[EL] National Popular Vote Interstate Compact / "changing the balance of power in choice of the President"

Sun Oct 28 12:29:31 PDT 2012

Mark Scarberry questioned the constitutionality of the National Popular Vote
interstate compact on the basis of the Great Compromise by saying:

"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."   

Of course, the "balance of power in [the] choice of the President" has been
dramatically changed by state legislation in the past-most notably by the
widespread adoption of the winner-take-all rule by means of state
legislation in the 1820s and 1830s. 

Once the winner-take-all rule became widespread, a state's "power in [the]
choice of the President" was primarily determined by whether the state is a
closely divided battleground state, not its number of electoral votes. 

The Great Compromise intended to confer a certain amount of extra influence
on the less populous states by giving every state a bonus of two electoral
votes corresponding to its two U.S. Senators. The Founders also intended
that the Constitution's formula for allocating electoral votes would give
the bigger states a larger amount of influence in presidential elections. 

The Founding Father's goals with respect to both small states and big states
were never achieved because of the widespread adoption by the states of
winner-take-all statutes. 

Despite the Great Compromise, small states (i.e., those with three and four
electoral votes) such as Wyoming, Vermont, North Dakota, Alaska, South
Dakota, Delaware, Montana, Rhode Island, Hawaii, Maine, and Idaho have no
"power in choice of the President" because they are one-party states that
are consistently ignored in presidential elections because of state
winner-take-all statutes. The small states still nominally retain the number
of electoral votes assigned to them by the Constitution, and they still cast
their electoral votes in the Electoral College. However, their political
"power in [the] choice of the President" has been extinguished as a result
of state winner-take-all statutes.

Similarly, numerous big states (e.g., New York, Texas, Illinois, and New
Jersey) have had no "power in [the] choice of the President" for decades
because of state winner-take-all statutes. These  big states still nominally
retain the number of electoral votes assigned to them by the Constitution,
and they still cast their electoral votes in the Electoral College. However,
everyone knows that they don't matter in choosing the President.

The National Popular Vote compact would not change the Constitution's
allocation of electoral votes among the states. However, like state
winner-take-all statues, it decidedly would change "the balance of power in
[the] choice of the President." Under the National Popular Vote compact,
every voter in every state would be politically relevant in every
presidential election.

The U.S. Supreme Court has ruled the winner-take-all rule is constitutional.
Williams v. Virginia State Board of Elections, 288 F. Supp. 622 - Dist.
Court, ED Virginia 1968. The U.S. Supreme Court affirmed this decision in a
per curiam decision in 1969. Williams v. Virginia State Board of Elections.
393 U.S. 320 (1969) (per curiam).

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: Scarberry, Mark [mailto:Mark.Scarberry at pepperdine.edu] 
Sent: Sunday, October 28, 2012 8:51 AM
To: 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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