[EL] FW: An Electoral College Tie?

[Joe La Rue]

Rob,

I'll let Jim Bopp speak for himself and clarify what he *thinks* if he
wants to, but you've totally mischaracterized what he said. Jim never said
that the voters of small states don't matter. I think what he said was, the
goal of a national election for president is to elect the best person for
the job. The goal should not be to have the candidate visit all the states.
How anybody could think that means that Jim's view is that the voters in
the unvisited states don't matter is beyond me.

Jim also never said presidents (or other elected officials) should not be
held accountable. I had the privilege of working for Jim for four years; I
can assure you, he believes in accountability for elected officials. And
our current electoral process provides it. That's why Carter and Bush 1
didn't win second terms. It's simply disingenuous to suggest, based on what
Jim said, that he doesn't believe in accountability, or that there is not
accountability in our current, *constitutional* system for electing
presidents.

Joe
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On Fri, Dec 16, 2011 at 12:06 AM, Rob Richie <rr at fairvote.org> wrote:

> So, just so I have this straight:
>
> * Jim Bopp thinks that having more voters matter only is of interest to
> self-interested consultants. To him it's irrelevant that Barack Obama can
> run for re-election without his campaign having to worry for a second about
> the views of voters in the ten smallest states (e.g, he has no primary
> challenge, and none of the ten smallest states is on anyone's 2012
> battleground list - they won't matter to the Republican nominee come this
> fall either). Apparently the power to hold one's elected representatives
> accountable is a kind of distraction from the main purpose, which is the
> magic of swing states being able to elect better presidents than the nation
> could as a whole.
>
> * Tara Ross believes that the Electoral College caused the differences
> between the North and South to "melt away." Never mind that, due to deals
> over electors, Rutherford Hayes in 1877 cravenly entered a corrupt deal
> that effectively ended Reconstruction, leading to Jim Crow laws and
> Democratic one-party dominance of the South for nearly a century. Never
> mind that with the winner-take-all rule, there is absolutely no incentive
> to compete in states you can't win, as opposed to a national popular vote
> where there's an incentive to compete everywhere you can win votes.
>
> * Tara thinks that the Electoral College is key to maintaining the
> two;party system, perhaps having missed the significance of Duverger's Law
> and the lack of rampant multi-partism in all the states that hold their
> elections without an Electoral College system.
>
> Sorry if a bit snippy  - I'll ascribe it to watching two hours of the
> presidential debate tonight.
> Rob
>
> On Thu, Dec 15, 2011 at 11:07 PM, Tara Ross <tara at taraross.com> wrote:
>
>> But a Democrat in the late 1800s has a significantly harder time getting
>> the vote of a northerner v. a southerner.  That Democrat is much more
>> productive and efficient if he simply seeks to drive up voter turnout in
>> the South. Why bend over backwards to get the vote of someone outside your
>> base when you can simply promise more to voters who are naturally inclined
>> to like you?  It is much easier to promise anything and everything to your
>> natural base so they will come out in droves on election day.  High voter
>> turnout among your base, not coalition-building, wins this type of
>> election.  ****
>>
>> ** **
>>
>> I should also note, by way of background, that I never assume that the
>> two-party system will remain stable without the Electoral College.  A
>> multi-party system is less conducive to coalition-building as a general
>> matter; it instead tends to fracture voters across parties.  ****
>>
>> ** **
>>
>> ** **
>>
>> ** **
>>
>> *From:* Samuel Bagenstos [mailto:sbagen at gmail.com]
>> *Sent:* Thursday, December 15, 2011 9:41 PM
>> *To:* Tara Ross
>> *Cc:* rr at fairvote.org; BSmith at law.capital.edu; JBoppjr at aol.com;
>> law-election at department-lists.uci.edu
>>
>> *Subject:* Re: [EL] FW: An Electoral College Tie?****
>>
>> ** **
>>
>> This is not my issue, but I don't see how you can credit the Electoral
>> College, as opposed to a popular-vote alternative, for encouraging the
>> post-Civil-War division between North and South to melt away.  Sure,
>> Democrats had to reach out to northerners, but they would have needed to do
>> so under a popular-vote plan, too.   Indeed, one might argue that they
>> would have had to do so sooner, because each person's vote in the cities of
>> the North would have counted as much as each person's vote in the rural
>> South, but this isn't my area.  Whatever the electoral system, if a party
>> finds itself persistently losing elections, it will eventually decide it
>> has to reach beyond its then-current base.  I don't see how this is a
>> unique feature of the Electoral College.****
>>
>> ** **
>>
>> Samuel R. Bagenstos****
>>
>> Professor of Law****
>>
>> University of Michigan Law School****
>>
>> 625 S. State St.****
>>
>> Ann Arbor, MI  48109****
>>
>> sambagen at umich.edu****
>>
>> http://web.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=411****
>>
>> http://disabilitylaw.blogspot.com/****
>>
>> ** **
>>
>>
>>
>> ****
>>
>> ** **
>>
>> On Dec 15, 2011, at 10:21 PM, Tara Ross wrote:****
>>
>>
>>
>> ****
>>
>> 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*****
>>
>> *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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>>
>> http://department-lists.uci.edu/mailman/listinfo/law-election****
>>
>>  ****
>>
>> -- ****
>>
>> 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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>>
>> --
>> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
>> "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
>> (301) 270-4616
>>
>> Please support FairVote through action and tax-deductible donations -- see
>>  http://fairvote.org/donate. For federal employees, please consider  a
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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
> (301) 270-4616
>
> Please support FairVote through action and tax-deductible donations -- see
> http://fairvote.org/donate. For federal employees, please consider  a
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> 10132.) Thank you!
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