[EL] An Electoral College Tie?

Thu Dec 15 14:47:39 PST 2011

Brad,

A lot of NPV advocates believe the candidate with fewer votes shouldn't
beat someone with more votes, but see the more pressing problem to be the
grotesque distortion of candidate behavior and White House policy focus
that is created by the current Electoral College rules.

There's compelling evidence of a deadly combination: a shrinking of the
number of swing states and the hardening of the definition of what is a
swing state. Some folks questioned FairVote's 2008 analysis concluding that
the number of swing states going into 2012 was going to be smaller than
ever, but I trust no one is questioning it now. We were right -- analysts
like Larry Sabato now talk about fewer than 10 swing states likely to
determine the 2012 election, just as we explained after the 2008 results
came in.

You can take it to the bank right now that this will have an impact on
turnout in swing states versus others Furthermore, if the Obama campaign
acts like the Bush re-election campaign in 2004 - and all indications are
that they will -- then they won't waste a dime on polling a single person
living outside of the swing states. Bush campaign strategist Matthew Dowd
said the campaign didn't poll anyone outside a potential battleground for
the final 30 months of the 2004 campaign, which of course influenced a lot
of what the campaign did in policy proposals at the same time the president
was tasked with governing the nation as a whole.

This dynamic unavoidably has a policy impact. Perhaps the most revealing
insight into distortions created by the current rules came from candid
remarks from former U.S. Senator Arlen Specter this fall. Specter
represented Pennsylvania in the U.S. Senate for three decades, and he saw a
lot of presidents come and go - -and come and go .....and come and go....
as he represented a big swing state. Check out this blogpost by my
colleague Katie Kelly reporting on what Specter said, with some sample
quotes from Specter:

http://www.fairvote.org/arlen-specter-extra-money-for-swing-state-status<http://www.fairvote.org/arlen-specter-extra-money-for-swing-state-status#.Tup3UTVAaRg>

“I think it’d be very bad for Pennsylvania because we wouldn’t attract
attention from Washington on important funding projects for the state. We
are trying to get more funding now for the deepening of the port [of
Philadelphia]. When I was on the Appropriations Committee, we got $77
million over the years …We are trying to get the president to do more."

“Under the current electoral system, [President] Obama has good reason to
give us the money to carry Pennsylvania. Because presidents think that way,
it affects their decisions. … In 2004, when I ran with [President George
W.] Bush, he … came to Pennsylvania 44 times, and he was looking for items
the state needed to help him win the state. … It’s undesirable to change
the system so presidents won’t be asking us always for what we need, what
they can do for us.”

I find it hard to believe the founding fathers, if suddenly in our midst,
would accept keeping rules that make a Pennsylvania citizen so much more
important than a citizen in our ten smallest states. Those small states
collectively received a grand total of one campaign visit from a major
party candidate for president and vice-president in the final two months of
the 2008 campaign. Just as striking, the single swing state of Ohio had far
more campaign events in the final two months of the campaign then
_combined__ number of events in the smallest 25 states.

Unlike many folks today, the founders were not afraid of change. They
weren't afraid of fixing things that didn't work. They certainly weren't
afraid of fixing the first version of the Electoral College, with the
failures of 1796 and 1800 leading to the 12th amendment. Rather than accept
the consequences of the winner-take-all rule, I'm sure they would want to
do something about it. Based on what James Madison thought about
presidential elections, I believe they'd back a national popular vote.

Of course they're not around, so it's up to us. But certainly a lot of us
think there's a very strong case to be made against the status quo --
certainly one that we can base in facts, while I see nearly all opposition
arguments being grounded in sentiment and fear.

Rob

On Thu, Dec 15, 2011 at 3:29 PM, Smith, Brad <BSmith at law.capital.edu> wrote:

>  I think that Richard’s comment actually gets at a key point that
> undermines much of the case for NPV. There are many arguments for NPV, but
> the key one is that direct popular vote is either the only or at least the
> most legitimate way to select the president.  Every poll shows that
> substantial majorities agree.****
>
> ** **
>
> Yet oddly enough, nobody really much cares that we routinely elect
> executives without popular majorities. And despite the fact that many
> leading proponents of NPV say we should use popular vote because “the
> president should be chosen by a majority of our citizens” (Birch Bayh, in
> Kaza et al. Every Vote Equal, at xxii), or because “majority rule [is] a
> fundamental tenant of our democracy (John Anderson, Kaza et al at xviii) in
> fact, as Richard points out, NPV doesn’t do what Senator Birch says he
> wants and what Rep. Anderson says is “fundamental.” ****
>
> ** **
>
> Those of us who understand elections also understand that there are
> numerous ways to hold elections, and we know that huge numbers of elections
> are held in both private and public organizations that violate the majority
> rules concept – or even the plurality rules. Moreover, we know that voting
> procedures frequently place limits on majority opinion, the most obvious
> perhaps being super-majority requirements. ****
>
> ** **
>
> I don’t see any reason why having a president who did not receive a
> national plurality (let alone a national majority) is more inherently  more
> disturbing than having a House or a Senate whose majority did not receive a
> majority or even a plurality of votes, or a speaker of the House or Leader
> of the Senate who was elected by members representing less than a majority
> or even a plurality. ****
>
> ** **
>
> And there seems to be little reason to believe that the American people
> are particularly worked up about it either. Richard points out that we
> routinely elect executives who had more people vote against than for them –
> sometimes by quite substantial margins. Yet they do not face a crisis of
> legitimacy. ****
>
> ** **
>
> In my observation, despite what they say when a single, out of context
> question is posed to them in a poll, people are much more attuned to
> following what seem to be reasonably fair, agreed upon rules in advance,
> rather than insisting that only one rule (majority or plurality rule) can
> ever be fair; majorities quite routinely accede to the desires of
> minorities; voting systems are quite routinely established to deny majority
> – let alone plurality – victory. By the same token, people are happy, in
> many cases, to accept plurality winners – so much so that Messrs. Bayh,
> Anderson, and others toss around the term “majority” when they appear to
> mean “plurality” without even thinking much about it. ****
>
> ** **
>
> If we are to believe many NPV supporters, there should have been a
> national uproar after the 2000 election. Well, to some extent there was –
> but it was not over the electoral college. At all times very substantial
> majorities seemed quite content with the knowledge that the Florida winner
> would claim the presidency. Efforts to abolish or change the electoral
> college – including NPV – remained the hobby horses of a small number of
> well-financed good-government groupies, not any kind of mass movement. ***
> *
>
> ** **
>
> In short, we live in a country that is clearly dedicated to popular rule,
> but within the rule of law, and with popular not always – in fact perhaps
> surprisingly rarely – defined as majority or even plurality vote at any
> given moment. ****
>
> ** **
>
> As a result, NPV proponents seem to constantly assuming what they ought to
> be proving – that NPV actually would result in better governance, or truly
> is more “fair” – once we define fair, and get beyond the facile
> proclamations such as those found in the movement’s magnum opus, Every Vote
> Equal.  Here, I think that the case that has been made for effectively
> abolishing the electoral college is exceedingly weak, based more on horror
> stories of improbable counterfactual scenarios and presumed but not
> particularly probable reactions of the public to those scenarios. ****
>
> ** **
>
> Conversely, those who would defend the Electoral College need not defend
> the process for choosing a president in the House of Representatives,
> though I believe it can be defended – rather, they need to defend the
> Electoral College system as a whole against NPV, because it is the
> Electoral College that NPV seeks to effectively abolish, not just the House
> of Representatives contingency. That’s not that hard, if only because NPV
> supporters have done so little to show that NPV would result in better
> presidents or better government.****
>
> ** **
>
> *Bradley A. Smith*
>
> *Josiah H. Blackmore II/Shirley M. Nault *
>
> *  Designated Professor of Law*
>
> *Capital University Law School*
>
> *303 East Broad Street*
>
> *Columbus, OH 43215*
>
> *(614) 236-6317*
>
> *bsmith at law.capital.edu*
>
> *http://www.law.capital.edu/faculty/bios/bsmith.asp*
>
> ** **
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Richard
> Winger
> *Sent:* Thursday, December 15, 2011 2:26 PM
> *To:* law-election at department-lists.uci.edu; MarkScarberry
>
> *Subject:* Re: [EL] An Electoral College Tie?****
>
> ** **
>
> 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
> PO Box 470296, San Francisco Ca 94147
>
> --- On *Thu, 12/15/11, Scarberry, Mark <Mark.Scarberry at pepperdine.edu>*wrote:
> ****
>
>
> From: Scarberry, Mark <Mark.Scarberry at pepperdine.edu>
> Subject: Re: [EL] An Electoral College Tie?
> To: "law-election at department-lists.uci.edu" <
> 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****
>
>  ****
>
> *From:* 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
> *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****
>
> justin.levitt at lls.edu <http://mc/compose?to=justin.levitt@lls.edu>****
>
> 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<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****
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> Chicago, Illinois 60602****
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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****
>
> justin.levitt at lls.edu <http://mc/compose?to=justin.levitt@lls.edu>****
>
> ssrn.com/author=698321****
>
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