[EL] National Popular Vote Passes Crucial Milestone
JBoppjr at aol.com
JBoppjr at aol.com
Thu Jun 9 05:38:39 PDT 2011
And such deadlines have been looked at as written in sand by willing state
Supreme Courts. See Fla Sup Ct in Bush v. Gore, NJ Sup Ct re Torricelli
resignation. Jim Bopp
In a message dated 6/9/2011 12:15:51 A.M. Eastern Daylight Time,
tara at taraross.com writes:
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_
(http://nationalpopularvote.com/pages/answers/m9.php)
Rob Richie
On Wed, Jun 8, 2011 at 5:30 PM, Sean Parnell
<_sparnell at campaignfreedom.org_ (mailto: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&creativeASI
N=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_
(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)
[mailto:_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_ (mailto: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_
(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_
(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_
(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)
[mailto:_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_ (mailto:rhasen at law.uci.edu) ;
_law-election at uci.edu_ (mailto: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)
[mailto:_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_ (mailto:rhasen at law.uci.edu) ;
_law-election at uci.edu_ (mailto: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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