[EL] National Popular Vote Passes Crucial Milestone

Wed Jun 8 14:19:23 PDT 2011

For the sake of completeness, and at the risk of stating the obvious for members of this list, I suppose I should have added in the footnote that if a state somehow fails to choose electors on election day, then the state can choose them later “in such a manner as the legislature of such State may direct,” and that “[e]ach State may, by law, provide for the filling of any vacancies which may occur in its college of electors when such college meets to give its electoral vote.” 3 U.S.C. sections 2 and 4.

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 Scarberry, Mark
Sent: Wednesday, June 08, 2011 2:03 PM
To: law-election at uci.edu
Subject: Re: [EL] National Popular Vote Passes Crucial Milestone

We can argue about whether it is a good idea in effect to scrap the electoral college. We can argue about the partisan political effects of doing so. We can certainly argue about whether such a sub rosa attempt to amend the Constitution without using Article V is a breach of constitutional principles (and thus should be rejected whether or not adoption or enforcement of the NPV compact would raise justiciable issues)

But it’s important not to lose sight of the question whether such a compact could be binding. Under Article II, state legislatures have plenary power to allocate electoral votes on whatever basis they may choose (subject to the 14th, 15th, 19th etc. Amendments), including, I suppose the basis of the national popular vote. The NPV compact proponents in fact rely on that plenary power and even say that state legislatures cannot be limited in their exercise of it “at any time.” See http://www.nationalpopularvote.com/pages/explanation.php (“3- Sentence Description” of NPV Compact) [“Under the U.S. Constitution, the states have exclusive and plenary (complete) power to allocate their electoral votes, and may change their state laws concerning the awarding of their electoral votes at any time.”]

But of course there is a strong argument that the NPV compact itself violates that constitutional rule, by purporting to bind states to the NPV method of allocating electoral votes during a six-month blackout period beginning on July 20 of each presidential election year. It is not at all clear that state legislatures can deprive themselves for such a period of the Article II power to decide how to allocate electors.* If the blackout provision is not binding, then each state’s legislature would be free to game the NPV system, by backing out at the last minute if it thinks the national popular vote is going to go against the candidate that voters in the state seem to prefer (or that the state legislature prefers). The blackout period seems to be an essential element of the NPV proposal precisely in order to prevent such gaming of the system.

As the proponents say:

“The purpose for the delay in the effective date of a withdrawal is to ensure that a withdrawal will not be undertaken—perhaps for partisan political purposes—in the midst of a presidential campaign or in the period between the popular voting in early November and the meeting of the Electoral College in mid-December.” See http://www.nationalpopularvote.com/resources/EVE-CH-6-Ed1-Pr4.pdf (at page 266).”

Would NPV compact proponents still be in favor the compact without the blackout provision?

Mark Scarberry

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

*Congress seemingly has provided that the method of selecting electors cannot be changed after the date on which electors are chosen. Article II, sec. 1, cl. 4 gives Congress the power to force states to choose their electors by a date set by Congress, and thus state legislatures could not effectively change their method of selection of electors for that election after that date (election day: the first Tuesday after the first Monday in November). State legislatures are not otherwise limited (except that Congress has only committed to following the state’s procedures for determining disputes about which electors have been chosen if those procedures were adopted before the date set by Congress for selection of electors and only if, remember Bush v. Gore, the state’s processes have been completed at least six days before the date set by Congress for electors to meet and cast their votes – the first Monday after the second Wednesday in December. See 3 U.S.C. sections 1, 5, and 7 (conveniently available at http://www.archives.gov/federal-register/electoral-college/provisions.html#law). But the NPV compact would purport to prevent changes as of July 20.

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Tara Ross
Sent: Wednesday, June 08, 2011 11:23 AM
To: Jamin Raskin; rhasen at law.uci.edu; law-election at uci.edu
Subject: Re: [EL] National Popular Vote Passes Crucial Milestone

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.

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