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

[David Holtzman, MPH, JD]

You might call the Hastert Rule an "underground regulation:" a rule in operation without being properly adopted.  - dah 

----- Original Message -----

> Hmm, I’d think one difference is that, much like the Pirate Code, the Hastert
> Rule is more what you'd call " guidelines " than actual rules. Whereas NPV
> is in fact an actual rule (law).

>  

> Sean Parnell

> President

> Impact Policy Management, LLC

> 6411 Caleb Court

> Alexandria, VA  22315

> 571-289-1374 (c)

> sean at impactpolicymanagement.com

>  

> From: Dave Smilan [mailto:sdave at well.com] On Behalf Of David Holtzman, MPH,
> JD
> Sent: Thursday, April 03, 2014 3:15 PM
> To: Sean Parnell
> Cc: Rob Richie; Election Law
> Subject: Re: [EL] National Popular Vote fails in Maine, plus a legal question
> about its constitutionality

>  

> 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
> 

> >  
> 

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> 
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> 
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> 
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> >  
> 

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