[EL] New research reports & Jamin Raskin's suggestion of focus on values of National Popular Vote plan

Wed Jun 15 17:08:41 PDT 2011

I question if the use of current political models and short term trends covering a handful of elections, outlined below by Rob, are a good basis to tinker with the traditional structure of electing a president. Historically, I think that the College has served us pretty well - I think that in the elections of 1876 and 1888 we were well-served by the electoral college rather than direct popular election, for reasons I outlined in an earlier article in the Election Law Journal ("Vanity of Vanities, National Popular Vote and the Electoral College, 7 Elec. L. J. 196 (2008)) , and I would not agree that we were poorly served by it in 2000.  And those are the only 3 times it has not gone with the popular vote (for numerous reasons, outlined in "Vanities," 1824 should not be included). I think that in numerous elections it has led to broader campaigning for votes. Rob argues that this has changed but at this point there is little reason to believe that any such change is a permanent, rather than a temporary, feature of the landscape.

I think that the Constitutional issues are real and important, but I do  believe that the basic policy issue has not received nearly enough attention.  As I noted in "Vanities," even the authors of "Every Vote Equal" frequently seem not to have thought much about that fundamental issue, simply assuming that it is obvious. Co-author Birch Bayh even seems to believe that NPV assures a "majority" vote winner, rather than a mere plurality. 

Arguments for NPV fall into three categories: 1) it is inherently right that all political offices - or at least the presidency - be filled by the popular vote winner; this assures that all votes have equal weight; 2) Popular election will lead to better government; and 3) a government not elected with a popular plurality will lack legitimacy.  It seems to me that the third proposition is demonstrably wrong, and the second dubious and speculative, at best. So all the pressure pretty much rides on the first argument. There are, of course, many arguments against pure majoritarianism in government, and the electoral college is hardly the only non-majoritarian feature of our government. So I don't think that argument 1 is self-evidently correct, although certainly that is the default option in our elections, if not so much in our overall structure of government.

I am glad to see that policy question getting a bit more discussion. 

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp

________________________________

From: law-election-bounces at department-lists.uci.edu on behalf of Rob Richie
Sent: Wed 6/15/2011 4:43 PM
To: law-election at uci.edu
Subject: [EL] New research reports & Jamin Raskin's suggestion of focus on values of National Popular Vote plan

In case anyone's going through withdrawal pains from not having a new email about the National Popular Vote plan in their election law inbox every 20 minutes, I wanted to share two analyses posted by FairVote this week that speak to Jamie Raskin's useful suggestion on Saturday that some attention be paid to the values of adopting the National Popular vote plan As a reminder, Jamie wrote this: 

<<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.>>

I'll take Jamie up on his proposal. First articulated and supported in our 2006 Presidential Elections Inequality report, FairVote sees current state rules governing allocation of electoral votes as having a perverse and lasting impact on equality in our representative democracy. The number of competitive states has dropped sharply since 1960, especially since 1988. At the same time, the identify of those declining swing states has increased in its consistency across elections. Tied to voters' evolving perceptions of the parties and hardening of their own preferences in the choice between those parties, you can see the same phenomenon play out out in congressional elections, with increasing predictability of winners and margins based on underlying partisanship (a trend frequently misunderstood to be a product of gerrymandering and money in politics, each of which have a relatively slight role compared to voter preferences and winner-take-all rules).

Below are our two postings. The first one is particularly telling, showing trends over time, To find out about specific states, download the spreadsheet from the link and have fun with your own analysis. The second posting is our latest "POTUS tracker" blog; it reports on President Obama's travels and the undeniable impact that state winner-take-all rules have on which states get personal attention from the president and his political team (as also true of George Bush in 2001-2004, of course).

Together these new reports refute quite effectively the misty-eyed mythology that the current system leads presidents and presidential candidates to reach out to all states. That is simply false -- and there is no indication of that changing any time soon without adoption of the National Popular Vote plan.

- Rob Richie, FairVote

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http://www.fairvote.org/not-your-parents-presidential-elections

Not Your Parents' Presidential Elections: The Decline of Swing States, 1960-2008

// Published June 13, 2011
<http://www.fairvote.org/assets/Uploads/DeclineofSwingStatesfrom1960-2008.xls> 

Download the Report

Summary: American presidential elections have undergone a dramatic change in the past half century, especially since 1988.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 four of the 27 smallest states were swing states. This trend shows no indication of changing, with all trends pointing to wider division -- indeed, in 2008 only three of the smallest 13 states were within even a 15% partisanship disparity.

At 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 of 11 in the 1988 election.

None of the 2008 non-swing states are expected to become swing states in 2012 even as 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, 1960-2008*

Year	 2008 Electoral Vote
15 or more 

2008 Electoral Votes
9 to 14 	 2008 Electoral Votes 
5 to 8	 2008 Electoral Votes
4 or less 	 Total	
2008	  5 of 11 states
	 6 of 13 states
	 3 of 14 states
	 1 of 13 states
	15 

2004	  4 of 11	  6 of 13	  5 of 14	  1 of 13	  16	
1988	  8 of 11	  4 of 13	  8 of 14	  6 of 13	  26	
1976	  10 of 11	  6 of 13	  8 of 14	  5 of 13	  29	
1960	  10 of 11	  7 of 13	  8 of 14	  6 of 13	 31	
*Washington, D.C. is included in all years except 1960 

Partisanship Disparity (P), All States, 1960-2008*

Year	 P=<9%	 9%<P<20%	 P>=20%	 Notes	
2008	 15	 19	 17	 13R & 4D landslide states	
2004	 16	 20	 15	 10R & 5D landslide states	
1988	 27	 22	 2	 1R & 1D landslide states	
1976	 29	 14	 8	 5R & 3D landslide states	
1960	 31	 13	 6	 2R & 4D landslide states	

*Washington, D.C. is included in all years except 1960

Of 11 largest population states with 15 or more electors in 2008

*	2008: 5 states within 9% partisan division (FL,NC, NJ, OH, PA) 
*	2004: 4 states within 9% partisan division (FL, MI, OH, PA) 
*	1988: 8 states within 9% partisan division 
*	1976: 10 states within 9% partisan division (all but GA) 
*	1960: 10 states within a 9% partisan division (all but GA) 

Of 13 mid-sized states with 9 to 14 electors in 2008

*	2008: 6 states within 9% partisan division (VA,IN,MO,MN,WI,CO) 
*	2004: 6 states within 9% partisan division 
*	1988: 5 states within 9% partisan division 
*	1976: 6 states within 9% partisan division 
*	1960: 7 states within 9% partisan division 

Of 14 smaller mid-sized states with 5 to 8 electors in 2008

*	2008: 3 states within 9% partisan division (NM,IA,NV) 
*	2004: 5 states within 9% partisan division 
*	1988: 8 states within 9% partisan division 
*	1976: 8 states within 9% partisan division 
*	1960: 8 states within 9% partisan division 

Of 13 smallest population states (including DC except in 1960) with 4 or fewer electors in 2008

*	2008: 1 state within 9% partisan division (NH /Only 2 more within 15%) 
*	2004: 1 state within 9% partisan division (NH / Only 3 more within 15%) 
*	1988: 6 states within 9% partisan division 
*	1976: 5 states within a 9% partisan division 
*	1960: 6 states within a 9% partisan division 

############################
http://www.fairvote.org/presidential-visits-a-return-to-ohio

Presidential Visits: A Return to Ohio and the Influence of the Electoral System on Presidential Attention

by Katherine Sicienski <http://www.fairvote.org/list/author/Katherine_Sicienski>  // Published June 15, 2011

This blog is one of a series which tracks the movements of the President using data from the Washington Post's 'POTUS Tracker' to examine the effect of battleground status on presidential attention. If you are interested in examining the data, a copy of our compiled data (as of June 14th, 2011) can be downloaded here <http://www.fairvote.org/assets/Blog1PresidentialTracker06-14-2011.xls> .

*	What's new since our last blog <http://www.fairvote.org/presidential-visits-and-electoral-college/> : President Obama has held events for the first time in Puerto Rico, but still has yet to visit South Carolina, Oklahoma, Arkansas, Kansas, Utah, Nebraska, Idaho, North Dakota, South Dakota, or Vermont. 

*	Ten states with the most presidential events, during the Obama presidency: New York, Virginia, Maryland, Florida, California, Ohio, Illinois, Pennsylvania, Wisconsin, Massachusetts. This remains unchanged since our last entry. 

*	States with 5 or more visits in 2011: California, Florida, Illinois, Maryland, Massachusetts, New York, and Virginia.  

On Friday, June 3rd, President Barack Obama delivered remarks at the Chrysler Group Supplier Park in Toledo, Ohio. This was his 22nd event in the state of Ohio since assuming the presidency. Yet since his inauguration in 2009, the President has yet to hold a single event in ten states: South Carolina, Oklahoma, Arkansas, Kansas, Utah, Nebraska, Idaho, North Dakota, South Dakota, or Vermont. Of these 10 states, all but Vermont went strongly Republican in the 2008 presidential election.All but South Carolina (8.9%), North Dakota (8.6%), and South Dakota (8.5%) were decided by lopsided margins of 15% or greater.

Ranked 6th for the number of events attended by the president, Ohio is joined in the Top Ten for presidential attention by such 2008 swing states as Virginia (2nd), Florida (4th) and Pennsylvania (8th). These four states - each won by Obama in 2008 by less than 11% - are seen by some analysts as representing the key to the president's re-election bid in 2012, with a sweep for the president making it nearly impossible for a Republican to win. So far in the President's first term they account for 25% of his total events.

Carried by President Obama by only 2.5% in 2008, Florida continues to receive prominent attention in other ways as well. The New York Times <http://www.nytimes.com/2011/06/10/us/politics/10rico.html?_r=1&sq=lizette%20alvarez&st=cse&scp=2&pagewanted=all>  notes that the 848,000 Puerto Rican residents of Florida may be the reason for the President's June 14th visit to Puerto Rico. This will be the first official Presidential visit to Puerto Rico since John F. Kennedy's in 1961, and it is possibly due to the fact that the Florida residents "are not avowed Democrats. This has turned them into pivotal swing voters in a crucial swing state."  Simon Rosenberg, president of the New Democratic Network , suggests <http://www.washingtonpost.com/politics/obama-courts-latino-vote-with-visit-to-puerto-rico/2011/06/14/AGmu8CVH_story.html>  that, "the large and growing Puerto Rican population in central Florida will be key to winning the state in 2012."

The other six states receiving the most attention from the President are New York (1st), Maryland (3rd), California (5th), Illinois (7th), Massachusetts (9th), and Wisconsin (10th). While won by Obama by 13% in 2008, Wisconsin remains a potential swing state.It is traditionally hard-fought, and Wisconsin's manufacturing economy was hit hard by the economic recession.  As to Maryland, it is within a few miles of the White House, making it an easy state for events showcasing new polices, while Illinois was represented by Obama in the Senate and is a relatively reliable fundraising source.  

So, you might ask, why has Obama been to the firmly Democratic states of New York, Massachusetts and California a combined 76 times? Notably, 23 of those 76 events were fundraisers and these three states donated a total of $276,896,336 during the 2008 election cycle, 34.3% of nationwide donations. This calculation for the entire top ten among presidential visits makes that percentage 60.9%.

The President's political team seems to be doing similar math to many political analysts, and has been allocating Presidential visits and prestige to areas based on whether its electoral votes are in play in 2012. In January 2011, the Cook Political Report <http://www.cookpolitical.com/charts/president/ev_scorecard_2011-01-13_15-41-48.php>  narrowed down the highly competitive swing states to a list of just seven: Colorado, Florida, Iowa, Nevada, Ohio, Pennsylvania, and Wisconsin. Four of the seven are among the President's ten most visited states, and the other three are in the top 25. The visits to these seven states (only 14% of the states and 20% of the voting eligible population in 2008) amount to 99 visits or 26.8% of the total visits. The bottom 25 states received 34 presidential visits or 9.2% of the total visits. That works out to 1.36 visits for every state in the bottom 25, with each of the battleground states receiving an average of 14.14 visits.

As the 2012 election approaches, it is likely that President Obama will continue his electoral focus, visiting swing states where his 2008 margin of victory was within reach of Republicans. Our nation's previous president George Bush showed similar travel patterns in his first presidential term, and his senior strategist Matthew Dowd admitted <http://www.nytimes.com/2004/08/30/us/republicans-convention-new-york-strategist-bush-backer-mixes-caution-with.html>  that the 2004 re-election campaign had not polled a single American living outside of 18 potential swing states in the final two and a half years of Bush's first-term. We have no doubt that states like South Carolina, Arkansas, or Kansas matter to presidents, but given our state-by-state, winner-take-all method of electing the president, political incentives for spending energy on these states are nil. Until we have a national popular vote <http://www.nationalpopularvote.com/>  for president in which every vote in every corner of the nation is equally meaningful, expect to see White House political teams making similar calculations.

-- 
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
"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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