[EL] Another Reason to Oppose the Nat'l Pop. Vote Compact

Thu Jan 5 22:44:36 PST 2017

In response to Rob:

Yes, substituting "a majority in the Electoral College" for my "the
national popular vote" does yield Rob's language. But would a state be at
all likely to exclude from its ballot a candidate who would, if on the
ballot, win the state? Consider also whether exclusion of such a candidate
from one state's ballot would be likely to tip the electoral vote count
under our current system.

A candidate can win the presidency without California's -- or Texas's --
electoral votes. But could a candidate who was not even on the ballot in
one of those states win the national popular vote? That seems very
unlikely. Trump got almost 4 million votes in California, even though he
lost the state very badly. Clinton got almost that many votes in Texas,
though Trump won the state by 9 points.

If Clinton had been kept off of the Texas ballot, her 2.9 million popular
vote margin* over Trump would have been more than wiped out. A national
popular vote system would, I think, be much more vulnerable than our
current system to manipulation by a state's exclusion of a candidate from
the ballot. I wouldn't trust California or Texas with this kind of weapon.

In response to Richard:

It would be a surprise to me if the supporters of the NPVIC thought they
were mostly trying to create an environment in which a constitutional
amendment could be adopted. How could fear of the compact convince
resistant states to embed the substance of the compact in the Constitution?
Is the point that adoption of the NPVIC in so many states makes us rethink
the wisdom of our current system? But to the point that 2/3 of the House
and of the Senate would propose, and 3/4 of the states would ratify, an
amendment?

Am I missing something?

Mark

Prof. Mark S. Scarberry
Pepperdine Univ. School of Law

*2.9 million is the latest figure I've seen.

On Thu, Jan 5, 2017 at 8:54 PM, Rob Richie <rr at fairvote.org> wrote:

> It's even more problematic in the status quo, which is true of so many of
> the concerns raised about moving to a national popular vote. That is, using
> Mark's formulation, "The possibility that a state could exclude from the
> ballot a candidate for President who otherwise might win a majority in the
> Electoral College is an additional reason to oppose our current system."
>
> Rob Richie
>
> On Wed, Jan 4, 2017 at 12:51 PM, Smith, Brad <BSmith at law.capital.edu>
> wrote:
>
>> Of course, if you had a constitutional amendment, Mark's fears could
>> still be realized, unless the Amendment grew quite complex.
>>
>> Sent from my iPhone
>>
>> On Jan 4, 2017, at 9:45 AM, Richard Winger <richardwinger at yahoo.com>
>> wrote:
>>
>> That is not a reason to oppose the national popular vote pact.  The real
>> function of the national popular vote pact is to get the country's
>> attention for a national constitutional amendment to revise the electoral
>> college.  If the pact gets extremely close to having enough states, the
>> country will turn its attention to a constitutional amendment.  Such an
>> amendment need not necessarily institute a national popular vote.  The
>> Lodge-Gossett plan of 1950 preserves the relative advantage currently
>> enjoyed by very low population states.  It abolishes human being electors
>> and converts every state's electoral vote into a precise number with four
>> places to the right of the decimal point.  It passed the US Senate in 1950
>> with over two-thirds.  It is not now on the nation's radar but it could
>> be.  Another incentive for the country to think about reform is the fact
>> that 10 presidential electors voted for someone other than Hillary Clinton
>> or Donald Trump, although 3 of those 10 were replaced and their votes
>> invalidated.  That issue is pending in federal court in 3 states and if the
>> electors who want freedom prevail in court, that would be yet another
>> incentive for reform.
>>
>> A further reform should be a national standard on ballot access for
>> presidential candidates.  The US and Switzerland are the only nations in
>> the world in which the rules for national elections are set by each
>> separate subdivision of the nation.
>>
>> Richard Winger 415-922-9779 <(415)%20922-9779> PO Box 470296, San
>> Francisco Ca 94147
>>
>>
>> On Wednesday, January 4, 2017 9:09 AM, Mark Scarberry <
>> mark.scarberry at pepperdine.edu> wrote:
>>
>>
>> I'm on record as opposing the NPVIC. The possibility that a state could
>> exclude from the ballot a candidate for President who otherwise might win
>> the national popular vote is an additional reason to oppose it.
>>
>> Mark
>>
>> Mark S. Scarberry
>> Pepperdine University School of Law
>> _____________________________
>> From: Rick Hasen <rhasen at law.uci.edu>
>> Sent: Wednesday, January 4, 2017 8:32 AM
>> Subject: [EL] ELB News and Commentary 1/4/17
>> To: Election Law Listserv <law-election at uci.edu>
>>
>> [snip]
>>
>> *“Blue-state lawmakers want to keep Trump off 2020 ballot unless he
>> releases tax returns”
>> <https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fp%3d90238&c=E,1,srG7p_tzrxtbQUUUa0PqJE_-hxUks3QGbpVShHtNZqtMeS6uGiChKDcTSpF-ADJHZAVux4MGCGX0cvLmNYhxzfHX_E-6wQwbEIOwkYuqKhxT&typo=1>*
>> Posted on January 3, 2017 5:08 pm
>> <https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fp%3d90238&c=E,1,tVG6JpDpfLqw0VFpzJnihi677YFiz6HTSjBSCtCItZkybwyPu2HS-rZfv0PoxV6MPhJWgLS792Ipfhkz38sGmJ84GMavj1KIBCUFLmkon9Y,&typo=1>
>>  by *Rick Hasen*
>> <https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fauthor%3d3&c=E,1,_SfURjXCYnv56DmZUbJVDqXIgWrWkBruAfLDzb4bRjgFsl2vyfhErfOtNmfmjuWI3fT5_asrLpaviQknEj06kuZggP0NqFJCnlkBwXc,&typo=1>
>> WaPo reports.
>> <https://www.washingtonpost.com/news/post-politics/wp/2017/01/03/blue-state-lawmakers-want-to-keep-trump-off-2020-ballot-unless-he-releases-tax-returns/?utm_term=.963a22a8e160>
>> The constitutionality of such requirements is uncertain.  The Supreme
>> Court in *US Term Limits v. Thornton *and *Cook v. Gralike *prevented
>> states from adding qualifications for congressional candidates through
>> ballot access requirements.  If those cases applied here, it would be tough
>> to argue that laws requiring presidential candidates to produce tax
>> returns are constitutional as they would be adding to qualifications.
>> However, those cases did not involve presidential elections, and perhaps
>> state legislatures have much broader power under Article II.  I think it is
>> an open question.
>>
>>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20170105/e5b6de51/attachment.html>