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

Thu Apr 3 13:47:04 PDT 2014

Thanks!

Sean Parnell

President

Impact Policy Management, LLC

6411 Caleb Court

Alexandria, VA  22315

571-289-1374 (c)

sean at impactpolicymanagement.com

From: Derek Muller [mailto:derek.muller at gmail.com] 
Sent: Thursday, April 03, 2014 4:10 PM
To: Sean Parnell
Cc: Election Law
Subject: Re: [EL] National Popular Vote fails in Maine, plus a legal
question about its constitutionality

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>
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

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