[EL] National Popular Vote Interstate Compact

[Rob Richie]

I'll say briefly that the most viable efforts to go to direct election left
states in control of presidential election --for example, the 1969
amendment. The latest proposal from Congressman Steve Israel to give 29
electoral votes to the national popular vote winner also leaves states in
control of presidential elections.

Congress has the power right now to establish standards for better recount
procedures. Indeed, there are strong arguments that it should do so
regardless.

The bottom line is that the National Popular Vote plan would be better and
less prone to crisis than the status quo regardless of whether Congress
passed implementation laws or not.

Rob Richie

On Sun, Oct 28, 2012 at 10:51 PM, Tara Ross <tara at taraross.com> wrote:

> 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-proposal-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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>
>
> ****
>
> ** **
>
> --
> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
> "Respect for Every Vote and Every Voice"
>
> Rob Richie
> Executive Director
>
> FairVote
> 6930 Carroll Avenue, Suite 610
> Takoma Park, MD 20912
> www.fairvote.org  <http://www.fairvote.org> rr at fairvote.org
> (301) 270-4616
>
> Please support FairVote through action and tax-deductible donations -- see
> http://fairvote.org/donate. For federal employees, please consider  a
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>



-- 
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
"Respect for Every Vote and Every Voice"

Rob Richie
Executive Director

FairVote
6930 Carroll Avenue, Suite 610
Takoma Park, MD 20912
www.fairvote.org  <http://www.fairvote.org> rr at fairvote.org
(301) 270-4616

Please support FairVote through action and tax-deductible donations -- see
http://fairvote.org/donate. For federal employees, please consider  a gift
to us through the Combined Federal Campaign (FairVote's  CFC number is
10132.) Thank you!
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