[EL] The Electoral College & NPV

[Marty Lederman]

Which "words in the Constitution," exactly, are they whose "intrinsic meaning" I am ignoring?
Sent from my iPhone

On Aug 30, 2012, at 1:59 PM, Jboppjr <jboppjr at aol.com> wrote:

> Because the voice of the state has to have some meaning. The voice of the state is not the same thing as the voice of the nation. Think of a chorus. When they sign together there are still individual voices. I know that liberals think that words have no intrinsic meaning, especially if they are in the Constitution, so my explanation will not suffice, but you asked. Jim Bopp
> 
> 
> Sent from my Samsung Galaxy Note™, an AT&T LTE smartphone
> 
> 
> -------- Original message --------
> Subject: Re: [EL] The Electoral College & NPV
> From: Marty Lederman <lederman.marty at gmail.com>
> To: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
> CC: Re: [EL] The Electoral College & NPV
> 
> 
> 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 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 argued, 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?
> 
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120830/1f917f9c/attachment.html>