[EL] National Popular Vote Passes Crucial Milestone (and perhaps this discussion will too!)
Lowenstein, Daniel
lowenstein at law.ucla.edu
Sat Jun 11 08:58:33 PDT 2011
1. No one can reasonably blame Jamie for the voluminous discussion that followed his original informative post.
2. The hypothetical language he puts forth in his second numbered paragraph has an altogether (and absurdly) different meaning from the actual wording of the Constitution in the interpretation I have put forth. Some people cannot understand the difference between influencing and appointing, even when it is pointed out to them and even when they refer to it themselves (see his next paragraph).
3. In his third numbered paragraph, Jamie fails to discern another distinction that is perfectly apparent to common sense: namely, that between appointing and certifying. To "appoint" the electors evidently means to choose the individuals who will serve as electors. That is a distinct function from attempting to influence the choice and it is distinct from certifying the choice that the appointing person or persons have made.
4. I hope the medical procedure was entirely successful.
Best,
Daniel H. Lowenstein
Director, Center for the Liberal Arts and Free Institutions (CLAFI)
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
310-825-5148
________________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Jamin Raskin [raskin at wcl.american.edu]
Sent: Saturday, June 11, 2011 6:58 AM
To: Tara Ross; Michael McDonald; law-election at uci.edu
Subject: Re: [EL] National Popular Vote Passes Crucial Milestone (and perhaps this discussion will too!)
Friends:
Because I spent the day in a medical procedure yesterday, I have just read through yesterday's enjoyable dust-up over the constitutionality and wisdom of the National Popular Vote plan. Although I want to second Tara's original (and quickly ignored!) suggestion from mid-afternoon yesterday that we give it a rest for a while, I hope you will forgive me a final set of concluding observations given that I inadvertently launched this contretemps just by carrying to the list factual news of the (Republican-controlled) New York Senate's endorsement of the Plan:
1. A number of people, including Tara, are triumphantly describing the National Popular Vote as an "end run" around the Constitution. As a washed-up football jock, I can assure you that the "end run" is a perfectly lawful play in football--unexpected and clever perhaps, but no one ever blows a whistle on it because it is entirely within the rules.
2. Imagine that Article II, section 1, clause 2 said this: "Each State shall appoint, in such Manner as the Legislature thereof may direct but not reflecting in any way the votes or wishes of the people in other States, a Number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in this Congress. . ." In that case, Dan Lowenstein and other critics of the NPV plan would have a constitutional point. But the Constitution, of course, says no such thing. The Clause says simply: "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 this Congress. . ." Critics are in the exact same position as those who have been frustrated with democratic changes in the "manner" of appointment in the past--from appointment of electors based on popular voting to the nomination of candidates by national political parties--and have challenged new electoral college variations and departures as outside the state's plenary constitutional power. For example, when Maine passed "An act granting to women the right to vote for presidential electors," it was challenged in 1919 as a radical democratic break from conventional practice (which it was), but the Maine Supreme Judicial Court held that "each state" is "clothed with the absolute power to appoint electors in such manner as it may see fit, without any interference or control on the part of the federal government . . ." This ruling anticipated the U.S. Supreme Court's decision in McPherson v. Blacker in 1892, which again underscored that the "appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States." The irony of this fierce but thin constitutional criticism today is that it purports to stand up for the states at the exact same time that it is precisely denying that the states have the power to do what they want to do!
3. Dan says that "the question is whether the persons who actually do the appointing may plausibly be considered representatives of the state." Under the NPV plan, the person who actually does the appointment of the electoral college slate that is pledged to the winner of the national popular vote is the "chief election official of each member state." Thus this "certifying official" is indeed clearly a resident and representative of the state itself. Dan remarks that "[o]nly academics and other intellectuals could be so lacking in common sense as to fail to understand the difference between appointing and influencing," and in this observation I am afraid he may be right! Speaking not only as an academic but as a state legislator who traffics in the ordinary meaning of words (that J.L. Austin favored!), I have no problem in discerning that the state itself will be appointing the electors (all drawn from the state) in precisely the manner that we the legislature have chosen.
4. Tara is emphatic that people who want to see a national popular vote for our president should instead use the constitutional amending process of Article V because this is the "appropriate avenue." But this admonition completely ignores the standard historical dynamic of major transformations in American political democracy. Before we ever had a 19th Amendment to the Constitution granting women the right to vote, 30 of then-48 states had themselves extended that right to women--in the face of ardent conservative complaint that the mention of "men" in the 14th Amendment made these laws unconstitutional and the only appropriate method of enfranchising women was through a constitutional amendment. Similarly, and perhaps even more on-point to this discussion, before the 17th Amendment was added to the Constitution in 1913 shifting the mode of selection of U.S. Senators from the state legislature itself to the people of the state, a majority of the states chose to follow the "Oregon Plan," first used by that state in 1907, which established popular elections for U.S. Senate that were then faithfully implemented by the legislatures. Again, critics of this profound democratic change in the states denounced it as an unwise and unconstitutional abdication of state legislative authority. But it was perfectly constitutional, vindicated by time and events, and it is how political constitutional changes really happen in America: through bottom-up, grassroots action by the states that then finally gets inscribed in the Constitution when federal representatives catch up.
5. I suspect that the constitutional views of the participants in this debate tend to mirror their political appreciation of a national popular vote for president, and I do not exempt myself from this observation. It might be more fruitful at this point, therefore, to shift to a discussion of the values at stake. Should the president be elected in accordance with a national popular vote or not? I simply cannot see why we would want to do it any other way; after all this is how we elect governors, Senators, state legislators and so on. And it is how other nations that have presidents elect them. The nightmare scenarios that Tara imagines with the NPV plan are a strikingly accurate depiction of the present chaotic regime in which electoral mischief and corruption in one state can determine the results of the presidential election for everyone else. When she predicts that, under NPV, "a handful of states will have decided for everyone else that a tally of individual votes controls the outcome of the election," it is hard to think of a better description of the way that certain partisan state officials have recently been able to decide our presidential elections for the nation, the general will of the American people notwithstanding.
Thanks for a most edifying discussion of this movement gathering serious bipartisan momentum. . .
yours, Jamie
-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Tara Ross
Sent: Saturday, June 11, 2011 12:13 AM
To: Michael McDonald; law-election at uci.edu
Subject: Re: [EL] National Popular Vote Passes Crucial Milestone
It may also be helpful to remember the clear text of Article V:
"The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution....[which] shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states."
At the risk of being redundant, I'll note that NPV's claim to constitutionality would be a lot easier to defend if it were not insisting on acting through an interstate compact. Article II assumes individual states making decisions in their own best interest. No one here seems willing to take the position that individual states should adopt this policy on their own or that any individual state's legislators believe this is in their own state's interest. If states' legislators believe that it is in the best interest of their *nation* to change the election procedure, then fine. But Article V addresses such collective actions by states.
And now I really am done for the night! Have a good weekend, all.
Tara
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 na?ve 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)
>>
>> _______________________________________________
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