[EL] National Popular Vote Passes Crucial Milestone (and perhaps this discussion will too!)

[Scarberry, Mark]

Let me add my appreciation for Jamie's initial message starting this post and for his patience in wading through the thread.
With all due respect for Jamie's football experience - and with admission that my experience is only with pickup games and spectating - it seems to me that an end run depends on deception. The offense tries to deceive or mislead the defense into thinking that its intent is to pass or to run to that other side of the formation. To the extent that we are trying to determine some sort of intent behind the Constitution (original public meaning etc.) or to be faithful to its text, an end run seems inappropriate.
With regard to the holding in McPherson v. Blacker, 146 U.S. 1 (1892) :
I engaged in a nearly nonstop discussion of McPherson on the conlawprof list during the 2000 election dispute, though with regard to a somewhat different point. (We were discussing whether a state constitution or a state supreme court's interpretation of a state constitution could limit a state legislature's exercise of its Article II power to determine the manner of appointment of electors by the state. I argued, and I think managed to convince some others who initially were skeptical, that the state legislature's power could not be so limited.)
I have to disagree with Guy-Uriel's description of McPherson's holding; it does not hold that "the appointment power belongs to the legislature, not the state as such." It does hold that the power to determine the "manner" by which "the state" appoints the electors belongs to the legislature. That power to determine the manner of appointment does include a power to determine that the legislature shall appoint them directly, and such an appointment is an appointment by the state. The legislature's power also includes the power to determine that the voters of the state shall appoint the electors (statewide or by district), and that also is quite naturally considered to be an appointment by the state. But the Court in McPherson made clear that appointment is to be by "the state."
I've copied a large portion of McPherson below my signature block, in case anyone wants to put the quotes in this post in a larger context.
It's interesting to note that the petitioners in McPherson raised a question very similar to the one we are discussing; what does it mean for a "state" to appoint electors? The petitioners argued that election of electors by district did not result in "appointment by the state" :
"The manner of the appointment of electors directed by the act of Michigan is the election of an elector and an alternate elector in each of the twelve congressional districts into which the State of Michigan is divided, and of an elector and an alternate elector at large in each of two districts defined by the act. It is insisted that it was not competent for the legislature to direct this manner of appointment, because the state is to appoint as a body politic and corporate, and so must act as a unit, and cannot delegate the authority to subdivisions created for the purpose, and it is argued that the appointment of electors by districts is not an appointment by the state, because all its citizens otherwise qualified are not permitted to vote for all the presidential electors."
The Supreme Court rejected that argument, but not on the basis that electors need not be appointed by the state or that a state legislature could decide that electors could be appointed by someone other than the state. Rather, the Court held that election of electors by district complied with the requirement that "each state shall" appoint its electors. The election by district method is an appointment by the state, even though the electors are each chosen by a portion of the state; it "is nonetheless the act of the state in its entirety because arrived at by districts, for the act is the act of political agencies duly authorized to speak for the state, and the combined result is the expression of the voice of the state...." (I'll come back to the rest of the sentence, the part omitted as indicated by the ellipsis.) If appointment need not be by the state, the court could have just said so and been done.
Here is the key language (including the part of the sentence omitted above) :
"The clause under consideration does not read that the people or the citizens shall appoint, but that 'each state shall,' and if the words 'in such manner as the legislature thereof may direct' had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion of those words, while operating as a limitation upon the state[*] in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself.

"If the legislature possesses plenary authority to direct the manner of appointment, and might itself exercise the appointing power by joint ballot or concurrence of the two houses, or according to such mode as designated, it is difficult to perceive why, if the legislature prescribes as a method of appointment choice by vote, it must necessarily be by general ticket, and not by districts. In other words, the act of appointment is nonetheless the act of the state in its entirety because arrived at by districts, for the act is the act of political agencies duly authorized to speak for the state, and the combined result is the expression of the voice of the state, a result reached by direction of the legislature, to whom the whole subject is committed."
Note (as I pointed out above) the clear recognition that the  legislature's power is "to direct the manner of appointment" of electors and also that "each state shall" appoint electors. Note the conclusion that the election of electors by district is "the expression of the voice of the state."
An appointment of electors by the national popular vote is not an appointment by "each state" nor is it "the act of political agencies duly authorized to speak for the state," nor is it "the expression of the voice of the state."
It is true that there is language in McPherson v. Blacker stressing the plenary power of the legislature to determine the manner by which the expression of the voice of the state is determined:
-- from the language just quoted: "plenary authority to direct the manner of appointment."
-- from the language just quoted: "a result reached by direction of the legislature, to whom the whole subject is committed."
--a quote by the Court from an 1874 Senate report: "The appointment of these electors is thus placed absolutely and wholly with the legislatures of the several states."
But the plenary power is to direct the manner of appointment, which the Court indicates must still be "the act of the state." In context, "the whole subject" would seem to be the manner of appointment rather than whether the appointment must be by the state. And the Senate Report continues by saying that the legislature may provide for election of electors by all the voters of the state, by voters district by district, by the governor, by the state supreme court, or "by any other agent of its will." The voters of the nation as a whole do not act as agents of the state legislature's will.
[* Note that the Court's reference to "limitation upon the state" supports the concurring opinion in Bush v. Gore.]

With best wishes and with apologies for the length of this post,
Mark
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
Malibu, CA 90263
(310) 506-4667

[Long excerpt from McPherson v. Blacker:]

The second clause of section one of Article II of the Constitution is in these words:

"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."

The manner of the appointment of electors directed by the act of Michigan is the election of an elector and an alternate elector in each of the twelve congressional districts into which the State of Michigan is divided, and of an elector and an alternate elector at large in each of two districts defined by the act. It is insisted that it was not competent for the legislature to direct this manner of appointment, because the state is to appoint as a body politic and corporate, and so must act as a unit, and cannot delegate the authority to subdivisions created for the purpose, and it is argued that the appointment of electors by districts is not an appointment by the state, because all its citizens otherwise qualified are not permitted to vote for all the presidential electors.

"A state, in the ordinary sense of the Constitution," said Chief Justice Chase, at 74 U. S. 731, "is a political community of free citizens, occupying a territory of defined boundaries and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed."

The state does not act by its people in their collective capacity, but through such political agencies as are duly constituted and established. The legislative power is the supreme authority, except as limited by the constitution of the state, and the sovereignty of the people is exercised through their representatives in the legislature unless by the fundamental law power is elsewhere reposed. The Constitution of the United States frequently refers to the state as a political community, and also in terms to the people of the several states and the citizens of each state. What is forbidden or required to be done by a state is forbidden or required of the legislative power under state constitutions as they exist. The clause under consideration does not read that the people or the citizens shall appoint, but that "each state shall," and if the words "in such manner as the legislature thereof may direct" had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion of those words, while operating as a limitation upon the state in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself.

If the legislature possesses plenary authority to direct the manner of appointment, and might itself exercise the appointing power by joint ballot or concurrence of the two houses, or according to such mode as designated, it is difficult to perceive why, if the legislature prescribes as a method of appointment choice by vote, it must necessarily be by general ticket, and not by districts. In other words, the act of appointment is nonetheless the act of the state in its entirety because arrived

Page 146 U. S. 26

at by districts, for the act is the act of political agencies duly authorized to speak for the state, and the combined result is the expression of the voice of the state, a result reached by direction of the legislature, to whom the whole subject is committed.

...

... The final result seems to have reconciled contrariety of views by leaving it to the state legislatures to appoint directly by joint ballot or concurrent separate action, or through popular election by districts or by general ticket, or as otherwise might be directed.

Therefore, on reference to contemporaneous and subsequent action under the clause, we should expect to find, as we do,

Page 146 U. S. 29

that various modes of choosing the electors were pursued, as by the legislature itself on joint ballot; by the legislature through a concurrent vote of the two houses; by vote of the people for a general ticket; by vote of the people in districts; by choice partly by the people voting in districts and partly by the legislature; by choice by the legislature from candidates voted for by the people in districts, and in other ways, as, notably, by North Carolina in 1792, and Tennessee in 1796 and 1800. No question was raised as to the power of the state to appoint[**] in any mode its legislature saw fit to adopt, and none that a single method, applicable without exception, must be pursued in the absence of an amendment to the Constitution. The district system was largely considered the most equitable, and Madison wrote that it was that system which was contemplated by the framers of the Constitution, although it was soon seen that its adoption by some states might place them at a disadvantage by a division of their strength, and that a uniform rule was preferable.

...

Such an amendment was urged at the time of the adoption of the Twelfth Amendment, the suggestion being that all electors should be chosen by popular vote, the states to be divided for that purpose into districts. It was brought up again in Congress in December, 1813, but the resolution for submitting the amendment failed to be carried. ... The subject was again brought forward in 1835, 1844, and subsequently, but need not be further dwelt upon except that it may be added that, on the 28th of May, 1874, a report was made by Senator Morton, chairman of the Senate Committee on Privileges and Elections recommending an amendment dividing the states into electoral districts, and that the majority of the popular vote of each district should give the candidate one presidential vote, but this also failed to obtain action. In this report it was said:

"The appointment of these electors is thus placed absolutely and wholly with the legislatures of the several states. They may be chosen by the legislature, or the legislature may provide that they shall be elected by the people of the state at large, or in districts, as are members of Congress, which was the case formerly in many states, and it is not doubt competent for the legislature to authorize the governor, or the supreme court of the state, or any other agent of its will, to appoint these electors. This power is conferred upon the legislatures of the states by the Constitution of the United States, and cannot be taken from them or modified by their state constitutions any more than can their power to elect senators of the United States. Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated."

Senate Rep. 1st Sess. 43d Cong. No. 395.

[end of excerpt] [**Note reference to "the power of the state to appoint" in a way chosen by the legislature.]
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Guy-Uriel Charles
Sent: Saturday, June 11, 2011 9:27 AM
To: Michael McDonald; Daniel Lowenstein; Tara Ross; law-election at uci.edu; Jamin Raskin
Subject: Re: [EL] National Popular Vote Passes Crucial Milestone (and perhaps this discussion will too!)

Dan:
What do you make of McPherson v. Blacker (the appointment power belongs to the legislature not the state as such).  If you accept McPherson and under your theory it would seem that the current dominant practice of allowing the voters of each state to choose their state's electors would be unconstitutional.  Right?
Guy
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