THE VIEW FROM HERE:


August 9, 2012


"Chaos Theory" and the National Popular Vote initiative.......Putting the "faithless elector" on steroids!


by Charles Schott

The most significant current issue you probably haven't yet heard of is the National Popular Vote initiative (NPV). See http://www.nationalpopularvote.com/.
Backed by George Soros, NPV supporters have put together a broad-based popular front effort seeking the de facto replacement of the Electoral College. The objective is to replace the Electoral College with a system that would award the presidency to the candidate who receives the most popular votes nationally. See http://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact and http://www.nationalpopularvote.com/.

This effort has been surprisingly successful in a very short time, achieving adoption of NPV by eight states and the District of Columbia in just five years. See http://www.nationalpopularvote.com/.
These nine jurisdictions (CA, DC, HI, IL, MA, MD, NJ, VT, WA) represent 132 electoral votes (24.5% of the Electoral College) which amounts to 49% of the 270 votes needed for the compact to go into effect. id.

Should that happen, NPV will create a de facto voting trust among the states adopting it to together cast their electoral votes for the candidate receiving the largest number of popular votes nationally regardless of which candidate won their individual states.

If it were ever implemented and used, NPV would guarantee electoral chaos, winner illegitimacy and a Constitutional crisis.

This is because the NPV is based on getting around the requirements for amending the Constitution using a backdoor mechanism of an "interstate compact" (something else you probably haven't heard of). See http://en.wikipedia.org/wiki/Interstate_compact.

To be clear, replacing the Electoral College with a system based on the outcome of the national popular vote is one of those arguable but legitimate policy proposals that gets raised from time to time.

In the context of NPV, however, the idea has been coupled with a colossally idiotic, jerry-rigged approach to its implementation.

Thus, the man who broke the Bank of England with his assault on the British pound appears well on his way to breaking the Electoral College. See http://en.wikipedia.org/wiki/George_Soros.

It seems fair to say that the point of this exercise may simply be to create so much discord and frustration with the Electoral College system that it is simply scrapped in NPV's wake.


I. THE ELECTORAL COLLEGE AND ITS DISCONTENTS

The nature of the Electoral College. The U. S. Constitution establishes a system of indirect election for our Government's Executive Branch. Every four years, states select Electoral College electors who then meet in state capitals and vote for candidates for President and Vice President. See http://en.wikipedia.org/wiki/Electoral_College_%28United_States%29. *

Surprisingly, while every state today does this through the direct election of a slate of electors, that method is not required. See id.

Additionally, the Supreme Court has held that the states' power to select their electors is plenary, which means in theory that it is absolute. See id., http://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact and Bush v. Gore (http://www.law.cornell.edu/supct/html/00-949.ZPC.html/).
Origins in the "Grand Compromise." As most of us remember from high school civics, the Electoral College is one of the mechanisms that arose out of the "Grand Compromise of 1787" that allowed our Constitution to come into existence.
The resolution of the "big state-small state" divide was accomplished by creating a bicameral legislative system consisting of a Senate (where states are represented equally) and a House of Representatives (where representation is allocated among the various states by population).

The Electoral College system used to elect our Presidents is derivative of that compromise as the Constitution assigns each state a number of electoral votes equal to the combined number of Senators and Congressmen representing the state in Congress.
For example, MO currently has two Senators and 9 Congressmen and thus has 11 electoral votes. See http://en.wikipedia.org/wiki/United_States_presidential_election,_2012.
This electoral vote allocation is updated every ten years following the completion of the census (e.g., as a result of the 2010 census, MO lost a congressional seat, going from 10 members of the House of Representatives to 9; consequently, MO also went from having 12 electoral votes in the 2008 election to its current 11 electoral vote total for 2012). id.

It is worth remembering that at the time the Constitution was originally adopted, a number of states elected their Senators in their state legislatures (although this also was not required). See http://en.wikipedia.org/wiki/Electoral_College_%28United_States%29.
The U. S. formally moved to a system of direct election of Senators in 1914 with the ratification of the XVIIth Amendment, although by 1912, more than half the states had independently adopted that system at the state level. See http://en.wikipedia.org/wiki/Seventeenth_Amendment_to_the_United_States_Constitution.

The desire to move toward a system of direct popular election of the President and Vice President is to some extent a product of the same idea that direct (rather than indirect) election of senators is preferable and more democratic.
It is worth noting, however, that the XVIIth Amendment did not alter the basic concept of equal representation in the Senate as between the states. The system remains, "one state, two votes."

It is also worth noting that the proponents of change concerning how senators were selected accomplished this by the straight-forward method of first testing the idea in the laboratory of the states and then amending the Constitution in the way the Constitution authorizes that be done.

ELECTORAL DISSONANCE

The policy debate over whether our Electoral College system should be replaced is one that has been raised from time to time, particularly after close elections when the Electoral College total and overall the popular vote totals produced different outcomes.

Since the election of 1800, the U. S. has had fifty two presidential elections, including four elections (i. e., 1824, 1876, 1888 and 2000) where the electoral vote winner who became President received fewer popular votes than his opponent. See the Appendix below for additional background. See also http://wiki.answers.com/Q/What_presidential_candidates_received_the_most_popular_votes_and_lost.

In each of these cases, the loser of the presidential election received a plurality (but not a majority) of the popular vote.

While this possibility of a President being elected without receiving a plurality of the popular vote is inherent in the process set out in the Constitution, NPV proponents describe the Electoral College system as having a "one in fourteen failure rate." See http://www.nationalpopularvote.com/pages/answers/m5.php.
To varying degrees, the outcome of those four elections resulted in political turmoil to the point where the legitimacy of our system was tested. On most such occasions, however, the dispute was ultimately put to rest by the election that followed four years later. **
Interestingly, however, the presidential election that most tested our Constitutional system, the election of 1860, was not one of these four.

In 1860, Abraham Lincoln was one of four major presidential candidates, but the one with the strongest regional support. Lincoln was elected with a majority of the electoral vote as well as a narrow plurality (39.8%) of the popular vote. However, because Lincoln was viewed as unacceptable by another region of the country (i.e., the southern states), the outcome led to the break up of the union with the resulting crisis only eventually being resolved by civil war and an extended period of military occupation and reconstruction. See http://en.wikipedia.org/wiki/United_States_presidential_election,_1860. ***
The Presidential Election of 2000. As many will remember, the 2000 election's outcome depended on the resolution of the dispute over Florida's electoral votes. Following that election, the disputed outcome of Florida's popular vote for President had the candidates only a few hundred votes apart. The two presidential candidates, Texas Governor George W. Bush and Vice President Al Gore then 'lawyered up' and fought it out in a series of inter-connected Federal and Florida state court cases that made their way ultimately (and more than once) to the Supreme Court. This series of court cases ultimately resulted in George W. Bush winning Florida and the Electoral College vote and becoming President.
As a matter of personal presidential political legitimacy, the matter was largely resolved by the election of 2004. President Bush was re-elected that year in a close race, but with a majority of both the electoral and popular vote. In that subsequent election, Bush was the first president in sixteen years (since 1988) to receive a majority as opposed to a plurality of the popular vote. Seehttp://en.wikipedia.org/wiki/United_States_presidential_election,_2004.
As a matter of legitimacy of the process, however, the 2000 election and the bitter fight over Florida's electoral votes remains controversial and is, to some degree, still with us.

MURPHY WAS AN OPTIMIST

In reflecting on the 2000 presidential election (and the other earlier examples discussed in the Appendix below), the dispute over Florida seemed at the time to be another frustrating example of Murphy's Law, i.e., a presidential election where "everything that could go wrong, did....and at the worst possible time." See http://abcnews.go.com/blogs/politics/2012/07/state-voting-technology-inadequate-in-several-swing-states-study-finds/ and http://www.nytimes.com/2000/11/09/us/2000-elections-mechanics-preparations-for-smooth-day-polls-run-afoul-murphy-s.html.
Partial, dimpled and hanging chads, manual and machine recounts and the names of several Florida counties, such as Dade, all entered the national vocabulary.

In this context, it is tempting to ask, "what could be worse?"

Well read on.....


II. THE ARGUMENTS FOR AND AGAINST REPLACING THE ELECTORAL COLLEGE
The arguments in favor of replacing the Electoral College. Putting this specific history aside, there are many interesting arguments made on the merits concerning a change from the Electoral College to a system based on the national popular vote.
  • A system based on the popular vote would be "more democratic" than one based on the outcome of 50 separate state elections and the District of Columbia;
  • Direct election is similarly considered to be more democratic and preferable to indirect election;
  • The "grand bargain" was flawed at the time it was made, remains flawed and should not be retained simply due to inertia (i.e., that we can do better than the Electoral College);
  • A system based on the national popular vote would eliminate the importance of the outcome in any particular state - there would be no more Floridas!;
  • Our presidential elections would also be more broadly contested and not limited primarily to ten or so "swing states" that are considered close;
  • Eliminating the Electoral College and moving to a system based on the outcome of the national popular vote would reduce post-election disputes as there would no longer be two different measures with the potential to yield different outcomes;
  • A presidential election system based on the national popular vote is supported by public opinion, with 60-70% approval levels reported for some states (see http://www.nationalpopularvote.com/pages/explanation.php);
  • Such a system mirrors how we elect our Governors and Senators;
  • An election system based on the national popular vote would also be seen as consistent with "best practice" concerning how other nations conduct their elections;
  • An election based on "winner take all" voting by states (which are represented disproportionally) is less legitimate (and less desirable) than one based on the national popular vote.

    The case for retaining the Electoral College.
    Supporters of the current system address these arguments but conclude that the Electoral College system deserves to be retained.
    • To begin with, no system is perfect: each alternative has it's own particular flaws (including direct democracy) and a system relying on the result of the national popular vote is no exception (Prof. Kenneth Arrow won a Nobel Prize in Economics for demonstrating this principle mathematically; see http://en.wikipedia.org/wiki/Arrow%27s_impossibility_theorem); ****
    • The key is to find a method that works for its intended purpose and, despite its flaws, the Electoral College has passed that test;
    • As the Founders understood, indirect (as compared to direct) democracy has much to recommend it and is why we have a House and Senate rather than a legislative system based on popular referendum;
    • It was the "grand bargain" that made our Constitution possible and that bargain should be honored, particularly given that "small state" concerns have not gone away;
    • If you have a problem with the Electoral College you also have a problem with the Senate which provides lesser proportional representation to the voting citizens of large states (e.g., NY, CA) as compared to the small states (e.g., ND, VT).
  • A system based on the outcome of the national popular vote would shift the attention from ten or so "swing states" to the big states and cities where voters are concentrated: rural and other smaller communities would be ignored in the same way non-swing states are today (at least the list of swing states changes between elections);
  • A national popular vote system would not eliminate "future Floridas," but would instead expand such problems to precinct disputes across the entire country. In this respect, the state-based Ellectoral College system acts as a firewall; containing and localizing disputes while removing the temptation to engage in fraud in states where the outcome isn't close....which is most cases;
  • To the extent that there is popular support (based on polling) for a presidential election system based on a national popular vote, it is worth remembering that this popular support is untested (i.e., the arguments made on behalf of a national popular vote system have not yet been the subject of a contest of ideas in an election setting);
  • To the extent that direct popular election of Presidents has been used internationally, the results have not been universally good (e.g., Mexico uses such a system and in its 2006 Presidential election, Felipe Calderon, the candidate with "the most votes" received 35.9% of the popular vote, while his closest rival, Manuel Lopez Obrador, received 35.3%; in the months that followed, Mexico was on the verge of civil war as the losing candidate running second for several months continued to hold mass rallies that attracted millions of angry supporters. See http://en.wikipedia.org/wiki/Mexican_general_election_2006_controversies;
  • While different methods of determining a winner may arguably seem preferable, it is just as important to have the terms of the election agreed to in advance among all the participants and then adhered to; for example, going back to see which MLB team scored the most runs during a season in order to dispense with the need for (or, even worse, overturn) a World Series would not be a better way to determine the best team in baseball, particularly if only a small number of the largest teams were to agree to install this system with a voting trust that cuts out many of the other teams.


    III. HOW "WINNER TAKE ALL" IS A SEPARATE ISSUE FROM THE ELECTORAL COLLEGE

    It is important to separate the issue of indirect election of the President using the Electoral College from the separate (but at least equally significant) practice of most states awarding their electoral votes on a "winner take all" basis.
    Nebraska and Maine are exceptions to this rule and have developed an alternative approach that awards their electoral votes on a "winner take all" basis, but by Congressional district with only the two electors representing the states' senate representation being awarded in the traditional way (i.e., "winner take all" by state). See http://en.wikipedia.org/wiki/Electoral_College_%28United_States%29.

    NPV advocates emphasize the benefits of moving to a system that awards the election of the President and Vice President based on the outcome of the national popular vote as compared to an Electoral College that relies on this "winner take all" system. See http://www.nationalpopularvote.com/pages/explanation.php and http://www.fairvote.org/npv-crs-electoral-college/#.UBqkQKAZQtk.

    It should be remembered, however, that this particular aspect of the issue could be more directly and straightforwardly addressed by adopting the approach taken by Maine and Nebraska, something some states (such as Pennsylvania) have been considering. See http://www.washingtonpost.com/opinions/electoral-college-reform-and-tilting-the-presidential-balance/2011/10/07/gIQAluwzTL_story.html.

    It is also worth noting that reform in this direction could be accomplished without having to amend the Constitution and without the legitimacy issues raised by NPV's state compact approach.


    IV. THE IMPORTANCE OF AMENDING THE CONSTITUTION TO ACHIEVE FUNDAMENTAL CHANGE

    The Constitution by its terms is not easy to ammend. See http://wiki.answers.com/Q/What_is_the_formal_process_to_amend_the_US_Constitution. This was intentional, the view being that there should be a near-consensus in order to make changes on fundamental matters. See http://wiki.answers.com/Q/Why_did_the_framers_of_the_constitution_make_amending_the_constitution_so_difficult.

    In practical terms, it is particularly difficult to seek an amendment that challenges the "big state-small state" balance at the core of the Electoral College system. *****
    The challenge for those supporting NPV, however, is that they run up against the fact that indirect election and the Electoral College system continue to have strong support, particularly among the smaller states (as when the Constitution was drafted).
    There is enough support for the Electoral College in the various states that those backing NPV apparently began with the conclusion that amending the Constitution in a straightforward manner would be too difficult....insurmountable in fact, given that the Constitution requires Congressional approval and adoption by 3/4 of the states before an amendment can become law. See http://wiki.answers.com/Q/What_is_the_formal_process_to_amend_the_US_Constitution.

    In short, the supporters of NPV realized early on that they did not have the votes to accomplish their objective in the traditional and straightforward way.

    So what did those currently interested in getting rid of the Electoral College decide to do instead?

    They couldn't do what they would usually do....which is to hire lawyers and sue on the grounds that the Electoral College somehow violates due process and/or equal protection under the Constitution.
    They were not able to do that because the Electoral College is part of the Constitution itself. See United States Constitution, Article II Section 1 (see http://en.wikipedia.org/wiki/Article_Two_of_the_United_States_Constitution#Clause_2:_Method_of_choosing_electors).

    So those arguing for a national popular vote instead came up with an "interstate compact" approach designed to change what would otherwise be the outcome of the Electoral College vote to make it match the outcome of the popular vote.


    V. INTERSTATE COMPACTS AS A WAY TO RESOLVE MATTERS AMONG INDIVIDUAL STATES

    The Interstate Compact mechanism. What is a compact among the states? It is a legitimate and long recognized approach to handling matters between states where individual states want to resolve matters vis a vis each other. See http://en.wikipedia.org/wiki/Interstate_compact.

    Article I, Section 10, the Constitution authorizes state compacts as follows:

    No State shall, without the Consent of Congress...enter into any Agreement or Compact with another State....
    Interstate compacts have long been seen as a cumbersome, obscure, yet practical way to resolve issues and have been a valuable tool for handling specialized matters. See http://en.wikipedia.org/wiki/Interstate_compact.
    For example, interstate compacts have been used to create regulatory authorities for multi-state areas (e.g., the New York Port Authority which also includes authority for New Jersey (see http://en.wikipedia.org/wiki/Port_Authority_of_New_York_and_New_Jersey)) and the allocation among participating states of scarce resources (e.g., the western states water pact (see http://en.wikipedia.org/wiki/Colorado_River_Compact)). A more complete listing of interstate compacts currently in existence appears at http://en.wikipedia.org/wiki/Interstate_compact.
    This is different from the similar and related mechanism where states separately adopt identical (or near-identical) model legislation. See http://en.wikipedia.org/wiki/Model_act.
    Interstate compacts are based in the Federal nature of dual sovereignty that uniquely characterizes the US system.


    VI. HOW THE NPV INTERSTATE COMPACT WOULD WORK

    The NPV Mechanism. NPV is designed to work as follows:
    • The adopting state will hold presidential elections by statewide popular vote;
    • After the election, the state's chief election official (usually the state Secretary of State) shall certify the number of popular votes cast in the state for each candidate and report those results to the other states by a specific deadline;
    • The chief election official shall then determine "national popular vote totals" for each candidate by adding up the totals reported by every state (including states that have not adopted the compact) and the District of Columbia (under current law, each state is required to make official reports of vote totals to the federal government in the form of Certificates of Ascertainment);
    • The state's electoral votes would be awarded to the candidate with the greatest "national popular vote total" (i.e., the candidate receiving a plurality of the national vote);
    • In the extremely unlikely event of an exact tie in the national popular vote, each adopting state would award its electoral votes to the statewide winner (as is currently done by all states except Maine and Nebraska, which award their electoral votes based at the congressional district level);
    • The compact specifies that it shall take effect only if it is law in states controlling a majority of electoral votes on July 20 of a presidential election year (states wishing to join or withdraw from the compact after that date would not be able to implement that withdrawal until after January 20 of the following year);
    • The compact will terminate in the event the Electoral College is abolished.
    It is apparently not clear whether NPV would require Congressional authorization once adopted by the requisite number of states for it to go into effect, even though the Constitution states that "No state shall, without the Consent of Congress....enter into any Agreement or Compact with another state..." (see U. S. Constitution, Article I, Section 10).

    This is because, once again, under Article II, the state's power in the area of voting in presidential elections is considered plenary.
    Thus, in the event of a Presidential election where the national popular vote goes in favor of one candidate, but where the electoral college would elect another, NPV would commit the states adopting the compact to cast their electoral votes for the popular vote winner, even (and especially) if the results of the popular vote in that state went for the other candidate.
    Thus, by rejecting the outcome in those states and instead casting the states' electoral votes for the candidate who lost the popular vote state-wide would the winner of the national popular vote also become the winner in the Electoral College.
    The key is that the compact is designed only to go into effect once states representing a majority of electoral votes have adopted it.
    According to the NPV website, proceeding under this Constitutionally recognized state compact mechanism "guarantees" that it will be effective in achieving it's desired result. See http://www.nationalpopularvote.com/.


    VII. HOW NPV IS FUNDAMENTALLY DIFFERENT FROM OTHER INTERSTATE COMPACTS

    NPV would be different from other state compacts.
    • First, this particular state compact is addressing Constitutional issues and attempts to bring about de facto repeal (or nullification, as you prefer) of a part of the Constitution (i.e., it is designed both to eliminate some of the Constitution's protections and render superfluous one of its institutions);
    • Second, it intends to create what amounts to a voting trust among the adopting states, designed specifically to disadvantage the other states that have not adopted it;
    • Third, because it involves how a state casts its electoral votes, NPV supporters argue that Congressional approval of NPV is not required, even though the Constitution states that "No state shall, without the Consent of Congress....enter into any Agreement or Compact with another state..." (see U. S. Constitution, Article I, Section 10).
    • Fourth, because it involves voting, it impacts the Voting Rights Act and probably does require approval of the Justice Department.
    On this latter point, it is interesting that the Justice Department's approval of NPV under the Voting Rights Act might be required, even though Congressional approval under the Constitution's state compact language might not be. If this proves to be the case, it would be due to the Voting Rights Act's being based in the authority of the XVIIIth, XVIVth and XVth Amendments to the Constitution.
    In any event, it is worth noting that NPV, prior to being adopted by CA at the state level, was approved by the Justice Department. See http://www.nationalpopularvote.com/resources/CA-Herren-Letter-2012-1-13-DOJ-VRA-Preclearance.pdf.

    This is surprising given that if it were ever used, the act would in effect render ineffective the votes of minorities supporting the winning candidate in a particular state.

    As the old saying goes....act in haste, repent at leisure!


    VIII. NPV'S PROGRESS TOWARD ADOPTION

    NPV's supporters have been surprisingly successful in a short period of time. Eight states and the District of Columbia (with 132 electoral votes...49% of the total needed for the compact to go into effect) are reported as having adopted the compact, waiting only for some magic number of additional states with at least 138 more electoral votes to join them. See http://www.nationalpopularvote.com/pages/explanation.php.
    NPV has now been introduced in each of the fifty states and is reported to have passed thirty one legislative chambers in twenty one jurisdictions, which represents at least one legislative body in twelve additional states (i.e., AR, CO, CT, DE, ME, MI, NV, NM, NY, NC, OR and RI). See id.
    It is conceivable, that one day not long in the future we could all wake up and find that our system for electing the President and Vice President has been changed fundamentally....at least in theory.
    At this point, you should probably be asking how this could possibly be a current issue you haven't yet heard about?
    It is interesting to note that the jurisdictions that have adopted NPV to date (i.e., CA, DC, HI, IL, MA, MD, NJ, VT, WA) range from blue to dark blue in the current parlance (and also include three "small state" jurisdictions (DC, HI and VT)).
    Several important newspapers have editorialized in support of NPV, including the New York Times, Minneapolis Star-Tribune, Chicago Sun-Times, Los Angeles Times and Miami Herald. See http://www.nationalpopularvote.com/; http://www.nytimes.com/2010/06/22/opinion/22tue4.html; http://www.nationalpopularvote.com/pages/editorials/minneapolisstartribune.php; http://articles.latimes.com/2011/aug/11/local/la-me-cap-elections-20110811.
    A few have been opposed, including the Honolulu Star Bulletin and, notably, the Wall Street Journal. See http://archives.starbulletin.com/2007/04/29/editorial/editorial02.html and http://online.wsj.com/article/SB10001424052748703578104575397100729241576.html.

    Prominent Democrats who have signed on in support of NPV include former IN Senator Birch Bayh and former IA Governor Chet Culver. See http://www.nationalpopularvote.com/.

    They are in addition to the D Governors who have signed NPV into law after it passed their state legislatures (e.g., CA Gov. Jerry Brown, MA Gov. Patrick Duval, MD Gov. Martin O'Malley, WA Gov. Christine Gregoire, VT Gov. Peter Shumlin, as well as former IL Gov. Rob Blagojevich and former NJ Gov. John Corzine).
    The NPV effort is well funded and receives financial support from far left financier and activist, George Soros, whose son, Jonathan Soros has written an op-ed in support of NPV that appeared in the Wall Street Journal. See http://online.wsj.com/article/SB122930124441705413.html and http://www.rooseveltinstitute.org/people/fellows/jonathan-soros,
    It is thought that Soros' financial support has been an important key to the progress made in the various states where NPV has been passed. See http://www.weeklystandard.com/blogs/george-soros-supports-tea-party_590271.html.
    In establishing it's popular front, NPV supporters have also been surprisingly sucessful in recruiting several prominent Republicans, such as former Senators Jake Garn (UT), David Durenburger (MN) and Fred Thompson (TN), to act as useful savants available to argue on behalf of NPV's adoption. See http://www.nationalpopularvote.com/.
    One can only imagine that these R's making the case for NPV have yet to fully distinguish between the policy goal of electing our President by a national popular vote (which they clearly favor) and the means of doing so via NPV's flawed state compact approach.


    IX. SEPARATING THE POLICY ARGUMENTS FROM THE FLAWED PROPOSED STATE COMPACT ADOPTION METHOD

    In addition to the basic arguments in favor of replacing the Electoral College with a system based on the national popular vote (see above), the arguments for moving to a national popular vote specifically through the NPV state compact mechanism, would appear to be as follows:
    • NPV is presented as well thought through and well designed to achieve its intended objective of moving to a system where we elect our Presidents and Vice Presidents "the way we elect our governors....;" one where "Every Vote Counts." See http://www.nationalpopularvote.com/.
    • The states have the Constitutional authority to create a state compact like NPV and proceed in this manner;
    • NPV, it is argued, will "guarantee" the election of the candidate winning the most votes nationally, once it was adopted. See id.
    The arguments against moving to a national popular vote through adopting the NPV state compact address these points:
    • For the reasons given, NPV is not well conceived and is likely, if ever needed, to greatly increase the level of political turmoil following an election conducted under its provisions (i.e., it would broaden electoral disputes and raising the level of political uncertainty);
    • Using a state compact to make this change would eliminate important protections and would constitute an "end run" of the Constitutional Amendment process; ******
    • The differences between NPV and other state compacts (e.g., depriving states and voters of long-standing Constitutional protections) raises the prospect of NPV being outside the state compact power;
    • NPV cannot "guarantee" that it will achieve it's intended result (given the State's plennary authority in this area) but, in fact, can be counted on not to be carried out as envisioned (particularly given the implications of NPV having states cast their electoral votes for candidates who lost the popular vote in that state).


    X. THE CHAOS THAT WOULD RESULT SHOULD NPV EVER BE ADOPTED AND USED

    THROUGH THE LOOKING GLASS....DARKLY!
    Too Clever by Half.... The English have a number of wonderful expressions that well describe the flawed NPV approach by-passing the Constitutions amendment process. As someone in London might say, the NPV state compact scheme is "too clever by half......I can think of no scheme more likely to overreach itself."
    In other words, if you liked Bush v. Gore in 2000, for its drama, chaos and political theater, you are going to love the brave, new world brought to you by NPV.
    An example can help illustrate this point.To get an idea of just how ridiculous things could become....imagine a race where former Alaska Governor Sarah Palin becomes the R nominee and wins a plurality of the popular vote, but her D opponent, President Obama, wins the Electoral College.
    This scenario was at one point considered a real possibility as a scenario for 2012, particularly in a three-way contest where, in addition to President Obama and Governor Palin, NY mayor Michael Bloomberg entered the race as the self-funding nominee of Americans Elect (Americans Elect being a serious Internet-driven third party movement....yet another fairly far along development that you probably have never heard of). See http://www.americanselect.org/ and http://en.wikipedia.org/wiki/Americans_Elect.
    In that particular alternative universe, you would have a three-way race with President Obama and Bloomberg splitting the non-Palin vote allowing Gov. Palin a majority of the Electoral College vote.
    If you think this is far-fetched, recognize that Governor Palin's nomination was the very possibility that many think might ultimately have brought a self-funding Mayor Blumberg into the race, with Americans Elect providing the credibility of a pre-cleared path to ballot access in all 50 states. See http://thecaucus.blogs.nytimes.com/2012/02/24/who-might-run-as-a-third-party-candidate-in-2012/ and http://race42012.com/category/michael-bloomberg/.

    Can you imagine such stalwart left-leaning "deep blue" states as California, Vermont or Massachusetts ever casting their electoral votes for Sarah Palin in this (or any other) circumstance just to make this point (particularly when doing so would be outcome determinative)?
    Of course not.....or, as the British might say, "Go ahead! Pull the other one!"
    More likely what would happen would be a strenuous round of Olympic-level logical gymnastics (as in "don't try this at home!") where the CA, MA and VT D's would eventually get to the position that they just couldn't possibly (for fill-in-the-blank reasons) bring themselves to vote for Gov. Palin even thought the NPV compact supposedly "guarantees" they would do so.
    This would almost certainly occur at the same time others would simultaneously be suing over the outcome, including both NPV's supporters for the compact to be enforced as adopted and also by opponents arguing for NPV to be held unconstitutional (or enjoined on some other grounds) in multiple state and Federal courts around the country.
    Additionally, the California, Vermont and Massachusetts state legislatures (as well as other states that went for President Obama) could be counted on to seek to exercise their authority under the Constitution (which you will recall the Supreme Court acknowledges as plenary) to step in and instead cast their electoral votes for the candidate that did, after all, carry their states.
    The punch line, of course, would be, "I'd feel differently about going back on this if Gov. Palin had won a majority of the national popular vote, but under the circumstances...."

    So those states, after promising not to vote for the candidate who carried their state, would then be in the position of going back on that promise.

    As Winston Churchill is reported once famously to have said (when describing is journey from the British Conservative Party to the Liberal Party and back again):

    Anyone can rat, but it takes a certain amount of ingenuity to re-rat! http://quotationsbook.com/quote/44624/

    One of the other "improvements" offered by NPV, it should be noted, is that it would greatly increase the number of states where these legal battles (they would not be skirmishes) would be fought.
    Florida 2000 would be replicated not just in states that signed the compact, but elsewhere in states that didn't.
    And what about the extreme and inflammatory commentary that could be counted on from the paid commentators on our TV cable networks, i.e., anticipating how they will talk about how even though the NPV mechanism was in place, that it's right for a state to go back on it's word to switch it's electoral vote when it will make the difference by putting someone they can't stand into the White House. Chris Matthews and Rachel Maddow, please call your MSNBC offices....

    Politics is often made up of such searches for an opportunity to do something other than what is supposed to happen to gain an advantage or avoid a cost.....think redistricting (and the gerrymander) if you want a related example.

    One result of all this chaos and extreme turmoil would probably mean that there would be a need, among other things, for a new compact for reciprocal extradition among states to return fleeing state legislators (something that has become a popular way to prevent votes in state legislatures around the country due to absence of a quorum).


    XI. NPV AND THE THE "FAITHLESS ELECTOR" ISSUE

    Interestingly, there is a parallel set of issues resulting from prior presidential elections called the "faithless elector" problem that is relevant in this context. See http://en.wikipedia.org/wiki/Faithless_elector.
    A faithless elector is an elected member of the Electoral College who does not vote for the candidate he or she was elected (and pledged) to vote for. id.
    This occurs due to Electoral College Electors each being individuals who are "elected to elect" at the times (on rare occasions) when they decide to exercise their (plenary?) freedom to vote for someone other than the candidate they were elected to support.

    In Texas parlance, they decide "not to dance with them what brung them!"
    Examples of when this has occurred appear at http://en.wikipedia.org/wiki/Faithless_elector.
    Fortunately, in the past when this has happened, it has amounted to a protest vote and not been outcome determinative.

    When it has happened, different states have responded differently, but it is worth noting that twenty four states have laws to punish faithless electors. In some states it is in fact a felony, punishable by imprisonment. See id and http://www.archives.gov/federal-register/electoral-college/laws.html.

    NPV supporters have expressed the view that the "faithless elector" problem is no different under NPV than under the current system (see http://www.nationalpopularvote.com/pages/faq.php) but that is true only in the sense that the potential for someone to act as a faithless elector exists in both cases.
    There is a difference between the two, however, in the sense that now we have George Soros, in the name of direct democracy, seeking to have an entire state become faithless and, in an act of Constitutional nullifcation, cast a state's electoral votes for a candidate who didn't win over the voters in that state.
    Now I cannot imagine someone filing a lawsuit over something like that can you?
    Interestingly, this principle of not being willing to have a state's electoral votes cast for a presidential candidate who did not win the popular vote in their state was the very reason offered by CA Gov. Arnold Schwarzenegger and HI Gov. Linda Lingle when they vetoed NPV in their states.

    Wouldn't it make sense for MD Gov. Martin O'Malley, WA Gov. Christine Gregoire and CA Gov. Jerry Brown, among others, to be asked to justify their signatures on NPV with this very question?********
    Get this firmly in mind....if ultimately adopted, NPV would only come into play in the closest of elections (i.e., when the popular vote goes to one candidate and the electoral college vote would go the other).
    It requires a state that went for one of the candidates to to act in a faithless manner by invalidating the results of its state voting and cast its electoral vote for the candidate who didn't win in the state.


    CONCLUSION

    YOU CAN'T MAKE THIS STUFF UP

    To call upon another set of wonderful (and pungent) British phrases, NPV represents the full catastrophe...a complete pig's breakfast!

    Like Dr. Seus and the Cat in the Hat, when you release Thing 1 and Thing 2, chaos ensues.....followed eventually (and hopefully) by a return to normalcy?

    Like an I Love Lucy episode when Lucy and Ethel decide they are going to fix the Electoral College but need to convince Ricky's boss (probably played by Ed Wynn) to fund the enterprise.
    For those of you that think I am being too harsh here....please remember that it's OK to ridicule things that are ridiculous! The two words share a common derivation.

    All of this taken together leads to the conclusion that the drafters of NPV have intentionally designed a Constitutional "doomsday" mechanism, the real purpose of which is to generate a crisis under which the Electoral College is eventually scrapped.

    Look for this NPV issue coming to a state near you...you will probably hear more about it one day.

     

    Charles Schott served in the last three Republican administrations and served as Deputy Assistant Secretary of the Treasury in the George W. Bush Administration. Earlier articles appear at http://egopnews.com/schottarchives.htm. He can be reached at csandassoc@gmail.com.

     


    NOTES

    * A candidate who receives a majority of the Electoral College vote becomes President. If no candidate receives a majority, the choice is made by a majority of the House of Representatives voting by state (each state having one vote). See http://en.wikipedia.org/wiki/Electoral_College_%28United_States%29.

    ** See the Appendix below for additional detail on these four earlier elections.
    *** NPV does not address this issue and the potential for a potentially divisive narrow plurality presidential election would remain if NPV were to go into effect.

    **** See also http://www.washingtonpost.com/opinions/electoral-college-may-not-be-popular-but-it-works/2012/01/23/gIQApsj6LQ_story.html.

    ***** As Dr. Henry Kissinger once said, "nothing is impossible....some things, however, can become infinitely complicated!"
    ****** According to the Wikipedia entry on NPV, the criticism that the NPV represents "an end-run around the constitutional amendment proces has been addressed by Prof. Jamie Raskin as follows, "the term 'end-run' has no known constitutional or legal meaning. More to the point, to the extent that we follow its meaning in real usage, the 'end run' is a perfectly lawful play." The Wikipedia entry continues noting that Raskin argues that the adoption of the term "end-run" by the compact's opponents is a tacit acknowledgement of the plan's legality." See http://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact.
    ******* Interestingly, signers NJ Gov. John Corzine and IL Gov. Rob Blagojevich are no longer in office (and are unlikely to return to elective office any time soon).



    APPENDIX


    PRESIDENTIAL ELECTIONS WHERE POPULAR VOTE WOULD HAVE PRODUCED A DIFFERENT OUTCOME THAN THE PROCESS CONTAINED IN THE CONSITUTION
    The Presidential Election of 1824.In 1824, John Quincy Adams was elected President over Andrew Jackson not by the Electoral College vote (where no candidate received a majority), but by a subsequent vote of the House of Representatives (the fall-back mechanism authorized by the Constitution; see http://en.wikipedia.org/wiki/Electoral_College_%28United_States%29). This occurred even though Jackson had a 10% popular vote margin over Adams (41.3%% vs. 30.9%) and seven fewer electoral votes (i.e., 91 to 84).

    This unexpected outcome, engineered by Henry Clay (another presidential candidate in that election who carried three states) was seen by many (particularly Jackson's supporters) as illegitimate. It has since been referred to in American history books as the "corrupt bargain." See http://en.wikipedia.org/wiki/United_States_presidential_election,_1824.

    The matter was resolved in a presidential campaign re-match four years later, when, in 1828, Andrew Jackson was overwhelmingly elected, winning both the electoral vote (178-83) and the popular vote (56.0 % vs. 43.6%). See
    http://en.wikipedia.org/wiki/United_States_presidential_election,_1828.

    The Presidential Election of 1876. In 1876, whether Republican presidential candidate Rutheford B. Hayes or Democrat Samuel J. Tilden would be elected by the Electoral College depended on the contested outcome of the election in Florida and which candidate would receive Florida's electoral votes. See http://en.wikipedia.org/wiki/United_States_presidential_election,_1876.

    Congress ultimately agreed to accept the recommendation of a special commission (equally representing the House, Senate and the Supreme Court) to resolve the issue. This ended up making Republican candidate Hayes the winner. The D's went along because the end of post-civil war occupation and reconstruction in the southern states was agreed to as part of the final decision.

    The Republicans went on to win the election of 1880 four years later and maintained their party's dominance on the national level until the election of 1884 when NY Governor Grover Cleveland became the first Democrat elected to the White House following the Civil War. See http://en.wikipedia.org/wiki/United_States_presidential_election,_1884.

    The Presidential Election of 1888. After Cleveland was elected in 1884, he was defeated for re-election four years later by Republican nominee, Benjamin Harrison. In this election, Cleveland received a plurality of the popular vote (48.6% vs. 47.8%) even while losing in the Electoral College (168 to 233). See http://en.wikipedia.org/wiki/United_States_presidential_election,_1888.

    While Democrats were frustrated with this result, they accepted it. This was probably the least controversial example of a race where the new President won without prevailing in the popular vote.

    Once again, the issue was resolved by the election that was held four years later. Presidents Cleveland and Harrison both ran again in 1892 (with Cleveland winning in both the Electoral College (277 to 145) and the popular vote (46.0% vs. 43.0%) and served a second term, becoming our only President (to date) who has served two non-consecutive terms (making him both the 22nd and 24th President). See http://en.wikipedia.org/wiki/United_States_presidential_election,_1892 and http://en.wikipedia.org/wiki/Grover_Cleveland.

    The Presidential Election of 2000. Interestingly, as in 1876, the 2000 election outcome depended on a dispute over Florida's electoral votes. Following the election of 2000, the two candidates, George W. Bush and Al Gore, 'lawyered up' and fought it out in a series of inter-connected Federal and Florida state court cases that made their way ultimately (and more than once) to the Supreme Court. This series of court cases ultimately resulted in George W. Bush winning Florida and the election and becoming President. See http://en.wikipedia.org/wiki/United_States_presidential_election,_2000.

    As a matter of personal presidential political legitimacy, the matter was largely resolved by the election of 2004 when President Bush was re-elected in a close race, but with a majority of both the electoral and popular vote (Bush was the first president in sixteen years (since 1988) to receive a majority as opposed to a plurality of the popular vote). See http://en.wikipedia.org/wiki/United_States_presidential_election,_2004.



     


     


     



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