[EL] National Popular Vote Passes Crucial Milestone

[Scarberry, Mark]

I'll also be brief.

In response to Rob:

If the slate of electors is chosen by the voters of the state - with voters in one district choosing one, voters in another district choosing another, etc. - it is not at all hard to say that the state has appointed the electors. All of them are chosen by state voters, and together they represent the will of the people of the state. With regard to judicial nullification, I've already made the point that the issue may not be justiciable. That does not mean that a state legislature can just do what it wants, without regard to the Constitution; each state legislator takes an oath to support it, as required by Article VI.

In response to Michael:

Michael argues that


'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.'

Of course my argument means no such thing. To the extent a state legislature chooses to use an election to choose electors, the legislature is bound by the Constitution's provisions on voting rights and by any federal statute made pursuant to those provisions. (See, e.g., the 15th Amendment, sections 1 and 2.) The per curiam opinion in Bush v. Gore made that point, which is clearly correct. I noted it in one of my previous posts. Also, to the extent that a state legislature chooses to use the same election process for president that is used for congressional elections, the presidential election process is in effect subject to the power of Congress to determine the manner in which congressional elections are held, per Article I, sec. 4, clause 1.

I also made no argument at all that outside influence is prohibited; decision-making by those who cannot plausibly be said to act for the state is prohibited, but there is nothing in the Constitution preventing anyone outside the state from trying to influence the state decision-makers. In fact there is a provision under which such influence must be allowed: the First Amendment.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
Malibu, CA 90263
(310) 506-4667

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rob Richie
Sent: Friday, June 10, 2011 2:41 PM
To: law-election at UCI.EDU
Subject: Re: [EL] National Popular Vote Passes Crucial Milestone

The weekend approaches, and I suspect a lot of eyes are glazing over the 50-plus messages that have been posted on this topic. But I'm going to weigh in as briefly as I can on some issues tossed into the mix in the past 24 hours:

1) Mark Scarberry suggests sympathy with Dan Lowenstein's interpretation of the Article 2, Section 1 phrase that "Each State shall appoint, in such Manner as the Legislature thereof may direct."Dan suggests this language means "the legislature's power is explicitly limited to prescribing a manner of appointment that is actually by the state." I of course agree with Mike McDonald that this phrase is no credible barrier to a state deciding to appoint its electors based on the outcome of the national popular vote in all 50 states and DC -- and would think it the height of judicial activism for a court to use it as justification for nullifying the action of states representing a majority of electors and Congress.

But suppose Dan is right. Wouldn't his logic, then, also nullify allocating electors by congressional district or electoral district, as was done in our very first presidential elections? The people of a congressional district or an electoral district are not the "state" -- they are only a portion of a state. Did the founders not understand the Constitution they had just adopted when allowing one geographic corner of a state to speak for the state as a whole?

2) Steven Rosenfield worries about post-election litigation. As he mentions, we already have every reason to worry about post-election litigation, especially as the current system is very prone to artificial crises involving a very close count in one state that could swing the outcome. But regardless, all legal disputes involving an attempt to derail election of the national popular vote winner would have to resolved by the time the electors meet in December, which is a date certain fixed in federal law. The resolution of the Rutherford B. Hayes - Samuel Tilden election disaster of 1876-1877 (one of the best examples of problems with the current system, with Hayes winning all disputed electors only after cutting a deal ending Reconstruction) could be delayed until well into the next year because at that time the inauguration was much later.

3. Tara Ross is concerned that NPV can be enacted through the actions of some states rather than all states, going so far as to say "Honestly, for a group that claims to love democracy so much, I think that is a bit shocking." As someone who in fact does appreciate democracy, I'll say three things. First, it's a rare law that gets passed without opposition. Thus, democracy regularly  involves laws being passed over some people's opposition. Second, the political success of NPV is grounded in the fact that super-majorities of Americans in states all over the nation support electing the president by a national popular vote. Even if some states may not pass NPV, that won't change the fact that a majority of that state's voters will support the new policy. Third, many states already have laws governing awarding of electors based on what other states have done. The decision to allocate electors by a winner-take-all rule is not grounded in any belief that doing so is "fairer" or "better." Rather, it's based on helping your side as much as possible n the face of other states doing so for their preferred candidates. As soon as a certain number of states used winner-take-all, all states basically were forced to follow to avoid "unilateral disarmament" for their side -- and, until NPV came along, have been forced to keep it for partisan reasons despite how much it hurts the interests of most states.

4. This last point relates to Tara rhetorically asking why state legislatures passing the NPV plan don't simply drop the condition that it only goes into effect when awarding state electors to the national popular vote winner guarantees election of that national popular vote winner. As Tara well knows, state legislators are practical partisans as well as representatives of the public interest. If a few Republican-leaning states decided to always give their state's electoral votes to the national popular vote winner, but no Democratic states did so, then a Democratic candidate would always win any election in which that candidate won the national popular vote, but sometimes a Republican candidate would lose despite winning the national popular vote.

Legislators understandably want a bright-line choice when deciding whether to enact NPV: they want an ironclad guarantee that, once in place, NPV will result in a majority of the nation's electors being awarded to the winner of the national popular vote in all 50 states and DC. Without that guarantee, mandating allocating electors go to the winner of the national popular vote would a form of unilateral disarmament -- one that might hurt their party.

Rob


-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110610/85fc50fc/attachment.html>