[EL] National Popular Vote Passes Crucial Milestone

Wed Jun 8 20:52:30 PDT 2011

Jamie, you know I always enjoy debating you on this subject.

Yes, I was referring to your statement that this “is an important political breakthrough for the National Popular Vote.” I would have instead used adjectives like “unfortunate” or “misguided.” You place a lot more stock in those polls than I do. For one thing, polls are often influenced by methodology, context, and how a question is phrased, as you know. More importantly, my experience is that people don’t really know what the Electoral College is or how it works. The more they know about it, the more likely they are to support it. This may be one reason why the NPV legislation so often loses sponsors as legislators learn more about the Electoral College and the effort against it. 

In the long run, the Electoral College does not cause a disproportionate focus on swing states. Yes, NPV advocates have come up with some pretty scary-sounding statistics, but they get these stats by focusing too exclusively on one or a handful of election years in isolation. The full history of states’ voting reflects the fact that no political party can ignore any state for too long—not even a very safe state—without feeling the ramifications at the polls. Even a very blue state like California used to consistently vote Republican, just as Texas used to vote for Democrats.

I don’t for a minute believe that presidential candidates can successfully pay attention to every single voter in every corner of the country, just because we’ve eliminated the Electoral College. Candidates will have to prioritize where they spend their limited time and resources. Today’s focus on coalition-building will be replaced by a focus on urban areas: Candidates can most easily and efficiently garner support where the most people reside.

I would never purport to know that everyone is acting for partisan purposes. I am surprised that you would claim to know that everyone is acting purely out of support for “the principle of majority rule.” But, yes, I’ve seen evidence that many Republicans and Democrats are voting for NPV because they believe their political party will benefit. Much of this is because of what I and others hear from legislators/staff/locals when we travel to various states to testify against this bill. I’ve personally heard stories along these lines from individuals in Nevada, South Dakota, and California. It came out in one hearing that at least some Republicans are being paid to lobby/testify for NPV. And every once in a while a little honesty creeps out in editorials as well, as when Saul Anuzis, Former Chairman of the Michigan Republican Party, stated <http://www.thatssaulfolks.com/2010/04/01/national-popular-vote-why-i-support-it/> : “I believe we are a ‘center-right’ nation. A national vote system would give our center-right coalition a greater voice in electing the President.”

I find it odd that you would say that “the National Popular Vote depends on the electoral college” and the “NPV plan fits perfectly within the Founders’ constitutional design and reflects the spirit of the Founders.” Are these the same Founders who explicitly rejected a national direct election for President? Some of these Founders were from small states that most certainly would NOT have ratified the Constitution if such an election system been included. Members of the founding generation were distrustful of other states and the national government. How could they conceive that future state legislators would so thoughtlessly betray their own states’ interests through legislation such as NPV? I’ve stated before that NPV’s best argument is that it’s found a loophole: Basically, failure of imagination prevented the Founders from anticipating that future state legislators would attempt to circumvent the constitutional amendment process in the fashion that NPV proposes, thus, they did not explicitly prohibit this manner of allocating electors.  More likely, however, is that one or more of the many constitutional challenges to NPV will succeed.  

I thought, by the way, that Daniel made an excellent point along these lines in his post earlier today. Yes, state legislatures have broad discretion, but it doesn’t necessarily follow that any and every method of allocating electors is constitutionally permissible. 

From: Jamin Raskin [mailto:raskin at wcl.american.edu] 
Sent: Wednesday, June 08, 2011 4:43 PM
To: Tara Ross; rhasen at law.uci.edu; law-election at uci.edu
Subject: RE: [EL] National Popular Vote Passes Crucial Milestone

Dear Tara:  

Greetings and welcome to the venerable election law listserv!  

I’m sorry to rise in my own defense around your first entry to our dialogue, but when you say that you disagree with my “conclusion,” I am afraid that I don’t know what you are referring to.   I described the passage of NPV in the New York Senate as “an important political breakthrough” for the movement whose governing proposition commands the support of upwards of 70% of the American people across the board politically.  Do you disagree with that observation or just bemoan its truth?

                Your post seems more like an effort to impose a rigid party discipline based on simple confusion about what the National Popular Vote is.  You say that the “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.”  

                But that is an accurate--albeit stilted--statement.  The NPV will eliminate a singular and disproportionate focus on swing states, restoring tens of millions of lost voices, including conservative ones, all across the country.  Most people live in the forsaken “safe” states, which are at least three dozen.

                Similarly, when you say that “these Republicans are being pretty naïve to assume that their party will benefit the most if NPV is implemented,” I again do not see what you are referring to.  To my knowledge, all of the legislators in New York and across the country (there are more than two thousand) who have voted for NPV are doing so because they believe in the principle of majority rule, not just in congressional elections and state legislative and gubernatorial elections but in presidential elections as well.  Do you have evidence that they were voting for NPV because they assume (naively) that it will give them partisan advantage?  If so, I would love to see it. If not, I would assume that they are acting in precisely the “non-political” fashion you say you actually prefer.

                Finally, perhaps most importantly, no one is “hastily casting aside the institution” of the electoral college; the National Popular Vote depends on the electoral college.  The essence of the plan is that the states will cast their electors for the winner of the national popular vote.  Under Article II, each state appoints electors “in such manner as the Legislature thereof may direct,” and the methods have varied dramatically, from direct legislative appointment of electors to election by specially created presidential districts to the current popular “winner take all” unit system to the awarding by congressional district, which is what Maine and Nebraska currently do.  The NPV plan fits perfectly within the Founders’ constitutional design and reflects the spirit of the Founders, who did not go for ancestor worship and the “sanctimonious reverence” of imaginary olde practices, as Jefferson put it, but constantly tinkered and adjusted to make the Union and democratic practices “more perfect.”

                The NPV plan polls large supportive majorities--not just of Republicans but Democrats and Independents.

                                    All best,  Jamie

From: Tara Ross [mailto:tara at taraross.com] 
Sent: Wednesday, June 08, 2011 2:23 PM
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.

________________________________

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

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110608/c4064f93/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 1520 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110608/c4064f93/attachment.png>