[EL] National Popular Vote Passes Crucial Milestone

Wed Jun 8 11:23:08 PDT 2011

I am new to this listserv and should introduce myself.  My name is Tara Ross, and I’ve spent much time defending and writing about the Electoral College (as some on this list know). Jamie will not be surprised to find that I disagree with his conclusion from this morning.

He correctly notes that Republicans in a few parts of the country (especially New York and California) have decided to support NPV. But these Republicans are misguided if they believe NPV will help either their party or their country. We should not be celebrating New York’s vote yesterday.

In recent months, NPV advocates have been working hard to obtain support from Republicans and conservatives. Their latest sales pitch is that NPV is good for Republicans because it will eliminate the focus on swing states and enable more conservative voices across the nation to be heard. (A nation that leans center-right should be electing a center-right president, right?) I don’t blame NPV for trying to cater to conservatives, given the outcome of last November’s elections; however, I do wonder why more Republicans don’t question the validity of this logic. Support for NPV has been disproportionately Democratic in the past. Why would so many Democrats sponsor something with the alleged purpose of electing more Republican presidents?

In my opinion, these Republicans are being pretty naïve to assume that their party will benefit the most if NPV is implemented. The Democratic Party is likely to gain the most in the short term: Elimination of the Electoral College will create a new focus on urban centers—currently a Democratic strength. In the long term, however, I doubt that anyone can predict which party will benefit the most from this radical change to our election process. NPV advocates tend to assume that they can change the presidential election procedure but that virtually everything else in our political universe will remain unchanged. What a dangerous assumption. Arguably, everything from campaign strategies to the strength of our two-party system will be impacted. 

Even if we could predict which party would benefit the most, it is wrong to eliminate the Electoral College based purely on temporary, partisan gain. I suppose some will say I am being too idealistic to think that politicians should act in a non-political manner. But these officials would serve their constituents best if they remembered that the founding generation deliberately created constitutional safeguards such as the Electoral College so that freedom might be protected over the course of decades. Surely the Founders would be horrified at the partisan logic that is sometimes used to support NPV. 

With the current system in place, presidential candidates can’t succeed without winning concurrent victories across the nation from many states. The system has built-in incentives, ensuring that candidates reach out to a variety of voters from many regions and states. Such a system is good for the health of a country as large and diverse as our own, whether you are Republican or Democrat. Republicans in New York should have remembered that before hastily casting aside an institution that has served us so well for so long.

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Jamin Raskin
Sent: Wednesday, June 08, 2011 10:08 AM
To: rhasen at law.uci.edu; law-election at uci.edu
Subject: [EL] National Popular Vote Passes Crucial Milestone

Yesterday, the National Popular Vote legislation passed in two state legislative chambers.

In New York, the Republican-controlled State Senate voted 49-10 to approve the interstate agreement, making it the first GOP-controlled chamber in the country to do so. Senate Republicans voted 23-8 (with 1 excused), and Democrats voted 26-2 (with 2 excused). Republican Senators who had been cross-endorsed by the Conservative Party voted 17-7 in favor of the bill.

This is an important political breakthrough for the National Popular Vote.

  The Delaware House also passed the NPV legislation yesterday.

States that have passed the NPV legislation have assembled 29% of the electoral college votes needed to bring the agreement into effect.

________________________________

From: law-election-bounces at department-lists.uci.edu <law-election-bounces at department-lists.uci.edu> 
To: law-election at uci.edu <law-election at uci.edu> 
Sent: Wed Jun 08 10:44:46 2011
Subject: Re: [EL] Danielczyk 

The Perverse Holding of Danielczyk <http://electionlawblog.org/?p=18888> 

Posted on June 8, 2011 <http://electionlawblog.org/?p=18888>  by Rick Hasen <http://electionlawblog.org/?author=3>  

In response to my query in this post <http://electionlawblog.org/?p=18851> , a few readers have said that the opinion means it is unconstitutional to limit the direct contributions of for-profit corporations to candidates, but it remains constitutional under the controlling authority of Beaumont to limit the direct contributions of ideological, non-profit corporations.

Of course, as my readers point out, if this is what it means, it is a perverse holding: those groups which should be entitled to the most First Amendment protections (even under Austin and before Citizens United, such groups could spend their treasury funds independently on candidate campaigns) get the least protection.

That’s another reason why the district court’s ruling should be appealed immediately <http://electionlawblog.org/?p=18859> .

  <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D18888&title=The%20Perverse%20Holding%20of%20Danielczyk&description=> 

Posted in Uncategorized <http://electionlawblog.org/?cat=1>  | Comments Off 

On 6/7/2011 1:03 PM, Rick Hasen wrote: 

Breaking News: Judge in Va. Contributions Case Reaffirms Opinion Striking Down Federal Campaign Contribution Limits Law (Danielczyk) <http://electionlawblog.org/?p=18848> 

Posted on June 7, 2011 <http://electionlawblog.org/?p=18848>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Via Ken Vogel <https://twitter.com/#%21/kenvogel/status/78182731254743040> comes word of this order <http://www.politico.com/static/PPM170_cacherisupholds.html> from Judge Cacheris.  This is not what I was expecting <http://electionlawblog.org/?p=18521> . The Court has held unconstitutional a 100-year-old ban on direct corporate campaign contributions to candidates. He has done so in direct contradiction to the Supreme Court’s holding in FEC v. Beaumont, and in contradiction to rulings in the Second Circuit <http://lawprofessors.typepad.com/files/green-party-2.pdf> , the Eighth Circuit, <http://www.ca8.uscourts.gov/opndir/11/05/103126P.pdf>  and a federal district court <http://electionlawblog.org/archives/thalheimer-pi.pdfhttp:/electionlawblog.org/archives/thalheimer-pi.pdf>  in San Diego [that case is on appeal, and I am defending San Diego's similar law in the Ninth Circuit.]

Judge Cacheris makes two arguments as to why he is not bound by FEC v. Beaumont, in which the Supreme Court upheld the very same law.

1. He accepted the argument put forward in an amicus brief by the James Madison Center that the holding in Beaumont applied only to non-profit advocacy corporations, and not to for-profit companies.  This argument is very weak. In Beaumont, a nonprofit ideological corporation argued that even if the statute could constitutionally be applied to for-profit corporations, it could not constitutionally be applied to non-profit corporations.  The Court had already held in the case of Mass. Citizens for Life v. FEC that such corporations could not be barred from making independent expenditures.  In Beaumont, the Court held that even such ideological MCFL corporations could constitutionally be barred from making direct contributions to candidates.  Among other reasons, the law prevented such corporations from being used as conduits to evade individual contribution limits.  If such non-profit corporations could constitutionally be barred from making contributions to candidates, a fortiori for-profit corporations should be barred as well.

2. The judge accepted the second argument that Citizens United silently overruled Beaumont. This too is a weak argument.  I think that argument is dead wrong, for reasons explained in great detail in Part I of this brief <http://electionlawblog.org/archives/city-9th-reply.pdf>  filed in the San Diego case.

What should happen next?  I’m not an expert on the ability of the government to take an interlocutory appeal at this point in the criminal case,  but I would urge them if they could to take this directly to the 4th Circuit.  Otherwise, there will be great uncertainty going into the 2012 election season about an important constitutional question.

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D18848&title=Breaking%20News%3A%20Judge%20in%20Va.%20Contributions%20Case%20Reaffirms%20Opinion%20Striking%20Down%20Federal%20Campaign%20Contribution%20Limits%20Law%20%28Danielczyk%29&description=> 

Posted in Uncategorized <http://electionlawblog.org/?cat=1>  | Comments Off 

-- 
Rick Hasen
Visiting Professor
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html

William H. Hannon Distinguished Professor of Law
Loyola Law School
http://electionlawblog.org

-- 
Rick Hasen
Visiting Professor
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html

William H. Hannon Distinguished Professor of Law
Loyola Law School
http://electionlawblog.org

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