[EL] Nat. Pop. Vote Plan bill passes 2 Arizona committees in one day

Tue Feb 2 11:56:59 PST 2016

And then there’s the nightmare of a recount in a close race. It couldn’t be done in time to swear in the new Pres.  So, it could end up with the courts deciding the Presidency. Oh, wait …

Larry

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Sean Parnell
Sent: Tuesday, February 02, 2016 11:45 AM
To: 'Scarberry, Mark' <Mark.Scarberry at pepperdine.edu>; 'Election Law' <law-election at uci.edu>
Subject: Re: [EL] Nat. Pop. Vote Plan bill passes 2 Arizona committees in one day

That is one of the many serious flaws in the compact, yes. And I wouldn’t limit it to a third-party scenario either. It’s an article of faith among many on the left that Republicans routinely suppress votes and monkey with election law for partisan gain, I’m not sure why they’re so eager to rely on the state legislature of, say, Texas, not deciding after the fact (assuming they signed on to the compact) to take the pwer back and award their electoral votes to whomever won the popular vote in their state (politicians do have a habit of responding to the interests of their local voters, after all). And recall the shenanigans the Democratic majority in Massachusetts engaged in regarding the filling of vacant U.S. Senate seats, removing the authority from the governor when they thought Romney might need to appoint someone to replace Kerry and reversing course when they thought they needed a 60th vote to pass Obamacare following Kennedy’s death.

And that doesn’t even get into the problem of there not being an official, reliable, timely “national popular vote” count to determine the “winner” in the first place…

Sean Parnell

President, Impact Policy Management LLC

Alexandria, Virginia

571-289-1374

sean at impactpolicymanagement.com <mailto:sean at impactpolicymanagement.com> 

From: law-election-bounces at department-lists.uci.edu <mailto:law-election-bounces at department-lists.uci.edu>  [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Scarberry, Mark
Sent: Tuesday, February 2, 2016 1:28 PM
To: Election Law <law-election at uci.edu <mailto:law-election at uci.edu> >
Subject: Re: [EL] Nat. Pop. Vote Plan bill passes 2 Arizona committees in one day

The NPV compact has a severability clause, so this is not as important as it might seem, but is there substantial support on the list for the constitutionality of the blackout provision? It's contrary to the Court's view of the prerogatives of a state legislature as explained in the Palm Beach County case, and I think also in Bush v. Gore per this statement:

"The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id. [ McPherson v. Blacker], at 35 (“[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated”) (quoting S. Rep. No. 395, 43d Cong., 1st Sess.)."

Wouldn't a state be likely to withdraw during the blackout period if there is a serious independent bid that is likely to split the vote and result in a plurality winner from the party that isn't in control of the legislature?

Mark S. Scarberry

Pepperdine University School of Law

Sent from my iPad

On Feb 2, 2016, at 9:18 AM, Derek Muller <derek.muller at gmail.com <mailto:derek.muller at gmail.com> > wrote:

It's worth noting that the NPV is at 165 electoral votes, 95 shy of hitting 270. Arizona's 11 would certainly help; it's languished in Minnesota (10), Michigan (16), and Pennsylvania (20). And there simply aren't many more large Democratic-controlled states left to move it along, as Democrats tended to favor it this past decade. That said, the overwhelming Republican support in Arizona may signal possible new life for the effort. (Indeed, these four states and Texas (38) would provide the full 95 needed to hit 270.)

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: http://papers.ssrn.com/author=464341

Twitter: http://twitter.com/derektmuller

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