[EL] National Popular Vote Interstate Compact
Tara Ross
tara at taraross.com
Sun Oct 28 19:51:30 PDT 2012
I echo Brad's thoughts, below. Exactly.
I wish I had time to give more thorough responses to some of the
thoughts offered today. As it is, I will rely on my prior statements in
the archives. Just a few specific comments on some of today's
statements:
I will start on a light note: Someone mentioned that NPV's book is
available for download. It reminded me that I probably should have told
this list about a similar offer of my own. With the release of the
second edition of my book, I have a few extra first editions
<http://www.electoralcollegebook.com/> that need homes. I am giving
them away to those who would like to use them in their classrooms. I
just ask that you or your school pay shipping from the distributor. The
offer lasts until I run out of books. Feel free to contact me off line
if you'd like to arrange this for one of your classes.
And now two other (not so light) thoughts:
Rob -- I found one of your statements today rather astonishing: "The
National Popular Vote plan moves us forward without the need to sort
those issues out." Without the need to sort those issues out? But
passing NPV could force our hand on some of these issues, with or
without consensus on the matter. For instance, you note that there is
no consensus on whether we should have greater federal authority over
presidential elections. But you know very well that NPV will cause such
chaos that demands for a federal election code will soon follow. (How
can 51 sets of state /DC laws produce 1 national outcome?)
You don't have to take my word for it. Electoral College opponent
Vikram David Amar has stated
<http://verdict.justia.com/2011/08/05/the-national-popular-vote-bill-pro
posal-in-california-and-ultimately-perhaps-in-washington-d-c> :
"The other problem I see in the current National Popular Vote bill is
that it does not guarantee a true national election with uniform voter
qualification, voter mechanics, and vote-counting standards....This
could generate a true democratic crisis, perhaps even bigger than the
one that occurred in 2000....Happily, I think there is a solution to
this problem-Congressional action."
John - But of course Article V is relevant. Any state legislature
adopting your plan is doing far more than making a decision about
elector allocation for a single state. You've already conceded that by
using an interstate compact; you are asking for joint action. The
question before the Court will be: Can this type of coordinated state
decision-making be done through a compact? Or must it be done through
Article V, the constitutionally provided method for joint state
decision-making on matters of this magnitude? Given that a purely
democratic presidential election process was directly rejected by the
delegates to the Constitutional Convention, it would seem to me that a
formal constitutional amendment must be used to undo that original
decision.
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Smith, Brad
Sent: Sunday, October 28, 2012 4:35 PM
To: Rob Richie
Cc: law-election-bounces at department-lists.uci.edu; law-election at uci.edu
Subject: Re: [EL] National Popular Vote Interstate Compact
If and when NPV is enacted and we reach April, 2016, if the election
looks at all close (as it did in April of 2012) I suspect that the
California and New York will withdraw from the compact. Other states
would follow, and even if they did not withdraw, it would not be clear
if they were still obliged to the compact, even assuming that the
compact were found to be valid, which would probably be litigated. Some
states may withdraw within the 6 month period in which the compact
purports to disallow withdrawal, so that would have to be litigated.
These possibilities and the ensuing chaos strikes me as much more likely
than the chaos predicted every 4 years by NPV backers.
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: Sunday, October 28, 2012 5:05 PM
To: Gaddie, Ronald K.
Cc: law-election-bounces at department-lists.uci.edu; law-election at uci.edu;
Scarberry, Mark
Subject: Re: [EL] National Popular Vote Interstate Compact
The National Popular Vote plan indeed does have a history of triggering
long discussions here. I would suggest those who missed them consider
looking back in the listserv archive as well as a variety of online
resources about issues of debate. Every Vote Equal, for example, is
available as a free download at http:/www.everyvoteequal.com -- it has a
lengthy discussion in Chapter 10 of concerns that have been raised, with
John Koza's posts earlier today grounded in that excellent resource.
Getting back to the original question from Lillie Coney about whether
NPV would be exacerbating problems, I would strongly argue the opposite.
This year's election in fact to me underscores what I would see as the
both the bankruptcy of the current system and its greater vulnerability
to creating an artificial crisis than what we will see if and when the
National Popular Vote plan is enacted in time for the 2016 election.
Here's what we know about the current Electoral College rules compared
to the National Popular Vote plan:
1. With NPV, there would never be an Electoral College vote tie, with
all its resulting weirdness and potential for instability. There are any
number of stories out there about whether a tie would lead to a
Romney-Biden White House. Imagine the additional vitriol associated with
that scenario if Obama has won the popular vote, but the House sticks
with Romney. You'd see intense pressure on just one Romney elector to
defect to avoid this scenario.
The same irrational procedure for how Congress selecting the president
and vice-president kicks in if a third party candidate gets enough
electoral votes to deprive any candidate of getting a majority. That
almost happened in 1968, when George Wallace won several southern
states, as Nixon would have lost his electoral vote majority (and
perhaps the presidency) if Humphrey had won California rather than lose
it by 4%. This year Americans Elect had visions of its candidate being
strong enough to win some states and potentially deny an electoral vote
majority without negotiation with its electors.
2. With NPV, there never would be a winner who loses in the popular
vote. Here's a relevant excerpt from a very interesting story on that
potential scenario in yesterday's Washington Post that talks about how
that leads to a weakened presidency:
<<Veterans of the Bush White House understand that problem well. ...."A
close election is a polarizing event, and a discrepancy between the
popular outcome and the electoral vote only adds to the polarization,"
said Karen Hughes, who served as a counselor to Bush. "It rubs a raw
nerve even rawer." >>
3. We would never have this year's utterly bizarre reality of well over
90% of campaign resources and attention devoted to less than 20% of
states and ALL of it devoted to states representing less than a third of
Americans. Ohio has had more ads and campaign visits than the smallest
29 states, underscoring how anyone who says the current system helps
small states just isn't paying attention.
4. There would be less likelihood of a disputed outcome that could not
be resolved by the meeting of the electors. The current system magnifies
the impact of very small margins in swing states, creating all kind of
opportunities for voter fraud and polarizing fingerpointing both before
and after elections. As one example, numbers guru Nate Silver of
FiveThirtyEight.com argues that there is a 50% chance that the candidate
who wins Ohio will win the presidency We know that Ohio could come down
to a very small margin -- one that if extremely close, will not be
resolved in a way that the losers will accept by the time the electors
will meet.
The odds of the national popular vote margin being within a recount
range is much less. Our study of statewide recounts from 2000 to 2009
has relevant findings about just how little vote percentages change in
recounts -- enough to potentially affect the presidency if the White
House hinges on one swing state like Ohio, perhaps, but extremely
unlikely in the event of a national popular vote:
http://www.fairvote.org/recounts
- Rob Richie, FairVote
On Sun, Oct 28, 2012 at 1:24 PM, Gaddie, Ronald K. <rkgaddie at ou.edu>
wrote:
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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