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

Thu May 24 04:28:15 PDT 2012

Rob writes:

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),

This seems like an odd assertion. One reason that efforts to amend the Constitution to do away with the electoral college have failed is that supermajorities are needed to do so. NPV is based on end-running this idea. Here, Rob seems to suggest that there would advantages to the super majority requirement, and that NPV would be most suspect in the first elections held under the system,  both of which I find interesting. Beyond that, what if the possibility is that this would happen once every - oh, let's say once every 70 years or so - about as often as the electoral college vote has not tracked the popular vote winner...

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.

Why? As has been pointed out - I think by Mr. Kaza - entering election night 2000 both sides had plans to fight an electoral college loss if accompanied by a popular vote win - despite the rules accepted as governing the election (no Grover Cleveland's around any more - playing by the "rules" is for suckers). It seems to me not the least far fetched that the activities Doug Johnson suggests would take place, with huge pressure in states to award their electoral college votes according to the popular will of the people of that state, and in accordance with the Constitutioonal principle that votes in the electoral college determine the outcome of the election.

Rob adds:

So we're talking about a massive, coordinated, interstate effort to violate state law, federal law and the will of the American people --

Ah, but that asumes the very issue that will be placed in question. Does the interstate compact itself violate the federal constitution? If so, is the state law valid? Is is the will of the people? Certainly not in the states that will be in question.

And continues:

This concern is a reason to preserve the status quo?

Of course it is a reason to preserve the status quo. What else could it be? It's not a reason to change to NPV. The question is, is it reason enough, not just on its own, but in combination with the many other arguments against NPV. Combined with the weakness of the case for NPV, lots of people think it is.

Rob adds a final punch on the way out:

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.

As a long time advocate of proportional representation, Rob knows that any winner-take-all election has large numbers of "wasted" votes. Rob's statement here is that of the highly-engaged partisan. There is no evidence that "orphan voters" are sitting around "morosely" on the sidelines. It's a nice partisan rhetorical flourish but nothing more.

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 Rob Richie [rr at fairvote.org]
Sent: Thursday, May 24, 2012 4:31 AM
To: Douglas Johnson
Cc: law-election at uci.edu
Subject: Re: [EL] Will Republicans embrace the National Vote Planin 2012? / Imperial Secretary of State

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<mailto: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<tel:310-200-2058>
o 909-621-8159<tel:909-621-8159>
douglas.johnson at cmc.edu<mailto:douglas.johnson at cmc.edu>

-----Original Message-----
From: John Koza [mailto:john at johnkoza.com<mailto:john at johnkoza.com>]
Sent: Wednesday, May 23, 2012 10:45 AM
To: 'Douglas Johnson'; mmcdon at gmu.edu<mailto:mmcdon at gmu.edu>; law-election at uci.edu<mailto: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<tel:650-941-0336>

Fax: 650-941-9430<tel: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>

-----Original Message-----

From: Douglas Johnson [mailto:djohnson at ndcresearch.com]

Sent: Tuesday, May 22, 2012 11:21 AM

To: mmcdon at gmu.edu<mailto:mmcdon at gmu.edu>; law-election at uci.edu<mailto: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<tel:310-200-2058> o 909-621-8159<tel:909-621-8159>

douglas.johnson at cmc.edu<mailto: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>

[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<mailto: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<tel:703-993-4191>             George Mason University

(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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