[EL] Will Republicans embrace the National Vote Planin 2012? / Imperial Secretary of State
Bill Maurer
wmaurer at ij.org
Wed May 23 11:21:27 PDT 2012
Actually, Republicans have a very slight majority in the New York State Senate. I would not classify a big chunk of the Republicans in the Senate as Tea Party, rock-ribbed conservatives, however.
Bill
-----Original Message-----
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, May 23, 2012 11:14 AM
To: law-election at uci.edu
Subject: Re: [EL] Will Republicans embrace the National Vote Planin 2012? / Imperial Secretary of State
John has convincingly demonstrated that Doug should have more carefully framed his point, to refer not to the secretaries of state, but to the overwhelmingly Democratic state legislatures in New York and California.
He also tells us that 70% of the people favor popular election of the president (on an issue on which people are poorly informed and to which few have given much thought), but not what the response would be to the question "Do you think your state's electoral college votes should be cast for the person who wins the popular vote in your state?" I suspect we can crack the 70% barrier on that one.
His analogy to 2000 is particularly inapt, for two reasons: first, the Florida state legislature did act to settle any dispute on the state's electoral vote (awarding them to Bush) had the courts not first intervened; and second, in the 10 states he mentions there was no question of any secretary of state or state legislature intervening to award votes to the clear loser of the popular vote in that state. The political calculations and incentives would be quite different if the question were to change state law and award the electoral college votes to the winner, quite possibly the landslide winner, of the state's popular vote.
As an aside, Kaza's assertions that the public "intensely dislikes the winner-take-all rule" and that it has "strong desire" for National Popular Vote, strike me as patently wrong. If either were true, it is almost inconceivable that change would not have occured in the past. It would be more accurate, I think, to say that a substantial majority of the public, having so little "intensity" on the issue that most have never given it much thought, will casually tell a pollster that they favor direct popular election. I can think of few issues that generate less intensity or rank lower on the list of "desired" changes among the broad electorate (as opposed to political process geeks such as most of us on this listserve) than the electoral college generally or National Popular Vote in particular.
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 John Koza [john at johnkoza.com]
Sent: Wednesday, May 23, 2012 1:45 PM
To: 'Douglas Johnson'; mmcdon at gmu.edu; law-election at uci.edu
Subject: Re: [EL] Will Republicans embrace the National Vote Planin 2012? / Imperial Secretary of State
Douglas Johnson worries whether "the Secretaries of State in California and New York (for example) will actually seat the Romney electors to deliver the election to Romney, even though Obama has his virtually certain major victories in each state."
Section 1 of article II of the U.S. Constitution provides: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.."
No state legislature has delegated the power to select the manner of appointing the state's presidential electors to the Secretary of State.
Instead, the method of awarding electoral votes in each state is controlled by the state's election law-not the personal political preferences of the Secretary of State.
A Secretary of State may not ignore or override the National Popular Vote law specifying the manner of awarding electoral votes any more than he or she may ignore or override the winner-take-all rule that is currently in effect in 48 states.
It does not matter whether the Secretary of State personally thinks that electoral votes should be allocated by congressional district, in a proportional manner, by the winner-take-all rule, or by a national popular vote. The role of the Secretary of State in certifying the winning slate of presidential electors is entirely ministerial - that is, the role of the Secretary of State is to execute existing state law.
We don't have to speculate about the future conduct of secretaries of states. There were 10 states that George W. Bush carried in the 2000 presidential election with a Democratic Secretary of State (or chief elections official). The electoral votes of any one of these 10 states would have been sufficient to give Al Gore enough electoral votes to become President (even after Bush received all 25 of Florida's electoral votes).
Seventy percent or more of voters in each of these 10 states (and, indeed, the rest of the country) supported the proposition that the candidate who receives the most popular votes in all 50 states and the District of Columbia should become President. Nonetheless, it can be safely stated that it did not even occur to any of these 10 Democratic Secretaries of State to attempt to try to override their states' laws by certifying the election of Democratic presidential electors in their states. Such a post-election change in the rules of the game would not have been supported by the public (even though the public intensely dislikes the winner-take-all rule), would immediately have been nullified by a state court, and almost certainly would have led to the subsequent impeachment of any official attempting it.
Moreover, awarding electoral votes proportionally in any one of nine states with a Democratic Secretary of State, would have been sufficient to give Al Gore enough electoral votes to become President (even after Bush received all 25 of Florida's electoral votes). A proportional allocation of electoral votes would have, indisputably, represented the will of the people of each of these nine states more accurately than the state-level winner-take-all rule.
In addition, awarding electoral votes by congressional districts in any one of three states with a Democratic Secretary of State, would have been sufficient to give Al Gore enough electoral votes to become President (even after Bush received all 25 of Florida's electoral votes). A district allocation of electoral votes arguably would have represented the will of the people of each of these three states more closely than the winner-take-all rule.
In the unlikely and unprecedented event that a Secretary of State were to attempt to certify an election using a method of awarding electoral votes different from the one specified by state law, a state court would immediately prevent the Secretary of State from violating a law's provisions (by injunction) and compel the Secretary of State to execute the provisions of the law (by mandamus).
If 70% of the voters in a state prefer that the President be elected by a national popular vote, and if a state legislature enacts the National Popular Vote bill in response to the strong desires of the state's voters, and if the presidential campaign is then conducted with both voters and candidates knowing that the National Popular Vote bill is going to govern the election in that state, then the voters are not going to complain about a Secretary of State who faithfully executes the state's law.
Aside from the legal issues, the hypothesized scenario presupposes that the people heavily support the currently prevailing winner-take-all rule. In fact, public support for the current system of electing the President is at the level of Nixon's approval rating when he resigned.
In short, the hypothesized scenario has no basis in law and certainly no basis in political reality.
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
URL: www.johnkoza.com
URL: www.NationalPopularVote.com
-----Original Message-----
From: Douglas Johnson [mailto:djohnson at ndcresearch.com]
Sent: Tuesday, May 22, 2012 11:21 AM
To: mmcdon at gmu.edu; law-election at uci.edu
Subject: Re: [EL] Will Republicans embrace the National Vote Planin 2012? / Imperial Secretary of State
I believe that is very doubtful. While there is considerable partisan divide on National Vote Plan, my own concerns (as an independent-registered voter), and I suspect the concerns of many other people, are two-fold: (1) constitutional change is better done as constitutional amendment, rather than as an end-around; and (2) the National Vote Plan is unenforceable.
Imagine if NVP were in place this year and Romney wins the popular vote but loses the electoral college. How many people believe that the Secretaries of State in California and New York (for example) will actually seat the Romney electors to deliver the election to Romney, even though Obama has his virtually certain major victories in each state?
I know there's language in NVP that claims to lock states in, but it would be a huge surprise to me if there is anyone who doesn't think lawsuits will be filed within seconds of such a situation, and who doesn't think that there's at least a significant chance a judge will overturn NVP in that situation. Certainly overwhelming majorities of voters in CA and NY (in this
scenario) would call for ignoring NVP and seating the electors that those voters voted for in their states, leading each Secretary of State to side "with the voters" in rejecting NVP.
- Doug
Douglas Johnson
Fellow
Rose Institute of State and Local Government m 310-200-2058 o 909-621-8159 douglas.johnson at cmc.edu
-----Original Message-----
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Michael McDonald
Sent: Tuesday, May 22, 2012 11:04 AM
To: law-election at uci.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:
(o) 703-993-4191 George Mason University
(f) 703-993-1399 Dept. of Public and International Affairs
mmcdon at gmu.edu 4400 University Drive - 3F4
http://elections.gmu.edu Fairfax, VA 22030-4444
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