[EL] National Popular Vote fails in Maine, plus a legal question about its constitutionality
David Holtzman, MPH, JD
david at holtzmanlaw.com
Thu Apr 3 12:15:05 PDT 2014
The hypo is not a helluva lot different from the Hastert Rule.
(requiring a majority of the majority caucus to agree before something moves to the House floor)
Maybe with an add-on: the majority caucus voting on whether to let in new "converts" to its party.
"Political Question" evading S.Ct review?
- dah
----- Original Message -----
> 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
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140403/4b50a4c2/attachment.html>
View list directory