[EL] FW: An Electoral College Tie?
JBoppjr at aol.com
JBoppjr at aol.com
Sat Dec 17 05:11:13 PST 2011
We fought a Revolution to get away from Europe, not to duplicate them. Jim
In a message dated 12/16/2011 3:14:35 P.M. Eastern Standard Time,
David at HoltzmanLaw.com writes:
Way down below, Mark Scarberry wrote
... 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).
The possibility of having winners with only plurality backing is a
shortcoming both of the procedures specified in the Constitution and of the
National Popular Vote compact as currently proposed.
One way to fix this shortcoming would be to give each ticket (set of
Pres&VP candidates) its popular vote strength, expressed as a percentage, and
let the tickets negotiate until a coalition emerges with greater than 50%.
Rules could then require that the top vote-getting ticket in that coalition
wins. Or the rules could let that coalition decide (A) which ticket wins
or (B) which combination of Pres & VP candidates from among the tickets
wins. - dah
On 12/16/2011 7:32 AM, Tara Ross wrote:
Much of this discussion has moved past Rob’s initial email, but I will
take a moment to defend myself on a few points. And then I am sorry to tell
you guys that I am unlikely to keep up with this string any longer. I am off
to the much more cheery task of spending the afternoon with my daughter --
her school’s holiday party starts in half an hour. :)
I did not say that the Electoral College was the only factor at play in
the late 1800s. I said it was one factor. But the more important point that
Rob is working mightily to avoid is this: The identity of safe and swing
states is constantly changing. That stark divide between north and south no
longer exists, and I do not believe that today’s divide between
coast/flyover states will persist forever, either. At the end of the day, when safe
states feel ignored by candidates and their platforms, they switch to
another party. It is not all about how much money is spent on bumper stickers
and campaign commercials.
Missed the significance of Duverger’s law? To the contrary, it is partly
because of Duverger’s law that the Electoral College (in combination with
the winner-take-all system) supports a stable two-party system in this
country. The question is not whether the two-party system is reinforced by the
Electoral College. Clearly, it is. The question is whether a system can be
devised whereby the Electoral College is eliminated but our stable
two-party system remains.
NPV supporters, by the way, like to talk out of both sides of their mouths
on this issue. In settings such as this one, they claim that the
two-party system will not be undermined if we get rid of the Electoral College.
Then they turn around and recruit Tea Party members to their cause, arguing
that NPV will allow third parties to have a greater impact on presidential
campaigns. Well, which is it?
Merry Christmas and Happy Hanukkah, everyone! I look forward to more
discussions in 2012.
Tara
From: Rob Richie [_mailto:rr at fairvote.org_ (mailto:rr at fairvote.org) ]
Sent: Thursday, December 15, 2011 11:06 PM
To: Tara Ross
Cc: Samuel Bagenstos; _BSmith at law.capital.edu_
(mailto:BSmith at law.capital.edu) ; _JBoppjr at aol.com_ (mailto:JBoppjr at aol.com) ;
_law-election at department-lists.uci.edu_ (mailto:law-election at department-lists.uci.edu)
Subject: Re: [EL] FW: An Electoral College Tie?
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_
(mailto: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_
(mailto:sbagen at gmail.com) ]
Sent: Thursday, December 15, 2011 9:41 PM
To: Tara Ross
Cc: _rr at fairvote.org_ (mailto:rr at fairvote.org) ; _BSmith at law.capital.edu_
(mailto:BSmith at law.capital.edu) ; _JBoppjr at aol.com_ (mailto:JBoppjr at aol.com)
; _law-election at department-lists.uci.edu_
(mailto: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_ (mailto:sambagen at umich.edu)
_http://web.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=411_
(http://web.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=411)
_http://disabilitylaw.blogspot.com/_ (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)
_[mailto:law-election-bounces at department-lists.uci.edu]_
(mailto:[mailto:law-election-bounces at department-lists.uci.edu]) On Behalf Of_JBoppjr at aol.com_ (mailto:JBoppjr at aol.com)
Sent: Thursday, December 15, 2011 6:59 PM
To: _rr at fairvote.org_ (mailto:rr at fairvote.org) ; _BSmith at law.capital.edu_
(mailto:BSmith at law.capital.edu)
Cc: _law-election at department-lists.uci.edu_
(mailto: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_ (mailto: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#.Tu
p3UTVAaRg)
“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_
(mailto: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:(614)%20236-6317)
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_http://www.law.capital.edu/faculty/bios/bsmith.asp_
(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)
[mailto:_law-election-bounces at department-lists.uci.edu_ (mailto:law-election-bounces at department-lists.uci.edu) ] On
Behalf OfRichard Winger
Sent: Thursday, December 15, 2011 2:26 PM
To: _law-election at department-lists.uci.edu_
(mailto: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_ (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:(310)506-4667)
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_ (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_
(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_ (http://www.kchrlaw.com/)
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