[EL] The Electoral College & NPV
Jamin Raskin
raskin at wcl.american.edu
Thu Aug 30 11:58:58 PDT 2012
Marty-it good to know that you don't consider "liberal" pejorative! But
I meant ad hominem only in the formal sense that the argument addresses
the speaker rather than the idea, which is, of course, a standard
logical fallacy, sometimes called an informal fallacy. I'm proud to be
called a "liberal," the root of the word being "liberty," but my
liberalism or yours has nothing to do with whether Article II makes the
NPV unconstitutional. (If the argument weren't ad hominem and thus an
irrelevant distraction, one would have to address the claim that
"liberals think that words have no intrinsic meaning," which would
certainly come as a surprise to Mill, Locke, Voltaire, Rawls or indeed
any liberal who uses language!)
From: Marty Lederman [mailto:lederman.marty at gmail.com]
Sent: Thursday, August 30, 2012 2:36 PM
To: Jamin Raskin
Cc: Jboppjr; mark.scarberry at pepperdine.edu; law-election at uci.edu
Subject: Re: [EL] The Electoral College & NPV
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(tm), 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 <tel:%28310%29506-4667>
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
web <http://www.taraross.com/> / Facebook
<http://facebook.com/TaraRoss.1787> / Twitter
<http://www.twitter.com/TaraRoss>
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