[EL] National Popular Vote Interstate Compact

Sun Oct 28 21:09:01 PDT 2012

I think it is clear that the blackout period in the NPVIC that purports to prevent states from withdrawing shortly before a presidential election is unconstitutional. The state legislature cannot divest itself of its right to determine the manner by which the state appoints its electors. If the NPVIC were in force now (to the extent it could have force, given its likely total unconstitutionality), many states would be withdrawing, because it appears that Gov. Romney is more likely to win the popular vote than to win states totaling 270 electoral votes. California would be very likely to back out if the NPVIC were in force. Ditto Illinois, Maryland, Vermont, and Washington (all of which have adopted the NPVIC, I think).

At least where the state legislature enacts a law prior to election day providing for  its electors to be chosen based on voting in that state, the NPVIC would not be enforceable against that state. Cf. 3 USC sec. 5.

My comment with regard to the archives was not to cut short any discussion other list members may wish to have. I just will not be able to participate in a substantial way, and list members may be interested in that earlier discussion, which was rather thorough on all sides.

Best wishes,
Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

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 2:35 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<mailto: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<mailto:law-election-bounces at department-lists.uci.edu>; law-election at uci.edu<mailto: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<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<mailto: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<tel:405-325-4989>
Fax 405-325-0718<tel:405-325-0718>
E-mail: rkgaddie at ou.edu<mailto: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<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com> [sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>]
Sent: Sunday, October 28, 2012 12:01 PM
To: Scarberry, Mark; law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>; law-election at uci.edu<mailto: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<mailto:Mark.Scarberry at pepperdine.edu>>
Sender: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>
Date: Sun, 28 Oct 2012 08:51:08
To: law-election at uci.edu<mailto:law-election at uci.edu><law-election at uci.edu<mailto: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> [mailto: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<mailto: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>
[mailto: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<mailto: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<tel:405-325-4989>
Fax 405-325-0718<tel:405-325-0718>
E-mail: rkgaddie at ou.edu<mailto: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<mailto:law-election-bounces at department-lists.uci.edu>
[law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Lillie Coney [coney at lillieconey.net<mailto:coney at lillieconey.net>]
Sent: Saturday, October 27, 2012 9:34 PM
To: 'law-election at UCI.edu' (law-election at uci.edu<mailto: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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