[EL] National Popular Vote Interstate Compact
JBoppjr at aol.com
JBoppjr at aol.com
Mon Oct 29 09:53:29 PDT 2012
How about divide California between the left coast and the rest? Jim
In a message dated 10/29/2012 11:56:34 A.M. Eastern Daylight Time,
steve.kolbert at gmail.com writes:
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_ (mailto:steve.kolbert at gmail.com)
@Pronounce_the_T
On Oct 29, 2012 11:45 AM, "John Koza" <_john at johnkoza.com_
(mailto: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_ (tel:650-941-0336)
Fax: _650-941-9430_ (tel:650-941-9430)
Email: _john at johnkoza.com_ (mailto:john at johnkoza.com)
URL: _www.johnkoza.com_ (http://www.johnkoza.com/)
URL: _www.NationalPopularVote.com_ (http://www.nationalpopularvote.com/)
From: Scarberry, Mark [mailto:_Mark.Scarberry at pepperdine.edu_
(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)
[_mailto: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_ (tel:650-941-0336)
Fax: _650-941-9430_ (tel:650-941-9430)
Email: _john at johnkoza.com_ (mailto:john at johnkoza.com)
URL: _www.johnkoza.com_ (http://www.johnkoza.com/)
URL: _www.NationalPopularVote.com_ (http://www.nationalpopularvote.com/)
From: Derek Muller [_mailto:derek.muller at gmail.com_
(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_
(mailto: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_ (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_
(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://faculty-staff.ou.edu/G/Ronald.K.Gaddie-1)
_http://socialsciencequarterly.org_ (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://faculty-staff.ou.edu/G/Ronald.K.Gaddie-1)
_http://socialsciencequarterly.org_ (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_
(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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