[EL] National Popular Vote Interstate Compact / Chosing electors by methods explicitly rejected by Constitutional Convention
John Koza
john at johnkoza.com
Sun Oct 28 20:29:35 PDT 2012
Tara Ross says (in a posting today), "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."
If Tara Ross is correct in asserting that section 1 of Article II precludes
states from using a method of choosing presidential electors that was
rejected by the Constitutional Convention, then George Washington, John
Adams, Thomas Jefferson, James Madison, and James Monroe were all elected
unconstitutionally.
On June 2, 1787, the Convention voted against a motion by James Wilson of
Pennsylvania specifying that the voters would elect presidential electors by
district. Nonetheless, in the nation's first presidential election in 1789,
Virginia and Delaware voters elected presidential electors by district.
Moreover, if Ross is correct in asserting that section 1 of Article II
precludes states from using a method of choosing presidential electors that
was rejected by the Constitutional Convention, Maine and Nebraska's CURRENT
method would be unconstitutional. (See REFERENCE below from Madison's notes
for June 2, 1787)
On July 24, 1787, the Convention rejected selection of the President by
state legislatures. Nonetheless, in 1789, Connecticut, South Carolina, and
Georgia chose to appoint their presidential electors in the state
legislature. Between 1789 and 1800, the legislatures of eight additional
states (including New Hampshire, Massachusetts, Rhode Island, New York, New
Jersey, Pennsylvania, Delaware, and Kentucky) appointed their state's
presidential electors on one or more occasions.
On June 15, 1787, the Convention voted against selection of the President by
state Governors. New Jersey presidential electors were appointed by the
Governor and his Council in the nation's first presidential election in
1789, despite the fact that the Constitutional Convention voted against
selection by Governors. In 1792, Vermont's electors were chosen by the
Governor and his Council and the state House of Representatives - a
combination of two methods that Ross claims cannot be used.
The Founders's course of conduct immediately after ratification of the
Constitution makes it clear that the unqualified language that eventually
ended up in the Constitution (section 1 of Article II) does not preclude the
states from using methods of choosing presidential electors that were
rejected at some point during the Constitutional Convention. Indeed, a
majority of the presidential electors in the nation's first nine
presidential elections (1789-1820) were chosen using methods rejected by the
Constitutional Convention.
The fact is that Section 1 of article II of the U.S. Constitution does not
prohibit, require, encourage, or discourage the use of any particular method
for awarding a state's electoral votes. This wording permits the states to
exercise their power to choose the manner of appointing their presidential
electors in any way they see fit-subject only to the implicit limitation on
all grants of power in the Constitution, namely that the states not violate
any specific restriction on state action contained elsewhere in the
Constitution.
REFERENCE:
Madison Debates. Yale Law School. The Avalon Project: Documents in Law,
History, and Diplomacy. On June 2, 1787, "Mr. Wilson made the following
motion, to be substituted for the mode proposed by Mr. Randolph's
resolution, 'that the Executive Magistracy shall be elected in the following
manner: That the States be divided into -------- districts: & that the
persons qualified to vote in each district for members of the first branch
of the national Legislature elect -------- members for their respective
districts to be electors of the Executive magistracy, that the said Electors
of the Executive magistracy meet at -------- and they or any -------- of
them so met shall proceed to elect by ballot, but not out of their own body
-------- person in whom the Executive authority of the national Government
shall be vested." http://avalon.law.yale.edu/18th_century/debates_602.asp .
Dr. John R. Koza
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
From: Tara Ross [mailto:tara at taraross.com]
Sent: Sunday, October 28, 2012 7:52 PM
To: Smith, Brad; Rob Richie
Cc: law-election-bounces at department-lists.uci.edu; law-election at uci.edu
Subject: Re: [EL] National Popular Vote Interstate Compact
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-proposa
l-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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