[EL] Tight Primary Results--Do they Discredit the NationalPopular Vote Plan?
Jack Cushman
jcushman at gmail.com
Thu Jan 5 06:03:23 PST 2012
Brad wrote:
I'm not sure that you really want to point to the public reaction to
> Florida 2000 (or the election of 1876, which would have been problematic
> with or without the Electoral College) as good examples of "civic
> engagement" that we should try to encourage.
I really do, and if anyone has a response I'd love to hear it. Civic
engagement doesn't just mean waving a flag at an inauguration. It means
caring whether the process is reliable, believing that your participation
in the process does or should influence the outcome, and working toward
those goals. Sometimes civic engagement manifests as filing court cases,
marching in the streets, or even rhetorically questioning the legitimacy of
the victor.
So specifically in Florida, the public reaction I'm aware of is (1) shock
that so many Florida counties had such weird, antiquated, idiosyncratic
voting systems; (2) disappointment that Gore didn't pick up a few more
votes by working just a little bit harder or being a more attractive
candidate; (3) a feeling that winning the popular vote but losing the
election is no longer consistent with the (relatively modern) ideal of
universal suffrage; and (4) a feeling that the Supreme Court, as a judicial
body, should not be so ideologically rigid.
All of those are perfectly reasonable, and arguably important, public
responses. They didn't raise an even slightly credible threat to the
republic. The inauguration went ahead on time. All of President Bush's
orders were followed. His, let's say, moral authority or mandate was
certainly tarnished, but it was tarnished because the public legitimately
perceived that the process was flawed.
So again -- I question whether there is any reason to believe, in the event
of a within-the-margin-of-error national election, that the resulting
uproar would weaken rather than strengthen our democracy. Or to put it
another way, I question whether "avoiding a nationwide Florida-style
meltdown" in fact means "minimizing public awareness of a system badly in
need of reform," and whether that's really a good thing. (To take a
specific example -- would our democracy be stronger or weaker if you had
more reason to care whether voting is handled fairly here in my one-party
town?)
I'm sure Rick must have thought about this for his book, and I apologize if
there's work on this I should already have read.
On another note:
On Thu, Jan 5, 2012 at 12:26 AM, Larry Levine <larrylevine at earthlink.net>
wrote:
> I notice no one has yet addressed the fact that a race close enough in one
> state to require a recount could mean the entire country would have to be
> recounted because it would be one nationwide pool of ballots.
>
I'm not sure I understand your point. Under NPV, votes would have to be
recounted only if the *national* margin of victory was within the margin of
recount. To take a specific example, suppose in your scenario that
Candidate A was ahead by 10 points nationwide, a landslide, but was only
ahead by 10 votes in Florida. Would the race in Florida trigger a national
recount? Of course not, because it could not possibly affect the outcome.
It wouldn't even trigger a recount in Florida. A recount anywhere would be
necessary only if the national race was very close.
And for that matter, isn't it routine in statewide elections to request a
recount only in particular counties where there's reason to think something
went wrong? It's not necessarily true that a national recount means
recounting every locality.
Best,
Jack
On Thu, Jan 5, 2012 at 12:26 AM, Larry Levine <larrylevine at earthlink.net>wrote:
> I notice no one has yet addressed the fact that a race close enough in one
> state to require a recount could mean the entire country would have to be
> recounted because it would be one nationwide pool of ballots. If a recount
> in one state changed the margin of victory, or reversed the order of
> finish, who is to say that miscounts in other states would not further
> impact the result. If there was a recount in a Mayoral election in a city
> then you would not recount just the block where the candidates live. You
> would have to recount the entire city.****
>
> Larry****
>
> ** **
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Smith, Brad
> *Sent:* Wednesday, January 04, 2012 7:25 PM
> *To:* Jack Cushman; law-election at department-lists.uci.edu
>
> *Subject:* Re: [EL] Tight Primary Results--Do they Discredit the
> NationalPopular Vote Plan?****
>
> ** **
>
> I am not particularly concerned about France, Mexico, or Brazil because I
> don't live there. I do think it is hard to argue that Mexico and Brazil
> (and probably even France, or California at least in the last 30 years)
> have been better governed than the United States since their independence
> or, in France's case, Revolution.****
>
> ****
>
> I don't think that most NPV opponents view this as the key (or even a key)
> argument - it seems to come up more because the recount of 2000 has often
> been used by NPV supporters to criticize the Electoral College. That's not
> to say it's not real or worth considering, but it's probably a sideshow.**
> **
>
> ****
>
> I'm not sure that you really want to point to the public reaction to
> Florida 2000 (or the election of 1876, which would have been problematic
> with or without the Electoral College) as good examples of "civic
> engagement" that we should try to encourage.****
>
> ****
>
> *Bradley A. Smith*****
>
> *Josiah H. Blackmore II/Shirley M. Nault*****
>
> * Professor of Law*****
>
> *Capital University Law School*****
>
> *303 E. Broad St.*****
>
> *Columbus, OH 43215*****
>
> *614.236.6317*****
>
> *http://law.capital.edu/faculty/bios/bsmith.aspx*****
> ------------------------------
>
> *From:* law-election-bounces at department-lists.uci.edu [
> law-election-bounces at department-lists.uci.edu] on behalf of Jack Cushman [
> jcushman at gmail.com]
> *Sent:* Wednesday, January 04, 2012 4:36 PM
> *To:* law-election at uci.edu
> *Subject:* Re: [EL] Tight Primary Results--Do they Discredit the
> NationalPopular Vote Plan?****
>
> This sounds flippant, but I mean it as a serious question: are the people
> voicing concern about NPV in the United States equally concerned about
> direct election in other countries? For example, France, Mexico, Brazil,
> and California (polities between 1/3 and 1/10 the size of the US) all elect
> their chief executive through popular vote. If someone thinks NPV is too
> risky to try in the US, should they also claim that it is too risky to
> continue in those jurisdictions and must be abolished? California can ill
> afford extra expense or chaos right now -- why don't we hear more about a
> gubernatorial electoral college to protect it from recounts? ****
>
> ** **
>
> (Again, though this sounds rhetorical, I'm interested in answers -- should
> I be suspicious of arguments against NPV that are not leveled against
> popular vote systems that already exist, or is there a meaningful
> distinction?)****
>
> ** **
>
> Mmm ... and as long as I'm stirring the pot, let me play devil's advocate
> and suggest that a national recount would not be a bad outcome, because it
> would promote the same civic engagement that the electoral college
> discourages. The real problem with the electoral college isn't "misfires."
> It's that it grants grievously disproportional voting power to voters in
> swing states. It's hard to measure how much, but in the last two months of
> the 2008 election the candidates spent more than half of their money and
> time in just four states. That means, on average, campaign strategists
> thought a vote in one of those states was worth ten times as much as a vote
> in the other 46. The most important voters might be worth 100 times as much
> as the least.****
>
> ** **
>
> The upshot is, if you live in 90% of the country, you can try to influence
> the election by giving money or deluging one of those states with useless
> phone calls, but you shouldn't bother talking to your neighbors about who
> you support. Their votes don't matter any more than yours. And they know
> it, and you know it, and politicians know it. That reality is
> philosophically and civically corrosive.****
>
> ** **
>
> Now let's say that we're holding a national popular vote. You can knock on
> doors where you live. You can drive folks to the polls where you live. You
> can monitor polls where you live. And hey, it turns out that Romney wins by
> 65,500,000 to 65,500,008. What happens next?****
>
> ** **
>
> An explosion of civic engagement. All over the country we figure out which
> jurisdictions are using antiquated equipment, which ballots are designed
> terribly, which counties can't prove their process isn't corrupt. Maybe we
> even find actual evidence of voter ID fraud. And maybe we spend an extra
> hundred million dollars and a month or two fighting it out in 100 different
> courts, and we come up with a number, and pick a president. A bunch of
> people will be mad about it, but they'll be mad because *the voting
> system is not reliable* and because *if just a few more of us showed up,
> we could have won*. Those are both excellent reasons to be mad. I wish
> more people were mad about those things already.****
>
> ** **
>
> Anyway, that's my pitch. Have at it.****
>
> ** **
>
> Best,****
>
> Jack****
>
> ** **
>
> On Wed, Jan 4, 2012 at 2:57 PM, Larry Levine <larrylevine at earthlink.net>
> wrote:****
>
> The statement: "Given the small number of votes changed in recounts, no***
> *
>
> recount would have been warranted in any of the nation's 56 previous
> presidential elections if the outcome had been based on the nationwide****
>
> count" misses the mark.
> One cannot rule out future recounts because earlier recounts have or have
> not changed any specified number or percentage of votes. Many jurisdictions
> of which I am aware have a proscribed percentage under which a re-count is
> mandatory. Many also permit any candidate to request or demand a re-count
> (and pay for it) regardless of the percentage of difference.
> The Kennedy example across 50 states would average a 2,300 vote difference
> state - a minut percentage in many states and well within the margin of a
> re-count.
> There is an additional point to consider. As there would be one national
> pool of ballots, one could not re-count an individual state that had a
> close
> election without also recounting all other states.
> Larry****
>
>
>
>
> ----- Original Message -----
> From: "John Koza" <john at johnkoza.com>
> To: <law-election at uci.edu>
> Sent: Wednesday, January 04, 2012 11:18 AM
> Subject: Re: [EL] Tight Primary Results--Do they Discredit the
> NationalPopular Vote Plan?
>
>
> > Dan is incorrect in saying that "The odds against a result within ... the
> > margin of error in ... a state that is decisive in the electoral college
> > ...
> > [IS} extremely great."
> >
> > In fact, there have been 5 litigated state counts in the nation's 56
> > presidential elections under the current state-by-state winner-take-all
> > system. This rate is dramatically higher than the historical 1-in-160
> rate
> > for elections in which there is a single statewide pool of votes and in
> > which the winner is the candidate who receives the most popular votes.
> > This
> > i-in-160 rate comes from a 10-year study of 2,884 elections (and
> > corresponds
> > with whatever knows, namely recounts in ordinary elections are rare).
> >
> > The current state-by-state winner-take-all system repeatedly creates
> > artificial crises because every presidential election generates 51
> > separate
> > opportunities for a razor-thin margin. Far from acting as a helpful
> > firewall to isolate fires, it is the repeated cause of unnecessary fires.
> > The 2000 presidential election was an artificial crisis created because
> of
> > George W. Bush's lead of 537 popular votes in the state of Florida.
> > Gore's
> > nationwide lead was 537,179 popular votes (1,000 times larger than the
> > disputed 537-vote margin Florida).
> >
> > Recounts would be far less likely under the National Popular Vote bill
> > than
> > under the current system because there would be a single pool of votes.
> > Given that there is a recount only once in about 160 statewide elections,
> > and given there is a presidential election once every four years, one
> > would
> > expect a recount about once in 640 years under the National Popular Vote
> > approach. The actual probability of a close national election would be
> > even
> > less than that because recounts are less likely with larger pools of
> > votes.
> >
> > The average change in the margin of victory as a result of a statewide
> > recount was a mere 296 votes in a 10-year study of 2,884 elections.
> > Three-quarters of all recounts do not change the outcome.
> >
> > Given the small number of votes changed in recounts, no recount would
> have
> > been warranted in any of the nation's 56 previous presidential elections
> > if
> > the outcome had been based on the nationwide count. There was a recount,
> > a
> > court case, and a reversal of the original outcome in Hawaii in 1960.
> > Kennedy ended up with a 115-vote margin in Hawaii in an election in which
> > his nationwide margin was 118,574.
> >
> > A detailed discussion of recounts is discussed in section 10.15 of the
> > book
> > "Every Vote Equal: A State-Based Plan for Electing the President by
> > National
> > Popular Vote." I can be read or downloaded for free at
> > www.NationalPopularVote.com or purchased at Amazon.
> >
> >
> > Dr. John R. Koza, Chair
> > National Popular Vote
> > Box 1441
> > Los Altos Hills, California 94023 USA
> > URL: www.NationalPopularVote.com
> >
> >
> >
> > -----Original Message-----
> > From: Lowenstein, Daniel [mailto:lowenstein at law.ucla.edu]
> > Sent: Wednesday, January 04, 2012 9:09 AM
> > To: Jamin Raskin; rhasen at law.uci.edu; law-election at uci.edu
> > Subject: Re: [EL] Tight Primary Results--Do they Discredit the National
> > Popular Vote Plan?
> >
> > My post was a response to Rick's comment, not to the Iowa results.
> >
> > The odds against a result within what Rick calls the margin of
> error
> > in either a state that is decisive in the electoral college or in a
> > national
> > popular vote are both extremely great. But the consequences of the
> latter
> > would be far more troublesome than the former proved to be.
> >
> > Best,
> >
> > Daniel H. Lowenstein
> > Director, Center for the Liberal Arts and Free Institutions
> > (CLAFI)
> > UCLA Law School
> > 405 Hilgard
> > Los Angeles, California 90095-1476
> > 310-825-5148
> >
> >
> > ________________________________
> > From: Jamin Raskin [raskin at wcl.american.edu]
> > Sent: Wednesday, January 04, 2012 4:15 AM
> > To: Lowenstein, Daniel; rhasen at law.uci.edu; law-election at uci.edu
> > Subject: Re: [EL] Tight Primary Results--Do they Discredit the National
> > Popular Vote Plan?
> >
> >
> > There are at least three problems with this post: 1. The National Popular
> > Vote plan does not touch the presidential primary process. 2. The
> > Florida
> > 2000 problem is an artifact of the current way that states use the
> > electoral
> > college system in which corruption and dysfunction in a single state can
> > control the outcome of the whole election. Since Vice-President Gore had
> > received more than a half-million votes more than Bush nationally in
> 2000,
> > it would have made no difference under NPV rules whether it was Bush or
> > Gore
> > who finished a vote or two ahead in Florida voting (much less the
> Supreme
> > Court!). Gore would have won. 3. All the political-science studies I
> > know
> > of show that ties and close results are far more likely to occur in
> > elections with smaller pools of voters, which is why they happen with
> some
> > frequency in school board elections and small-state caucuses but almost
> > never in even the closest of national elections. Thus, it seems odd to
> > use
> > last night's results as an occasion to attack the NPV plan.
> > yours, Jamie
> >
> > ----- Original Message -----
> > From: law-election-bounces at department-lists.uci.edu
> > <law-election-bounces at department-lists.uci.edu>
> > To: Rick Hasen <rhasen at law.uci.edu>; law-election at uci.edu
> > <law-election at uci.edu>
> > Sent: Wed Jan 04 02:10:25 2012
> > Subject: [EL] Tight Results
> >
> > At least we don't have to worry about Florida x 50, as would be
> > possible if there were a national popular vote system in effect.
> >
> > Best,
> >
> > Daniel H. Lowenstein
> > Director, Center for the Liberal Arts and Free Institutions
> > (CLAFI)
> > UCLA Law School
> > 405 Hilgard
> > Los Angeles, California 90095-1476
> > 310-825-5148
> >
> >
> > ________________________________
> > From: law-election-bounces at department-lists.uci.edu
> > [law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
> > [rhasen at law.uci.edu]
> > Sent: Tuesday, January 03, 2012 9:45 PM
> > To: law-election at uci.edu
> > Subject: [EL] ELB News and Commentary 1/4/12
> >
> > The Lesson from Tonight's Iowa Results for Election
> > Law<http://electionlawblog.org/?p=27367>
> > Posted on January 3, 2012 9:40 pm<http://electionlawblog.org/?p=27367>
> by
> > Rick Hasen<http://electionlawblog.org/?author=3>
> >
> > Elections can sometimes be close. Very very close (as in 5 votes close
> as
> > I
> > write this post). So close that the margin of error in counting the
> votes
> > can exceed the margin of victory. Fortunately tonight's results won't
> > lead
> > to a recount (for how the non-binding caucuses work, see
> > here<
> http://theweek.com/article/index/222942/the-idiosyncratic-iowa-caucus-r
> > ules-a-guide>); whether Romney or Santorum wins is more about bragging
> > rights than anything else.
> >
> > But this could happen in a presidential election again, in a state that
> > matters. And we haven't done nearly enough to fix the problems in our
> > elections that became apparent in the 2000 Florida fiasco. As I will
> > argue<http://electionlawblog.org/?p=22990> in great detail soon, we are
> > not
> > prepared for the next election meltdown.
> >
> > [cid:part1.01070400.08000704 at law.uci.edu]<
> http://www.addtoany.com/share_save
> >
> #url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D27367&title=The%20Lesson%20fr
> >
> om%20Tonight%E2%80%99s%20Iowa%20Results%20for%20Election%20Law&description=>
> > Posted in election administration<http://electionlawblog.org/?cat=18> |
> > Comments Off
> >
> > _______________________________________________
> > Law-election mailing list
> > Law-election at department-lists.uci.edu
> > http://department-lists.uci.edu/mailman/listinfo/law-election
> >
> >
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> > Law-election mailing list
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> >
>
>
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