[EL] National Popular Vote Interstate Compact

Mon Oct 29 08:51:26 PDT 2012

What happens if the state delegations tie 25-25? Perhaps we should add
another state, to ensure this doesn't happen. I hear the District of
Columbia wouldn't mind obtaining statehood.

Steve Kolbert
(202) 422-2588
steve.kolbert at gmail.com
@Pronounce_the_T
On Oct 29, 2012 11:45 AM, "John Koza" <john at johnkoza.com> wrote:

> 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<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<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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>
>
> ****
>
> ** **
>
> --
> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
> "Respect for Every Vote and Every Voice"
>
> Rob Richie
> Executive Director
>
> FairVote
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