[EL] National Popular Vote Passes Crucial Milestone
Michael McDonald
mmcdon at gmu.edu
Fri Jun 10 14:04:56 PDT 2011
If we follow Mark's logic to its conclusion, there can be no federal
oversight of elections where presidential electors are appointed. Any
federal election law -- Motor Voter, the Voting Rights Act, HAVA, etc. -- is
a "Manner" imposed by voters in other states upon "Each" state via the U.S.
Congress and President. Mark is also arguing that any campaign financing
originating from voters from outside a state is unconstitutional since these
voters are influencing the votes cast within "Each" state.
============
Dr. Michael P. McDonald
Associate Professor, George Mason University
Non-Resident Senior Fellow, Brookings Institution
Mailing address:
(o) 703-993-4191 George Mason University
(f) 703-993-1399 Dept. of Public and International Affairs
mmcdon at gmu.edu 4400 University Drive - 3F4
http://elections.gmu.edu Fairfax, VA 22030-4444
> -----Original Message-----
> From: Scarberry, Mark [mailto:Mark.Scarberry at pepperdine.edu]
> Sent: Friday, June 10, 2011 3:32 PM
> To: Steven Rosenfeld; Michael McDonald; law-election at UCI.EDU
> Subject: RE: [EL] National Popular Vote Passes Crucial Milestone
>
> In response to Steven and Michael:
>
> As Dan Lowenstein pointed out, the Constitutional text calls for
> "[e]ach State" to appoint its electors.
>
> No one has been a stronger advocate that I have (in terms of
> commitment, not necessarily effectiveness) in supporting the right of
> state legislatures to determine the manner of selection of electors. In
> an op-ed in the LA Times and elsewhere I argued strenuously in favor of
> the theory that ultimately was accepted by the concurring Justices in
> Bush v. Gore (a theory that probably made them more open to concurring
> in the per curiam equal protection opinion). I've also argued
> strenuously that the various attempts to use state initiatives to
> determine the manner of appointing electors (pushed by Democrats if I
> remember correctly in Colorado and Republicans in California) would
> violate the Constitution by taking that power away from state
> legislatures.
>
> But Dan is right that the manner selected by a state legislature must
> be a manner by which the "State" makes the appointment. Delegation of
> that choice to voters outside the state is not plausibly a manner in
> which the state makes the appointment. Appointment by popular vote
> within the state is an appointment by the state, as is a direct choice
> by the legislators who were elected by the state's voters to represent
> them. But Dan is right that appointment by the vote of voters
> nationally is not an appointment by the state. At least that's the case
> absent acceptance of one of the two arguments that I suggested might
> plausibly justify treating a national choice as an appointment by the
> state. (Or, of course, absent acceptance of some other argument put
> forward by someone else, but I haven't seen one.)
>
> The first argument I suggested is that a choice by a national popular
> vote 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 could in good faith be seen as an appointment
> by the state. Dan pointed out the argument's serious flaws, and I don't
> think the argument is persuasive, though perhaps on an extremely
> deferential review it could be accepted. But we are not bound to give
> extreme deference in our discussions to the actions of a state
> legislature, and state legislators in making their own judgments about
> the constitutionality of the NPV compact of course cannot give
> deference to an action that they are considering taking.
>
> The second argument I suggested is that a failure of a state
> legislature to appoint different electors after the election could be
> seen as a ratification of the choice of electors by the national
> popular vote. But the problem with that argument is that Congress has
> exercised its constitutional power to set the date on which electors
> must be appointed, and thus any supposed ratification of a choice made
> by the national popular vote would have to occur between the end of all
> voting nationally on election day and midnight of that day. Inaction
> during that short (or for eastern states perhaps nonexistent) window of
> time cannot plausibly be seen as a ratification.
>
> Further, if the blackout period in the NPV compact is enforceable, a
> state legislature could not make a different choice during that short
> window (or indeed at any time up to the swearing in of the new
> President). If there is no ability to make a different choice, a
> failure to make a different choice can't be seen as a ratification of
> the choice. Thus the NPV compact itself destroys any such ratification
> argument, unless the blackout period is stripped out.
>
> I also suggested that perhaps Congressional approval of the NPV compact
> could create an exception to the statutory rule that electors must be
> chosen on election day by allowing inaction during a longer window to
> count as a ratification. If the only way to uphold the NPV compact is
> to treat such inaction as a ratification, then perhaps Congressional
> approval of the NPV compact would be an implicit approval of such a
> longer window for the choice to be made. That would allow a state
> legislature's inaction during the period from election day to the day
> (in December) on which the electors cast their ballots to be considered
> as a ratification, with a realistic window for legislative action. But,
> as I failed to point out previously, approval by Congress of the NPV
> compact would include approval of the blackout period, which would
> negate any view of Congress's approval as allowing a state to appoint
> its electors after election day (by legislative inaction constituting
> ratification). Congress could perhaps approve all of the NPV compact
> except the blackout period and thus leave open a ratification argument,
> but then Congress would be allowing NPV compact states to have a longer
> time frame than other states to appoint their electors. (As I said
> above, you can't argue that inaction is ratification unless a state
> legislature could choose a different set of electors or a different
> manner of appointing them.) It isn't clear that the Constitution
> permits Congress to give some states more time than others. Perhaps
> other states' legislatures then would have to be given this extra time.
> In any event all of this would open up extremely divisive opportunities
> for strategic conduct and for litigation.
>
> Sorry for the length and for the perhaps unduly convoluted nature of
> the arguments.
>
> Mark
>
> Mark S. Scarberry
> Professor of Law
> Pepperdine Univ. School of Law
> Malibu, CA 90263
> (310) 506-4667
>
>
> -----Original Message-----
> From: law-election-bounces at department-lists.uci.edu [mailto:law-
> election-bounces at department-lists.uci.edu] On Behalf Of Steven
> Rosenfeld
> Sent: Friday, June 10, 2011 10:57 AM
> To: Michael McDonald; law-election at UCI.EDU
> Subject: Re: [EL] National Popular Vote Passes Crucial Milestone
>
> As always, Michael brings us back to a clear baseline...
>
> What I worry about with NPV is not the electoral college implications
> as
> many have expressed, but rather, as folks on this list perhaps know
> better
> than anyone, the prospect that NPV could lead to litigation postponing
> the
> determination of presidential victors... As we have seen in so many
> recent
> federal contests.
>
> Does anyone know the longest length of time between a November
> presidential
> election and the assumption of office by the next president. I seem to
> recall some lengthy 19th century disputes.
>
> Steven Rosenfeld
> San Francisco, CA
>
>
> On 6/10/11 10:44 AM, "Michael McDonald" <mmcdon at gmu.edu> wrote:
>
> > It may be helpful in the midst of knowledgeable constitutional
> scholars to
> > remind us what is written in the constitution. Article II, Section I,
> Clause
> > 2 states:
> >
> > "Each State shall appoint, in such Manner as the Legislature thereof
> may
> > direct, a Number of Electors, equal to the whole Number of Senators
> and
> > Representatives to which the State may be entitled in the Congress:
> but no
> > Senator or Representative, or Person holding an Office of Trust or
> Profit
> > under the United States, shall be appointed an Elector."
> >
> > There is nothing in the constitution stating how the states are to
> appoint
> > their electors. There are many reasons to oppose NPV, but the
> argument that
> > it is unconstitutional holds no water.
> >
> > Second, historically, states were aware of the actions of other
> states. In
> > the early days, state elections were staggered. Everyone was deeply
> aware of
> > how the election in one state affected the potential presidential
> outcome in
> > the next. States considered (and occasionally did) changing their
> > appointment mechanism based on other states' election outcomes.
> >
> > ============
> > Dr. Michael P. McDonald
> > Associate Professor, George Mason University
> > Non-Resident Senior Fellow, Brookings Institution
> >
> > Mailing address:
> > (o) 703-993-4191 George Mason University
> > (f) 703-993-1399 Dept. of Public and International
> Affairs
> > mmcdon at gmu.edu 4400 University Drive - 3F4
> > http://elections.gmu.edu Fairfax, VA 22030-4444
> >
> >
> >> -----Original Message-----
> >> From: Tara Ross [mailto:tara at taraross.com]
> >> Sent: Friday, June 10, 2011 12:59 PM
> >> To: Michael McDonald; law-election at uci.edu
> >> Subject: RE: [EL] National Popular Vote Passes Crucial Milestone
> >>
> >> Well, at least one significant departure is NPV's insistence on
> acting
> >> only in concert with other states. So I go back to one of my
> earlier
> >> points: If a state like Massachusetts TRULY believes that it's in
> >> Massachusetts's best interest to give its electors to the winner of
> the
> >> national popular vote, then it should do so immediately. It does not
> >> need to wait for other states to jump on board and make similar
> >> decisions. Its insistence on acting only with other states is
> >> problematic and makes the interstate compact look like an end run
> >> around the constitutional amendment process.
> >>
> >> Another significant departure is that this would be the first time
> that
> >> a state awards electors based on some consideration other than what
> is
> >> happening within its own borders.
> >>
> >> In response to Dan: Yes, a "'handful of states' is the
> constitutionally
> >> prescribed electoral majority," but only for determining the
> electoral
> >> results for one presidential election. It is not the
> constitutionally
> >> prescribed majority for eliminating or changing constitutional
> >> institutions. An electoral majority of states is not empowered to to
> >> "further refine and improve the Electoral College as they best see
> >> fit." That prescribed majority is currently 38 states.
> >>
> >>
> >> -----Original Message-----
> >> From: law-election-bounces at department-lists.uci.edu [mailto:law-
> >> election-bounces at department-lists.uci.edu] On Behalf Of Michael
> >> McDonald
> >> Sent: Friday, June 10, 2011 9:55 AM
> >> To: law-election at uci.edu
> >> Subject: Re: [EL] National Popular Vote Passes Crucial Milestone
> >>
> >> I do not see how the NPV is a departure from how the Electoral
> College
> >> was
> >> originally implemented. In the early days, state legislatures
> >> determined how
> >> they would award their Electoral College votes. Some used popular
> votes
> >> within the states, some used district-based methods similar to how
> >> Maine and
> >> Nebraska do today, and some were awarded directly by the state
> >> legislatures
> >> with no consideration for the popular vote within a state other than
> >> the
> >> election of the state legislature. State government elections were
> an
> >> important step in the presidential election, because the state
> >> government
> >> could and often would change their method of selecting their
> Electoral
> >> College votes in ways that could change the Electoral College
> outcome.
> >> For
> >> example, imagine if today that the Republican-controlled state
> >> government in
> >> Michigan decided to adopt the Maine and Nebraska method so as to
> more
> >> likely
> >> give some votes to a Republican candidate. My impression of reading
> the
> >> history is that states tired of the intrusion of federal elections
> into
> >> their state politics, and eventually decided to settle on their
> current
> >> methods. So, states have always had the right to determine how they
> >> award
> >> their Electoral College votes. The can of worms that NPV is
> potentially
> >> opening is a return to a heavy intrusion of national politics into
> >> state
> >> politics. However, we are already seeing this in other electoral
> areas,
> >> such
> >> as in the debates surrounding changes to early voting, voter id,
> >> election
> >> day registration, etc., not to mention major policy issues such as
> >> immigration, health care reform, etc.
> >>
> >> Btw, there seems to be little concern in this discussion about the
> >> "faithless electors." Couldn't at any time electors override the
> will
> >> of the
> >> states and their people and elect whom they chose, including the
> >> popular
> >> vote winner?
> >>
> >> ============
> >> Dr. Michael P. McDonald
> >> Associate Professor, George Mason University
> >> Non-Resident Senior Fellow, Brookings Institution
> >>
> >> Mailing address:
> >> (o) 703-993-4191 George Mason University
> >> (f) 703-993-1399 Dept. of Public and International
> Affairs
> >> mmcdon at gmu.edu 4400 University Drive - 3F4
> >> http://elections.gmu.edu Fairfax, VA 22030-4444
> >>
> >> From: law-election-bounces at department-lists.uci.edu
> >> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
> >> Tara
> >> Ross
> >> Sent: Friday, June 10, 2011 8:32 AM
> >> To: Dan Johnson-Weinberger
> >> Cc: law-election at uci.edu
> >> Subject: Re: [EL] National Popular Vote Passes Crucial Milestone
> >>
> >> I know NPV advocates make that claim. I disagree. If NPV is
> enacted,
> >> then
> >> the Electoral College will exist on paper, but not in practice.
> >> Instead, a
> >> handful of states will have decided for everyone else that a tally
> of
> >> individual votes controls the outcome of the election. That is
> >> fundamental
> >> and radical change to our current election system. It changes our
> >> election
> >> process from a federalist democratic one to a purely democratic one.
> >>
> >> I don't mean to drag this discussion on forever if people are ready
> to
> >> move
> >> on to something else. But I'll just note for the record that we've
> >> barely
> >> scratched the surface of all the legal and logistical ramifications
> of
> >> this
> >> NPV measure. NPV will leave in place 51 sets of state (and D.C.)
> >> election
> >> codes. There will be consequences to pretending that we can conduct
> >> one
> >> national election code with 51 different sets of rules in place.
> For
> >> instance, does it create an Equal Protection problem when one state
> has
> >> more
> >> time to early vote than those in other states? What if some states
> >> can't
> >> participate in a recount? What if Florida counts its hanging chads
> >> differently than Pennsylvania? What about the fact that felons are
> >> voting in
> >> some states, but not in others? Etc.
> >>
> >>
> >>
> >> From: Dan Johnson-Weinberger
> [mailto:dan.johnsonweinberger at gmail.com]
> >> Sent: Thursday, June 09, 2011 11:50 PM
> >> To: Tara Ross
> >> Cc: Rob Richie; law-election at uci.edu
> >> Subject: Re: [EL] National Popular Vote Passes Crucial Milestone
> >>
> >> It's meaningless to contrast "NPV" with the "Electoral College
> system"
> >> as
> >> Tara does in her post. The NPV compact operates within the Electoral
> >> College
> >> system. Each state continues to have their constitutionally
> prescribed
> >> number of electoral votes to mirror their congressional delegation.
> >> That is
> >> the Electoral College system. How those electoral votes are cast is
> a
> >> question that falls within, not as an alternative to, the "Electoral
> >> College
> >> system".
> >>
> >> Dan
> >>
> >>
> >>
> >> On Thu, Jun 9, 2011 at 10:23 PM, Tara Ross <tara at taraross.com>
> wrote:
> >> 1. Yes, "any state's decision about how it chooses electors can
> affect
> >> who
> >> wins the presidency," particularly when the race is close. But NPV
> >> takes
> >> matters a step further. The decisions of a few states will do more
> than
> >> impact who wins the presidency. It will change the very method by
> which
> >> we
> >> elect presidents. It will institute new rules for the presidential
> >> election
> >> game, without bothering to first obtain the consent of the governed.
> >> Honestly, for a group that claims to love democracy so much, I think
> >> that is
> >> a bit shocking.
> >> 2. I reject the implication that every vote is not meaningful under
> >> the
> >> Electoral College system. But, yes, absolutely I think Massachusetts
> >> ditches
> >> NPV rather than give its votes to Sarah Palin. And probably it will
> >> reverse
> >> its decision on NPV if it becomes politically convenient to do so
> >> later. As
> >> I mentioned, Massachusetts has taken similar steps in other
> elections
> >> before. It is not a stretch to imagine that it will do so again.
> >>
> >>
> >>
> >> From: Rob Richie [mailto:rr at fairvote.org]
> >> Sent: Thursday, June 09, 2011 2:34 PM
> >> To: Tara Ross
> >> Cc: law-election at uci.edu
> >> Subject: Re: [EL] National Popular Vote Passes Crucial Milestone
> >>
> >> Tara,
> >>
> >> This debate could go on all day, so I suspect this will be my final
> >> message.
> >> But (relatively) briefly:
> >>
> >> 1. You state that the founders that "they did not intend for a
> handful
> >> of
> >> states to start making decisions for other states about how
> presidents
> >> are
> >> to be elected." And yet it's a simple fact that any state's decision
> >> about
> >> how it chooses electors can affect who wins the presidency. After
> >> losing by
> >> three electoral votes in 1796, for example, Jefferson moved to get
> >> Virgina
> >> to allocate electors by winner-take-all. If five votes had flipped
> from
> >> Jefferson to Adams in 1800, Adams would have won, which could have
> >> happened
> >> with a single state like Virginia or New York using a rule that
> divided
> >> electoral votes more equitably, as Pennsylvania did that year
> >> (Pennsylvania
> >> was 8-7 for Jefferson rather than 15-0 for him).
> >>
> >> But there's certainly nothing in the Constitution that reflects your
> >> guess
> >> about founders' intent -- and that's going to determine what judges
> >> do, not
> >> what you and I may surmise might have been their intent.
> >>
> >> 2. So to be clear, you think that even though a landslide majority
> of
> >> Massachusetts voters support a national popular vote for president,
> >> even
> >> though the entire election will have been organized around the idea
> >> that
> >> every vote would be equally meaningful and even though the national
> >> political ramifications of their action would be devastating for
> their
> >> party's nominee, the Massachusetts legislature might brazenly
> convene a
> >> special session in the days before the election to seek to break
> their
> >> agreement in the national popular vote plan just so that
> Massachusetts
> >> electoral votes didn't go to Sarah Palin? Let's just say we have
> >> different
> >> political judgment along with a different interpretation of the
> >> enforceability of the NPV compact.
> >>
> >> Rob
> >>
> >>
> >> On Thu, Jun 9, 2011 at 2:43 PM, Tara Ross <tara at taraross.com> wrote:
> >> As you say, Rob, voters rarely know the mechanisms by which things
> >> work.
> >> But, in the Massachusetts example we've been discussing, a majority
> of
> >> the
> >> state's voters - largely liberal Democrats - WILL know that their
> votes
> >> are
> >> about to be given to Sarah Palin....and they will also know (often
> >> without
> >> knowing or caring about details) that those lawyers can do something
> >> about
> >> it! They will wholeheartedly support the lawyers who are going to
> "fix
> >> it"
> >> so Massachusetts does not go for Sarah Palin. Given the
> constitutional
> >> problems with NPV, the lawyers will have a field day with this and
> will
> >> tie
> >> up the election in court for at least weeks, if not months.
> >>
> >> Re: your final point about how electors can be constitutionally
> >> allocated:
> >>
> >> Your argument that states can give their electors to the winner of
> the
> >> national popular vote would be a lot stronger if NPV states were not
> >> insisting upon taking such action through an interstate compact. If
> >> Massachusetts TRULY believes that it's in Massachusetts's best
> interest
> >> to
> >> give its electors to the winner of the national popular vote, then
> its
> >> legislature should vote to commit to such action NOW. Today.
> Without
> >> waiting for other states to jump on board. Its insistence on acting
> >> with
> >> other states is problematic. The mechanism for acting with other
> >> states to
> >> make such fundamental changes is a constitutional amendment, not an
> >> interstate compact.
> >>
> >> So, in short, yes the Founders did "punt[ ] the decision for
> >> states...rather
> >> than impose a certain rule on them." But they intended for each
> state
> >> to
> >> make decisions for itself only. They did not intend for a handful
> of
> >> states
> >> to start making decisions for other states about how presidents are
> to
> >> be
> >> elected.
> >>
> >>
> >>
> >> From: law-election-bounces at department-lists.uci.edu
> >> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
> Rob
> >> Richie
> >> Sent: Thursday, June 09, 2011 11:26 AM
> >>
> >> To: law-election at uci.edu
> >> Subject: Re: [EL] National Popular Vote Passes Crucial Milestone
> >>
> >> Hi, Sean
> >>
> >> Elections for president are a big deal and I can guarantee that a
> >> change to
> >> a national popular vote will be notice. Once the National Popular
> Vote
> >> plan
> >> is enacted, everyone will know about the change who glances at a
> >> newspaper,
> >> listens to a radio, catches news on television or talks to a friend
> who
> >> knows anything about politics. The overwhelming number of voters
> will
> >> expect
> >> an election in which the winner of the national popular vote becomes
> >> president; the mechanism will be a back story for wonky places like
> >> this
> >> listserv.You and Tara may suggest otherwise, but with all due
> respect,
> >> I
> >> simply and strongly disagree. It's quite similar to term limits --
> >> most
> >> voters rarely know the mechanism that makes term limits work, but
> they
> >> understand the concept and see it working without typically grasping
> >> that
> >> the mechanism is based on denying ballot access to term limited
> >> incumbents.
> >>
> >> Poll numbers have been consistently clear that voters quite
> rationally
> >> favor
> >> guaranteeing that the winner of the most popular votes in all 50
> states
> >> becomes president more than guaranteeing that the winner of their
> state
> >> earns that state's electoral votes. It's no surprise: certainly most
> >> people
> >> on the day after an election would prefer to see their candidate
> having
> >> been
> >> president while losing their state than see their candidate losing
> >> while
> >> winning their state. it's the national outcome that matters to
> people,
> >> and
> >> polls from a full range of sources consistently find that a super-
> >> majority
> >> of Americans think the candidate who wins the most votes in all 50
> >> states
> >> should be president. See a great rundown of polls, including some
> >> specifically asking the question about whether it matters that the
> >> winner
> >> has lost one's state, at this URL.
> >>
> >> As to legal challenges, I can't imagine a judge ordering that the
> >> winner-take-all rule must be used. That would fly in the face of
> recent
> >> history -- I sure didn't hear any suggestion in 2008 that a voter in
> >> Nebraska could have sued the state for awarding an electoral vote to
> >> Obama
> >> because he won one of the state's congressional districts. It also
> >> flies in
> >> the face of the longer arc of history, as the winner-take-all rules
> >> isn't
> >> remotely established in the Constitution and was not the norm for
> >> decades.
> >> That rule's origins are far from noble either, as it it is a product
> of
> >> brass-knuckle partisan politics -- e.g., partisans in states wanting
> to
> >> favor the candidate or party expected to win that state by the
> greatest
> >> extent possible, knowing that other states controlled by partisans
> >> favoring
> >> other candidates/parties were doing the same thing.
> >>
> >> That progress to the winner-take-all rule with a lot of tinkering
> >> underscores another key point that Tara glossed over in her romantic
> >> vision
> >> of the founders in Philadelphia anticipating politics as we've known
> it
> >> every since. Most of our founders were quite open to fact-based
> >> thinking,
> >> learning from experience and and adjusting rules to new
> circumstances -
> >> -
> >> which is why they established the Electoral College without any
> >> instruction
> >> to states on what to do, instead punting the decision for states to
> >> make
> >> rather than impose a certain rule on them. It should be no surprise
> >> that,
> >> often under the influence of men who were at the constitutional
> >> convention,
> >> states in the nation's first half-century regularly changed their
> rules
> >> allocating electoral laws -- in 1800, for example, only two states
> used
> >> a
> >> winner-take-all rule based on a popular vote in their state.
> >>
> >> That 1800 election is also instructive for making it clear that the
> >> original
> >> rule for the Electoral College -- e.g, electors casting two votes,
> and
> >> the
> >> candidate with the most votes (if a majority) becoming president,
> and
> >> the
> >> candidate with the second most votes becoming vice-president -- was
> a
> >> failure. So before the 1804 election they changed the Constitution
> by
> >> adopting the 12th amendment, hardly being deferential to what was
> done
> >> in
> >> Philadelphia in 1787.
> >>
> >> When we look at the impact of the winner-take-all rule today, the
> facts
> >> are
> >> clear that most Americans and most states are hurt by that rule, but
> >> are in
> >> bind about how to change it without the National Popular Vote plan--
> >> and I
> >> think those facts would have been quite convincing as demanding
> reform
> >> if
> >> presented to those in the founding generation transported into our
> >> world.
> >> Tara again waxes a bit romantically about all states getting their
> turn
> >> as
> >> swing states, but she's not looking at the numbers. I'll paste in
> below
> >> a
> >> summary of some key facts from a mini-report on "Not Your Parents'
> >> Presidential Elections" we're putting up on the web soon, from our
> >> longer
> >> Presidential Election Inequality analysis.
> >>
> >> -Rob
> >>
> >> Not Your Parents' Presidential Elections
> >> Summary: The number of swing states (generously defined as ones
> >> projected to
> >> be won by 9% or less in a year in which the major parties candidates
> >> split
> >> the national popular vote) has dropped sharply since 1988,
> especially
> >> among
> >> our nation's largest and smallest states. In 2008, only one of the
> 13
> >> smallest states and only 4 of the 27 smallest states were swing
> states.
> >> This
> >> trend shows no indication of changing, all trends pointing to wider
> >> division
> >> -- indeed, in 2008 only 3 of the smallest 13 states were within even
> a
> >> 15%
> >> partisanship disparity. As the other end of the population spectrum,
> >> among
> >> our 11 largest population states today, fewer than half were swing
> >> states in
> >> 2004 and 2008 -- down from 10 out of 11 of these states in the 1960
> and
> >> the
> >> 1976 presidential elections and 8 in the 1988 election.
> >>
> >> None of the 2008 non-swing states are expected to become swing
> states
> >> in
> >> 2012, but some 2008 swing states may well move to non-swing state
> >> status,
> >> which would continue a 50-year trend presented below.
> >>
> >> Swing States (within 9%) by # 2008 Electoral Votes (EV's), 1960-
> 2008*
> >> (Number of EVs in State) Year >14 9-14 5 to 8 <5 Total 2008 5 6 3 1
> 15
> >> 2004
> >> 4 6 5 1 16 1988 8 4 8 6 27 1976 10 6 8 5 29 1960 10 7 8 6 31
> >> Partisanship
> >> Disparity (P), All States, 1960-2008 Year P=<9% 9%< P< 20% P>=20%
> Notes
> >> 2008
> >> 15 19 17 13 R & 4 D landslide states 2004 16 20 15 10 R & 5 D
> >> landslides
> >> states 1988 27 22 2 1 R & 1 D landslide states 1976 29 14 8 5 R & 3
> D
> >> landslides states 1960 31 13 6 2 R & 4 D landslide states * Includes
> DC
> >> in
> >> all years except 1960
> >>
> >>
> >> On Thu, Jun 9, 2011 at 9:59 AM, Sean Parnell
> >> <sparnell at campaignfreedom.org>
> >> wrote:
> >> 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,
> 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 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.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.
> >>
> >>
> >> _______________________________________________
> >> Law-election mailing list
> >> Law-election at department-lists.uci.edu
> >> http://department-lists.uci.edu/mailman/listinfo/law-election
> >>
> >>
> >>
> >> --
> >> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
> >> "Respect for Every Vote and Every Voice"
> >>
> >> Rob Richie
> >> Executive Director
> >>
> >> FairVote
> >> 6930 Carroll Avenue, Suite 610
> >> Takoma Park, MD 20912
> >> www.fairvote.org rr at fairvote.org
> >> (301) 270-4616
> >>
> >> Please support FairVote through action and tax-deductible donations
> --
> >> see
> >> http://fairvote.org/donate. For federal employees, please consider
> a
> >> gift
> >> to us through the Combined Federal Campaign (FairVote's CFC number
> is
> >> 10132.) Thank you!
> >>
> >>
> >>
> >> --
> >> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
> >> "Respect for Every Vote and Every Voice"
> >>
> >> Rob Richie
> >> Executive Director
> >>
> >> FairVote
> >> 6930 Carroll Avenue, Suite 610
> >> Takoma Park, MD 20912
> >> www.fairvote.org rr at fairvote.org
> >> (301) 270-4616
> >>
> >> Please support FairVote through action and tax-deductible donations
> --
> >> see
> >> http://fairvote.org/donate. For federal employees, please consider
> a
> >> gift
> >> to us through the Combined Federal Campaign (FairVote's CFC number
> is
> >> 10132.) Thank you!
> >>
> >>
> >>
> >> --
> >> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
> >> "Respect for Every Vote and Every Voice"
> >>
> >> Rob Richie
> >> Executive Director
> >>
> >> FairVote
> >> 6930 Carroll Avenue, Suite 610
> >> Takoma Park, MD 20912
> >> www.fairvote.org rr at fairvote.org
> >> (301) 270-4616
> >>
> >> Please support FairVote through action and tax-deductible donations
> --
> >> see
> >> http://fairvote.org/donate. For federal employees, please consider
> a
> >> gift
> >> to us through the Combined Federal Campaign (FairVote's CFC number
> is
> >> 10132.) Thank you!
> >>
> >> _______________________________________________
> >> Law-election mailing list
> >> Law-election at department-lists.uci.edu
> >> http://department-lists.uci.edu/mailman/listinfo/law-election
> >>
> >>
> >>
> >> --
> >> Dan Johnson-Weinberger
> >>
> >> Attorney at Law
> >> 111 West Washington, Suite 1920
> >> Chicago, Illinois 60602
> >>
> >> 312.867.5377 (office)
> >> 312.933.4890 (mobile)
> >> 312.794.7064 (fax)
> >>
> >> _______________________________________________
> >> Law-election mailing list
> >> Law-election at department-lists.uci.edu
> >> http://department-lists.uci.edu/mailman/listinfo/law-election
> >
> > _______________________________________________
> > Law-election mailing list
> > Law-election at department-lists.uci.edu
> > http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
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