[EL] Another Reason to Oppose the Nat'l Pop. Vote Compact / Lincoln 1860 /
Dan Meek
dan at meek.net
Mon Jan 9 16:21:07 PST 2017
The reason why my draft language would apply only to "all major party
candidates" is that it otherwise could be used to disqualify all votes
for President in any state that excluded, say, the Libertarian or
Freedom Socialist candidate from the November ballot.
If the Guarantee Clause and Equal Protection Clause prevents states from
excluding major party candidates from their ballots, how did Alabama get
away with it in 1968?
Dan Meek
503-293-9021 dan at meek.net <mailto:dan at meek.net> 855-280-0488 fax
On 1/9/2017 11:02 AM, John Koza wrote:
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_<http://www.johnkoza.com/>
URL: _www.NationalPopularVote.com_<http://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: john at johnkoza.com <mailto:john at johnkoza.com>
URL: www.johnkoza.com <http://www.johnkoza.com/>
URL: www.NationalPopularVote.com <http://www.nationalpopularvote.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
*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.
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