[EL] The Electoral College & NPV

Thu Aug 30 20:39:32 PDT 2012

As a timely matter, here's a video from Today of Al Gore endorsing NPV, and
Eliot Spitzer expressing reservations on the Compact Clause issue:
http://current.com/groups/news-blog/93887732_al-gore-calls-for-popular-vote.htm

On Thu, Aug 30, 2012 at 12:46 PM, Scarberry, Mark <
Mark.Scarberry at pepperdine.edu> wrote:

> 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<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****
>
>  [prior emails deleted so that this message is not too large]****
>
> ** **
>
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