[EL] Plurality / majority -- Re: FW: An Electoral College Tie?

Sun Dec 18 19:29:14 PST 2011

All of the points you raise below about a potential problem with NPV apply to the situation you first raised about the Electoral College, Rob, which may be why your Boo! scenario hasn't happened in 200+ years. It seems odd that you use as an example of why such a thing wouldn't happen under NPV the costs to Democrats of the Torricelli/Lautenberg switch in 2002, which did happen (suggesting it could happen under NPV); then you note that states have not routinely (or even rarely) switched their form of choosing electors to gain a temporary advantage, even though your premise here at the start was that that is a particular danger of the electoral college.

True, your final point about swing states is not a "boo," but it's just back to reiterating the argument that the current system somehow fails in ways that have nothing to do with the "illigitimacy" scenario you raised that started this little discussion between us. Maybe you are right there - obviously many agree with you; and maybe you are wrong - obviously many disagree with you.  But it has nothing to do with the legitimacy argument you made, that the electoral college is more likely to lead to a crisis of legitimacy for a winner than NPV. You suggested you could think of nothing more illegitimate than a particular scenario you raised. I suggested that similar scenarios could arise under NPV. Retreating back to the "handful of swing states" argument is just leaving this playing field, which you had chosen.

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: Rob Richie [rr at fairvote.org]
Sent: Sunday, December 18, 2011 10:00 PM
To: Smith, Brad
Cc: election-law at uci.edu
Subject: Re: [EL] Plurality / majority -- Re: FW: An Electoral College Tie?

Not quite right, Brad. Here's what would need to be true for you to be right:

* First, the compact withdrawal is not a "win-win" for Massachusetts. Those Massachusetts Democratic legislators would have have to be able to predict the reverse wouldn't be true -- e.g, they would have hurt their side if Obama wins the popular vote, but loses in the current Electoral College system. This is where Nostradmus comes in. Heck, just a day before the Gore-Bush election in 2000, I was not alone in thinking there was a really good chance that Gore would win in the Electoral College rules, but lose the popular vote - -the opposite of what then happened.

* Furthermore, you have to assume this nefarious compact withdrawal is happening in isolation and has no impact on voters in swing states. It would have a __huge__ impact on swing voters -- heck the Democrats in some congressional races were probably hurt in 2002 by the NJ Democrats just swapping Torricelli for Lautenberg. This would be be __much__ bigger and much more unpopular. It would be a blatant attempt to gerrymander an election, breaking an agreement and trying to change the rules in the middle of the game.

*  If you think that this consideration is not a factor, why don't states regularly just appoint electors when those in control fear their party will lose the state?  There are countervailing pressures against such maneuvers, which is what in the end may stop Pennsylvania Republicans from going through with their district allocation plan.

* In the internal politics of Massachusetts, you also assume that Massachusetts voters would join the legislators' pessimism that a Democrat can't win in the national vote, but could somehow snake through in the current Electoral College rules -- and, in agreeing with that, happily forgo a meaningful role in the election and sit back and let the candidates duke it out in Ohio and Florida. Again, a highly unlikely assumption.

* This last point goes back to Dan Lowenstein's argument a few days ago when he suggested that those who support the popular vote system "think in abstractions removed from actual politics" and that "contestants in elections do not think of maximizing the influence of their states but of electing their candidates and parties." Well, if that's the case, just why aren't more states messing with electoral vote rules on a regular basis? Why do Pennsylvania Republicans even bother with an election and instead just appoint electors? Who's really being abstract here -- reformers or anti-reformers?

Finally, relating to Brad's last point, there's nothing "boo"-ish about thinking it's abhorrent and against all principles of representative democracy that close presidential elections are decided only by a handful of swing voters in a handful of swing states - -and that this list of swing states for 2012 was known years ago. That's not a hypothetical -- you can bank on it if the election is close.

Rob

On Sun, Dec 18, 2011 at 5:23 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:

Not at all, Rob. For example, a bunch of Massachusetts Democratic state legislators might be sitting about thinking - quite plausibly - that Obama will lose the popular vote in 2012, but may be able to win the Electoral College. If he wins the popular vote, he'll probably win the EC anyway. Time to opt out. How great a prediction is that? You hardly need to be Nostradamus to see opting out as a win-win for Mass Democrats.

No special session of the legislature is necessary - they can do it in regular session. They know their decision will be popular in their state, which definitely wants its votes to go for Obama, so that's not an issue. And so they get what they want. It's as plausible as your scenario. It's just not happening __ right now __ in Massachusetts or anywhere else because we don't have NPV. In other words, you're the one giving us the "Big BOO" scenario, not realizing that once you have NPV, it has all its corresponding "Big Boos."

Your "boo" description is exactly one of my problems with the NPV and other anti-electoral college fans. They''re constantly conjuring up scenarios that if only X, Y, and Z had happened - why, a change of just 4101 votes in Aruba, 26,384 votes in Baluchistan, and 16,372 votes in Hawaii, and holy moly!, we'd have a president win without winning the popular vote, just like in 1876 and 1888 and 2000, only this time, the people wouldn't stand for it and we'd have riots in the streets and on and on. And the election of Rutherford B. Hayes in 1876 led to the withdraw of Union forces from the south and the advent of Jim Crow, whereas if Tilden the Democrat had won, well, that would only have led to the withdrarw of Union forces from the south and the advent of Jim... well - you get the picture - it's a disaster just waiting to happen!

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<tel:614.236.6317>

http://law.capital.edu/faculty/bios/bsmith.aspx

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