie?
>
>
>
> It's not just a tie that could send the election to the House of
> Representatives ... I believe it's any lack of a majority.  If, for
> example, the Americans Elect candidate wins enough electoral votes
to
> deprive either the Republican nominee or the Democratic nominee of
an
> Electoral College majority, the House decides the election.
>
> Justin
>
>
> --
>
> Justin Levitt
>
> Associate Professor of Law
>
> Loyola Law School | Los Angeles
>
> 919 Albany St.
>
> Los Angeles, CA  90015
>
> 213-736-7417<tel:213-736-7417>
>
> justin.levitt at lls.edu<mailto:justin.levitt at lls.edu> <http://mc/compose?to=justin.levitt@lls.edu>
>
> ssrn.com/author=698321<http://ssrn.com/author=698321>
>
>
>
> On 12/15/2011 9:37 AM, Dan Johnson wrote:
>
> I'd love to see opponents of the National Popular Vote mount a
robust
> defense of the House of Representatives in a
one-vote-per-state-delegation
> selecting the President (the result of a not-implausible tie in
electoral
> votes).
>
>
>
> Because, after all, that is what they are defending. A tie will
eventually
> occur. Let us hope that the National Popular Vote compact is
established
> and confirmed by the Supreme Court before that mathematical certainty
rears
> its ugly head.
>
>
>
> Dan
>
>
>
>
>
> On Thu, Dec 15, 2011 at 11:24 AM, Rick Hasen
<rhasen at law.uci.edu<mailto:rhasen at law.uci.edu><http://mc/compose?to=rhasen@law.uci.edu>>
> wrote:
> "An Electoral College Tie?"
<http://electionlawblog.org/?p=26579>
>
> Posted on December 15, 2011 9:18 am
<http://electionlawblog.org/?p=26579>by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> *National Journal*
ponders<http://decoded.nationaljournal.com/2011/12/an-electoral-college-tie.php>
> .
>
>
>
> --
> Dan Johnson
>
> Partner
>
> Korey Cotter Heater and Richardson, LLC
>
> 111 West Washington, Suite 1920
> Chicago, Illinois 60602
>
> http://www.kchrlaw.com
>
>
> 312.867.5377<tel:312.867.5377> (office)
> 312.933.4890<tel:312.933.4890> (mobile)
> 312.794.7064<tel:312.794.7064> (fax)
>
>
>
>
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>
>
> --
>
> Justin Levitt
>
> Associate Professor of Law
>
> Loyola Law School | Los Angeles
>
> 919 Albany St.
>
> Los Angeles, CA  90015
>
> 213-736-7417<tel:213-736-7417>
>
> justin.levitt at lls.edu<mailto:justin.levitt at lls.edu> <http://mc/compose?to=justin.levitt@lls.edu>
>
> ssrn.com/author=698321<http://ssrn.com/author=698321>
>
>
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"Respect for Every Vote and Every Voice"

Rob Richie
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FairVote
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--
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
"Respect for Every Vote and Every Voice"

Rob Richie
Executive Director

FairVote
6930 Carroll Avenue, Suite 610
Takoma Park, MD 20912
www.fairvote.org <http://www.fairvote.org>  rr at fairvote.org<mailto:rr at fairvote.org>
(301) 270-4616

Please support FairVote through action and tax-deductible donations -- see http://fairvote.org/donate. For federal employees, please consider  a gift to us through the Combined Federal Campaign (FairVote's  CFC number is 10132.) Thank you!
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