Get free daily email updates

Syndicate this site - RSS

Recent Posts

Blogger Menu

Click here to blog

James V. Lacy

National Popular Vote bill deserves considered thought

I am not saying I endorse the so-called “National Popular Vote” bill that is pending in the Legislature, having passed in the Assembly 52-21-8 with some bipartisan support, as well as in the Senate Elections Committee, however, I am not so sure the arguments I am hearing against it are as sound as opponents portray.  And I am also not saying that all the arguments I have heard about “making California relevant again” in national Presidential elections is the only reason to support it.  But looking at the legislation honestly, and fairly, I think there is something to it.

National Popular Vote legislation is nothing new.  It passed the Assembly in 2006 and again in 2008.  It has been enacted in six states and the District of Columbia.  And polls show it is supported by about 70% of Californians.  National Popular Vote (“NVP”), if enacted here, means that California’s Presidential Electoral College votes would be cast for whichever candidate for president wins a plurality of the vote, regardless of who wins in California.  Promoters of NVP say it will guarantee that whoever wins the most popular votes in the country would be elected president, thus avoiding a “Bush vs. Gore” litigation in a state like Florida, where courts helped determine who was the lawful president.  They also say that it will require the candidates to pay more attention to all states, including California, and not just the seven or eight “battleground states” like Ohio, which receives so much more attention from national presidential candidates in the general election than California.

An opponent of NPV, a person I respect, told me over lunch earlier this week that a reason to oppose NVP is that it is “unconstitutional,” and cited research by the Claremont Institute in support of the statement and some work by former Chapman law school dean John Eastman.  I just accepted the statement until I received an email sent to fellow American Conservative Union board members by Morton Blackwell arguing against the NVP as a bad thing for small states, but seeming to concede the constitutionality of it.  In the email he states “(t)his bad idea would be constitutional because Article II, Section 1, of the U.S. Constitution gives the respective state legislatures the right to appoint presidential electors.  Congressional approval isn’t required.  The Compact would take effect if states with a majority of the electoral votes pass it.” Morton’s reference to the “state’s rights” power in the constitution, is an important power often underrated by Federal Courts and it is a principle of government conservatives care about.  Morton’s email really got me thinking about the broader constitutional issues, including state’s rights, and hence this post.

Professor Eastman’s considered thought in opposition is quite good and among other points zeros in on the more complicated legal questions of whether the compact unconstitutionally encroaches on other states. and whether the proposed compact improperly delegates a state’s sovereign powers, in addition to the general constitutional point on the “fundamental right to vote” and whether the NVP would dilute an individual citizen’s vote in outcome.

What I think the debate is about is more about state right’s, and from that perspective, when the politics are added and one notes that California will probably not deliver a plurality for a Republican presidential candidate again in my lifetime and a generation more, and that California’s relative power is considered to be bigger under NVP than without out (according to my read of Morton’s email) then I like NVP and I do not have a problem with another conservative Republican voting for it with all that in mind, keeping in mind the constitutional justification is more important than the politics.  I could also envision the current U.S. Supreme Court tilting in favor of NVP, not only from a increasing respect for state’s rights, but also to get the issue of determining who is president out of the judicial branch and back to the electors themselves.  But when I think about NVP from the perspective of my own training in civil rights litigation at Stanford Law School and my law degree from Pepperdine, I find myself agreeing with Professor Eastman that there are indeed constitutionally “unsettled” issues and that the stronger legal argument MIGHT be against.

Nevertheless, I remind readers that they said Proposition 13 was unconstitutional too.

8 Responses to “National Popular Vote bill deserves considered thought”

  1. kohler Says:

    In 1966, the state of Delaware led a group of 12 predominantly low-population states (including North Dakota, South Dakota, Wyoming, Utah, Arkansas, Kansas, Oklahoma, Iowa, Kentucky, Florida, Pennsylvania) in suing New York in the U.S. Supreme Court.

    David P. Buckson (Republican Attorney General of Delaware at the time) led the effort. Delaware’s brief argued:
    “The state unit-vote system [the ‘winner-take-all’ rule] debases the national voting rights and political status of Plaintiff’s citizens and those of other small states by discriminating against them in favor of citizens of the larger states. A citizen of a small state is in a position to influence fewer electoral votes than a citizen of a larger state, and therefore his popular vote is less sought after by major candidates. He receives less attention in campaign efforts and in consideration of his interests.”

    In their brief, Delaware and the other plaintiffs stated:
    “This is an original action by the State of Delaware as parens patriae for its citizens, against the State of New York, all other states, and the District of Columbia under authority of Article III, Section 2 of the United States Constitution and 28 U.S. Code sec. 1251. The suit challenges the constitutionality of the respective state statutes employing the ‘general ticket’ or ‘state unit-vote’ system, by which the total number of presidential electoral votes of a state is arbitrarily misappropriate for the candidate receiving a bare plurality of the total number of citizens’ votes cast within the state.

    “The Complaint alleges that, although the states, pursuant to Article II, Section 1, Par. 2 of the Constitution, have some discretion as to the manner of appointment of presidential electors, they are nevertheless bound by constitutional limitations of due process and equal protections of the laws and by the intention of the Constitution that all states’ electors would have equal weight. Further, general use of the state unit system by the states is a collective unconstitutional abridgment of all citizens’ reserved political rights to associate meaningfully across state lines in national elections.”

    The plaintiff’s brief argued that the votes of the citizens of Delaware and the other plaintiff states are
    “diluted, debased, and misappropriated through the state unit system.”
    The U.S. Supreme Court declined to hear the case (presumably because of the well-established constitutional provision that the manner of awarding electoral votes is exclusively a state decision).

    The importance of the 1966 Delaware case is not that it set any legal precedent. The controlling precedent recognizing the plenary and exclusive power of the states to allocate electoral votes was set in 1893, and did not need reiteration in 1966. The 1966 case is important because Delaware led a group of 12 predominantly low-population states (North Dakota, South Dakota, Wyoming, Utah, Arkansas, Kansas, Oklahoma, Iowa, Kentucky, Florida, Pennsylvania) in suing New York in the U.S. Supreme Court, arguing that New York’s use of the winner-take-all effectively disenfranchised voters in their states. The importance of the 1966 case is political. This lawsuit, by the state governments of 12 states, put these states on record as recognizing the illusory benefit to the small states of the two-vote bonus. The Court declined to hear the case because of the well-established 1893 precedent that the manner of awarding electoral votes is exclusively a state decision. Ironically, defendant New York is no longer a battleground state (as it was in the 1960s) and today suffers the very same disenfranchisement as the 12 non-competitive states who sued New York in 1966. A vote in New York is, today, equal to a vote in any of these small non-competitive states–all are equally worthless and irrelevant in presidential elections.

    By the way, the 1966 case was brought by the 12 states under the original jurisdiction of the Supreme Court (not, as Gump says, on appeal from some lower court). It is unusual for the U.S. Supreme Court to decline a request by numerous states to hear a case under the Court’s original jurisdiction. The plain interpretation of this refusal was that the Court considered its1893 McPherson decision as being definitive. The U.S. Supreme Court approvingly cited the 1893 McPherson decision as recently as its 2000 in Bush v. Gore.

  2. kohler Says:

    Unable to agree on any particular method, the Founding Fathers left the choice of method for selecting presidential electors exclusively to the states by adopting the language contained in section 1 of Article II of the U.S. Constitution– “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .” The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

    One opinion I’ve run across has been: “If Justices Alito and Roberts were to consider the National Popular Vote bill, they would side with the founders, find it constitutional and uphold the exclusive power of states to determine how to participate in Presidential elections through their Electors.”

    There is no obligation on a given state concerning a “person” in another state who is not “within its [the first state’s] jurisdiction.

    Every state in the compact would continue to possess Electoral Votes and vote through the Electoral College for President and Vice President as laid out in the 12th Amendment. Each state would continue to direct presidential Electors in the way determined to be in the best interest of the citizens they serve.

    States have the responsibility to make their voters relevant in every presidential election. In the current electoral system, at least 2/3rds of the states and voters are completely politically irrelevant. Presidential campaigns spend 98% of their resources in just 15 battleground states, where they aren’t hopelessly behind or safely ahead, and can win the bare plurality of the vote to win all of the state’s electoral votes. Now the majority of Americans, in small, medium-small, average, and large states are ignored. Virtually none of the small states receive any attention. Once the primaries are over, presidential candidates don’t visit or spend resources in 2/3rds of the states. Candidates know the Republican is going to win in safe red states, and the Democrat will win in safe blue states. So they are ignored.

    Policies important to the citizens of ‘flyover’ states are not as highly prioritized as policies important to ‘battleground’ states when it comes to governing.

    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.

  3. JustinWhite Says:

    Jim, our State’s method of assigning electors needs to change but the NPV solution is not the answer. The National Plurality is immaterial when choosing the President of the United States because the electoral college was created to protect individual State’s rights. The Legislature should consider eliminating the Winner Take All method of assigning electors and instead appoint electors based on the candidate that wins each Congressional District and two electors for the candidate that wins the Statewide vote. That puts far more electors in play and requires Candidates to spend more time in the state and more importantly forces them to spend time in the many different regions in our state. Constitutionally, this method is more sound in that each State’s electors are determined solely on the choice of that State’s voters.

    For the same reasons many of us oppose open primaries we should also oppose allowing voters in other State’s having a say in who our electors are.

  4. kohler Says:

    The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

    There is nothing in the U.S. Constitution that requires states to allow their citizens to vote for president, much less award all their electoral votes based upon the vote of their citizens.

    States have the responsibility to make their voters relevant in every presidential election.

    Dividing a state’s electoral votes by congressional district would magnify the worst features of the Electoral College system. What the country needs is a national popular vote to make every person’s vote equally important to presidential campaigns.

    If the district approach were used nationally, it would be less fair and less accurately reflect the will of the people than the current system. In 2004, Bush won 50.7% of the popular vote, but 59% of the districts. Although Bush lost the national popular vote in 2000, he won 55% of the country’s congressional districts.

    The district approach would not provide incentive for presidential candidates to campaign in a particular state or focus the candidates’ attention to issues of concern to the state. Under the 48 state-by-state winner-take-all laws(whether applied to either districts or states), candidates have no reason to campaign in districts or states where they are comfortably ahead or hopelessly behind. In North Carolina, for example, there are only 2 districts (the 13th with a 5% spread and the 2nd with an 8% spread) where the presidential race is competitive. In California, the presidential race is competitive in only 3 of the state’s 53 districts. Nationwide, there are only 55 “battleground” districts that are competitive in presidential elections. Under the present deplorable 48 state-level winner-take-all system, two-thirds of the states (including California and Texas) are ignored in presidential elections; however, seven-eighths of the nation’s congressional districts would be ignored if a district-level winner-take-all system were used nationally.

    Also, a second-place candidate could still win the White House without winning the national popular vote.

    A national popular vote is the way to make every person’s vote equal and guarantee that the candidate who gets the most votes in all 50 states becomes President.

  5. Robert Bosich Says:

    If you like big box stores you will love corrupt big media driven politics!

    Combine the tatoo adorned uneducated California masses…no hope in the technology age…with a sophisticated, targeted media barrage you could easily elect Che and Alinsky as our benevolent all caring leaders….

    Big Box politics will create more hopelessness and loss of personal freedoms…no more Prop 13 and possibly no appeals to higher courts for the agrevied coupled with ponied “polls” on cultural/social issues to grease the skids toward the depravity of Rome in all her “glory.”

  6. kohler Says:

    Evidence as to how a nationwide presidential campaign would be run can be found by examining the way presidential candidates currently campaign inside battleground states. Because every vote is equal inside Ohio or Florida, presidential candidates avidly seek out voters in small, medium, and large towns. The itineraries of presidential candidates in battleground states (and their allocation of other campaign resources in battleground states) reflect the political reality that every gubernatorial or senatorial candidate in Ohio and Florida already knows–namely that when every vote is equal, the campaign must be run in every part of the state.

    The 11 most populous states contain 56% of the population of the United States, but under the current system, a candidate could win the Presidency by winning a mere 51% of the vote in just these 11 biggest states — that is, a mere 26% of the nation’s votes.

    With National Popular Vote, big states that are just about as closely divided as the rest of the country, would not get all of the candidates’ attention. In recent presidential elections, the 11 largest states have been split — five “red states (Texas, Florida, Ohio, North Carolina, and Georgia) and six “blue” states (California, New York, Illinois, Pennsylvania, Michigan, and New Jersey). Among the four largest states, the two largest Republican states (Texas and Florida) generated a total margin of 2.1 million votes for Bush, while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry. 8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).

    The main media at the moment, namely TV, costs much more per impression in big cities than in smaller towns and rural area. So, if you just looked at TV, candidates get more bang for the buck in smaller towns and rural areas.

    If the National Popular Vote bill were to become law, it would not change the need for candidates to build a winning coalition across demographics. Any candidate who yielded, for example, the 21% of Americans who live in rural areas in favor of a “big city” approach would not likely win the national popular vote. Candidates would still have to appeal to a broad range of demographics, and perhaps even more so, because the election wouldn’t be capable of coming down to just one demographic, such as voters in Ohio.

    With National Popular Vote, every vote, everywhere, would be politically relevant and equal in presidential elections. It would no longer matter who won a state. Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states.

  7. Robert Bosich Says:

    Hog wash. Slippery slope to loss of states’ representation. Why should demented social policy be thrust on small conservative states?

    Do small states lose two senators, have one senator?

    Large urban areas are full of dependant people and many are poorly educated. These so called popular votes will bring us a massive welfare state and the total collapse of free enterprise.

  8. kohler Says:

    The powers of state governments are neither increased nor decreased based on whether presidential electors are selected along the state boundary lines, along district lines (as has been the case in Maine and Nebraska), or national lines. (as with the National Popular Vote).