[EL] National Popular Vote Passes Crucial Milestone

Wed Jun 8 21:12:57 PDT 2011

Rob, 

That sounds very pretty, and it works out beautifully on paper.  In real life, I suspect we would all be shocked if a state like Massachusetts calmly gives its electors to Sarah Palin without so much as a peep of protest. Massachusetts has changed election rules for partisan advantage before, and it will do it again.  NPV's compact explicitly allows Massachusetts to pull out before July 20.  After the 20th, there is no reason that Massachusetts can't attempt it by claiming that it can't be bound anyway.  Sean correctly notes that litigation will result and will (at a minimum) cause a fair amount of confusion and uncertainty in the middle of an election.

Tara

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rob Richie
Sent: Wednesday, June 08, 2011 6:06 PM
To: law-election at uci.edu
Subject: Re: [EL] National Popular Vote Passes Crucial Milestone

These questions provide a good opportunity to plug an excellent resource: Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote. I'm included as a co-author, but lead author John Koza deserves all the credit.

The book is available online for free at www.everyvoteequal.com <http://www.everyvoteequal.com/> , It's well-organized, with a detailed index and table of contents to help find what you're looking for. Chapter 10 walks through a number of questions about national popular vote, including Mark's one relating to withdrawal.

My experience has been that opponents often resort to a "parade of horrors" that essentially amount to throwing a lot of mud in the hope that it sticks. I hasten to say that it's certainly not true that mudslinging is the only way to oppose the National Popular Vote plan -- there are legitimate questions to address. But so often the answer turns out to be that a national popular vote is equal or superior to the status quo -- this relates to concerns about recounts, the impact of third party candidates, the potential impact of voter fraud and much else.

It also applies to the issue of withdrawal that Mark has raised. While the blackout provision may well be litigated, NPV proponents have a strong case to make. But let's suppose a worst-cast scenario where it were struck down and courts ruled that a state cannot be bound by the blackout provision. Then let's enter the real world of politics as it is in America and how Sean's theoretical constitutional crisis might unfold. (Speaking of "equal or superior".... I think we all were around in 2000.)

First, keep in mind that the National Popular Vote plan's national enactment will not have been a secret. It will have been a huge story, both as it neared adoption and when finally enacted. As a presidential election year unfolds, it's all people will be talking about when discussing the general election. They will quickly shift into a national popular vote state of mind, and discussion of a dozen swing states will be replaced by strategies for getting the most votes nationally, involving all states and their voters. People will be excited about this -- 70% or more think it's the way presidents should be elected, and now it will be happening.

But despite this, suppose partisans running a state grow convinced that their party's nominee can't win the national popular vote, but might win under current state-by-state winner-take-all rules. Already you've lost me, frankly, because such a prediction is very hard to make. A lot of people (including me) going into the 2000 election thought that Gore might win the Electoral College while losing the popular vote -- and of course it went the other way. To win the Electoral College, you have to be close in the popular vote. And iif you're close in the popular vote, you of course vave a change to win -- just ask John Kerry, who at 7 pm ET on election night 2004 was expected by many to win the national popular vote and the presidency

Despite this unlikely calculation, let's suppose we still have some brazen partisans who have decided this is the way to go. So under the intense spotlight of a presidential race, the governor calls a special session (as would be necessary in nearly all states), and the majority decides to run roughshod over dissenting legislators, break its interstate contract and resort to the old system that has the support of only some 20% to 30% of voters in that state and around the nation.

As with the enactment of National Popular Vote plan, this action would not go unnoticed. And I can't imagine a scenario where partisans would actually think this would help them. If they're already bound to lose the national popular vote, such a brazen violation of good sense and popular opinion is going to lose their national standard bearer a lot of votes.

Third, this brazen act of self-destructive irrationality only would matter if the state led by these addled partisans happened to have enough electoral votes to undo the compact. But keep in mind that although the compact is triggered by states having at least 270 electoral votes, that number is a lower bound, not an upper one. Given NPV's popularity among voters, there is every reason to think that the compact will ultimately secure far more than 270 electoral votes in its participating states. Every additional elector will make Mark's scenario even more implausible -- and indeed at a certain point unless there was an even more unlikely coordinated exodus of states.

Now, contrast this with the status quo. Right now, under current law, a state controlled by one party that might be won in the presidential race the other party could try to change its rules to give their side electoral votes. For instance, Georgia and North Carolina, which were controlled by Democrats at that time, could have gone to the congressional district or proportional allocation system in the fall of 2000. And if either one of them had, Al Gore would have won the presidential race. Indeed in 2004, Colorado voted on a ballot measure to go proportional allocation of electoral votes in that very election.

Nothing is stopping states from doing this except the same political factors that would stop them from trying to cheat the National Popular Vote compact -- it would be seen as hyperpartisan and "against fair play." But unlike National Popular Vote, states would not be inhibited by an interstate compact. And furthermore, NPV will likely push states far past 270 electoral votes where no one state could undo it.

Every Vote Equal goes into this in far more detail. Check out the answers on potential withdrawal after the election here, for example:

http://nationalpopularvote.com/pages/answers/m9.php

Rob Richie

On Wed, Jun 8, 2011 at 5:30 PM, Sean Parnell <sparnell at campaignfreedom.org> wrote:

Mark's critique is an important one, and one that we note in the letter that CCP routinely sends to states considering NPV legislation. I'd also note that given the questions surrounding whether the NPV can truly be binding on a state, it is almost certain that some state will at least attempt to withdraw or look into their ability to withdraw from the NPV should it appear advantageous. I suspect that even an unsuccessful attempt to withdraw would spark a constitutional crisis and significant civic trauma, let alone a successful attempt. 

Oh, and for those of you unfamiliar with Tara Ross, she literally wrote the book on preserving the Electoral College Enlightened Democracy: The Case for the Electoral College <http://www.amazon.com/gp/product/B002JING2A?ie=UTF8&tag=colonialpress-20&linkCode=as2&camp=1789&creative=390957&creativeASIN=B002JING2A> , and I'm thrilled she's joined us here.

Sean Parnell

President

Center for Competitive Politics

http://www.campaignfreedom.org <http://www.campaignfreedom.org/> 

http://www.twitter.com/seanparnellccp

124 S. West Street, #201

Alexandria, VA  22310

(703) 894-6800 phone

(703) 894-6813 direct

(703) 894-6811 fax

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 5:03 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.

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu
http://department-lists.uci.edu/mailman/listinfo/law-election

-- 
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
"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 http://fairvote.org/donate. For federal employees, please consider  a gift to us through the Combined Federal Campaign (FairVote's  CFC number is 10132.) Thank you!

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110609/b52fb0e8/attachment.html>