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

Mon Jan 9 11:22:56 PST 2017

The existing state of ballot access law would make it extremely difficult, if not impossible, to keep any major party candidate off a state ballot.

However, NPV would increase the incentives to states to keep third parties off the ballot. For example, historically, libertarians tend to vote Republican by about a 2-1 margin. So Texas might have a strong incentive to keep the LP off the ballot in hopes of running up GOP vote totals. In California, on the other hand, the effort would be made to keep the Greens off the ballot, thus (the hope would be) adding to the Democratic vote totals for president.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
  Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317
bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
http://www.law.capital.edu/faculty/bios/bsmith.asp

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of John Koza
Sent: Monday, January 09, 2017 2:03 PM
To: 'Dan Meek'; law-election at department-lists.uci.edu
Subject: Re: [EL] Another Reason to Oppose the Nat'l Pop. Vote Compact / Lincoln 1860 /

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: john at johnkoza.com<mailto:john at johnkoza.com>
URL: www.johnkoza.com<https://linkprotect.cudasvc.com/url?a=http://www.johnkoza.com/&c=E,1,mdTqWG7Zlw0QvtPKH7fmWAcEIDn4pQg5Gn6Vhhw8fJ2tFcKfOQ6H_MT4JNs6cbPX-ZnFj8OOsi1aHGFIrktxM0gsnbs8RcTdNJnGN4KqkZCoCg,,&typo=1>
URL: www.NationalPopularVote.com<https://linkprotect.cudasvc.com/url?a=http://www.nationalpopularvote.com/&c=E,1,1jwriTYkFqyhNIBeXZu6mnBdMdrmlTfx8YE9Ms3AvUywhi9baiKQ3MxMYF4Kx7tqSoeBlPKflOr_kRUx_O2gEpts4MBIhXCtPvHAP868rZMSZ5IYbQA,&typo=1>

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 Dan Meek
Sent: Monday, January 9, 2017 1:51 AM
To: law-election at department-lists.uci.edu<mailto: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: john at johnkoza.com<mailto:john at johnkoza.com>
URL: www.johnkoza.com<https://linkprotect.cudasvc.com/url?a=http://www.johnkoza.com/&c=E,1,qfzCBccWSwN6-vCtFeQWjzEjUfNFdNFdx_KwkTfgI3C9qtxvGmjmWuNl_tpoP5ArRoIiMbg-FiGNB0HKjlL8RR_qinAqzJ-4Fv3drrH7Wbw,&typo=1>
URL: www.NationalPopularVote.com<https://linkprotect.cudasvc.com/url?a=http://www.nationalpopularvote.com/&c=E,1,nmk3kt59-JFjFJjFdVxsl9CAY8GESKprZsKKTh3wcAOtZucTvU1FY9VKgsFVk4nRp5MTxZQCfA593ICXDjr9Yld5Pu_VF8ON0lEnu8SsJlgctw,,&typo=1>

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 Dan Meek
Sent: Sunday, January 8, 2017 5:39 AM
To: law-election at department-lists.uci.edu<mailto: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

dan at meek.net<mailto: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: 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.

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
http://department-lists.uci.edu/mailman/listinfo/law-election<https://linkprotect.cudasvc.com/url?a=http://department-lists.uci.edu/mailman/listinfo/law-election&c=E,1,sg2y-o_wEKHEAfLVnkziABYTNq2Et9Fz3Msmt2w6sbpPSEG6I_xMS_zxQy6MdF66wwA03xAqUtpVAMEp4dXfKk8QdpPoBmpaVJjYskZWDfeC&typo=1>

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
http://department-lists.uci.edu/mailman/listinfo/law-election<https://linkprotect.cudasvc.com/url?a=http://department-lists.uci.edu/mailman/listinfo/law-election&c=E,1,l7ys_rE3Mqn1t2c1JMR9qsGVUSKS-ezSAoASxyUNRpb7U7_EYClQaIIN3LODqUG3Rx8vpkCqqngjEItQnwEJFHoI2s4ERJwWc0Ks77UOm1z1Tg,,&typo=1>

_______________________________________________

Law-election mailing list

Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>

http://department-lists.uci.edu/mailman/listinfo/law-election<https://linkprotect.cudasvc.com/url?a=http://department-lists.uci.edu/mailman/listinfo/law-election&c=E,1,S7JtyOe-L4LXrnUjGhcD7JyI4VsaUi9zTDv_X7JXEs3Z-ZNakhzHsNM1xzRiA_RJQJRsUhF9Cf3YX468nIGtiSnCitvBNSSLuPMP1QpBhCZLzIcEbT49lL8P6Q,,&typo=1>

_______________________________________________

Law-election mailing list

Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>

http://department-lists.uci.edu/mailman/listinfo/law-election<https://linkprotect.cudasvc.com/url?a=http://department-lists.uci.edu/mailman/listinfo/law-election&c=E,1,648tjt-UIeVJNDOzw_kNGMI396wxHfpj7v4ZMrRId5m99mbtTA5JkP1S_99RvRnNWnw2zqRb6ueZ_0IpjpCeXOakVdQJGZ99KvqUPQ,,&typo=1>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20170109/4a339c31/attachment.html>