[EL] Plurality / majority -- Re: FW: An Electoral College Tie?
Rob Richie
rr at fairvote.org
Sat Dec 17 13:30:00 PST 2011
The difference is, Brad, is that your scenario isn't even remotely
possible, while my scenario is not only plausible, but seriously
contemplated by state leaders __right now__ in Pennsylvania, Wisconsin and
almost certainly other states. Yet I don't see your or hardly anyone else
with Republican sympathies on this list seemingly showing much concern
about "legitimacy" in the context of these nakedly partisan maneuvers.
Just to be clear, here's what your scenario would require:
* Party leaders, in the weeks before an election, look into their magic
crystal ball and see that they will lose the popular vote, but could win
under the state-by-state winner-take-all rule. (I frankly think that's
impossible to do, but then again, I don't have a crystal ball.)
* They convene their state legislature, almost certainly requiring a
special session. Amidst the resulting hullabaloo, the minority party fails
to find any tools to slow down passage of a new statute. The governor races
into signing the bill into law.
* These state leaders take this dramatic action knowing that large majority
of Americans support a popular vote plan rather than the state-by-state
system their action is restoring. They know that even larger majorities
believe in fair play and will be astounded that one party has decided to
pursue this blatant attempt to gerrymander the outcome -- especially
all-important swing voters. The media goes ballistic, with all kind of
denunciations of the state leaders.
* Even after this, the party leaders, apparently sure of their crystal
ball. in fact get exactly what their want. Their popular votes holds up
just perfectly and, yes, they remarkably cut that fine line of losing the
popular vote, but holding onto win their electoral vote.
Give me a break.
I see the logic of your scenario as of the order of someone jumping out
from behind a bush and saying "BOO!". It's like Tara Ross warning darkly
about candidates winning the presidency with 15% or Mitch McConnell
prophesizing doom every 25 years because of inconclusive popular vote
outcomes that somehow keep the electors from meeting to cast their votes.
With all due resepect, I'm afraid I see it as an appeal only to irrational
fear, not to reason.
.
Rob
On Sat, Dec 17, 2011 at 3:30 PM, Smith, Brad <BSmith at law.capital.edu> wrote:
> Rob writes:
> "Finally, it's hard to imagine a less legitimate way to become president
> then in an all-to-plausible scenario under current Electoral College rules:
> a Republican losing the popular vote in 2012, but winning an Electoral
> College majority only due to state Republican leaders in some combination
> of Pennsylvania, Michigan, Florida, Wisconsin and Ohio having changed
> winner-take-all Electoral College rules to allocating electoral votes by
> congressional district. Given concern about legitimate winners,, Mark,
> what's your take on some Republicans in Democratic-leaning states trying to
> change to congressional district allocation, but opposing it in
> Republican-leaning states?"
>
> But that just shows that it is the legitimacy of the process that matters,
> not popular vote per se, which is what the NPV largely hangs it hat on.
>
> Here's perhaps an less legitimate way to become president under NPV, also
> an all-too plausible scenario:
>
> Realizing that its votes electoral college votes could result in the
> opposing party's candidate winning the presidency, a state legislature
> dominated by one party pulls out of the interstate NPV compact during the
> election cycle. The result is that the opposing party wins a plurality of
> the popular vote, but loses the Electoral College vote.
>
>
>
>
>
>
>
> *Bradley A. Smith*
>
> *Josiah H. Blackmore II/Shirley M. Nault*
>
> * Professor of Law*
>
> *Capital University Law School*
>
> *303 E. Broad St.*
>
> *Columbus, OH 43215*
>
> *614.236.6317*
>
> *http://law.capital.edu/faculty/bios/bsmith.aspx*
> ------------------------------
> *From:* law-election-bounces at department-lists.uci.edu [
> law-election-bounces at department-lists.uci.edu] on behalf of Rob Richie [
> rr at fairvote.org]
> *Sent:* Saturday, December 17, 2011 2:19 PM
> *To:* Scarberry, Mark
> *Cc:* Election Law
>
> *Subject:* Re: [EL] Plurality / majority -- Re: FW: An Electoral College
> Tie?
>
>
> Mark,
>
> NPV winners will almost always win more electoral votes than winners
> under today's rules -- e.g,that candidate will win all the electoral votes
> of states in the compact, plus usually a good number from other
> nonparticipating states as well.
>
> That said, does gaining an Electoral College majority matter for
> "legitimizing" winners? I doubt it, at least in the modern era. Take Bill
> Clinton after his 1992 victory, which was large in the Electoral College,
> but based on only 43% of the popular vote. Then-Senate minority leader Bob
> Dole was quick to exercise the filibuster in 1993, even directly comparing
> his 43 GOP senators to Clinton's 43% of the vote. Taking it a step forward,
> it's questionable that many Senate Republicans have accepted Barack Obama
> as a legitimate president even though Obama won both a majority of the
> popular vote and a large majority in the Electoral College.
>
> Finally, it's hard to imagine a less legitimate way to become president
> then in an all-to-plausible scenario under current Electoral College rules:
> a Republican losing the popular vote in 2012, but winning an Electoral
> College majority only due to state Republican leaders in some combination
> of Pennsylvania, Michigan, Florida, Wisconsin and Ohio having changed
> winner-take-all Electoral College rules to allocating electoral votes by
> congressional district. Given concern about legitimate winners,, Mark,
> what's your take on some Republicans in Democratic-leaning states trying to
> change to congressional district allocation, but opposing it in
> Republican-leaning states?
>
> For me, I believe in the legitimacy of the fair fight represented by a
> national popular vote, which both major parties have shown an equal ability
> to win.
> Rob
>
>
> On Sat, Dec 17, 2011 at 12:41 PM, Scarberry, Mark <
> Mark.Scarberry at pepperdine.edu> wrote:
>
>> One of the benefits of the current electoral vote system, at least one
>> that defenders of it have often cited, is that it turns a popular vote
>> plurality into an electoral college majority in a way that helps to
>> legitimize the winner. The way it does that is to provide an intermediate
>> step that is independent of the national popular vote and that represents
>> in a real sense the votes of the people in each particular state. That
>> intermediate step is lacking under the NPV system in which a plurality of
>> the popular vote automatically turns into a majority in the electoral
>> college without regard to the separate voting in each state. Reasonable
>> people may disagree about whether the existence of that intermediate step
>> really does have any legitimizing effect, but it is a real difference
>> between the current system and the NPV system.
>>
>> Mark Scarberry
>>
>> Mark S. Scarberry
>> Professor of Law
>> Pepperdine Univ. School of Law
>> Malibu, CA 90263
>> (310) 506-4667
>>
>>
>> -----Original Message-----
>> From: law-election-bounces at department-lists.uci.edu [mailto:
>> law-election-bounces at department-lists.uci.edu] On Behalf Of Thomas J.
>> Cares
>> Sent: Saturday, December 17, 2011 7:29 AM
>> To: Election Law
>> Subject: Re: [EL] Plurality / majority -- Re: FW: An Electoral College
>> Tie?
>>
>> How does that make it less majoritarian than EC votes being awarded
>> based on states' and (for Maine and Nebraska) congressional districts'
>> plurality winners?
>>
>> 1992 had 49 states with no majority winner. How would Clinton have
>> been less of a majority winner under the proposed NPV system?
>>
>> Thomas Cares
>>
>>
>> Sent from my iPad
>>
>> On 12/17/11, JBoppjr at aol.com <JBoppjr at aol.com> wrote:
>> > But under the NPV, a majority of the Electoral College votes are cast
>> for
>> > the winner of the popular vote -- not a candidate that gets a majority
>> of
>> > the popular vote. So it is a plurality winner system. Jim
>> >
>> >
>> > In a message dated 12/16/2011 5:25:23 P.M. Eastern Standard Time,
>> > dan.johnsonweinberger at gmail.com writes:
>> >
>> > Jim suggests that the statewide winner-take-all rule generates a
>> > majoritarian dimension to presidential selection as the candidate
>> > needs a majority of the Electoral College to win the presidency (or a
>> > majority of the House). He claims that the NPV rule suffers from the
>> > lack of any majoritarian rule.
>> >
>> > He is wrong.
>> >
>> > A candidate must earn a majority of the votes of the Electoral College
>> > in order to win the presidency, whether earned through the statewide
>> > winner-take-all rule, the NPV compact or a Nebraska/Maine hybrid.
>> >
>> > This majoritarian feature does not change when the National Popular
>> > Vote compact is agreed to by state legislatures that, together, are
>> > vested with a majority of the votes of the Electoral College by the
>> > Constitution. That's the essential constitutional feature that the NPV
>> > compact does not (indeed, can not) alter.
>> >
>> >
>> >
>> > On Fri, Dec 16, 2011 at 2:48 PM, Joe La Rue <joseph.e.larue at gmail.com>
>> > wrote:
>> >> Paul,
>> >>
>> >> Only thinking beings can have goals. Systems further goals, but they
>> > cannot
>> >> of themselves have them. To formulate a goal, one must be able to
>> think,
>> >> strategize, etc. Systems cannot do that. They can only further the
>> goals
>> > of
>> >> the people that create the system. People set goals ("we should
>> educate
>> >> children"; "we should rehabilitate prisoners"; "we should choose our
>> >> leaders"; etc.), then develop a system to further the goal.
>> >>
>> >> Joe
>> >> ___________________
>> >> Joseph E. La Rue, Esq.
>> >>
>> >> CONFIDENTIALITY NOTICE: This e-mail message, including any
>> attachments,
>> > is
>> >> for the sole use of the intended recipient(s) and may contain
>> > confidential
>> >> and privileged information or otherwise be protected by law. Any
>> >> unauthorized review, use, disclosure or distribution is prohibited. If
>> > you
>> >> are not the intended recipient, please contact the sender by reply
>> e-mail
>> >> and destroy all copies of the original message.
>> >>
>> >>
>> >>
>> >> On Fri, Dec 16, 2011 at 2:28 PM, Paul Lehto <lehto.paul at gmail.com>
>> > wrote:
>> >>>
>> >>>
>> >>>
>> >>> On Fri, Dec 16, 2011 at 1:25 PM, Joe La Rue <
>> joseph.e.larue at gmail.com>
>> >>> wrote:
>> >>>>
>> >>>> Trevor and Paul,
>> >>>>
>> >>>> First, obviously Paul is right: a system cannot have a goal. Rather,
>> >>>> people have goals, and an implemented system should further goals. I
>> > spoke
>> >>>> imprecisely, though I think everyone knew what I meant.
>> >>>
>> >>>
>> >>> But systems DO have goals: the prison system has a goal and purposes,
>> > the
>> >>> educational system has goals, etc.
>> >>>
>> >>> The question before us is what are the proper purpose(s) of
>> democratic
>> >>> elections, and do these purposes or goals properly include election
>> of
>> > the
>> >>> "best" person, if the fundamental goals of our nation include, as
>> they
>> > do,
>> >>> liberty via self-government? [The answer to that is No]
>> >>>
>> >>>>
>> >>>> Second, I think the goal of the people who vote for president is to
>> > elect
>> >>>> the best person for the job. Republicans vote for Republicans
>> because
>> > they
>> >>>> believe that a Republican president will be better than the
>> > alternative, and
>> >>>> Democrats do the same. As for what the Chinese Communist told you,
>> > Trevor,
>> >>>> you can do what you want, but I don't put much stock in a Communist
>> >>>> appraisal of our system.
>> >>>
>> >>>
>> >>> I put a kind of "negative stock" in the Chinese Communist appraisal
>> of
>> > our
>> >>> system. The Chinese Communist's observation that western systems
>> reject
>> >>> "best person" results-oriented philosophy in elections amounts to a
>> >>> revealing self-critique on their part (from our perspective here in
>> the
>> >>> west). It shows how the decision to privilege the idea of achieving
>> > some
>> >>> sort of subjective "best person" result over the fundamental
>> > requirement of
>> >>> free elections leads to the damage of liberty, or to the destruction
>> of
>> >>> liberty - as it does in China. In China, they rationalize the
>> absence
>> > of
>> >>> liberty and free elections via the primacy and necessity of selecting
>> > the
>> >>> "best person" for the job.
>> >>>
>> >>> Whoever or whatever decides or controls the "best person" for the
>> job IS
>> >>> the sovereign. Under free elections, the sovereign is all the
>> co-equal
>> >>> voters, because they each decide what's "best". Under non-free
>> systems
>> > of
>> >>> governance, the voters can't be trusted to choose the "best," so to
>> some
>> >>> partial or total degree the choices are managed for them by external
>> >>> standards. (e.g., the right Communist party hack for the job).
>> >>>
>> >>> How we understand the fundamental purposes and goals of elections is
>> at
>> >>> the heart of Citizens United as well. In the opinion, the majority
>> >>> distinguishes prior case law on First Amendment restrictions in, for
>> >>> example, prison systems and educational systems, and points out that
>> the
>> >>> limited restrictions on the First Amendment that continue to be
>> upheld
>> > are
>> >>> upheld in order to uphold the fundamental PURPOSES of those systems
>> or
>> >>> institutions.
>> >>>
>> >>> Apparently, as Joe LaRue suggests above at the top, supporters of
>> > Citizens
>> >>> United implicitly (and now expressly, per Joe's statement) believe
>> that
>> >>> elections, as systems, have no fundamental goal purpose. (And that
>> >>> therefore, no substantial first amendment restrictions are
>> ultimately
>> >>> tenable in campaign finance pursuant to the general philosophy
>> animating
>> >>> Citizens United)
>> >>>
>> >>> But Joe LaRue, in speaking more precisely, has nevertheless stated
>> that
>> > I
>> >>> am "obviously" "right." What I'm right about is not just that only
>> >>> individual voters have the "purpose" of selecting the "best", but
>> that
>> >>> elections themselves do not have the purpose of selecting the "best
>> > person".
>> >>>
>> >>> But elections most certainly DO have other purposes! One is to
>> measure
>> >>> the intent of voters after a campaign season allowing them the
>> > opportunity
>> >>> to become reasonably well-informed decision-makers.
>> >>>
>> >>> People often wrongly assume that what might be called "political
>> >>> philosophy" is academic or a nicety of some kind, but in fact the
>> > political
>> >>> "theory" of the purposes of elections is really at the heart of many
>> >>> debates, including differences over Citizens United.
>> >>>
>> >>> Paul Lehto, J.D.
>> >>>>
>> >>>>
>> >>>>
>> >>>>
>> >>>> On Fri, Dec 16, 2011 at 11:45 AM, Trevor Potter <
>> tpotter at capdale.com>
>> >>>> wrote:
>> >>>>>
>> >>>>> like Paul, I was struck by the assertion that the "goal" of our
>> > election
>> >>>>> system was to "elect the best person for the job.".
>> >>>>>
>> >>>>> That may have been the goal of the drafters who conceived of the
>> >>>>> electoral college, but post G. Washington it has never had that
>> > function.
>> >>>>>
>> >>>>> I was recently told by a Chinese Communist Party official that the
>> >>>>> "goal" for their political system was the selection of the best
>> > possible and
>> >>>>> most qualified persons to lead their country--and that they did
>> not
>> > believe
>> >>>>> that our western democratic systems had either that goal or those
>> > results!
>> >>>>> The official was quite clear that he thought there was a tension
>> > between
>> >>>>> majoritarian voting systems and the selection of the "best"
>> > leaders--and
>> >>>>> China knew which way they wanted to resolve that tension....
>> >>>>>
>> >>>>> Trevor Potter
>> >>>>>
>> >>>>> Sent by Good Messaging (www.good.com)
>> >>>>>
>> >>>>>
>> >>>>> -----Original Message-----
>> >>>>> From: Paul Lehto [mailto:lehto.paul at gmail.com]
>> >>>>> Sent: Friday, December 16, 2011 11:19 AM Eastern Standard Time
>> >>>>> To: Joe La Rue
>> >>>>> Cc: JBoppjr at aol.com; law-election at department-lists.uci.edu;
>> >>>>> BSmith at law.capital.edu
>> >>>>> Subject: Re: [EL] FW: An Electoral College Tie?
>> >>>>>
>> >>>>> On Fri, Dec 16, 2011 at 9:05 AM, Joe La Rue
>> >>>>> <joseph.e.larue at gmail.com>wrote:
>> >>>>>
>> >>>>> >
>> >>>>> > "[...] 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 [...]" (emphasis added)
>> >>>>> >
>> >>>>> >
>> >>>>> > "Elections" do not, in and of themselves, have "goals" other
>> than
>> > the
>> >>>>> following: *to objectively measure the intent of the voters* as
>> >>>>> expressed
>> >>>>> by their ballots, after a process called campaigning structured
>> such
>> >>>>> that
>> >>>>> voters may become reasonably informed.
>> >>>>>
>> >>>>> Thus, it is a purpose of campaigns and competing media to
>> facilitate
>> > an
>> >>>>> informed electorate, because no rational person with the best
>> > interests
>> >>>>> of
>> >>>>> the country in mind would want the electorate to be uninformed when
>> > they
>> >>>>> are acting in their sovereign capacity to delegate their power to
>> >>>>> representatives, via election.
>> >>>>>
>> >>>>> *Elections, in and of themselves, do not have a "purpose" or
>> "goal" of
>> >>>>> electing the "best" person for the job. A free people, in order to
>> > be
>> >>>>> considered free, must be able to make a mistake and elect the
>> "worst"
>> >>>>> person for the job* -- if that is their free, considered, choice.
>> >>>>> There's
>> >>>>> no alternative consistent with freedom because a populace whose
>> > choices
>> >>>>> are
>> >>>>> either constrained or "managed" in any way for goals or purposes
>> other
>> >>>>> than
>> >>>>> simply objectively measuring the intent of the voters is a populace
>> >>>>> whose
>> >>>>> freedom is being constrained.
>> >>>>>
>> >>>>> Consequently, while everyone is free to, for example, support a
>> given
>> >>>>> electoral system on the grounds that it "encourages a stable, two
>> > party
>> >>>>> system", it is not the purpose or goal of elections or of liberty
>> to
>> >>>>> encourage a stable, two party system. The goal of liberty is
>> liberty.
>> >>>>> All considerations named as the "goal" or "purpose" of elections
>> that
>> >>>>> are
>> >>>>> outside the scope of objectively measuring voter intent after a
>> > process
>> >>>>> of
>> >>>>> reasonably informing voters via campaigning are collateral or
>> > ulterior
>> >>>>> to
>> >>>>> the actual purpose of elections: Measuring voter intent, and
>> thereby
>> >>>>> guaranteeing SELF-government by We the People.
>> >>>>>
>> >>>>> A freedom-loving person reserves the right to themselves to make
>> >>>>> mistakes
>> >>>>> (and to take responsibility as appropriate, for those mistakes),
>> and
>> >>>>> respects and tolerates that same right with all others, including
>> the
>> >>>>> right
>> >>>>> of We the People to elect the "wrong" candidate - however
>> >>>>> *subjectively*one measures that quality.
>> >>>>>
>> >>>>> Some of the interesting discussion in this thread, on all sides,
>> >>>>> smuggles
>> >>>>> into the purpose of elections things that in fact constrain the
>> > freedom
>> >>>>> of
>> >>>>> We the People (no matter how good, meritorious and wise those
>> purposes
>> >>>>> may
>> >>>>> seem to be). Whoever manages or constrains the sovereign (the
>> voters)
>> >>>>> is
>> >>>>> to that extent usurping the role of the sovereign and putting a
>> thumb
>> > on
>> >>>>> the scales of elections, to some degree or another.
>> >>>>>
>> >>>>> Paul Lehto, J.D.
>> >>>>>
>> >>>>> --
>> >>>>> Paul R Lehto, J.D.
>> >>>>> P.O. Box 1
>> >>>>> Ishpeming, MI 49849
>> >>>>> lehto.paul at gmail.com
>> >>>>> 906-204-4026 (cell)
>> >>>>>
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>> ->
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>> >>>>>
>> >>>>>
>> >>>>
>> >>>
>> >>>
>> >>>
>> >>> --
>> >>> Paul R Lehto, J.D.
>> >>> P.O. Box 1
>> >>> Ishpeming, MI 49849
>> >>> lehto.paul at gmail.com
>> >>> 906-204-4026 (cell)
>> >>>
>> >>>
>> >>>
>> >>>
>> >>>
>> >>>
>> >>
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>> > --
>> > Dan Johnson
>> >
>> > Attorney at Law
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>> > Chicago, Illinois 60602
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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
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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
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