[EL] Will Republicans embrace the National Vote Planin 2012? / Imperial Secretary of State

[Rob Richie]

Two points relating to arguments in this exchange:

1. On partisan leanings:

There is no credible evidence that a national popular vote would help or
hurt one major party over time. Republicans have had their landslides
(including Nixon and Reagan), and Democrats have had their landslides (FDR,
LBJ). They've split the popular vote over the past two elections, past
eight elections, past 12 elections, past 16 elections and so on. In
governor's races, both major parties have mastered being able to win
popular vote elections, with lots of exchange of partisan control in the
great majority of states, even in those with the dreaded "big cities."

2. On alleged post-election rule-changing:

Skeptics should keep in mind a key point about elections held with the
National Popular Vote plan in place: the entire election would have been
contested with an understanding that the White House would go to the winner
of the national popular vote.The candidates would have campaigned for
office with that understanding. The media would have covered the election
on that basis. Large majorities of voters would see this election rule as
more legitimate than the current system.

On election night we typically would see a winner and a loser -- a victory
speech and presumably a concession speech -- based on the rule that
everyone was accepting as the rules governing the election. To suddenly
think that a rogue election official or wild-eyed state legislature would
try to overturn the outcome to give the White House to the election's loser
seems more than far-fetched.

Furthermore, it is almost certainly true than more than one state would
need to try to reinvent its law after the election, as it is unlikely any
one state could flip the outcome. That's because the winner would start
with all the electoral votes of the states in the compact (a minimum of
270, but likely far more over time), plus electoral votes by winning
non-participating states. So we're talking about a massive, coordinated,
interstate effort to violate state law, federal law and the will of the
American people -- and with the need for the blessing of a candidate who
had just lost the popular vote in an election held under that rule.

This concern is a reason to preserve the status quo?

Time to go back to obsessing over what's going on in the nine swing states
that will determine this year's election, with orphan voters in the
remaining states rather morosely watching from the sidelines.

- Rob Richie


On May 23, 2012 11:57 AM, "Douglas Johnson" <djohnson at ndcresearch.com>
wrote:

> 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: john at johnkoza.com****
>
> URL: www.johnkoza.com****
>
> URL: www.NationalPopularVote.com****
>
> ** **
>
> ** **
>
> -----Original Message-----****
>
> From: Douglas Johnson [mailto:djohnson at ndcresearch.com<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<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****
>
> ** **
>
> ** **
>
> ** **
>
> _______________________________________________****
>
> 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****
>
> ** **
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120524/aec5ab83/attachment.html>