[EL] Fallacious Arguments Against the National Popular Vote
Douglas Johnson
djohnson at ndcresearch.com
Thu May 24 16:24:20 PDT 2012
I think it's enough to say that if there's anyone left following this email
thread they will recognize that the statement that Mr. Richie attributes to
me is inaccurate.
I take such tactics as a sign that the current email thread has outlived its
usefulness.
- Doug
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rob
Richie
Sent: Thursday, May 24, 2012 2:45 PM
To: Smith, Brad
Cc: law-election at uci.edu
Subject: Re: [EL] Fallacious Arguments Against the National Popular Vote
Brad,
I do not grant that the National Popular Vote plan in its early uses is
remotely prone to malicious election officials trying to change the rules to
elect a popular vote loser. I only meant to suggest that this scenario
becomes ever more unlikely when there are a higher number of electoral votes
in the compacting states -- but in my eyes it's far more unlikely from the
get-go than ugly scenarios in the current system like:
- a George Wallace holding the balance of power in the Electoral College
(as he would have earned with a relatively small shift of votes from Wallace
to Humphrey in 1968);
- a tie vote sending the process to a one-vote-per-state election in the
House (as various reasonable scenarios suggest as possible this year);
- one party in a state like Pennsylvania trying to game the national
election by going to the congressional district system or pursuing changes
in voting laws and administration that seem designed to help one side and
hurt the other.
My admittedly zippy rhetoric certainly was more sleep-deprived than anything
else, as I was in the midst of waiting for a redeye flight that was four
hours late last night. But it's not secret that coverage of the presidential
race is increasingly focused on swing state math and that the campaigns are
also increasingly focused on swing state math.
On this point, we also know that:
* In the 2004 cycle, the Bush campaign never polled a single American living
outside of 18 potential swing states in the final two years of that
campaign. (That was back in the good old days when there were 18 potential
swing states rather than at most a dozen today.)
* In the 2008 campaign, more than 98% of post-convention campaign events and
campaign ads were showered on 15 states representing barely a third of the
nation's population.
* In this cycle, the White House has scheduled the president with swing
states in mind. Perhaps the most telling example is that South Carolina has
not had a single visit from the president, while North Carolina has had 18
presidential visits
That's the case even thought Obama's South Carolina primary win
in 2008 was critically important to his winning the Democratic nomination
and his 2008 general election percentage in the state wasn't that far behind
his share in NC -- it lagged just enough, though, that the state now falls
off what I call the winner-take-all cliff, representing the absolute
difference between potentially who wins this year to not affecting who wins.
(For good stats and graphs on presidential visits in a blog from a recent
colleague here --
http://www.fairvote.org/presidential-tracker-the-orphaned-states-of-america
.)
* Major campaign focus on swing states absolutely affects what issues get
addressed and how they are addressed - and at times policy. Former
Pennsylvania Senator Arlen Specter was quite candid in talking about special
treatment that presidents have given Pennsylvania due to its frequent
battleground status (even if a battleground that is always won by
Democrats). See:
http://www.fairvote.org/arlen-specter-extra-money-for-swing-state-status - I
would urge readers to keep an eye out for state-targeted promises to voters
in swing states that candidates aren't making to orphan voters in other
states.
* Jack Cushman has done an excellent job explaining what this means for
voter participation -- not only in a given election, but over time, as the
definition of swing states is so much more rigid than it used to be due to
the hardening of our partisan arteries and the inexorable logic of
winner-take-all rules.
I wanted to touch on one other matter - one raised directly by Doug
Johnson's posts about NPV being an "end run" around the Constitution and
indirectly by Brad when he equates "Electoral College" with winner-take-all
statutes. Such claims to me reflect an ahistorical understanding of what the
Electoral College was in the early decades and the origins of statutes
awarding a state's electoral votes to the popular vote winner in that state.
I often see people assume that what we do now is somehow dictated on high by
the founding generation. Just as some birthers can't let go of whether
Barack Obama was born in the United States (perhaps skeptical of just where
Hawaii is), there's a kind of "foundersism" that gives that remarkable
generation all kinds of prophetic powers --including ability to anticipate
statutory rule changes done years after their lifetime in a way that would
put the Mayans to shame. So the founders wanted Congress to have 435 members
or wanted congressional elections to take place all on the same day in
November and so on -- all reflective of what we do now, but none dictated or
even anticipated by the founders.
Praise for the wisdom of the winner-take-all rule is a classic example of
this post hoc thinking. A device backed by partisans for highly partisan
reasons, the winner-take-all rule was not the norm for years. In fact having
elections at all wasn't the norm and wasn't universally done by states until
1872.
Yet a National Review blogger this week could argue that the founders had
the genius to know that the Electoral College's winner-take-all rules would
magnify presidential victories and give them more of a mandate. And Doug and
Brad can talk about the National Popular Vote plan as if the winner-take-all
rule in states IS the "constitution" and the national popular vote plan
isn't.
Let's be clear: what the Electoral College represents is states' ownership
of the process of selecting the president. It doesn't represent the
winner-take-all rule. it doesn't represent small states vs. big states. It
doesn't represent rural America vs. big cities. It's a device that allows
states to decide how to elect the president.
So here we are in the 21st century, with the mechanism of a popular vote to
elect governors and representatives firmly established in this country. Poll
after poll in state after state shows that a large majority of Americans
want the president to be elected by a national popular vote. The National
Popular Vote plan is a reflection of states acting under their
constitutionally granted powers to elect the president the way large
majorities of their constituents want.
It's of course not easy to so firmly grip the short end of a public opinion
stick, so I admire Brad's tenacity. But I do believe he's on the wrong side
of history as well as that opinion stick. We will see, of course.
- Rob
#######
On Thu, May 24, 2012 at 9:16 AM, Smith, Brad <BSmith at law.capital.edu> wrote:
_____
From: Jamin Raskin [raskin at wcl.american.edu]
Sent: Thursday, May 24, 2012 8:22 AM
To: Smith, Brad; law-election at uci.edu
Subject: Fallacious Arguments Against the National Popular Vote
Friends--Brad's last post genuinely surprises me. For one thing, his
characterization of Rob's lucid and compelling comments as coming from a
"highly-engaged partisan" seem purely ad hominem and faulty (not to mention
a most dangerous path for him to walk down). Rob actually speaks and writes
as a non-partisan analyst and advocate for election reform. If he speaks as
a "highly-engaged partisan" on the issue, it is only in the sense that he
has taken a strong intellectual stand on NPV. By that definition, of course,
and at least, Brad speaks as a "highly-engaged partisan" since he obviously
hates the proposal and tries to trash it.
- Oh, c'mon, Jamie, let's get serious. I oppose NPV, and so am partisan. Rob
favors it, and so is not? I described Rob's comments as partisan because
they were little partisan asides in tone. Rob's comment -
"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," is not a
serious argument (though it is based on a serious argument), but a little
partisan rhetoric. I suspect even Rob would agree on that.
But why?
Brad offers no positive case for the obsolete and accident-prone system that
has evolved today. He just throws stones at NPV.
- Because I'm responding in a relatively short email to Rob's points, that's
why. I have set out at length, in the Election Law Journal and in shorter
pieces elsewhere, why I think the NPV is a bad idea and what I think is the
positive case for the Electoral College. Of course, a positive case is not
necessary to oppose an idea. I would feel no obligation to argue the
benefits of respecting property rights (though I could) in order to make a
case against theft.
Those stones land far afield.
For example, he thinks he has caught Rob when he says that the huge bloc of
electoral votes in the NPV compact operates as a "super majority
requirement," but the effort to line up electoral college votes with the
actual will of the voters nationally is not a "super majority requirement"
in any sense I know of.
- I think you miss my point. I don't suggest it is a "supermajority
requirement." Rather, Rob asserts that it will be better over time as a
supermajority of states (or at least states controlling a supermajority of
electoral college votes) sign on to NPV. I find this interesting because
that is probably why amending the Constitution requires a supermajority of
states as well. Yes, it is better to have such changes to the nation's
government adopted by a supermajority of the states. Yet NPV is designed
precisely to get around that requirement. This suggests that regardless of
the merits of direct popular election, NPV may not be a good idea.
It is an effort to neutralize one of the chief dangers of the current
electoral college regime by guaranteeing that the electoral vote winner is
the majority or at least plurality popular vote winner, a guarantee we
obviously lack today.
- Here Jamie again assumes the case he wants to make- that it is an inherent
"danger" if the electoral college and the popular vote do not coincide. Of
course, if they always coincided, then it would be hard to come up with a
case for the Electoral College. So we have to consider why, if ever, it
might be a good thing to have them not coincide in some circumstances, and
why it is a particular danger if they do not.
Supporters of NPV have never made a compelling case as to why, however, this
is a particular danger, even on their own terms. Indeed, as I've outlined in
my writings in the ELJ, one interesting point about the Electoral College is
that in both 1876 and 1888 it probably did a better job of capturing the
true popular will than did the popular vote totals, since the latter were
plagued by vote suppression in the south. Similarly, it is not generally
regarded as an inherent "danger" that a majority of both the House and the
Senate can be elected by a minority of voters.
But that aside, our constitution contains numerous other, structural,
anti-majoritarian features, that are intended to assure good government,
stability, and freedom. The mere fact that the Electoral College may not
always coincide with the national popular vote total is not an inherent
danger unless one operates on a highly ideological concept of how the
national government should be structured. Otherwise, you've got to explain
why that is a danger, and address countervailing arguments (such as the
College's promotion of national as opposed to regional coalitions). I think
one can do that, but simply asserting a "danger" does not make it so.
Similarly, Brad posits that there "there is no evidence that 'orphan voters'
are sitting around 'morosely' on the sidelines. It's a nice partisan
rhetorical flourish but nothing more." Well, I'm on my Blackberry waiting
for a meeting to start so I don't have it in front of me this minute, but
would you be satisfied by evidence I can get you later demonstrating that
the voter turn-out rate has increased significantly more in swing states in
the last few election cycles than in "orphan" states? What about radically
different rates of campaign spending, campaign organizing, campaign offices
being opened, campaign rallies being held, campaign appearances and campaign
speeches in the blessed swing states than in the forlorn taken-for-granted
safe states?
- No, because I don't think they have much to do with the idea of voters
sitting around "morosely on the sidelines." Look, my state senator is going
to be a Republican. My state rep, too. Nothing I can do has the remotest
chance of changing that. That is the type of case voters face routinely in
all electoral systems all around the world. Does this decrease my incentive
to vote? Perhaps. Do I feel "morosely sidelined" as a result? Hardly. As an
aside, I can't help but note that many people probably think it is a
blessing not to be in a "battleground" state.
I suppose if none of this would persuade you, I could accuse your question
of being a "nice partisan rhetorical flourish but nothing more."
But if there are personal blinders on, maybe it has less to do with
partisanship (although Brad's thesis should not be discounted entirely,
given the way that at least one partisan entity, the Republican National
Committee, has been strenuously campaigning against the plan)
- I would hope it obvious that I did not mean political party partisanship.
One can be partisan about many things. I am a partisan for the University of
Detroit basketball (an odd thing to be partisan about!). I am a partisan for
deregulating most elements of the campaign finance legal regime. You and Rob
are partisans of NPV, which has nothing to do with your political party
affiliation (of which, in Rob's case, I am not even aware).
but more to do with the accident of personal geography: Brad lives in Ohio,
the belle of the ball, whereas Rob lives in Maryland, where partisans from
all sides are urged to send their money, their campaign signs and their
volunteer energy directly to Virginia! As a Marylander, I can attest that
this bizarre feature of the status quo makes me morose indeed. . .
My views on this one haven't changed much since I lived in Massachusetts and
Texas. Anyway, I am sorry that you are morose, but I simply do not think
that that applies at all to the overwhelming majority of people.
All best, Jamie
- Back at ya'
Brad
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: Smith, Brad [mailto:BSmith at law.capital.edu]
Sent: Thursday, May 24, 2012 07:28 AM
To: 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
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>
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: <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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