[EL] The Electoral College & NPV
Marty Lederman
lederman.marty at gmail.com
Thu Aug 30 11:35:59 PDT 2012
Thanks, Jamie, but I'm going to have to come to Jim's defense on this one:
His response to me may have been many things, but t wasn't *ad hominem*: I
don't consider "liberal" to be a perjorative. After all, it's not as if he
accused me of being European, or a socialist . . .
On Thu, Aug 30, 2012 at 2:17 PM, Jamin Raskin <raskin at wcl.american.edu>wrote:
> I take Mr. Bopp’s *ad hominem *sideswipe response to Marty to mean that
> he speaks for those who believe that words, especially those in the
> Constitution, have an intrinsic meaning. So, as a strict textualist, then,
> why is he using as the operative constitutional principle the phrase “voice
> of the state,” which he insists “must have some meaning”? The phrase does
> not appear anywhere in the Constitution. What Article II says is: “Each
> State shall appoint, in such Manner as the Legislature thereof may direct,
> a Number of Electors. . .” Does he have any authority from the Supreme
> Court which suggests that there is a meaning for “State” that overrides and
> substitutes for what the Legislature directs? I know of none. His
> argument seems to torture the text and would thwart the power of the states
> under Article II.****
>
> ** **
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Jboppjr
>
> *Sent:* Thursday, August 30, 2012 1:59 PM
> *To:* lederman.marty at gmail.com; mark.scarberry at pepperdine.edu
> *Cc:* law-election at uci.edu
> *Subject:* Re: [EL] The Electoral College & NPV****
>
> ** **
>
> 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 <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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