[EL] The Electoral College & NPV

[Scarberry, Mark]

The core textual argument is that the language “Each State shall appoint” means that the appointment has to be by the state, not by the nation’s voters or anyone else who cannot plausibly be said to act for or speak for the state. See my email about McPherson.

That interpretation of the text (so as to e require that the state determine who the electors will be, rather than the state delegating that choice to a group that doesn’t speak for the state) is based on

(1) what seems to me to be the most natural reading of the text;
(2) the repeated decision to base apportionment of House members – which determines the number of electors a state has – on population and not on the number of votes cast or the number of eligible voters (see my article on the DC House Voting Rights Bill);
(3) historical practice;
(4) Constitutional structure; and
(4) precedent (McPherson).

I suppose I could add that the rejection at the Founding of choice of the President by popular vote (a matter that I haven’t independently researched recently) counts against an interpretation that would allow “State shall appoint” to mean “national popular vote may appoint,” but that goes specifically to the NPV Compact and not to the more general question of the meaning of the textual provision that “the State shall appoint.” One might also think that the word “Each” in the relevant language connotes individual decisions on appointment, rather than group decisions. See also the intratextual argument from my earlier email about the requirement that all electors cast their votes ballots on the same day as an attempt to prevent coordination (collusion) among the states with respect to choice of the President.

Mark

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: Jamin Raskin [mailto:raskin at wcl.american.edu]
Sent: Thursday, August 30, 2012 11:17 AM
To: Jboppjr; lederman.marty at gmail.com; Scarberry, Mark
Cc: law-election at uci.edu
Subject: RE: [EL] The Electoral College & NPV

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> [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<mailto:lederman.marty at gmail.com>; mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>
Cc: law-election at uci.edu<mailto: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<mailto:lederman.marty at gmail.com>>
To: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu<mailto: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<mailto: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
 [prior emails deleted so that this message is not too large]

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