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

Fri Apr 4 12:50:58 PDT 2014

A quick comment before I run back into ou Natl Security Law conference that is streaming live.

 McPherson v. Blacker holds that whether a state's manner of selecting electors is really an appointment by the State is justiciable.

Please pardon errors as I type on my not so smart phone.

Mark Scarberry
Pepperdine University School of Law

Sent from my Verizon Wireless 4G LTE Smartphone

-------- Original message --------
From: Steve Kolbert
Date:04/04/2014 11:27 AM (GMT-08:00)
To: Sean Parnell
Cc: Election Law
Subject: Re: [EL] National Popular Vote fails in Maine, plus a legal question about its constitutionality

Sean, I think you raise an interesting point. Perhaps we can call your hypothetical plan, "Evil Twin NPV."

Let's suppose Evil Twin NPV is unconstitutional. My question for Sean, Derek, and anyone else: What will (should) the remedy be? Here are some possibilities:

(1) Would the Court punt, perhaps by invoking the political question doctrine (as David suggested)?

(2) Would the Court impose another selection mechanism on the Evil Twin NPV states? But what mechansim?

(3) Would the Court engage in "statutory revival," and order Evil Twin NPV states to use the selection method that those states had previously enacted as law immediately prior to adopting Evil Twin NPV? Like all attempts at statutory revival, this has the problem of ordering a state to follow a law that the state has explicitly repealed. It also infringes on the state's ability to choose its electors.

(4) Would the Court declare that only "evil twin" portion of Evil Twin NPV is unconstitutional, while allowing that states could engage in "regular" NPV in which they treated all states' voters equally? After such a finding, presumably the Court would simply order the Evil Twin NPV states to appoint their electors according to the popular vote everywhere, instead of only based on the popular vote in the Evil Twin "bloc" states. In other words, the Court would impose "regular" NPV on the Evil Twin NPV states. This has a problem similar to the above -- it robs the states of their ability to choose their own electors.

(5) Would the Court invalidate all the electoral votes of the Evil Twin NPV states, and order Congress to count only the remainder counted? What effect would this have? The Twelfth Amendment states that "The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then ... the House of Representatives shall choose . . . ." The Evil Twin NPV states would, under this scenario, controll a majority of EVs, so perhaps then no candidate could obtain a majority of electoral votes, and this would necessarily send the election to the House? Or would the invalidated electoral votes from Evil Twin NPV states not be considered "Electors appointed," under the Twelfth Amendment, and so whoever had a majority of the *remaining electoral votes* becomes President?

(6) Would the Court order the states to enact a new way to select their presidential electors, but without ordering a specific method? But what if states refuse (or internal political gridlock prevents action)? Or what if the states pass a resolution that says "We hereby appoint Alice, Bob, and Carlos [the same individuals who would've been appointed as presidential electors under the Evil Twin NPV] as our state's presidential electors. This resolution is effective after states X, Y, and Z [other Evil Twin NPV states] enact similar resolutions," -- essentially doing an end-run around the Court's order?

Do any of these seem appropriate? Plausible? Are there other possibilities?

Steve Kolbert
(202) 422-2588
steve.kolbert at gmail.com<mailto:steve.kolbert at gmail.com>
@Pronounce_the_T

On Thu, Apr 3, 2014 at 4:47 PM, Sean Parnell <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>> wrote:
Thanks!

Sean Parnell
President
Impact Policy Management, LLC
6411 Caleb Court
Alexandria, VA  22315
571-289-1374<tel:571-289-1374> (c)
sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>

From: Derek Muller [mailto:derek.muller at gmail.com<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<tel:%2B1%20310-506-7058>
SSRN Author Page: http://ssrn.com/author=464341

On Thu, Apr 3, 2014 at 9:38 AM, Sean Parnell <sean at impactpolicymanagement.com<mailto: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<tel:571-289-1374> (c)
sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>

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