[EL] National Popular Vote Passes Crucial Milestone
Scarberry, Mark
Mark.Scarberry at pepperdine.edu
Thu Jun 9 09:51:08 PDT 2011
I think the NPV compact is an end-run around Article V, an attempt to change a basic provision of the Constitution without going through the amendment process. Even if only for that reason, it should be opposed. Nevertheless:
The argument Dan describes as a makeweight -- the argument that participation by a state's voters might validate a legislature's choice to use the national popular vote to choose a state's electors -- is the second-best good-faith argument that I could find in response to Dan's strong textual point that the "State" must appoint the electors. The "state voter participation" argument isn't persuasive to me (and is even less persuasive after a good night's sleep than it was late last night). But it isn't as much of a stretch as many arguments accepted by the courts when the standard of review is deferential, as it's likely to be here (to the extent the issue even is justiciable). That's not the end of the inquiry; the courts do not have a monopoly on interpretation of the Constitution, and we all have an obligation to try to be faithful to it as we exercise our own political power. (As applied here, state legislators have that obligation, which is why some level of deference to their decision is justified, Congress has that obligation as it counts electoral votes, and we have that obligation as we engage in discussions intended to influence state legislators or courts.)
I still think that a choice of electors made with the direct participation of a state's voters in a cooperative, reciprocal process along with fellow-citizen voters of other states in the Union is at least distinguishable from a choice made by the Pope or by Queen Elizabeth. Dan says he wouldn't doubt the good faith of someone who put forth the argument, and perhaps that isn't much different from what I said: "a good faith argument can be made."
I do wonder, though, what Dan or other list members think about the other argument I suggested: that failure of a state legislature to act in the window (admittedly a very brief window) between the closing of the polls and midnight of election day could be seen as a kind of ratification of the choice made by the national popular vote. Because a state legislature could choose the electors directly, presumably it could ratify a choice made by the national popular vote. Again, this is not a very strong argument, (1) because as a practical matter the window is too short for a legislature to act and thus too short for a failure to act to be seen as a ratification, and (2) because there is no way to know by midnight of election day with any certainty who the popular vote winner is (at least by midnight on the east coast).
Thus even such a supposed ratification -- at least to the extent it may be thought to occur on election night -- probably should be seen as a delegation of authority to a group (national voters) that does not represent the state. The argument is not parallel that under our existing system a state chooses its electors on election day (as required by federal statute), even though we may not know on election day who we have chosen. A state's voters have a substantial window of time to act, and we do know on election day that the State (through its voters as provided by the legislature) has appointed particular electors, even if we may not know on that day who those electors are. But it does not seem correct to say that on election night the legislature could ratify a choice of electors by the national popular vote when the legislature does not know who those electors are.
On the other hand, there is no constitutional requirement that electors be appointed on a particular day by every state; that is merely a federal statutory requirement. Under the Constitution, the only "same-day" requirement is the requirement that the electors give their votes on the same day nationwide, which, under federal statute, is the first Monday after the second Wednesday in December. Thus a ratification by a state legislature between election day and that December date would be timely as far as the Constitution is concerned. It is not much of a stretch to say that a state legislature ratifies the choice made by the national popular vote when it lets that choice stand for a period of more than a month.
That then takes us (or those with patience to still be reading this post) to the statutory question: Congress has exercised its constitutional authority to set a date (election day) on which the electors must be appointed by every state. A scheme under which a state plans to make its choice by ratification after that date would seem to violate the statutory requirement and thus to be invalidated under the Supremacy Clause.
But note that the NPV compact may well be approved by Congress. Some of us -- e.g., Prof. Derek Muller -- have argued strenuously that, even if the NPV compact otherwise is consistent with the Constitution, it could not go into effect without approval by Congress under Art. I, sec. 10, cl. 3. Approval of the NPV compact by Congress presumably would allow the compact to be effective despite any conflict with an earlier-enacted federal statute.
Best wishes,
Mark
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
Malibu, CA 90263
(310) 506-4667
-----Original Message-----
From: Lowenstein, Daniel [mailto:lowenstein at law.ucla.edu]
Sent: Thursday, June 09, 2011 6:34 AM
To: Scarberry, Mark; law-election at uci.edu
Subject: RE: [EL] National Popular Vote Passes Crucial Milestone
Mark observes in the first paragraph of his post that "the plenary nature of the state legislatures' power has been a strong theme in our constitutional tradition." So far as I am aware, that has always been in the context of the legislature prescribing a method of appointment that is unquestionably by the state, namely, as Mark indicates, either a choice by the voters or a choice by the legislature. To describe the legislature's power to prescribe such a method is entirely consistent with the Constitution's language and does not imply any power whatever to prescribe a manner of selection other than by the state.
I would not doubt the good faith of one who put forth the argument in Mark's last paragraph, but I would deny the soundness of the argument. To say that the state's voters are included in the selecting authority and have the ability to try and influence other members of that authority under NPV is a makeweight that makes no weight. The Constitution does not say the legislature can prescribe a method of appointment in which some representative of the state plays some part. It says "Each state shall appoint...." That seems to me pretty clear and straightforward. More generally, the argument (to which Mark does not say he subscribes) comes down to saying the legislature may prescribe any manner of appointment and by virtue of its doing so, that manner of appointment will be deemed an appointment by the state, even if in fact it is not an appointment by the state but by someone else. If it is a correct interpretation, it would authorize the legislature to prescribe appointment by the Queen of England, the United Nations, or the Pope. (Note that the people of the state are represented in the United Nations and, in a sense, in the person of the Pope. They would have the ability to try to influence these or any other possible appointing powers other than the state that the legislature might prescribe.) This is simply not a plausible interpretation of the language of the Constitution, which says not that some method prescribed by the legislature shall be deemed to be an appointment by the state, but rather, "Each state shall appoint...." The legislature's power is explicitly limited to prescribing a manner of appointment that is actually by the state, not pretend.
Best,
Daniel H. Lowenstein
Director, Center for the Liberal Arts and Free Institutions (CLAFI)
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
310-825-5148
________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Scarberry, Mark [Mark.Scarberry at pepperdine.edu]
Sent: Wednesday, June 08, 2011 10:29 PM
To: law-election at uci.edu
Subject: Re: [EL] National Popular Vote Passes Crucial Milestone
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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