[EL] National Popular Vote Passes Crucial Milestone
JBoppjr at aol.com
JBoppjr at aol.com
Thu Jun 9 05:41:41 PDT 2011
Wouldn't this state compact, or at least a state's law joining it, also be
subject to review under a joining state's state constitution? Jim Bopp
In a message dated 6/9/2011 1:30:57 A.M. Eastern Daylight Time,
Mark.Scarberry at pepperdine.edu writes:
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_
(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.
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