[EL] “Presidential Elections: National Popular Vote, Elector Unit Rule Voting and Related Issues”

[Sean Parnell]

That’s true! Good catch.

Sean


From: Trevor Potter <tpotter at capdale.com>
Sent: Thursday, June 14, 2018 2:44 PM
To: Sean Parnell <sparnell at philanthropyroundtable.org>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] “Presidential Elections: National Popular Vote, Elector Unit Rule Voting and Related Issues”

Interestingly, the Constitution mandates a form of the “unit rule” for the election of President by the House if the electoral college does not produce a winner ( a result the framers evidently thought would be common). Each state has one vote for President, and the determination of who it is cast for is by majority of the state’s House delegation —if a state’s delegation deadlocks, then it may not cast a vote.

Trevor Potter
Sent from my iPad

On Jun 14, 2018, at 2:36 PM, Sean Parnell <sparnell at philanthropyroundtable.org<mailto:sparnell at philanthropyroundtable.org<mailto:sparnell at philanthropyroundtable.org%3cmailto:sparnell at philanthropyroundtable.org>>> wrote:

As entertaining a read as it was, I’m not sure I get the “unit rule” reference in this paper. The “unit rule” was, historically, the practice of a delegation to a party convention agreeing that the majority of delegates would cast the entire delegation’s vote (often times it was stipulated as matter of state party rules, other times merely custom – Mississippi in 1976 was the last known instance of unit rule voting at the GOP convention, to the best of my knowledge). So if there were 10 delegates from, say, Maryland to the GOP national convention and 6 of them wanted to vote for Smith as the nominee and 4 wanted to vote for Jones, then Maryland’s 10 votes would all go to Smith. It’s certainly applicable in other contexts – for example, the Congressional Progressive Caucus might decide to vote internally between Roe and Doe to be the person put forward from that group to be the Majority Leader, and then when the balloting occurs all members of the caucus vote in favor of whomever won the internal vote – but that still doesn’t quite apply to the votes of electors, who do not (and to the best of my knowledge never have, though it’s certainly possible this was at one time something that occurred in the early days of the Republic) vote amongst themselves to determine who should receive their state’s electoral votes and then all vote that way.

The paper suggests the McPherson v. Blacker referred to the issue as originating in 1832, and that is indeed the first reference I know of to it, at the Democratic convention (Jackson had called it to select his running mate). But the fact that in 48 states at present the vote of electors is (usually) unanimous is not indicative of a “unit rule” in action, instead it’s the result of the system of winner-take-all elections of slates of electors ostensibly pledged to vote for a particular candidate.

Sean Parnell

“Presidential Elections: National Popular Vote, Elector Unit Rule Voting and Related Issues”<http://electionlawblog.org/?p=99540>
Posted on June 14, 2018 9:24 am<http://electionlawblog.org/?p=99540> by Rick Hasen<http://electionlawblog.org/?author=3>

William Josephson has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3195747.> on SSRN. Here is the abstract:

How to elect the President was the second most debated issue at the 1787 constitutional convention. The last moment Electoral College compromise between congressional election of the President and popular vote reflected the states’ sovereignty in a federal system of limited national government and of plenary power state governments, except as the Constitution limited state powers.

The NY Times’s Electoral College solution, at least since 2006, is National Popular Vote (NPV). It adheres to it despite the NPV’s vital flaws, which I am about to describe in (excruciating) detail.
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D99540&title=%E2%80%9CPresidential%20Elections%3A%20National%20Popular%20Vote%2C%20Elector%20Unit%20Rule%20Voting%20and%20Related%20Issues%E2%80%9D>
Posted in electoral college<http://electionlawblog.org/?cat=44>

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