[EL] National Popular Vote Interstate Compact

Mon Oct 29 08:41:35 PDT 2012

The House of Representatives votes by state in choosing the President, so a
possible 218-218 tie in the House (which might affect the passage of
ordinary legislation) is not relevant.

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: Scarberry, Mark [mailto:Mark.Scarberry at pepperdine.edu] 
Sent: Monday, October 29, 2012 8:07 AM
To: 'Election Law'
Subject: Re: [EL] National Popular Vote Interstate Compact

Yes, that was precisely Derek's point. He also pointed out that with an even
number of House seats - 436 - a 218-218 tie in a House vote could occur, but
that would not be likely to create a serious problem. 

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 John
Koza
Sent: Monday, October 29, 2012 7:57 AM
To: 'Derek Muller'; 'Rob Richie'; 'Election Law'
Subject: Re: [EL] National Popular Vote Interstate Compact

If the House size were 436, then there would be 539 electoral votes, and
hence no tie in the Electoral College.

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: Derek Muller [mailto:derek.muller at gmail.com] 
Sent: Sunday, October 28, 2012 9:04 PM
To: Rob Richie; Election Law
Subject: Re: [EL] National Popular Vote Interstate Compact

Regarding the first point, "With NPV, there would never be an Electoral
College vote tie," why wouldn't the House pursue the less-intrusive means
and just expand its size to 436?

An odd-numbered House wasn't a problem prior to the 23d Amendment. And there
are times in America's history where the House did have an even number of
members. It could increase the majority vote in the House from 218 to 219;
it would mean a theoretical tie; but, given the size of the House, it is
often under its maximum capacity anyway, as members die or resign with some
regularity and leave the House with a de facto tie; and rarely to all
members of the House vote, anyway. The 436th seat is due to North Carolina
this apportionment, but perhaps a Rawlsian method might risk the next two
presidential elections and expand the House in the next apportionment.

Of course, this wouldn't cure the possibility that a third-party candidate
captured electoral votes and thwarted an electoral majority, but if 269-269
is the concern, this strikes me as the far easier solution than tossing the
Electoral College.

Derek

On Sun, Oct 28, 2012 at 2:05 PM, Rob Richie <rr at fairvote.org> wrote:

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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