[EL] Fallacious Arguments Against the National Popular Vote
Rob Richie
rr at fairvote.org
Thu May 24 19:16:30 PDT 2012
I agree that we likely have exhausted this thread.
My final word on the core topic is that the combination of: 1) having a
"wrong-way winner"; 2) state election officials willing to violate the law
in an effort to help their party's popular vote loser become president;
that popular vote loser seeking the presidency under those conditions; and
4) the courts and nation allowing this to happen seems so remote that it's
hard to believe that serious people see it as a serious concern.
But I'll accept that some do and agree to disagree.
As to Doug and his feeling misquoted, my apologies to him if he sees it
that way. But note that more than once in this exchange he said he was
particularly troubled that the National Popular Vote plan allegedly was an
attempt to get around the Constitution. As a direct quote, for example, he
wrote: "constitutional change is better done as constitutional amendment,
rather than as an end-around."
>From my perspective, of course, the NPV plan is an end-around the
winner-take-all rule, not the Electoral College (which is maintained under)
nor the Constitution. I do think there's a general assumption -- not
necessarily Doug's -- that the winner-take-all rule is part of the
founders' plan. It's not. From my perspective, NPV is simply an alternate
policy option for states to the winner-take-all rule - and one that voters
seem to strongly prefer to the status quo. With that view, NPV is no more
an "end-around" than it was for states to decide eventually to all hold
popular votes to allocate electors even though that wasn't part of how most
states originally picked electors.
Onward,
Rob
On Thu, May 24, 2012 at 7:24 PM, Douglas Johnson
<djohnson at ndcresearch.com>wrote:
> 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: 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: 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****
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election****
>
>
>
>
> --
> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
> "Respect for Every Vote and Every Voice"
>
> Rob Richie
> Executive Director
>
> FairVote
> 6930 Carroll Avenue, Suite 610
> Takoma Park, MD 20912
> www.fairvote.org <http://www.fairvote.org> rr at fairvote.org
> (301) 270-4616
>
> Please support FairVote through action and tax-deductible donations -- see
> http://fairvote.org/donate. For federal employees, please consider a
> gift to us through the Combined Federal Campaign (FairVote's CFC number is
> 10132.) Thank you!****
>
--
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
"Respect for Every Vote and Every Voice"
Rob Richie
Executive Director
FairVote
6930 Carroll Avenue, Suite 610
Takoma Park, MD 20912
www.fairvote.org <http://www.fairvote.org> rr at fairvote.org
(301) 270-4616
Please support FairVote through action and tax-deductible donations -- see
http://fairvote.org/donate. For federal employees, please consider a gift
to us through the Combined Federal Campaign (FairVote's CFC number is
10132.) Thank you!
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