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

Thu Apr 3 12:37:52 PDT 2014

It doesn’t mention the Pirate Code, but here’s an otherwise interesting article on the topic:

http://thecaucus.blogs.nytimes.com/2013/04/11/tracking-hastert-rule-violations-in-the-hous/?_php=true <http://thecaucus.blogs.nytimes.com/2013/04/11/tracking-hastert-rule-violations-in-the-hous/?_php=true&_type=blogs&_r=0> &_type=blogs&_r=0

Tracking Hastert Rule Violations in the House

By  <http://thecaucus.blogs.nytimes.com/author/derek-willis/> DEREK WILLIS

 APRIL 11, 2013, 12:50 PM  2 Comments

In a largely unnoticed vote on Tuesday, the House passed legislation without the support of a majority of Republicans, the fourth time in 2013 that the so-called “Hastert Rule” was broken by the majority party.

Named for the former House speaker, J. Dennis Hastert of Illinois, the “rule” is more of an informal guideline in which the majority party typically does not bring bills to the House floor unless they have the support of more than half of the majority party’s lawmakers. Such votes are fairly rare: the most recent vote was the 36th time it has happened since 1991, according to  <http://politics.nytimes.com/congress/votes/house/hastert-rule> a tally by The New York Times…

So it appears it’s actually the Foley rule, at least over the period studied. 

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 3:29 PM
To: Sean Parnell; Election Law
Cc: David Holtzman, MPH, JD; Rob Richie
Subject: Re: [EL] National Popular Vote fails in Maine, plus a legal question about its constitutionality

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

  _____  

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

  _____  

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 <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/ef906679/attachment.html>