[EL] National Popular Vote Interstate Compact

Sun Oct 28 10:24:36 PDT 2012

For what it is worth, there are many people who joined this list more recently than 18 months ago. And, there is a certain dismissive quality to saying 'oh, we did that already,' when the goal of the list is to inform and educate.  

We have engaged massive, ongoing threads about aspects of section 2, section 5, early voting, voter identification, and aspects of campaign finance that are repetitive to previous experience and discussions. 

Perhaps there is room to allow this discussion to go forward?

Ronald Keith Gaddie, Ph.D.
Professor of Political Science
Editor, Social Science Quarterly
The University of Oklahoma
455 West Lindsey Street, Room 222
Norman, OK  73019-2001
Phone 405-325-4989
Fax 405-325-0718
E-mail: rkgaddie at ou.edu
http://faculty-staff.ou.edu/G/Ronald.K.Gaddie-1
http://socialsciencequarterly.org

________________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of sean at impactpolicymanagement.com [sean at impactpolicymanagement.com]
Sent: Sunday, October 28, 2012 12:01 PM
To: Scarberry, Mark; law-election-bounces at department-lists.uci.edu; law-election at uci.edu
Subject: Re: [EL] National Popular Vote Interstate Compact

I generally share Mark's thoughts on this, and indeed there seems little reason to re-hash the past arguments on both sides. One thing that should be pointed out however is that pretty much everyone on this list has in recent years been stunned/surprised/ dismayed by how SCOTUS has ruled on some aspect of election law (not to mention other areas of law) that they were sure would go the other way. Thus I don't think either side can/should place too much confidence in how SCOTUS might ultimately rule on the myriad issues related to NPV. In my book that counts as reason enough to not venture down that path (I have little interest in seeing the mega-sequel to Bush v. Gore), but others may have a greater zest for adventure in this area.

Best,

Sean Parnell

Sent from my Verizon Wireless BlackBerry

-----Original Message-----
From: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
Sender: law-election-bounces at department-lists.uci.edu
Date: Sun, 28 Oct 2012 08:51:08
To: law-election at uci.edu<law-election at uci.edu>
Subject: Re: [EL] National Popular Vote Interstate Compact

We had a long discussion of the NPVIC on this list a year or so ago. It's probably available in the archives. Dan Lowenstein and I pointed out that Art. II requires that the "state" appoint the electors, and that a choice by the national popular vote is in no sense an appointment by the "state." The analysis in McPherson v. Blacker (1892) depends in very substantial part on this exact point -- it was essentially the question presented -- and McPherson is binding on courts other than the Supreme Court. A constitutional scholar for whom I have great respect suggested strongly to me that this analysis is mistaken, and at some point I will take the time to review it again carefully, but at this point I think it is correct.

On the Congressional approval point, my colleague Derek Muller has done excellent work.

It seems to me that if anything is a compact requiring congressional approval, the NPVIC would be. But then it is not appropriate for states and congress acting together to change the way the President is chosen for the entire nation, given that such joint action for nationwide purposes is provided for by Article V.

The NPVIC also undercuts the Great Compromise which was necessary to creation of the Constitution, by in effect changing the balance of power in choice of the President so that it does not reflect the two electoral votes that each state is to have as a result of simply being a state.

We hashed this all out at great length before on this list, as I noted. I don't have time now to rehash it; if anyone is interested in my views, check the archive.

Best,
Mark

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Tara Ross
Sent: Sunday, October 28, 2012 8:30 AM
To: Gaddie, Ronald K.; Lillie Coney; law-election at uci.edu
Subject: Re: [EL] National Popular Vote Interstate Compact

You forgot Article V:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress . . .
.

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Gaddie, Ronald K.
Sent: Sunday, October 28, 2012 5:53 AM
To: Lillie Coney; 'law-election at UCI.edu'(law-election at uci.edu)
Subject: Re: [EL] National Popular Vote Interstate Compact

"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." Article II, Sec. 1, clause 2.

Then Article I, sec. 10, in the Compact Clause, that "No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State"

I leave it to the Constitutional scholars to hash this one out, but as to method, it seems that playing poker and a vigorous round of rock-papers-scissors are on the table as selection methods if states should so chuse. The phrases 'rational' and 'popular' appear in no particular proximity to these clauses.

Best,
~kg

Ronald Keith Gaddie, Ph.D.
Professor of Political Science
Editor, Social Science Quarterly
The University of Oklahoma
455 West Lindsey Street, Room 222
Norman, OK  73019-2001
Phone 405-325-4989
Fax 405-325-0718
E-mail: rkgaddie at ou.edu
http://faculty-staff.ou.edu/G/Ronald.K.Gaddie-1
http://socialsciencequarterly.org

________________________________________
From: law-election-bounces at department-lists.uci.edu
[law-election-bounces at department-lists.uci.edu] on behalf of Lillie Coney [coney at lillieconey.net]
Sent: Saturday, October 27, 2012 9:34 PM
To: 'law-election at UCI.edu' (law-election at uci.edu)
Subject: [EL] National Popular Vote Interstate Compact

This idea gained popular debate status after the very close outcome of the 2000 Election. It is worth thinking about the real implications if it were in place for a future election.

http://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact

I have my doubts about it when this was proposed and after watching this election year--it would further complicate what will be a hard fought election to the very last vote.

Would it be Constitutional without an Amendment?
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