[EL] The Electoral College & NPV

[Marty Lederman]

Mark, what part of the Court's opinion in *McPherson* requires that the
state's appointment of its electors "reflect the voice of the state"?  And
what would that mean, anyway?  How do we establish the state's "voice" as
to who the electors should be, or, for that matter, how those electors
should vote?  In particular, why isn't the decision by both houses of the
state legislature, and the signature of its governor, sufficient to
establish that the "voice of the state" consists of a considered
determination, after full and contentious debate, that its electors should
vote for the candidate who has garnered the most votes nationwide --
indeed, that service by that individual is more likely to be in the best
interests of both the nation and the state?

On Thu, Aug 30, 2012 at 11:26 AM, Scarberry, Mark <
Mark.Scarberry at pepperdine.edu> wrote:

> Let me briefly supplement (or slightly disagree with) Derek’s post by
> saying that an individual state legislature’s unilateral choice to use the
> national popular vote to determine who its electors will be arguably
> violates the requirement that the state appoint its electors. The national
> popular vote does not represent the voice of the state. The Court’s
> rationale in McPherson v. Blacker requires us to ask whether the method
> chosen is a method by which the state appoints its electors, in the sense
> that the appointment reflects the voice of the state.****
>
> ** **
>
> Mark****
>
> ** **
>
> Mark S. Scarberry****
>
> Professor of Law****
>
> Pepperdine Univ. School of Law****
>
> ** **
>
> ****
>
> ** **
>
> *From:* Derek Muller [mailto:derek.muller at gmail.com]
> *Sent:* Thursday, August 30, 2012 8:11 AM
> *To:* Jamin Raskin
> *Cc:* Thomas J. Cares; law-election at uci.edu; Scarberry, Mark
>
> *Subject:* Re: [EL] The Electoral College & NPV****
>
> ** **
>
> To Tom's point, there was a suggestion in a piece by Akhil Reed Amar and
> Vikram David Amar <http://writ.news.findlaw.com/amar/20011228.html> re
> the Compact Clause and the issue of whether congressional consent is
> required: "(The matter might be different if the coordinating states had
> sought to freeze other states out-say, by agreeing to back the candidate
> winning the most total votes within the coordinating states as a collective
> bloc, as opposed to the most total votes nationwide.)"
>
> That said, as your hypothetical acknowledged that the "Big 26" plan
> obtained congressional consent, the question is a much more daunting one:
> could a majority of States and a majority of Congress approve something via
> interstate compact that would otherwise (at least, from our historic
> understanding and custom--some may dispute that based upon a robust
> interpretation of Article II, section 1) ordinarily require 2/3 of both
> houses of Congress and 3/4 of the States under Article V?
>
> But, to Jamin's point, as I've<http://online.liebertpub.com/doi/abs/10.1089/elj.2007.6403>
> argued <http://online.liebertpub.com/doi/abs/10.1089/elj.2008.7307>, the
> States in "group (2)," or the outsiders to the Compact (bracketing the
> congressional consent issue), have suffered a loss--and not because their
> preferred candidate has lost (which may not even necessarily be the case).
> Rather, the Compact has, *ex ante*, frozen out the electors from
> non-compacting States before the presidential election has even begun (as
> opposed to a *Bush v. Gore* world in which an *ex post* claim of "losing"
> electors and States suggest distaste for the system.)
>
> If a state acted *unilaterally*, then surely you would be
> correct--according to *McPherson*, and perhaps even *Delaware v. New York*,
> the Court has had no concerns if a State's unilateral activity regarding
> presidential electors might implicate individual voters or sister States.
>
> But the act of engaging in a Compact triggers a potential prohibition on
> State activity in Article I, section 10; and while there might be the
> authority of a State to act under Article II, section 1, it is, of course,
> constrained by other provisions of the Constitution.
>
> Derek****
>
> On Thu, Aug 30, 2012 at 5:18 AM, Jamin Raskin <raskin at wcl.american.edu>
> wrote:****
>
> Thomas raises a fascinating scenario which shows what is wrong with the
> claim that the NPV is unconstitutional because it somehow deprives states
> outside the compact of their voting or electoral college rights. ****
>
> ** **
>
> Let's call his coalition the Big 26, and they pledge to cast electors in
> accord with the winner of the popular vote in the Big 26.   And so they do.
> ****
>
> ** **
>
> The other 24 states fall into two categories: (1) those who, through
> whatever mechanism, cast their electors for the same candidate who
> prevailed in the Big 26; and (2) those who cast electors for another
> candidate. ****
>
> ** **
>
> States in group (1) obviously have no cause for complaint, no standing and
> no cause of action. They cast their electors, their votes are counted and
> their candidate won. ****
>
> ** **
>
> States in group (2) also have no standing because their complaint ("we
> don't like the way other states decided to cast their electors") is not
> redressable by judicial relief since courts can't order states how to
> appoint their electors. For the same reason, the complaint raises a
> political question; there is a "textually demonstrable commitment" of the
> whole question of appointing electors to the states (see McPherson v.
> Blacker, determining the "plenary authority" of individual states to choose
> their electoral college methods) and to Congress for counting and there are
> clearly no "judicially manageable standards" for directing states how to
> appoint their electors (and if there were, surely it would be the NPV
> proposal!). If it ever got to the merits, the decision would be the same:
>  no state has the power to stop any other state from appointing electors
> according to its own state law.  Recall that there have been a huge number
> of methods chosen by state legislatures and this would be just one more. If
> someone doesn't like how other states (a majority in this hypothetical) are
> exercising their power, they should either use their First Amendment rights
> to change their minds or else work to abolish the electoral college!  ****
>
> ** **
>
> If all of this is right as to the Big 26, surely it must be that much more
> right for the NPV, which actually vindicates the national choice of all the
> people in the states. ****
>
> ** **
>
> The claim that there is something "wrong"with the NPV selecting the
> national winner of the popular vote because some states prefer the loser
> has no more force--and I would say much less--than the claim in 2000 that
> Gore should have been president merely because he beat Bush in the popular
> vote. Both of those claims (I am, of course, bracketing other problems
> occurring in 2000) are rhetorical complaints that are not rooted in how the
> Electoral College works.  It seems to me that some people want to argue
> that the Electoral College cannot be used by states to secure a national
> vote winner but why not?  The whole point of the Article 2 provisions is
> that it's left up to the legislatures themselves. ****
>
> ** **
>
>
> Sent from my iPhone****
>
>
> On Aug 30, 2012, at 3:35 AM, "Thomas J. Cares" <Tom at tomcares.com> wrote:**
> **
>
> As an academic exercise regarding the constitutionality of an NPV compact,
> could a case be made that it would be constitutional for 26 states with
> just a little over 270 EC votes to make a compact, approved by congress, to
> all give all their electoral college votes to the popular vote winner of
> just their collective 26 states?****
>
> ** **
>
> Further, if the Courts were to deem this unconstitutional, but deem the
> NPV compact constitutional, would that be an exercise of judicial activism,
> based more on judging the quality of the policies than on law?****
>
> ** **
>
> Perhaps this question even has basis in reality, as republicans control
> the state legislatures and governorships in states with 252 collective EC
> votes (wy, va, ut, tx, tn, sd, sc, pa, ok, oh, ne, nd, ms, mi, me, la, ks,
> in, id, ga, fl, az, al), and it wouldn't necessarily be a far leap to get
> that over 270 (i.e. If NC had a Republican Governor, and had Wisconsin
> Republicans not lost control of their state senate in the recall, they'd be
> at 277).****
>
> ** **
>
> I feel terrible raising this, since I support NPV, but I do wonder.****
>
> ** **
>
> ** **
>
> Thomas Cares****
>
> On Wed, Aug 29, 2012 at 6:39 PM, Tara Ross <tara at taraross.com> wrote:****
>
> 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™, 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 ****
>
>  ****
>
> 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****
>
> (214) 750-4633 (fax) ****
>
> tara at taraross.com****
>
> web <http://www.taraross.com/> / Facebook<http://facebook.com/TaraRoss.1787>/
> Twitter <http://www.twitter.com/TaraRoss>****
>
>  ****
>
>  ****
>
>
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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
>
> 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
>
> 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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