Subject: Re: [EL] A hypo about a different kind of electoral college vote compact --cross posted to conlawprof and electionlaw lists
From: Richard Winger
Date: 4/7/2011, 10:23 PM
To: "election-law@mailman.lls.edu" <election-law@mailman.lls.edu>, MarkScarberry <Mark.Scarberry@pepperdine.edu>
Reply-to:
"richardwinger@yahoo.com"

Mark Scarberry has introduced a very interesting idea.  I was trying to imagine a motivation for a CSPVC.  I did imagine a slightly plausible variation...suppose the eleven most populous states, who happen to hold a majority of electoral votes (using the 2000's decade apportionment) came together in a compact similar to what Mark imagines.

Their motivation, conceivably, is that they are sick and tired of the U.S. Senate formula of 2 Senators per state, no matter that state's population.  So they threaten the smaller states by creating their own large-state-CSPVC.  They are saying, "Until you smaller states agree to a constitutional revision of the US Senate, we are going to choose the president of the United States all by ourselves."

I think that would be constitutional.  It may seem unfair, but I feel it is terribly unfair that New Hampshire and Iowa think they are entitled to always be first to choose delegates to Democratic and Republican national conventions.  It is astounding to me that the public, and academics, all seem just fine with the idea that the voters of two particular states should have so much more political power than the voters of the other 48 states.  And I am astounded that New Hampshire and Iowa feel so self-righteous about their privileged position, as those heaven had mandated that New Hampshire and Iowa voters are "God's chosen deciders" in U.S. presidential nomination contests.

--- On Thu, 4/7/11, Scarberry, Mark <Mark.Scarberry@pepperdine.edu> wrote:

From: Scarberry, Mark <Mark.Scarberry@pepperdine.edu>
Subject: [EL] A hypo about a different kind of electoral college vote compact --cross posted to conlawprof and electionlaw lists
To: "election-law@mailman.lls.edu" <election-law@mailman.lls.edu>
Date: Thursday, April 7, 2011, 9:40 PM

I wonder what we could learn about the constitutionality of the National Popular Vote Compact by thinking about a variation on it.

Suppose states controlling 270 or more electoral votes entered into a compact requiring each of the compacting states to choose electors who would support the presidential candidate who received the most votes in the compacting states. Call this the Compacting States Popular Vote Compact (CSPVC).

The CSPVC, if followed, would render the choice of electors in the other states irrelevant, and thus would render voting in presidential elections in those other states pointless.

Is it clear that there are constitutionally relevant differences between the hypothetical CSPVC scheme and the actual NPVC scheme?

Even if we treat the CSPVC as the kind of compact that requires congressional approval, should congressional approval be sufficient to make enforceable a compact that would make such a basic change in how we choose presidents?

Again, is it clear that there are constitutionally relevant differences that would require treatment of the CSPVC differently from the NPVC with regard to whether congressional approval is or is not needed, and with regard to whether congressional approval would be sufficient to validate the compact?

If the CSPVC would make so basic a structural change that it could only be implemented by constitutional amendment, where is the line between structural changes that require constitutional amendment and those that (at least according to NPVC supporters) do not?

Perhaps these points (or something like them) have already been discussed somewhere. If so, cites would be appreciated.

Mark Scarberry
Pepperdine

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