[EL] Will Republicans embrace the National Vote Planin 2012? / Imperial Secretary of State
Douglas Johnson
djohnson at ndcresearch.com
Wed May 23 11:55:16 PDT 2012
I belive Mr. Koza's statement fails to disagree with my point in the way he
apparently intended to disagree. He wrote:
"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)."
In that election, and in all other modern Presidential elections, none of
those SecStates* were expected by state law to ignore the preference of
their state's voters and designate as 'winner' in the state the candidate
who received fewer votes in that state.
Since it is a given that plaintiffs would immediately rush into court(s) to
block the NPV-expected appointment of the electors for the candidate who
lost in the state in question, it's an easy step for the SecState to refuse
to administratively appoint them while 'awaiting direction from the courts.'
It is also a relatively easy step for the SecState to become a plaintiff in
that case him/herself; to personally decide NPV is unconstitutional; and/or
to simply appoint the electors of that state's winning candidate (any of
which would force a plaintiff to try to get a court to stop him/her).
Unlike in the situation described by Mr. Koza, under NPV the "rebellious"
(by not following NPV) SecState would be respecting the declared votes of a
majority of his/her state's voters -- potentially a very large majority of
his/her state's voters. In 2008, Pres. Obama beat McCain 61% to 37% in
California and 62% to 37% in New York. In 2004, Kerry beat Bush 54.4% to
44.4% in California and 57.8% to 40.5% in New York. With numbers like those,
I have no doubt that organizers could quickly have massive rallies storming
state capitol steps demanding that the SecState seat the electors of the
candidate who won the state under the view that "the US Constitution trumps
a state statute." [And I'm not inviting a debate about the technicalities of
what the US Constitution says. I'm suggesting what the marchers and
organizers would say. Marchers -- and the media -- won't care about
technicalities.]
Is there anyone who doubts that such a scenario (at least the first version
where the SecState delays, awaiting "direction from the court") would unfold
under NPV? Perhaps a series of judges would enforce NPV, or perhaps a series
of judges would find it unconstitutional. Either way, NPV invites the next
Court-decided Presidential election. NPV appears to be asking for a repeat
of Bush v. Gore, except that it would play out in multiple states
simultaneously (with exponentially increased chaos and controversy).
To those who believe the voting majorities of each state, the SecState, and
the courts in each state where the national top vote-getter loses the state
vote would simply defer to the state's statute on NPV without any
controversy or dispute, I acknowledge that, in that scenario, NPV would work
fine. But I can only imagine that someone who believes that must have slept
through Florida in 2000 (though I stand ready to be convinced if someone
thinks they can make the real-world case that simple deference would
prevail).
Finally, if I can pivot on the point made in an earlier email that said some
(unnamed) NPV advocates suggest NPV is good for the small states: if that's
true, why not make the change as a constitutional amendment?
* Forgive the frequent reference to Secretaries of State, but I'm using that
as shorthand for whomever is responsible for officially/administratively
designating the winning panel of electors in a given state.
- 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: John Koza [mailto:john at johnkoza.com]
Sent: Wednesday, May 23, 2012 10:45 AM
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: <mailto:john at johnkoza.com> john at johnkoza.com
URL: <http://www.johnkoza.com> www.johnkoza.com
URL: <http://www.NationalPopularVote.com> www.NationalPopularVote.com
-----Original Message-----
From: Douglas Johnson [ <mailto:djohnson at ndcresearch.com>
mailto:djohnson at ndcresearch.com]
Sent: Tuesday, May 22, 2012 11:21 AM
To: <mailto:mmcdon at gmu.edu> mmcdon at gmu.edu; <mailto:law-election at uci.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
<mailto:douglas.johnson at cmc.edu> douglas.johnson at cmc.edu
-----Original Message-----
From: <mailto:law-election-bounces at department-lists.uci.edu>
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] On Behalf Of Michael
McDonald
Sent: Tuesday, May 22, 2012 11:04 AM
To: <mailto:law-election at uci.edu> 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
<mailto:mmcdon at gmu.edu> mmcdon at gmu.edu 4400 University Drive
- 3F4
<http://elections.gmu.edu> http://elections.gmu.edu Fairfax, VA
22030-4444
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