[EL] The Electoral College & NPV

Fri Aug 31 08:07:59 PDT 2012

 Per Bush v. Gore, while there is not necessarily a constitutional right to
vote for President because of the electoral college, *once a state
legislature chooses election as the manner of choosing, the constitution
attaches* and the right to vote is protected constitutionally in elections
for President (thus the Equal Protection analysis of that opinion).

A fundamental assumption and core requirement of elections is that the
winner of the election is in fact the winner. This will be protected
constitutionally even if there is not a holding on point.   Thus, State
legislatures act in an *ultra vires* manner if they purport to assign
electors to the loser of a given state's election for president.

Although NPV purports to be assigning electors to the winner by referencing
the results in a number of states other than the state choosing to sign the
compact, legislatures are acting in an *ultra vires* manner by purporting
to count votes outside the voting rolls of the particular state they
represent in order to determine the "winner" for purposes of the Electoral
college assignment.

The fact that the states are "knowingly choosing" to count votes outside
their jurisdiction is irrelevant, just as the knowing choice by a state
legislature to count votes cast out of state in some manner in order to
determine in-state legislative races would be beyond the power of the
legislature to do (i.e. *ultra vires*).

 Clearly, the NPV contemplates election as the method of selecting
electors, so there are considerable actual and implied restrictions on the
freedom of legislatures because the constitution attaches in all of its
provisions.  (*Bush v Gore* clarified some but not all of those
constitutional restrictions and how they apply, such as the EP requirement
to treat ballots with "equal dignity.")

Contracts or compacts, while they may possibly have third party *
beneficiaries*, may not negatively impact the rights of third parties
who *never
signed the contract*. One may not ever assign or waive their right to vote
via contract, so even if the legislature has the agency powers necessary to
bind their own electorate in this area, in effect *the right to vote is
inalienable by contract/compact, even if that contract is signed by the
parties to be bound and/or approved by the legislature. A compact is not
"due process" sufficient to disfranchise someone.

*Without stating all the reasons for it, I would just add that the
Legislature's power to determine the manner of selecting electors is a
NON-delegable right, which will also be found to be violated by the NPV
compact.
*
Paul Lehto, J.D.

*
On Thu, Aug 30, 2012 at 11:39 PM, Derek Muller <derek.muller at gmail.com>wrote:

> 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]****
>>
>> ** **
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>

-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4965 (cell)
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120831/00639d33/attachment.html>