| Subject: Re: [EL] electoral college reform |
| From: "Smith, Brad" <BSmith@law.capital.edu> |
| Date: 1/18/2011, 8:36 AM |
| To: "election-law@mailman.lls.edu" <election-law@mailman.lls.edu> |
I am never quite sure what to make of such arguments as Richard raises below. I am not, of course, opposed to improving election administration. On the other hand, it strikes me that the U.S. has been a remarkably successful experiment in democracy, and that federalism has been a very important part of that success. Today it is popular to bash American election administration, and yet to me our system seems quite good. And I have found something vaguely disturbing about my visits to other countries, where the election administration officials are often treated by the press as more important players than the candidates themselves. My experience suggests that what we take as outrageous “disenfranchisement” (such as relatively long lines in isolated precincts) are more or less the norm in a great many countries.
It may be that we would place too much emphasis on the democratic part of the system of government, when perhaps the greatest strengths of the American system are the freedoms ingrained in the people, the limits on government in the Constitution, the rights protected by the Constitution, and the federalism that allows for experimentation and the ability to “vote with the feet.” In a marvelous little book, Capitalism, Democracy, and Ralph’s Pretty Good Grocery Store (Princeton 1999), John Mueller, then at Rochester and now at Ohio State, makes a powerful argument that by seeking to perfect democracy, we actually threaten to undermine its strengths and to ignore and thereby endanger the other pillars of our success.
If the proof is in the pudding, the electoral college has served this country remarkably well; the 43 men who have served as President compare remarkably well to any 43 leaders chosen at random from any other country, despite the occasional busy body or incompetent we’ve had. As for contested elections, is there anybody here dying to argue that the country would have been better if Sam Tilden had won the presidency, or that his victory would have truly represented the popular majority better, given that his popular majority in the formal tally was based solely on mass suppression of black votes and white Republican votes in the South?; or that Grover Cleveland’s popular vote victory, again based on overwhelming majorities in the deep south, fueled by suppression of black votes, was more representative of the nation than Harrison’s coalition? The electoral college has worked three times to elect the second place finisher in the official popular vote tally. At least in those two elections, it better caught the true popular majority and national consensus than the official popular vote, because it nullified the effect of formal and informal vote suppression in southern states. Two out of three ain’t bad. (BTW, the election of 1824 doesn’t count, for reasons I outline in Vanity of Vanities: National Popular Vote and the Electoral College, 7 Elec. L. J. 196, 212 n. 109 (2008)). These were not “failures” of the college – they were successes. And is it really so awful that George Bush winning 60% of the states and 80% of the nation’s counties, while losing the popular vote by .5 percent (with winner Al Gore gaining only a plurality, not a majority), was elected president? Is that clearly a “failure?” If it is, can we live with that every 212 years, given how well the system seems to have worked overall?
Richard cites Mexico. No slight to our Mexican neighbors, but I just can’t imagine that many people, even Mexican nationals justly proud of their country and their heritage, think Mexico has been as successfully governed over the years as the United States. There are many reasons for this (some, indeed, will place heavy blame on the United States for Mexico’s difficulties), and I don’t mean to suggest that we cannot learn from Mexico. It just seems odd to mean to rate the U.S. system a failure in need of constitutional (or extra-constitutional) change. By comparison to what?
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Designated Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/faculty/bios/bsmith.asp
From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Richard Winger
Sent: Tuesday, January 18, 2011 9:48 AM
To: election-law@mailman.lls.edu
Subject: [EL] electoral college reform
I believe if the National Popular Vote Plan bill passed in virtually enough states to go into effect, the nation would then just pass a Constitutional amendment changing the method for electing a President. And I believe the amendment would probably cause a corresponding change in which the United States would have a federal definition of "voter" and a federal agency for administration of federal elections.
The point has been made that under NPV, it is less likely that there will be a disputed election than under the Constitutionally outlined electoral college system. But this is only half the equation – the other thing that must be factored in is the magnitude of the crisis that would ensue under a disputed election under NPV compared to the under the electoral college. Thus, even if NPV reduces the probability of a disputed election, that is not the same as reducing the risk. Risk is probability AND magnitude of loss/damage. We’ve seen the damage of 2000, and whatever one may think of the outcome, it was dealt with in a single state, and with a relative handful of court rulings, in a little over a month. Under a disputed NPV election scenario, we would literally have 50 Florida’s, regardless of whether all 50 states had signed the NPV compact. Except I think it would be more than 50 times worse than Florida 2000 because of the enhanced possibility of political gamesmanship, such as states deciding whether or not to engage in recounts based on whether they think it will help their preferred candidate or not. Add in the uncertainty over whether legislatures have the authority to irrevocably set aside their Article II powers for a six-month period (I tend to doubt it), along with the challenges of recounts operating under 50 different standards (or even more fun, 3000+ different standards, since most ballot counting and re-counting action occurs at the county level), and other opportunities for recount chaos, and I think the risk of NPV far outweighs our current system. Sean Parnell President Center for Competitive Politics http://www.campaignfreedom.org http://www.twitter.com/seanparnellccp 124 S. West Street, #201 Alexandria, VA 22310 (703) 894-6800 phone (703) 894-6813 direct (703) 894-6811 fax From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Derek Muller If I could push back slightly on Mr. Richie's points 2 and 3, I'd be interested in hearing your thoughts (or anyone else interested in chiming in). Derek T. Muller Visiting Assistant Professor of Law Penn State Dickinson School of Law Lewis Katz Building University Park, PA 16802 814-867-3411 On Sat, Jan 15, 2011 at 6:53 PM, Rob Richie <rr@fairvote.org> wrote: As a founding member of the Maryland cell of the National Popular Vote Liberation Front (which we affectionately call NaPoVLiFt, although I'm not supposed to tell you that), let me offer an alternative point of view to some of Curtis' understated observations about current efforts to have one-person, one-vote elections for president Let's go in reverse order: 1) This "stealth" effort for the National Popular Vote plan for president was launched with a February 2006 news conference at the National Press Club and an appearance that week by former U.S. Senator Birch Bayh on C-SPAN's Washington Journal. This "putsch" (which the dictionary reports is "a sudden and decisive change of government illegally or by force") since then has evolved one-on-one discussions with state legislators in every state in the country, and innumerable committee hearings and floor debates, some of which have literally done on for eight hours. Every state has had bills introduced, more than a quarter of state legislators have sponsored the legislation or voted for it, and nearly a third of our nation's 100 state legislative chambers (counting D.C.) have passed it. One of the most recent legislative chamber wins was in New York's state senate where more than 75% of both Democrats and Republican members voted for it. And yet advocates still have a ways to go. With each new state win, the debate increases -- not quite a "stealth" effort as I might define it. 2. The 2000 recount dispute in Florida was hardly a "walk in the park." And yet it ended up with the Supreme Court, entirely unresolved down at the state level -- as indeed would be the case in a disputed election in any moderately sized state, given the short timeline for states awarding their electoral votes The current Electoral College system creates such artificial crises far more often than would be likely in a national popular vote plan for president, where the odds of a disputed election legitimately requiring a recount are far lower than a disputed state election that swings the election in our current system. 3. In the 2008 election, in the final two months of the campaign in the wake of the GOP convention, more than 98% of campaign spending and candidate time was spent in 15 states representing barely a third of Americans -- hardly respectful of the different interests and views of the remaining states and their people. Residents of states like Ohio were victims of an endless barrage of advertisements, almost wall-to-wall in ad time in some markets. Grassroots activity mattered in such states, to be sure, but it was utterly useless in most of the nation, including nearly every small state. That's in contrast to popular vote election where every act to mobilize voters counts equally in helping to decide the election. Popular vote elections aren't a mystery, of course. We use them for every election for U.S. Senate, U.S. House and every state office. Although I might like to improve aspects of them, to be sure, you won't catch me supporting changing them to non-popular vote systems -- and trying to do so at a state level might help demonstrate the weakness of arguments against change at a national level. Rob Richie, FairVote On Sat, Jan 15, 2011 at 3:53 PM, Curtis Gans <gans@american.edu> wrote: The liberal opposition to National Popular Vote and direct elections has nothing to do with lack of acceptance that we are one nation. It has everything to do with avoiding fully empowering the political consultants, a national media campaign with no incentives for grassroots activity, disincentives for coalition building, undermining the positive aspects of the principle of federalism -- of understanding that while we are one nation, there are local, state a regional differences and concerns that need to be addressed in campaigns and public policy; and the possibility of needed a recount of all the votes cast in the nation making the 2000 Florida recount seem a day in the park. With regard to NPV -- procedurally, it is foisting a radical restructuring of how we elect president by a stealth campaign and the equivalent of a putsch.
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