[EL] The Electoral College & NPV
Tara Ross
tara at taraross.com
Wed Aug 29 18:39:08 PDT 2012
I am sorry to start an email string, then be out-of-pocket for most of
the afternoon. A few thoughts on some comments that were made today:
Jon, I am generally in favor of a better informed electorate/electors,
but I don't think the history of electors is quite so cut and dried.
Probably some delegates did expect electors to be selected based on
civic virtue, but others just punted the decision to the states. As
early as 1796, there were complaints about a faithless elector.
Rob, I am not surprised that you didn't like my language about
eliminating the Electoral College. Effectively, however, that is what
NPV will do. NPV will implement a national direct election, despite the
fact that such a system was deliberately rejected by the Constitutional
Convention. I recognize that it is important for NPV to keep up the
mantra that this is only about states' rights, but I find the argument
to be a bit disingenuous. There is a rather big difference between (a) a
state deciding to get rid of the winner-take-all system within its own
borders; and (b) a minority of states deciding - for every other state -
what method of presidential elections America will use. We have a
procedure by which we are supposed to make such momentous decisions. It
is outlined in Article V of the Constitution.
Re: the district and proportional systems that have been proposed in
various states. I am adamantly against any such decision made for
partisan purposes - by either party and in any state. I do, however,
think that a state legislature may legitimately adopt either method if
it genuinely feels that such a decision will serve the state. I
generally defer to each state to work out its own method. Having said
that, if a district proposal were made in my own home state of Texas, I
would work to defeat it. The main reason is Texas's immense size. Our
gerrymandering and redistricting problems are pretty bad already. A
district system would simply make matters far worse. I could see where a
smaller state with fewer districts would be less concerned with that
particular aspect of the district plan.
Can I add, for the record, that I was asked to help the effort to change
to a district system in California; I declined for many of the reasons
outlined above. My position in Texas is not about my political party.
Finally, I also dislike proportional allocation of electors because I
feel that it would encourage lawsuits.....That last elector will always
be contested. I can easily imagine a situation, for instance, where a
swing of a few hundred votes means that we round UP instead of DOWN,
changing who gets that last elector. Recounts and lawsuits are
inevitable in that situation. I would prefer to avoid that.
And now I am off to watch Paul Ryan. Thanks for everyone's comments.
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, August 29, 2012 3:34 PM
To: law-election at UCI.EDU
Subject: Re: [EL] The Electoral College & NPV
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> 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>
To: Tara Ross <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> 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
============
Tara Ross
8409 Pickwick Ln, #280
Dallas, Texas 75225
(214) 750-4737 <tel:%28214%29%20750-4737>
(214) 750-4633 <tel:%28214%29%20750-4633> (fax)
tara at taraross.com
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"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 <tel:%28301%29%20270-4616>
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 <http://www.fairvote.org> rr at fairvote.org
(301) 270-4616 <tel:%28301%29%20270-4616>
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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