[EL] National Popular Vote fails in Maine, plus a legal question about its constitutionality

Thu Apr 3 11:22:32 PDT 2014

Rob is correct, I can't imagine the hypothetical I proposed gaining support.
But as discussed within the past few days here, "there's not the political
will to do that" is perhaps an inappropriate test for whether a law is
constitutional or not.

That fact is, the Supreme Court often does consider hypotheticals when
trying to get the outer boundaries of what particular law or doctrine might
permit. A few people here might recall a hypothetical question about book
banning under campaign finance laws, the answer to which was not terribly
helpful to the side having to argue that they could do it if they wanted to,
but of course they didn't want to so the issue wasn't really relevant.

So my questions stand, I think: 1. Have I accurately described the legal
doctrine proposed by NPV?, and; 2. Does anyone believe it would pass
constitutional muster at the Supreme Court?

And I will be sure to pass along NPV's sentiments that Maine's legislature
is mired in emotion and not reason on this issue. ;-> (Just kidding - I'm
guessing that violates the rules of the listserve). 

Sean Parnell

President

Impact Policy Management, LLC

6411 Caleb Court

Alexandria, VA  22315

571-289-1374 (c)

sean at impactpolicymanagement.com

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rob
Richie
Sent: Thursday, April 03, 2014 1:05 PM
Cc: Election Law
Subject: Re: [EL] National Popular Vote fails in Maine, plus a legal
question about its constitutionality

I won't worry about Sean's hypothetical as it is purely that -- a
hypothetical that I can't imagine gaining support. Perhaps John Koza or
others might want to address it.

The Maine vote mirrored consideration of NPV there a few years ago. The vote
in fact was closer in the house this time even though no one outside the
legislature were talking about the bill there. The fact that an un-lobbied
bill can actually gain votes over one that was lobbied is in fact a
reflection of growing support in a mix of states.

I'll note that Sean wasn't quite as quick to showcase the vote on National
Popular Vote in the New York state legislature last week. Despite Sean's
efforts on the ground, a majority of Republicans and a majority of Democrats
in both chambers voted for NPV. In the state senate, the split was 27-2 in
favor among Republicans and 30-2 in favor among Democrats for an overall
margin of 57-4. Seems to me to reflect the triumph of reason over emotion.

ButI'm not looking for dustups!

Onward,

Rob

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Rob Richie
Executive Director, FairVote   
6930 Carroll Avenue, Suite 610
Takoma Park, MD 20912
rr at fairvote.org  (301) 270-4616  http://www.fairvote.org

On Thu, Apr 3, 2014 at 12:38 PM, Sean Parnell
<sean at impactpolicymanagement.com> wrote:

I know today is "The Day After McCutcheon," and also maybe "The Day People
Argue About Voter Fraud in North Carolina," but I thought I'd also pass
along the information that National Popular Vote has failed in Maine, both
in the Senate (tie 17-17 vote to accept the minority committee report, which
favored NPV) and in the House (60-85 to accept the minority report). As with
all legislation there is of course the possibility that it will be revived,
but that seems unlikely at this point.

It does remind me however that I have a question to pose the list regarding
the constitutionality of NPV and the legal theory underpinning it. 

As I understand it, the legal theory supporting the constitutionality of NPV
is that states have an unfettered authority to determine the manner in which
they award their presidential electors, so long as it doesn't bump up
against other constitutional requirements such as by prohibiting women from
voting for president. In the case of NPV, this theory means that a system in
which states award their electors based on factors outside of the state, and
in concert with other states, is constitutional.

Now here's my question: under this theory, NPV's inclusion of popular vote
totals in non-compact states is basically a courtesy. If they wanted to, the
NPV compact would be amended to simply say that member states would
collectively award their electors to the candidate who receives the largest
number of popular votes in the compact states, and simply ignore states that
aren't members of compacts. Furthermore, while the compact currently says
that any state may join the compact, I assume that could be amended to say
that a majority of states already in the compact must vote to approve the
membership of other states who want to join, or some other limiting feature
could be devised (I don't know for sure, but I'm guessing that Oregon can't
join The Great Lakes-St. Lawrence River Basin Water Resources Compact).

First question is, have I accurately understood the legal theory
underpinning NPV's constitutionality and what it would allow? And the second
question of course is, does anyone think the Supreme Court would look at
that and say, "Sure, looks good to us"?

I'd love to hear any responses, pro, con, or other, either on the list (it's
been a while since we've had a good NPV dustup, I think!) or off. 

Best,

Sean Parnell

President

Impact Policy Management, LLC

6411 Caleb Court

Alexandria, VA  22315

571-289-1374 (c)

sean at impactpolicymanagement.com

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