[EL] The Electoral College & NPV

Wed Aug 29 13:33:41 PDT 2012

At this point I am persuaded that the NPV interstate compact conflicts with the Constitution. I'm open to arguments in its favor, but thus far I haven't heard any that are convincing. (One con law scholar whom I much respect has suggested to me that I'm wrong, which is making me go back and work through the issue. So far my opinion is unchanged.)

The popular vote question is entirely separate, as a matter of constitutional law, from the block-voting, winner-takes-all approach to allocation of electoral votes taken now by almost all states. Any state legislature is perfectly free to adopt a district approach. Such an approach is perfectly consistent with the Constitution; it would represent a proper exercise by a state legislature of the power to determine the manner by which the state (not the nation but the state) appoints the state's electors. See McPherson v. Blacker (1892). Similarly (and even more clearly), a proportional approach would be a constitutional way for a state's legislature to exercise the power granted to it by the US Constitution. I've argued that the power is specifically given to the state legislature, and that it therefore cannot be exercised by the people of a state through an initiative. That's been my position with regard to potential initiatives both in Colorado (which was thought might have benefitted the Democratic Party) and in California (which would have benefitted the Republican Party very substantially).

Mark

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

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, August 29, 2012 1:01 PM
To: Jboppjr
Cc: law-election at UCI.EDU
Subject: Re: [EL] The Electoral College & NPV

The full GOP platform statement (below) is quite revealing. Here's the line that jumps out to me: NPV is "a guarantee of corruption as every ballot box in every state would become a chance to steal the presidency."

The logic of that concern is basically "when every vote counts, there's more chances for fraud." Jonathan Swift might suggest that rather than reduce 50-state elections to fewer than ten under the current rules, we could take it further -- maybe just reduce meaningful voting to one state in which we could try to prevent fraud and just let those voter decide for the rest of us. Heck, we could just let the Dixville Notch folks in New Hampshire make the choice every four years sitting around a wood stove.

But I did have a serious question for Jim. What does it meant to oppose "any other scheme to abolish or distort the procedures of the Electoral College." Does "distort the procedures" mean the GOP is now against Pennsylvania trying to change the winner-take-all rule to congressional district allocation?  Does it mean changes to rules involving faithless electors? Something else? I wasn't sure.

Thanks,
Rob

######
FULL GOP PLATFORM STATEMENT:

We oppose the National Popular Vote Interstate Compact or any other scheme to abolish or distort the procedures of the Electoral College. We recognize that an unconstitutional effort to impose "national popular vote" would be a mortal threat to our federal system and a guarantee of corruption as every ballot box in every state would become a chance to steal the presidency.

On Wed, Aug 29, 2012 at 3:36 PM, Jboppjr <jboppjr at aol.com<mailto:jboppjr at aol.com>> wrote:

For those who are interested the Republican National platform specifically opposes the National Popular Vote Initiative. Jim Bopp

Sent from my Samsung Galaxy Note(tm), an AT&T LTE smartphone

-------- Original message --------
Subject: Re: [EL] The Electoral College & NPV
From: Rob Richie <rr at fairvote.org<mailto:rr at fairvote.org>>
To: Tara Ross <tara at taraross.com<mailto:tara at taraross.com>>
CC: Re: [EL] The Electoral College & NPV

Congratulations on your updated book, Tara -- I look forward to chances to discuss the issue with you this fall.

To clarify on one point, you write: "Even for those who wish to do away with the Electoral College, a constitutional amendment is a far better route toward change."

A constitutional amendment of course is required "to do away with the Electoral College" in any form. But to do away with states using the winner-take-all rule (a rule that founders like James Madison lamented as getting away from their vision), it simply takes a state law. State laws historically have been the means to change much involving selection of the president, including the very fact of having elections at all - -a change that back in 1812, perhaps, someone might have argued should best be done by constitutional amendment.

I should note that while backers of a national popular vote for president seem able to unify behind the national popular vote for president, I suspect they right now would not unify in backing a constitutional amendment. Some backers of NPV want to keep power over presidential selection with the states, and would oppose any amendment mandating direct election. Some backers of a direct election amendment would like to see a plurality vote rule for president, while others would prefer a runoff or instant runoff system. Some backers of direct election would like to have a strong unitary election administration, others would like to see continuation of the decentralized approach to election administration that was part of the amendment drives a generation ago.

Given that you clearly prefer the current rules to a national popular vote president, I'm surprised you would rather see a national popular vote enshrined in the Constitution rather than the product of state laws that much more easily  could be changed in the future.

Rob

On Wed, Aug 29, 2012 at 12:30 PM, Tara Ross <tara at taraross.com<mailto:tara at taraross.com>> wrote:
In a little bit of shameless self-promotion, I thought this listserv might be interested to know that the 2nd edition of my book, Enlightened Democracy: The Case for the Electoral College will be released on September 3.  Yes, I am sorry to say that, back in January when the release date was being set, none of us clued in that September 3 is Labor Day.  :)  The Amazon link is here: www.EnlightenedDemocracy.com<http://www.EnlightenedDemocracy.com/>

I am sure that Rob Richie, John Koza and others are very excited to receive this email and will have rave reviews of the book coming soon......Ha! Yes, I am kidding!

On a serious note, I hope the three new chapters in the book do a fair job of articulating the philosophical, logistical, and legal concerns that some of us have with NPV's legislation.  Even for those who wish to do away with the Electoral College, a constitutional amendment is a far better route toward change.

I am sorry to miss several of you at the NPV panel in New Orleans this weekend.   It would have been a good discussion, I don't doubt.

Happy Labor Day!

Tara

============
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"Respect for Every Vote and Every Voice"

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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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