[EL] National Popular Vote Passes Crucial Milestone

[Scarberry, Mark]

Dan Lowenstein (a friend from whom I’m always willing to learn) helpfully points us back to the text of the Constitution. He certainly is right that the appointment of electors is to be made by the state, with the manner of appointment being prescribed by the state legislature, and my paraphrase did not capture that point. Dan may well be right that a choice of electors based on the national popular vote is not a choice by the state (though the plenary nature of the state legislatures’ power has been a strong theme in our constitutional tradition).

My main point was that the NPV compact’s attempt (by way of a blackout period) to bind state legislatures in the exercise of the power granted to them by Article II must fail. Here is what the Court said in its per curiam opinion in Bush v. Gore (as part, in my view, of its ratio decidendi, though others may think that some of it is dictum):

“The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U.S. Const., Art. II, §1. This is the source for the statement in McPherson v. Blacker, 146 U.S. 1, 35 (1892), that the State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. Id., at 28—33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (‘[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated’) (quoting S. Rep. No. 395, 43d Cong., 1st Sess.).”
A power that can be “resume[d] at any time” and that “can neither be taken away nor abdicated” cannot be eliminated during a blackout period.

Turning to Dan’s point:

Bush v. Gore and McPherson v. Blacker certainly focus on (1) direct choice by the legislature and (2) choice by vote of the state’s citizens as alternative ways for a state to appoint electors. (Note, though, that the Court refers to “its” – that is, in context, the state legislature’s – “power to appoint members of the Electoral College” under Article II. So even the Court seems to paraphrase a bit and lose sight of the “State” as the entity entitled under the Constitution to appoint the electors.) And Bush v. Gore seems to suggest that perhaps “statewide election” (not national election) is the alternative to direct appointment by the legislature.

But I think a good faith argument can be made that a state appoints electors, though somewhat indirectly, when it decides that the electors should be those who are pledged to the candidate who is favored by the popular vote of all the fellow citizens in the Union. Given the plenary power of the state legislature to determine the manner of appointment of electors by the state, substantial deference should be given to the legislature’s judgment that such a manner of appointment is an appointment by the state. The state’s own citizens participate by their voting and by their ability to influence voters in other states. In theory, a state legislature could change the manner of appointment (and either affirmatively choose the electors itself or choose to have the state election results control) up until midnight of election day. By that time there would be a popular vote winner, though we would not necessarily know who that person might be, because the votes would have been cast. Note that we treat the electors as being chosen on election day by a state’s voters even though we may not know who they are until vote counting is finished days later. The state legislature’s failure to act could be seen as a ratification of the choice of electors and thus in a sense as the legislature’s own choice. (But I suppose that if some western states kept polls open late, then there might still be votes being cast after midnight eastern time, and thus perhaps there would not yet be a national popular vote winner for purposes of ratification by eastern states’ legislatures.)

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

From: Lowenstein, Daniel [mailto:lowenstein at law.ucla.edu]
Sent: Wednesday, June 08, 2011 4:24 PM
To: Scarberry, Mark; law-election at uci.edu
Subject: RE: [EL] National Popular Vote Passes Crucial Milestone

            I am in the unusual position of disagreeing with my friend Mark Scarberry.  In particular, I do not believe he accurately paraphrases the Constitution when he says “state legislatures have plenary power to allocate electoral votes on whatever basis they may choose” (though I agree that this inaccurate paraphrase is quite common).  In fact, Article II, section 1 says in pertinent part: “Each state shall appoint [electors], in such manner as the legislature thereof may direct….”  That language says quite clearly and explicitly that it is the state that is to do the appointing and that the legislature’s discretion is limited to selecting the manner in which the state shall do the appointing.

            The state being an artificial entity, it can only appoint through a representative.  I believe when the Constitution was written it was contemplated that the state would act either through the electorate or through the legislature, either of which clearly can represent the state.  So far as I am aware, those are the only two methods that have ever been used, though there are variations in how the voters or the legislature can do the  appointing.  There are surely other methods the legislature could designate.  The governor, for example, could represent the state, as could a convention elected for the purpose.  Perhaps other statewide elected officials could do so and, somewhat fancifully, borderline cases could easily be imagined.

            But there are an infinite number of methods a legislature could theoretically choose that would be outside the Constitution because they could not plausibly be regarded as appointment by the State.  For example, I believe it would clearly be unconstitutional if the legislature said the electors should be appointed by the Queen of England or the United Nations or the Pope.  It is equally clear that action by a national electorate is not action by the state or by any plausible representative of the state.  The NPV proposal therefore seems to me pretty clearly to violate the language of the Constitution.


                                                    Best,

                                                    Daniel Lowenstein
                                                    Director
                                                    UCLA Center for the Liberal Arts and Free Institutions (CLAFI)
                                                    310-825-5148
                                                    lowenstein at law.ucla.edu<mailto:lowenstein at law.ucla.edu>

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.
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