[EL] National Popular Vote Passes Crucial Milestone
Sean Parnell
sparnell at campaignfreedom.org
Thu Jun 9 06:59:51 PDT 2011
Others (notably Tara) have far more insight than I on this issue, but I’d
just like to offer a few quick reactions to Rob.
1. Rob and I clearly have different views of the lengths politicians
will go to in order to achieve favored outcomes. After witnessing the
shenanigans in Massachusetts over how to fill empty U.S. Senate seats and
watching in ’02 how then-former Senator Frank Lautenberg made it onto the
ballot after then-Senator Toricelli elected not to run at a very late date,
I have little faith that there won’t be at least an attempt to game NPV.
2. Which brings up another point – it doesn’t need to be the state
legislature the opts out of NPV. A judge could rule the state’s decision to
enter NPV wasn’t proper and strike down the law authorizing it. ‘Reformers’
routinely claim that our judicial system is corrupt, bought by campaign
donors or ‘special interests’ (witness the smear against Clarence Thomas by
Common Cause and ThinkProgress) – now they’re going to pledge themselves to
the idea that the Texas State Supreme Court isn’t going to jump in and
decide that Texans voted 2:1 for a Republican, and that’s where their
electoral votes should go?
3. I think Rob overstates the degree to which the public cares about
and supports NPV. I’ve no doubt it polls well, as does “good jobs at good
wages” legislation and “healthy families in safe communities” legislation.
But I doubt that too many people will be aware of or notice if NPV achieves
the magic 270-vote level. I’m pretty confident that hardcore partisans
almost certainly will notice, however, if late in the campaign cycle they
discover that their state is looking to go 3:2 for their candidate but their
electoral votes may go the other way and put the candidate they loathe in
the White House.
Best,
Sean Parnell
President
Center for Competitive Politics
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 Rob
Richie
Sent: Wednesday, June 08, 2011 7:06 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
<http://www.amazon.com/gp/product/B002JING2A?ie=UTF8&tag=colonialpress-20&li
nkCode=as2&camp=1789&creative=390957&creativeASIN=B002JING2A> Enlightened
Democracy: The Case for the Electoral College, 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#l
aw). 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.
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