[EL] National Popular Vote fails in Maine, plus a legal question about its constitutionality
Sean Parnell
sean at impactpolicymanagement.com
Fri Apr 4 14:46:43 PDT 2014
A number of terrific questions. I suppose one of the biggest issues would
be, when is Evil Twin NPV struck down? If it's struck down in, say February
the year before the next presidential election, that's one thing. If it's
done on October 28th or November 23r, of the election year - well, that's a
whole 'nother mess. I'm not an attorney (as I hope I've mentioned before!)
and so I'm a lot better at raising questions than I am answering them, but
here's a few thoughts, addressing your scenarios.
1. Punt? Maybe, maybe not.
2. I'd be surprised if they imposed another mechanism, other than
perhaps to require they revert to their previous method. That's an easy
choice in February 2015, messier in November 2016. In some vague ways it's
similar to what happened in Vermont, after the Supreme Court struck down
their campaign finance laws. The legislature had repealed their previous
laws and then replaced them with new ones that were struck down later,
Vermont's AG and other relevant officials just assume(and I don't know if
this was appropriate or not, although I do recall some discussion on the
list about it) that the old, repealed laws were now back in effect.
3. OK, see #2 above. Timing is probably relevant tho - in February
2015 they probably don't revive, figuring the state has plenty of time to
put in place new laws. November 2016, maybe they revive the repealed law?
4. Well, having a severability clause would seem important here! I
agree that it would strip the state of the power to select their electors
WITHIN CONSTITUTIONAL BOUNDS, and is thus problematic.
5. Nightmare scenario! If SCOTUS says "No electoral vote for you!" to
Evil Twin NPV states (this is presumably after the election has occurred), I
really don't know whether the presidency goes to the person with the
majority of the constitutionally-cast electoral votes, or it goes to the
House.
I will suggest that, because the compact (NPV, not ETNPV) is so badly
drafted in terms of its assumptions about the availability of timely vote
totals from non-compact states, there's a possibility of this scenario under
NPV because members states might not be able to determine the candidate who
received the most popular votes, in which case they may not be able to cast
their electoral votes. Or maybe they will, they'll just cast their electoral
votes for whomever wins the popular vote among the compact states plus
whichever other vote totals they're able to obtain (making NPV look a bit
more like Evil Twin NPV, IMHO). So the possibility of a majority of electors
not being able to be appointed doesn't only exist if NPV is struck down, but
also if it's upheld but then fails catastrophically because Texas or any
other state decides to follow federal and state law in terms of when and how
they submit their Certificate of Ascertainment, and not the woefully
inaccurate opinions of NPV on when Certificates of Ascertainment are due and
what happens to them.
6. Assuming the timing works out (February 2015 yes, November 2016 not
so much), I'd guess that's what they'd do - strike down Evil Twin NPV and
let them go back to the drawing board. I'd say if a state simply fails to
have a process for appointing electors, then that means they aren't voting.
As for a resolution appointing Alice, Bob, and Carlos, that's pretty much
the way it was done when state legislators selected electors, but the
qualification depending on other states doing likewise may be problematic.
For that matter, while I wouldn't be a fan, I think it would be entirely
constitutional (reminder: not a lawyer) for a state legislature to say they
shall determine who the electors will be, and to also pass a non-binding
resolution expressing their fervent desire that future legislatures honor
the national popular vote rather than, say, an advisory vote in their own
state (which would presumably need to be held in order to assess what the
popular vote is in the state, and others as well).
I'll also say the Wilson piece that Derek passed along regarding 'bloc'
voting was fascinating. There's a lot there, but for the purposes of my
original question I'll summarize it to say that Wilson's opinion is that an
Evil Twin NPV in which only states that are members of the compact have
their popular votes counted would in fact be consistent with the general
theory of NPV (though I accept and agree that the folks at NPV would be
horrified at the thought of something like Evil NPV would be enacted), and
that in Wilson's opinion it's probably constitutional, although he doesn't
really discuss it much other than to say that Evil Twin NPV (he doesn't use
that term of course) would be more likely to draw legal challenges from
states that are ".completely frozen out of the presidential election."
Yeah, I think so too.
Hope this is more illuminating than aggravating, it's a fascinating topic.
I'm honestly more familiar (far, far more familiar) with the 'logistical'
aspects of NPV/Electoral College issues than the law, so to the extent I
ventured out there on the law, feel free to take my comments with a grain of
salt.
Best,
Sean Parnell
President
Impact Policy Management, LLC
6411 Caleb Court
Alexandria, VA 22315
571-289-1374 (c)
sean at impactpolicymanagement.com
From: Steve Kolbert [mailto:steve.kolbert at gmail.com]
Sent: Friday, April 04, 2014 2:26 PM
To: Sean Parnell
Cc: Derek Muller; 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
@Pronounce_the_T
On Thu, Apr 3, 2014 at 4:47 PM, Sean Parnell
<sean at impactpolicymanagement.com> wrote:
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 <tel:%2B1%20310-506-7058>
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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