[EL] Electoral College Tie "Nightmare" / post-election change of rules / No need to arm-twist electors

Mon Apr 22 10:20:13 PDT 2019

Thank you.  I stand corrected on the method Electors are selected.  My fault for relying only on my memory.  Jim

In a message dated 4/22/2019 12:59:05 PM US Eastern Standard Time, john at johnkoza.com writes:

Jim Bopp says, “I think that circumvention of that NPV compact is much easier that any of these scenarios.  Remember that the NPV does not change the method of selection of Electors. … So Republican Electors could be required to vote for a Democrat nominee and vice versa.” (Election Blog, April 22, 2019).

This statement is based on the incorrect belief that a state’s presidential electors, under the National Popular Vote interstate compact, will come from the political party that received the most popular votes inside the state (that is, the current winner-take-all method).  

In fact, the compact does change the method of electing presidential electors – indeed, that is its precise purpose.  Under the compact, the presidential electors from compacting states would be the elector candidates who were nominated in association with the presidential candidate who won the most popular votes in all 50 states and the District of Columbia.  

The compact takes effect when enacted by states possessing a majority of electoral votes (270 of 538) – enough to elect a President.  When the compact is in effect, all of these 270 or more presidential electors would come from the political party that won the election nationally—not from the party that won the most popular votes inside any particular state.  Thus, no one in this bloc of 270 (or more) presidential electors would be asked to vote contrary to his or her own political inclinations or conscience.  No Democratic arms need be twisted into voting for the opposing party, or vice versa. 

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

URL: www.johnkoza.com

URL: www.NationalPopularVote.com

From: James Bopp Jr <jboppjr at aol.com> 
Sent: Monday, April 22, 2019 9:11 AM
To: john at johnkoza.com; BSmith at law.capital.edu
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Electoral College Tie "Nightmare" / post-election change of rules

I think that circumvention of that NPV compact is much easier that any of these scenarions.

Remember that the NPV does not change the method of selection of Electors and they have meet and cast their votes under the Constitution. So Republican Electors could be required to vote for a Democrat nominee and vise versa. We have also been told by liberal activists and Democrat Hollywood celebrities that Electors can vote for whoever they want under the Constitution and, in 2016, some Republican, but more Democrat Electors, believed them.

So no problem, they just vote in accordance with the majority vote of their state, that they want to do anyway. Jim Bopp

On Monday, April 22, 2019 John Koza <john at johnkoza.com> wrote:

Brad Smith needn’t lose any sleep over “the nightmare scenario wherein a state repeals its [National Popular Vote] law quickly after the election” (Election Blog April 19, 2019).   

Surely no one thinks that the Republican legislatures and governors of the closely divided 2020 battleground states of Florida, Arizona, Ohio, and Iowa could, shortly after Election Day, repeal their state winner-take-all laws and appoint Republican presidential electors if the Democratic nominee carries their state on November 2. 

Certainly no one thought in 2000 that Democratic-controlled states could change the rules of the game after Election Day (when repeal of the state winner-take-all law by any one of four states would have given Al Gore an Electoral College majority).

Indeed, like most of the “nightmare scenarios” advanced by National Popular Vote critics, if this scenario were actually possible, it could occur (and certainly would have already occurred) under the current winner-take-all method of awarding electoral votes. 

There are two reasons why Brad Smith’s “nightmare scenario” can’t happen under either the current system or National Popular Vote.  Moreover, as explained below, the National Popular Vote interstate compact offers an additional third barrier to Brad Smith’s “nightmare scenario” -- making the compact less vulnerable than the current system. 

The first reason that a legislature and Governor cannot, after seeing politically unpleasant results on Election Day, enact some alternative method of appointing presidential electors (e.g., direct appointment by the state legislature, congressional-district allocation of electoral votes, or proportional allocation) is that existing federal law (section 5 of Title 3 of the United States Code) specifies that presidential electors must be appointed under “laws enacted prior” to Election Day in order to be considered “conclusive” when Congress counts the electoral votes.

The second reason why a post-election change of the rules can’t happen is that the Constitution gives Congress the power to establish the day for appointing presidential electors (Article II, section 1, clause 4) and Congress has specified (section 1 of Title 3 of the United States Code) that presidential electors may only be appointed on a single specific day in each four-year election cycle (namely, the Tuesday after the first Monday in November).  The states simply have no authority to appoint presidential electors after Election Day.

The additional third protection (offered only by the National Popular Vote interstate compact) is that no state may withdraw from any interstate compact except in the manner permitted by the compact. The National Popular Vote compact permits a state to withdraw at any time; however, if the withdrawal occurs during the six-month period between July 20 of a presidential election year and Inauguration Day, the effective date of the state’s withdrawal is delayed until after the inauguration.  Any withdrawal that purports to take effect during this “blackout” period would be would be contrary to the terms of the compact and would therefore be unconstitutional on its face because it would violate the Impairments Clause of the U.S. Constitution which states, “No State shall … pass any … Law impairing the Obligation of Contracts.”  

Critics of National Popular Vote have sometimes advanced an “imperial legislature” theory that says that the state legislature’s authority under Article II, section 1 to choose the method for awarding electoral votes is not subject to any restriction on the exercise of power found anywhere else in the Constitution (notably, the Impairments Clause).  However, the U.S. Supreme Court has explicitly rejected addressed this “imperial legislature” theory.  Moreover, it did so specifically in connection with Article II, section 1.  In Williams v. Rhodes (393 U.S. 23, 28–29, 1968), the Court ruled: 

“The State also contends that it has absolute power to put any burdens it pleases on the selection of electors because of the First Section of the Second Article of the Constitution, providing that ‘Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .’ to choose a President and Vice President. There of course can be no question but that this section does grant extensive power to the States to pass laws regulating the selection of electors. But the Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution. For example, Congress is granted broad power to ‘lay and collect Taxes,’ but the taxing power, broad as it is, may not be invoked in such a way as to violate the privilege against self-incrimination. Nor can it be thought that the power to select electors could be exercised in such a way as to violate express constitutional commands that specifically bar States from passing certain kinds of laws.”

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

URL: www.johnkoza.com

URL: www.NationalPopularVote.com

From: Smith, Brad <BSmith at law.capital.edu> 
Sent: Friday, April 19, 2019 11:09 AM
To: John Koza <john at johnkoza.com>
Cc: Election Law <law-election at department-lists.uci.edu>
Subject: Re: [EL] Electoral College Tie "Nightmare"

Of course, it creates the nightmare scenario wherein a state repeals its law quickly after the election, or urges its electors to cast votes in accordance with the state's vote, or in which voters challenge legality of the compact, or, as John tanner has noted, the popular vote is close enough to merit a national recount, or, as in 1876, it is clear that the popular vote plurality was the result of fraud and vote suppression in one or more states. For starters.

Brad Smith

Sent from my iPhone

On Apr 19, 2019, at 2:04 PM, John Koza <john at johnkoza.com> wrote:

One of the many reasons why the National Popular Vote interstate compact should be adopted is that it effectively eliminates the “nightmare” possibility of an election for President being thrown into the U.S. House of Representatives where each state has one vote (and the election for Vice President being thrown into the U.S. Senate) – whether created by a 269-269 tie in electoral votes or absence of a majority of electoral votes created by a third party.  

The compact takes effect when enacted by states possessing a majority of the electoral votes (270 of 538).  All of the 270+ presidential electors from the compacting states will be those nominated in association with the presidential candidate that received the most popular votes in all 50 states and the District of Columbia.  

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

URL: www.johnkoza.com

URL: www.NationalPopularVote.com

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Smith, Brad
Sent: Thursday, April 18, 2019 7:49 PM
To: Rob Richie <rr at fairvote.org>; Mark Scarberry <mark.scarberry at pepperdine.edu>
Cc: Election Law <law-election at department-lists.uci.edu>
Subject: Re: [EL] Electoral College Tie "Nightmare"

Of course, absent the electoral college, in 1876 Democrat Sam Tilden wins with a clear majority of the popular vote--a majority, however, gained by massive fraud and vote suppression in the South--and rolls back civil rights protections with much more vengeance than occurred under Hayes. 

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

From: Law-election [law-election-bounces at department-lists.uci.edu] on behalf of Rob Richie [rr at fairvote.org]
Sent: Thursday, April 18, 2019 8:10 PM
To: Mark Scarberry
Cc: Election Law
Subject: Re: [EL] Electoral College Tie "Nightmare"

Contingent elections aren't just caused by ties, of course -- it's just a candidate lacking a majority. Keeping heads firmly in the sand, we can keep wishing away the potential of regionally successful candidates or a Perot-type independent candidates able to win some states.

But we don't have to look too far back to find a very instructive example. In 1968, Richard Nixon won a narrow popular vote plurality and a seemingly convincing 301-191 electoral vote margin over Hubert Humphrey. But segregation defender George Wallace won 46 electoral votes in carrying several southern states. If Humphrey had flipped Nixon's win in California, which went to Nixon by less than 3.1%, then there would have been no electoral vote majority -- that is, unless Wallace didn't first negotiate to give the president to the candidate best able to roll back civil rights protections. That kind of deal had happened in 1877 in  the "corrupt bargain"  or "compromise" (depending on one's take) when Rutherford Hayes got his 1-electoral vote majority after disputes in three southern states were resolved in his favor in exchange for his help in rolling back Reconstruction. Notably, the 1824 election resulted in what also was called a corrupt bargain -- raising questions in my mind about the niftiess of our current system compared to popular vote elections.

Relating to Derek's post we don't need to take away DC's electors or constitutional fix.. We could just have an even-numbered House with a simple act of Congress. Many state legislative chambers have such chambers. Our FairVote report with the Bipartisan Policy Center of the times those chamber are tied suggest that those can be some of the better functioning, less polarizing session.

- Rob

On Thu, Apr 18, 2019 at 7:50 PM Mark Scarberry <mark.scarberry at pepperdine.edu> wrote:

Derek's work shows the difficulties in implementing a reasonable popular vote system. It doesn't seem sensible to set one up to deal with what should be a very rare situation (and one in which flaws in a popular vote system might create even greater divisivion, and distrust in our institutions).

Mark

Prof. Mark S. Scarberry

Pepperdine University School of Law

From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Samuel Bagenstos <sbagen at gmail.com>
Sent: Thursday, April 18, 2019 4:36 PM
To: Derek Muller
Cc: Election Law
Subject: Re: [EL] Electoral College Tie "Nightmare" 

Why not use the popular vote as a back-up in the case of an EC tie?  Or would making that change just raise the question why we weren’t using the popular vote in the first round?

On Thu, Apr 18, 2019 at 6:33 PM Derek Muller <derek.muller at gmail.com> wrote:

It's comically early to begin fantasizing about this kind of apocalyptic election disaster scenario, akin to the breathless concerns that a 4-4 Supreme Court would be asked to decide the 2016 election.

But to Sam's point, I assume you mean normative justification for preserving the practice today? I think it's a challenge. Understandably, at the ratification of both the Constitution and the 12th Amendment, the commitment was to a majority winner; a lack of a majority meant some contingent procedure; the electors would have narrowed the field to five (pre-12th) or three (post-12th) or in a case of a tie two, and the House (acting like the Senate with one vote per state, to protect small states, but lacking the aristocratic trappings of the Senate) would frequently pick the winner from that narrowed list. Given that we moved to a two-party system, it became quite easy to secure Electoral College majorities, and this contingent procedure fell away (1824 excepted, of course--along with a bizarre and relatively inconsequential 1836 vice presidential contingent election in the Senate).

But, today? I think no one expects Congress to act "nineteen times in twenty" as George Mason put it to pick the president. And I think you're right that in the event of 1824 did not play out well, and it might play out worse today.

But what other solution in the event of a tie? (269-269 ties, incidentally, are the result of giving DC electors: 2 senators per state [always an even number] + an odd-numbered house to prevent many ties + 3 electoral votes for  DC = an even number.)

A runoff in the event of an Electoral College tie makes little sense except to concede that there is some randomness in an election and a hope that the randomness rolls in a different direction the next time. Or maybe it makes sense--to drop away all third party candidates and perhaps clarify the results. Of course, this, too, could still be a tie.

A constitutional amendment to give the largest state an extra electoral vote? To give DC an even number of electors? To dictate that the winner of the "national popular vote," however conceived, wins a tiebreaker?

At best, a (rationalized!) defense would argue the present system (1) gives smaller states an advantage [even if that advantage is fairly non-partisan today] in a tiebreaker and (2) is no worse than the other forms of (suboptimal) tiebreakers I listed out there, plus (3) is really out there for situations where no one gets a majority and we turn it over to Congress to choose (because, if we can't choose, why not let Congress do it?), and the tiebreaker stuff is the tail wagging the dog.

These aren't exactly breathtakingly persuasive in my view, but (2) strikes me as a respectable Burkean and pragmatic choice.

That said... I think the next time a contingent election occurs and the election is thrown to the House, there will be a constitutional amendment ratified by the several states before the next election changing our system to a national popular vote. I think (okay, I speculate) the bipartisan reaction against it would be that strong.

Derek

Derek T. Muller
Associate Professor of Law
Pepperdine University School of Law
24255 Pacific Coast Hwy
Malibu, CA 90263
+1 310-506-7058
SSRN: http://papers.ssrn.com/author=464341
Twitter: http://twitter.com/derektmuller 

On Thu, Apr 18, 2019 at 7:15 AM Samuel Bagenstos <sbagen at gmail.com> wrote:

Have to run off and teach, but the last time an election was decided under the back-up procedure, it was extremely divisive for our politics -- and that was at a time when (a) the 12th Amendment was relatively new, so that people were probably aware of the back-up procedure, particularly in light of the facts of the 1800 election that prompted the amendment; and (b) presidential elections were not yet widely understood as plebiscitary as they are today.  Today, I doubt many people even know about the procedure, and the questions about its legitimacy will be much greater.  So I think Marshall is right to say that our polity is ill-prepared for this eventuality.

On Thu, Apr 18, 2019 at 10:07 AM Doug Spencer <dougspencer at gmail.com> wrote:

Sam, 

I think the normative appeal is that, like the Electoral College, the 12th amendment requires a majority as opposed to a plurality of votes to be the winner. That's not a sufficient justification ipso facto. Nor is it necessarily true anymore. Certainly not with respect to a majority of the population. The 26 states with Republican-majority House delegations represent a population of 151,361,595 which is 12.3 million fewer than the population of the 23 state Democratic-majority states. (According to the Census, there were 6 million fewer voters in the 26 Republican-majority states than the 23 Democratic-majority states). These differences outpace Trump's 2.8 million vote deficit in the 2016 election.

None of this speaks directly to your point about whole-state-delegations. At least in theory, the whole-state-delegation preserves the compromise to provide a voice both to "the people" (thus the House, not the Senate) and "the states." However, I'd love to hear a stronger defense from those who actually find the 12th amendment attractive on normative grounds, beyond historical ossification. My point was simply that the process for dealing with an electoral college tie is unambiguous, applicable to all candidates equally, and known in advance. In other words, I question whether America is "ill-prepared" for this scenario. (As Josh notes, we are ill-prepared for a scenario where the 12th amendment leads to a 25-25 tie in the House).

Doug

---

Douglas M. Spencer

Professor of Law & Public Policy

University of Connecticut

Visiting Professor, 2018-2019

Harris Public Policy

University of Chicago

(415) 335-9698 | www.dougspencer.org

Social Impact, Down to a Science.

On Thu, Apr 18, 2019 at 7:42 AM Samuel Bagenstos <sbagen at gmail.com> wrote:

Is there any normative justification for using the state-congressional-delegations-voting procedure as a backup in the case of an Electoral College tie?  Particularly in a world where people do go to the polls in every state to cast ballots for president?  (That it's been in the Constitution for 219 years is a fact that explains why the backup procedure is legally compelled, but it doesn't count as a normative justification in my view.)  All of the normative justifications for the Electoral College have a strong scent of rationalization these days, but the backup stretches the rationalization yet further (if I may mix a metaphor).

On Thu, Apr 18, 2019 at 8:29 AM Josh Douglas <joshuadouglas at uky.edu> wrote:

Indeed, the real "nightmare" scenario -- from a constitutional perspective -- is if a candidate does not receive the votes of 25 state delegations if the race is thrown to the House, as the 12th Amendment requires a "majority." Ned Foley (with a student) has done some interesting work on this true potential constitutional crisis.

| 

 | 
| 
Joshua A. Douglas
 |
| 
Thomas P. Lewis Professor of Law
 |
| 
University of Kentucky College of Law
 |
| 
620 S. Limestone
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Lexington, KY 40506
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859-257-4935 
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| 
joshuadouglas at uky.edu
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Twitter: @JoshuaADouglas
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   Find me at www.JoshuaADouglas.com.

On Thu, Apr 18, 2019 at 1:33 AM Doug Spencer <dougspencer at gmail.com> wrote:

The country would be ill-prepared in practice to manage a tie election in any circumstance. In present circumstances, the result could be very dark.

Setting aside the point that an electoral college outcome of 270-268 is not an "effective tie" since 270 is the threshold for winning, I'm not convinced the country is ill-prepared to manage an actual 269-269 tie. The country was ill-prepared in 1800, to be sure, but the 12th amendment tells us exactly how this scenario would play out: 

...if no person have such majority [of electoral college votes], then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member of members from two-thirds of the states, and a majority of all states shall be necessary to a choice.

If the 2020 election ends in an electoral college tie, each state delegation in the House gets one vote to decide the winner. By my count, although Democrats control the House by 38 seats, the breakdown of state delegations by party (presuming no deaths/resignations/special elections) would favor a Trump re-election:

| 
REP by 2+
 | 
REP by 1
 | 
SPLIT
 | 
DEM by 1
 | 
DEM by 2+
 |
| 
25
 | 
1
 | 
1
 | 
3
 | 
20
 |
|   | 
(FL)
 | 
(MI)
 | 
(AZ, CO, PA)
 |   |

A political outcome like this might feel controversial, but this rule has been embedded in the Constitution for 219 years, specifically for this "nightmare" scenario.

As a matter of trivia, had the Supreme Court abstained from interjecting in the 2000 election, AND the Florida electoral college votes been contested, AND the 12th amendment been triggered, the breakdown of state delegations favored a Bush victory (one abstention from a split state would have tipped the scales):

| 
REP
 | 
SPLIT
 | 
IND
 | 
DEM
 |
| 
25
 | 
4
 | 
1
 | 
20
 |
|   | 
(AR, IL, NV, MD)
 | 
(VT)
 | 
 |

---

Douglas M. Spencer

Professor of Law & Public Policy

University of Connecticut

Visiting Professor, 2018-2019

Harris Public Policy

University of Chicago

(415) 335-9698 | www.dougspencer.org

Social Impact, Down to a Science.

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