[EL] FW: An Electoral College Tie?

Thu Dec 15 19:21:48 PST 2011

Yes, elections are about selecting the best President, not about making sure every citizen sees every presidential candidate exactly the same number of times as his fellow citizens.  But assuming, arguendo, that such stats do matter, the “swing state” situation is not nearly as dire as Rob suggests.  We are in a moment in time when this particular division between red and blue states—blue coasts/red flyover states—seems impossible to change. But I would suggest that the north/south division between red and blue states must have seemed similarly unalterable in the late 1800s. In the end, of course, it did change. And I would argue that the Electoral College actually encouraged this division between north and south to melt away.  Democrats couldn’t win without reaching out to northerners; Republicans were cutting it close if they relied only on safe states; thus, they reached out to southerners.  Eventually, the same dynamics should work to erase the seemingly stubborn division between red and blue today.

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of JBoppjr at aol.com
Sent: Thursday, December 15, 2011 6:59 PM
To: rr at fairvote.org; BSmith at law.capital.edu
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] An Electoral College Tie?

    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 <tel:%28614%29%20236-6317> 

	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 <tel:%28310%29506-4667> 

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

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Associate Professor of Law
Loyola Law School | Los Angeles
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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
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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> 
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