Subject: Re: [EL] A hypo about a different kind of electoral college vote compact --cross posted to conlawprof and electionlaw lists
From: Rob Richie
Date: 4/8/2011, 7:01 AM
To: Derek Muller
CC: "Scarberry, Mark" <Mark.Scarberry@pepperdine.edu>, "election-law@mailman.lls.edu" <election-law@mailman.lls.edu>

I wanted to draw list readers' attention to Every Vote Equal, which addresses this point and many others in an excellent chapter on "myths" relating to the compact -- it's a free download at everyvoteequal.com.

Note that even if Derek Muller's argument about congressional consent is granted, it only presents a barrier to enactment of the NPV plan if Congress denies consent and continues to deny it over time. But with growing support for NPV from across the spectrum and with the longstanding supermajority support for the policy outcome of a national popular vote in polls, there's no reason to think that Congress would deny consent. We'll see when the time comes.

As part of this thread, Larry Levine suggested that NPV is an "end run around the Constitution." What it actually is an "end run around winner-take-all rule statutes in states." End-runs are of course a legal play in football, and the winner-take-all rule is hardly sacrosanct. States moved to it over time for partisan, parochial reasons, not because of any analysis that it was good for the country or for voters.

We of course could try to change the Constitution for any policy goal, but we rarely do so when statutory options are available. Even the right to vote for president itself is not in the Constitution. Rather, it's been the result of state law. Backers of voting rights for president could have tried a constitutional amendment in the 19th century, but instead the goal was accomplished via state statutes.

Rob Richie






On Fri, Apr 8, 2011 at 9:33 AM, Derek Muller <derek.muller@gmail.com> wrote:
In Every Vote Equal, the authors assert that the equal treatment of compacting and non-compacting popular votes would preclude a finding that the compact is "political" and qualify as a "compact" under the Compact Clause (2d ed. at 442):

Because each state has independent power to award its electoral votes in the manner it sees fit, it is difficult to see what “adverse effect” might be claimed by one state from the decision of another state to award its electoral votes in a particular way. It is especially unclear what adverse “political” effect might be claimed, given that the National Popular Vote compact would treat votes cast in all 50 states and the District of Columbia equally. A vote cast in a compacting state is, in every way, equal to a vote cast in a non-compacting state. The National Popular Vote compact does not confer any advantage on states belonging to the compact as compared to non-compacting states. A vote cast in a compacting state would be, in every way, equal to a vote cast in a non-compacting state. The National Popular Vote compact certainly would not reduce the voice of voters in non-compacting states relative to the voice of voters in member states.

But, I think, this argument is not entirely necessary to the underlying claims of the NPVC proponents. Instead, the more crucial elements for proponents of the Compact are (1) that the Constitution permits each State to appoint electors in the manner it sees fit, and (2) that the non-compacting States remain free to appoint electors as they see fit.

Of course, if one believes (as I do) that congressional consent is required simply by virtue of effectively stripping the power of electors (not of the weight given to popular voters) in non-compacting states, or (as others have argued) that congressional consent is required because it strips Congress of its power to cast votes in the case of an Electoral College tie, then a CSPVC would fail for the same reasons an NPVC would fail.

Derek

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 Fri, Apr 8, 2011 at 12:40 AM, Scarberry, Mark <Mark.Scarberry@pepperdine.edu> wrote:
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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