[EL] An Electoral College Tie?

Thu Dec 15 19:10:36 PST 2011

Related to the NPV discussion, I believe the movement aired its first
advertisement during tonight's Republican presidential debate on FOX News.
Here was the ad: http://www.youtube.com/watch?v=_cukm0ovR_Y

I found a press release here:
http://finance.yahoo.com/news/Support-Popular-Vote-Run-Ad-bw-888287075.html?x=0

I'm not familiar with "Support Popular Vote," but it looks like a 501(c)(4)
funded by supporters.

On Thu, Dec 15, 2011 at 4:59 PM, <JBoppjr at aol.com> wrote:

> **
>     Unless you are a political consultant looking for work in a particular
> state, why would you care that "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."  Presidential elections are not about where candidates campaign
> but about electing the best President. But since many of the supporters of
> NPV, especially on the Republican side, are political consultants paid by
> NPV, they find this argument persuasive.  I find it irrelevant.  Jim Bopp
>
>  In a message dated 12/15/2011 5:49:40 P.M. Eastern Standard Time,
> rr at fairvote.org writes:
>
> 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****
>>
>> 111 West Washington, Suite 1920
>> Chicago, Illinois 60602****
>>
>> http://www.kchrlaw.com****
>>
>>
>> 312.867.5377 (office)
>> 312.933.4890 (mobile)
>> 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****
>>
>> justin.levitt at lls.edu <http://mc/compose?to=justin.levitt@lls.edu>****
>>
>> ssrn.com/author=698321****
>>
>>
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>
>
>
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>
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