[EL] National Popular Vote Passes Crucial Milestone

[Tara Ross]

I will be brief, too, and will respond only to the comments directed at me.

 

You note that "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."  If that is true, then it should be no problem at all to pass a constitutional amendment.  Why don't you pursue change through an amendment and avoid the constitutional/legal/logistical problems with NPV?

 

Regarding your last point......Exactly.  States' politicians do not think it is in the best interest of their states to pursue NPV except/until it can be done in concert with other states. If they do it alone, then it is not in their best interest at all. I hate to beat a dead horse, but the appropriate avenue for states to collectively pursue change of this nature is through a constitutional amendment.  An interstate compact is merely an attempt to end-run this process.

 

 

 

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 4:41 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

 

 

 

 

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.

 

On Thu, Jun 9, 2011 at 11:23 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. 

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.

 

 

 

On Fri, Jun 10, 2011 at 3:32 PM, Scarberry, Mark <Mark.Scarberry at pepperdine.edu> wrote:

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
>
> _______________________________________________
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-- 
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
"Respect for Every Vote and Every Voice" 

Rob Richie
Executive Director

FairVote   
6930 Carroll Avenue, Suite 610
Takoma Park, MD 20912
www.fairvote.org  <http://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!

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