[EL] Another Reason to Oppose the Nat'l Pop. Vote Compact
John Tanner
john.k.tanner at gmail.com
Fri Jan 6 11:49:36 PST 2017
I add that I have long favored direct popular election of the President, but admit that the idea of a national recount gives me pause
> On Jan 6, 2017, at 2:48 PM, John Tanner <john.k.tanner at gmail.com> wrote:
>
> It was 1964. About half of the 1960 Democratic electors were pledged to Harry Byrd — or at least voted for him. Counting those votes would offer a nice legal issue
>
>
>> On Jan 6, 2017, at 12:27 PM, Sean Parnell <sparnell at philanthropyroundtable.org <mailto:sparnell at philanthropyroundtable.org>> wrote:
>>
>> I believe every state in the union kept LBJ off its November 1968 ballot.
>>
>> Sean
>>
>> 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 <mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of Richard Winger
>> Sent: Friday, January 06, 2017 10:58 AM
>> To: Mark Scarberry <mark.scarberry at pepperdine.edu <mailto:mark.scarberry at pepperdine.edu>>; Election Law Listserv <law-election at uci.edu <mailto:law-election at uci.edu>>
>> Subject: Re: [EL] Another Reason to Oppose the Nat'l Pop. Vote Compact
>>
>> Alabama kept Lyndon Johnson off its November 1968 ballot, and it kept Harry Truman off its November 1948 ballot.
>>
>> Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147
>>
>> On Thursday, January 5, 2017 10:46 PM, Mark Scarberry <mark.scarberry at pepperdine.edu <mailto:mark.scarberry at pepperdine.edu>> wrote:
>>
>> 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 <mailto: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 <mailto: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 <mailto: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 PO Box 470296, San Francisco Ca 94147
>>
>> On Wednesday, January 4, 2017 9:09 AM, Mark Scarberry <mark.scarberry at pepperdine.edu <mailto: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 <mailto: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 <mailto: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.
>>
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