[EL] The Electoral College & NPV
Rob Richie
rr at fairvote.org
Thu Aug 30 11:00:35 PDT 2012
I'd welcome attention to an analysis of this very legal concern that I
coauthored with our 2011-2012 legal fellow Elise Helgesen:
http://www.fairvote.org/the-constitutionality-of-the-national-popular-vote-refuting-challenges-based-on-article-ii-section-one#.UD-p7MFlTE4
Jessica Heller also did an overview piece addressing several legal
questions here:
http://electls.blogs.wm.edu/2012/07/16/dispelling-the-major-legal-arguments-against-the-national-popular-vote-compact/
Every Vote Equal addresses a myriad of such arguments here:
http://www.everyvoteequal.com
- Rob
On Thu, Aug 30, 2012 at 1:45 PM, Marty Lederman <lederman.marty at gmail.com>wrote:
> 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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>>
>> ** **
>>
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>
>
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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!
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