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

[Derek Muller]

Sean, specifically to your first point, here were Professors Amar on the
subject (very briefly), suggesting that freezing out non-compacting states
from the vote total might run afoul of the Compact Clause (absent
congressional consent): http://writ.news.findlaw.com/amar/20011228.html

(The matter might be different if the coordinating states had sought to
> freeze other states out-say, by agreeing to back the candidate winning the
> most total votes within the coordinating states as a collective bloc, as
> opposed to the most total votes nationwide.)
>

Jennings "Jay" Wilson also raised the idea of such "bloc" voting in the
Election Law Journal:
http://online.liebertpub.com/doi/abs/10.1089/elj.2006.5.384 (Note: the ELJ
is open-access for the next several days!) He concluded that such a
proposal would probably require congressional consent under the Compact
Clause but thought an effort should be made to see what happens without it.

Of course, I've posited elsewhere that even the NPV as proposed, with a
national count of the popular vote, requires congressional consent, but
that puts me a step removed from your original inquiry....

As for forbidding certain states to join, that's something not readily
within my area of knowledge.

Best,

Derek

Derek T. Muller

Associate Professor of Law

Pepperdine University School of Law

24255 Pacific Coast Hwy.

Malibu, CA 90263

+1 310-506-7058

SSRN Author Page: http://ssrn.com/author=464341



On Thu, Apr 3, 2014 at 9:38 AM, 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
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140403/0effae55/attachment.html>