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

[Guy-Uriel Charles]

This will be my last word on this contretemps and I'll make it brief.
Obviously Mark and I differ about the meaning of McPherson. I read
McPherson to say that the reason the method chosen was permissible under
Article II section 1 is because the method was chosen by the
legislature.  This is what makes it an act of the state.  The
appointment is by the "state" because it is directed by the legislature,
whose power is plenary.  Which is why the Court concludes "from the
formation of the government until now the practical construction of the
clause has conceded plenary power to the state legislatures in the
manner of the appointment of electors." 
 
Mark and Dan's argument emphasize the clause "each state shall
appoint," my argument is simply that that clause is modified by the next
clause "in such manner as the legislature thereof may direct," and that
McPherson privileges the direction of the legislature and defines it as
the act of the state. Thus, the argument preferred by Mark that there is
a distinctive "state" for Article II section 1 purposes is foreclosed or
at least inconsistent with McPherson. best to all, Guy

>>> "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu> 6/11/2011 2:38 PM
>>>

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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