[EL] "Chaos" Under NPV Compact?

Tue Jul 16 15:21:45 PDT 2019

The terms of the Compact itself wouldn’t allow for such a state court lawsuit, since it accepts as conclusive a total certified by the federal ‘safe harbor’ deadline, just as provided for in the current system.  As for superseding constitutional challenges, practical recount concerns, etc.:  I won’t beat a dead horse on the relative prospects of such things under our current system versus the Compact, but  I’ll suggest folks interested  check out the NPV Compact org’s discussion of the ‘recounts’ issue here:
https://www.nationalpopularvote.com/section_9.15

Also useful is this Hendrik Hertzberg New Yorker piece:  https://www.newyorker.com/news/hendrik-hertzberg/national-popular-vote-the-recount-bugaboo

I’ll leave it alone now.

From: Douglas Johnson <djohnson at ndcresearch.com>
Sent: Tuesday, July 16, 2019 4:50 PMhttps://www.newyorker.com/news/hendrik-hertzberg/national-popular-vote-the-recount-bugaboo
To: John Tanner <john.k.tanner at gmail.com>
Cc: Steven John Mulroy (smulroy) <smulroy at memphis.edu>; law-election at department-lists.uci.edu
Subject: Re: [EL] "Chaos" Under NPV Compact?

Even better: in a disputed close election, a voter could file a lawsuit in state court claiming that the national count is wrong and thus the compact is invalid and thus the state court should order the state to send the Presidential electors chosen by the state’s voters rather than the electors for otherwise dictated by the compact.

This could generate even more court cases than redistricting, but now all the cases would all have to be decided within about 45 days.

Put me down in the “chaos” camp.

- Doug

Douglas Johnson
Fellow
Rose Institute of State and Local Government
at Claremont McKenna College
douglas.johnson at cmc.edu<mailto:douglas.johnson at cmc.edu>

On Tue, Jul 16, 2019 at 1:58 PM John Tanner <john.k.tanner at gmail.com<mailto:john.k.tanner at gmail.com>> wrote:
In a close national election under NPV a la 1960, no one on the losing side would accept a recount in only some states.
Sent from my iPhone

> On Jul 16, 2019, at 4:27 PM, Steven John Mulroy (smulroy) <smulroy at memphis.edu<mailto:smulroy at memphis.edu>> wrote:
>
> I think the legal answer in each case--mail-in  ballots, recounts, etc.--- is to follow the individual state's law, given each state legislature's plenary power over allocation of Electors (per Art. II and McPherson v. Blacker).  That's true now, and would still be true in an NPV Compact world.  Mathematically, razor-thin margins which could be changed by recounts, election contests, etc., are more likely at the state level than the national level. So Bush v Gore style chaos is more likely under the current system than under an NPV Compact system.
>
> -----Original Message-----
> From: Sean Parnell <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>>
> Sent: Tuesday, July 16, 2019 3:17 PM
> To: Steven John Mulroy (smulroy) <smulroy at memphis.edu<mailto:smulroy at memphis.edu>>; law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
> Subject: RE: [EL] "Chaos" Under NPV Compact?
>
> Well, it's obvious that there's another perspective here! ;->
>
> Regarding the potential merits of any given claim, suffice it to say "let the courts decide all of this" doesn't fill me with a lot of relief. And while difference in how mail-in ballots might seem relatively easily disposed of, how about recounts? Each state has its own standards for when a recount is allowed/required (if it's allowed at all), and many who do specify specific margins - 1/2 percent or 1 percent is fairly common, or was the last time I looked. Which is easy to understand when you're just considering the votes in a particular state. But what if the national margin is close while the state margin is large? Does, say, Connecticut do a recount because the national margin is under .25% even though the state margin was 20 points? I guess the judges will decide. Of course, the Connecticut judges will decide one thing while the Georgia judges decide another thing. And while Texas and Tennessee are adding tens/hundreds of thousands of new votes while California and New York
 ar
> en't doing recounts at all... no controversy there, of course, the public will just shrug its collective shoulders...
>
> I suspect not, actually. Legal and political chaos seem the more likely outcome. IMO, of course.
>
> Sean
>
>
> -----Original Message-----
> From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of Steven John Mulroy (smulroy)
> Sent: Tuesday, July 16, 2019 3:32 PM
> To: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
> Subject: [EL] "Chaos" Under NPV Compact?
>
> Responding to Justin Levitt's query re: criticisms of the National Popular Vote Interstate Compact, Sean Parnell writes:
>
> "It's no big deal for Oregon to determine Oregon's electors based on Oregon's laws (which, for example, require that a mailed-in ballot be received by the elections office by election day in order to count) and Oregon voters, but now that Oregon's electors are also going to be decided by Washington's voters as well (which only requires the ballot be postmarked by election day), you've got no shortage of legal claims about disenfranchisement and the like. Now do this for every state.
>
> "Also, the fact that the fourth most populous state in the union seems to be unable to put the right vote tally on the piece of paper that NPV says will be the official source of vote totals seems problematic."
>
> Respectfully, I think there's another perspective here.  If we currently allow each state to have different rules re: counting votes for purposes of the Electoral College, I don't see why the NPV Compact couldn't just continue to do so. An NPV  Compact state promises to allocate all its Electoral votes to whoever wins the national popular vote, using the
> existing rules of each state.   There may be litigation over that, like
> there is over any electoral reform, but I don't see how such claims would have much merit. The fact that a particular state or states voluntarily decides to award its Electors to the national winner, as opposed to its intra-state winner, doesn't automatically require nationwide uniformity in rules re such details as mail-in ballots.
>
> And, if there were errors in a particular state's Certificate of Ascertainment (like there were in NY), such errors are far less likely to be
> outcome-determinative nationwide than they are within that state.   Either
> these errors will be detected and corrected using existing procedures, as they are now,; or they are too small to be outcome-determinative in the state in question.  If the latter, it is unlikely they'd be large enough to change the national election outcome.  Rather than multiplying Florida 2000 Bush v. Gore-style debacles, the Compact would reduce their likelihood.
>
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- Doug

Douglas Johnson
National Demographics Corporation
djohnson at NDCresearch.com<mailto:djohnson at NDCresearch.com>
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