[EL] Will Republicans embrace the National Vote Planin 2012? / Big cities

Wed May 23 10:26:30 PDT 2012

I think John Koza is right that it would be unlikely that a state legislature could game the system by joining the NPVIC at the last minute. What is much more likely is that a state would game the system by withdrawing from the NPVIC at the last minute. I think it is fairly clear that a state legislature cannot disable itself from exercising the power given to it by Art. II, sec. 1, cl. 2, to determine the manner by which the state’s electors are chosen; that makes the NPVIC blackout period (the period before an election during which a state is prohibited by the terms of the NPVIC from withdrawing from the compact) unenforceable.

It is also fairly clear that the question whether the NPVIC is constitutional is justiciable, which means that in any case in which it makes a difference there will be massive litigation and substantial uncertainty. Lower federal courts will be bound by the holding in McPherson v. Blacker (1892) that such issues are justiciable.

I suppose a state legislature could try to game the system by joining the NPVIC at the last minute in order to protect it against last minute defections. I don’t have time right now to explain exactly how a state legislature could protect the NPVIC and override the likely vote of its own citizens by joining at the last minute, but list members can probably figure it out.

Best,
Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Sean Parnell
Sent: Wednesday, May 23, 2012 9:04 AM
To: 'John Koza'; 'Jack Santucci'; law-election at uci.edu
Subject: Re: [EL] Will Republicans embrace the National Vote Planin 2012? / Big cities

I think plausible arguments can be made either way, that it supports either Democrats or Republicans. Jack’s statement (which I’m not sure he is stating as his own, just offering as an argument he’s undoubtedly heard), seems just as plausible as the argument NPV’s lobbyists have been making, that adopting the interstate compact would benefit Republicans over Democrats because “Red States are Redder.”

Best,

Sean Parnell
President
Impact Policy Management, LLC
6411 Caleb Court
Alexandria, VA  22315
571-289-1374 (c)
sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>

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]<mailto:[mailto:law-election-bounces at department-lists.uci.edu]> On Behalf Of John Koza
Sent: Wednesday, May 23, 2012 11:51 AM
To: 'Jack Santucci'; law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] Will Republicans embrace the National Vote Planin 2012? / Big cities

Jack Santucci says: “Republicans are more spread out, it's harder to campaign in a spread-out setting than in a city, Democrats inhabit cities, so NPV inherently favors Democrats.”

The facts don’t support this statement.

The vast majority of expenditures in presidential campaigns are for television, and television is premium-priced in major cities. That is, it costs considerably more to reach one voter in a major media market than to reach one voter a small-town or rural market.

Dr. John R. Koza, Chair
National Popular Vote
Box 1441
Los Altos Hills, California 94023 USA
Phone: 650-941-0336
Fax: 650-941-9430
Email: john at johnkoza.com<mailto:john at johnkoza.com>
URL: www.johnkoza.com<http://www.johnkoza.com>
URL: www.NationalPopularVote.com<http://www.NationalPopularVote.com>

From: Jack Santucci [mailto:jms346 at georgetown.edu]<mailto:[mailto:jms346 at georgetown.edu]>
Sent: Tuesday, May 22, 2012 12:17 PM
To: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] Will Republicans embrace the National Vote Planin 2012?

NPV messaging has always acknowledged (i.e., since 2006 or 2007, a.k.a. the beginning of the effort) that the "partisan impact" of the American electoral college varies from election to election.

I put "partisan impact" in quotation marks because the effects of institutions are difficult to talk about without some reference to the social/demographic/organizational factors that "condition" said effects.

And it is similarly difficult to talk about any of those social/demographic/organizational factors as inherent to one or another major party. For example, the Republican party is "rural," rural voters concentrate in states that benefit from malapportionment, so NPV is a Democratic thing. Or the other version: Republicans are more spread out, it's harder to campaign in a spread-out setting than in a city, Democrats inhabit cities, so NPV inherently favors Democrats. All this talk is grossly oversimplified because the parties are fluid coalitions. Even that point is oversimplified, since the notion of "coalition" assumes voters for whom the salience of issues does not vary and/or is not manipulable.

Strong arguments for or against NPV look at the institutions alone. What is the value of fragmenting the electorate? What is the value of delegate malapportionment? What are the implications for election administration, and are those implications good or bad? How about in the long run? So on, so forth.

Jack Santucci
On Tue, May 22, 2012 at 2:57 PM, <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>> wrote:
The question can be asked the other way too - would Democrats, generally somewhat more favorable to effectively ditching the Electoral College through the NPV effort, suddenly rediscover the wisdom of the states as politically sovereign entities selecting the President?

Sean Parnell
Sent from my Verizon Wireless BlackBerry

-----Original Message-----
From: Michael McDonald <mmcdon at gmu.edu<mailto:mmcdon at gmu.edu>>
Sender: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>
Date: Tue, 22 May 2012 14:03:48
To: <law-election at uci.edu<mailto:law-election at uci.edu>>
Reply-To: mmcdon at gmu.edu<mailto:mmcdon at gmu.edu>
Subject: [EL] Will Republicans embrace the National Vote Planin 2012?
There is an interesting early dynamic emerging in the polling this cycle.
Romney is neck and neck with Obama nationally, but Obama is leading in key
states for the race for the Electoral College.

Some reasons why this may be true is that the economy is doing better in key
battleground states, while Romney hurt himself with his auto-bailout
position in states like Ohio. The economy is doing the worst in some urban
Democratic strongholds, so Obama may be able to lose support in these areas
while still winning these states by a comfortable margin. And Obama does
very poorly in deep red states. In other words, there does not appear to be
a uniform national  vote swing from the 2008 to 2012 election.

This raises interesting questions: if Obama beats Romney in the Electoral
College but loses in the popular vote, will Republicans change their tune
about the National Vote Plan? Could we see strategic Republican state
governments sign on to the NPV in the waning days of the general election if
the dynamic I note persists?

============
Dr. Michael P. McDonald
Associate Professor, George Mason University
Non-Resident Senior Fellow, Brookings Institution

                            Mailing address:
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(f) 703-993-1399<tel:703-993-1399>             Dept. of Public and International Affairs
mmcdon at gmu.edu<mailto:mmcdon at gmu.edu>               4400 University Drive - 3F4
http://elections.gmu.edu     Fairfax, VA 22030-4444

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