[EL] Another Reason to Oppose the Nat'l Pop. Vote Compact / Lincoln 1860 /

Mon Jan 9 11:02:45 PST 2017

If Texas had tried to keep Clinton off the ballot in 2016 (thereby
frustrating her 3.9 million Texas supporters), the proper remedy would not
be Dan Meek's punitive proposal to disenfranchise Trump's 4.7 million
innocent voters, but to get Clinton back onto the ballot. 

I believe that the Constitution's Guarantee Clause and the Equal Protection
Clause provide ample basis for thwarting any attempt to create a one-party
state.

I also wonder why Dan's proposal should only benefit "major party
candidates" -- and not all presidential candidates?

Finally, I mentioned tax returns because this discussion was kindled by the
suggestion that a state might be able to keep a presidential candidate off
the ballot if that candidate did not disclose his tax returns.  

The brief effort in 2012 by Kansas Secretary of State Kris Kobach to keep
Obama off the ballot is a reminder that, in the real-world, these hijinks
don't work.

Dr. John R. Koza

Box 1441

Los Altos Hills, California 94023 USA

Phone: 650-941-0336

Fax: 650-941-9430

Email:  <mailto:john at johnkoza.com> john at johnkoza.com

URL:  <http://www.johnkoza.com/> www.johnkoza.com

URL:  <http://www.nationalpopularvote.com/> www.NationalPopularVote.com

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Dan Meek
Sent: Monday, January 9, 2017 1:51 AM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Another Reason to Oppose the Nat'l Pop. Vote Compact /
Lincoln 1860

I don't know why Mr. Koza has introduced the income tax angle.  As Richard
Winger pointed out, some states in the past have kept major party candidates
off of their ballots, for whatever reason or excuse.  Had Texas kept Hillary
Clinton off the 2016 ballot, for example, then it appears to me that Donald
Trump would have been declared the national popular vote winner under the
NPV Compact.

The NPV Compact is written to allow each state to determine the number of
popular votes for each candidate within that state and within each of the
other states as well:

Prior to the time set by law for the meeting and voting by the presidential
electors, the chief election official of each member state shall determine
the number of votes for each presidential slate in each State of the United
States and in the District of Columbia in which votes have been cast in a
statewide popular election and shall add such votes together to produce a
"national popular vote total" for each presidential slate.

So a state could keep a major candidate off the ballot or refuse to count
the votes cast for a major candidate, and that would apparently prevent each
of the chief election officials in the member states from determining the
"true" national popular vote winner.  If Texas had kept Clinton off the 2016
ballot, she would not have received most or all of her 3.88 million votes
there (depending on whether write-ins would be tallied).  That could have
negated her national popular vote win, which was by 2.86 million votes.

I don't see anything in Mr. Koza's post that negates the need for the
language I proposed:

If a State fails to place all major party candidates for President on the
general election ballot or fails to tally and report the votes cast for any
such candidate, the national popular vote total, for the purposes of this
Compact, shall exclude all votes from that State.

Dan Meek

503-293-9021 

dan at meek.net <mailto:dan at meek.net>  

855-280-0488 fax 

On 1/8/2017 1:48 PM, John Koza wrote:

In the unlikely event that a state passes a bill that denies ballot access
to a presidential candidate who does not reveal his income tax returns, and
in the event that there is actually a candidate who does not comply with
that state law in some future presidential election, and in even more
unlikely event that the courts uphold this hypothesized state law, then the
National Popular Vote compact would deal with this situation in the same way
it would have dealt with Lincoln's popular votes in 1860.

In 1860, Lincoln was not on the ballot in nine states, and hence won zero
popular votes in each of those states.  If the National Popular Vote compact
had been operative in 1860, Article III, clause 1 of the compact says that
one would "determine the number of votes for each presidential slate in each
State . and shall add such votes together to produce a 'national popular
vote total' for each presidential slate."  Lincoln's number of popular vote
was zero in each of the nine states, and those nine zeroes would have been
added into the number of popular votes that Lincoln received in each of the
remaining states.  

As we all know, Lincoln's "national popular vote total" the highest among
the four candidates (despite his nine zeroes).  Article III, clause 2 of the
compact then requires one to "designate the presidential slate with the
largest national popular vote total as the 'national popular vote winner.' "
Lincoln was thus "national popular vote winner."

Article III, clause 3 of the compact then gives Lincoln enough electoral
votes to become President: "The presidential elector certifying official of
each member state shall certify the appointment in that official's own state
of the elector slate nominated in that state in association with the
national popular vote winner."  

In 1912, second-place candidate Teddy Roosevelt was not on the ballot in
Oklahoma.  That would not have prevented him from being designated as the
"national popular vote winner" in the event that he had received the most
popular votes nationwide.  

On September 13, 2012, a Kansas board consisting of Republican Secretary of
State Kris Kobach and two other Republican statewide officeholders
considered a motion to keep Democrat Barack Obama off the presidential
ballot in Kansas.  The New York Times reported that the motion was abandoned
a day later as a result of "a wave of angry backlash."  (Eligon, John.
Kansas ballot challenge over Obama's birth is ended. New York Times.
September 14, 2012.)   It should be noted that the state-by-state
winner-take-all system was in operation in 2012.

Dr. John R. Koza, Chair

National Popular Vote

Box 1441

Los Altos Hills, California 94023 USA

Phone: 650-941-0336

Fax: 650-941-9430

Email:  <mailto:john at johnkoza.com> john at johnkoza.com

URL:  <http://www.johnkoza.com/> www.johnkoza.com

URL:  <http://www.nationalpopularvote.com/> www.NationalPopularVote.com

From:  <mailto:law-election-bounces at department-lists.uci.edu>
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 Dan Meek
Sent: Sunday, January 8, 2017 5:39 AM
To:  <mailto:law-election at department-lists.uci.edu>
law-election at department-lists.uci.edu
Subject: Re: [EL] Another Reason to Oppose the Nat'l Pop. Vote Compact

How about adding this language to the NPV Compact to nullify the "rogue
state" problem identified by Richard Winger and others:

If a State fails to place all major party candidates for President on the
general election ballot or fails to tally and report the votes cast for any
such candidate, the national popular vote total, for the purposes of this
Compact, shall exclude all votes from that State.

Dan Meek

503-293-9021 

 <mailto:dan at meek.net> dan at meek.net 

855-280-0488 fax 

On 1/6/2017 11:49 AM, John Tanner wrote:

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
<mailto: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:  <mailto:law-election-bounces at department-lists.uci.edu>
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 < <mailto:mark.scarberry at pepperdine.edu>
mark.scarberry at pepperdine.edu>; Election Law Listserv <
<mailto:law-election at uci.edu> 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 <
<mailto:mark.scarberry at pepperdine.edu> 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 < <mailto:rr at fairvote.org>
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 <
<mailto:BSmith at law.capital.edu> 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 <
<mailto:richardwinger at yahoo.com> 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 <
<mailto:mark.scarberry at pepperdine.edu> 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 < <mailto:rhasen at law.uci.edu> 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 < <mailto:law-election at uci.edu>
law-election at uci.edu>

[snip]

<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fp%3d902
38&c=E,1,srG7p_tzrxtbQUUUa0PqJE_-hxUks3QGbpVShHtNZqtMeS6uGiChKDcTSpF-ADJHZAV
ux4MGCGX0cvLmNYhxzfHX_E-6wQwbEIOwkYuqKhxT&typo=1> "Blue-state lawmakers want
to keep Trump off 2020 ballot unless he releases tax returns"

Posted on
<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fp%3d902
38&c=E,1,tVG6JpDpfLqw0VFpzJnihi677YFiz6HTSjBSCtCItZkybwyPu2HS-rZfv0PoxV6MPhJ
WgLS792Ipfhkz38sGmJ84GMavj1KIBCUFLmkon9Y,&typo=1> January 3, 2017 5:08 pm by
<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fauthor%
3d3&c=E,1,_SfURjXCYnv56DmZUbJVDqXIgWrWkBruAfLDzb4bRjgFsl2vyfhErfOtNmfmjuWI3f
T5_asrLpaviQknEj06kuZggP0NqFJCnlkBwXc,&typo=1> Rick Hasen

<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> WaPo reports.

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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