On March 12, the Oregon House passed HB 2588 by a vote of 39-19. This is the National Popular Vote bill. Significantly, eight Republicans voted for the bill. Often the idea is treated as a partisan issue, in which Democrats favor and Republicans oppose, although there is no logic to that partisan division, unless one assumes emotions from the 2000 election are in play. Thanks to John Koza for the news.
Ballot Access News
Edited By Richard Winger
The logic to the division is that a National Popular Vote is characteristic of a Democracy and not a Republic.
Another state trying to run under the US Constitution. Sad. Sad. Sad.
The US Constitution says states can choose presidential electors any way they wish, so the National Popular Vote Plan does not contradict the Constitution.
As to the dictionary definitions of “democracy” and “republic”, the only difference between them is that a republic definitely does not have a monarch, whereas a democracy may or may not have a monarch.
#3
Isn’t that what the Rehnquist dissent in Anderson v. Celebrezze said?
In Anderson the USSC said that Ohio violated the rights of supporters of the Anderson-Lucey ticket.
In 2008, Baldwin, Barr, McKinney, and Nader appeared on the Oregon ballot. If the NPPV had been in effect in 2008, and Oregon was a member; wouldn’t Oregon violate the rights of Baldwin, Barr, McKinney, and Nader supporters in Oregon, by including “popular votes” from States where those candidates did not appear on the ballot, or where they might only receive write-in votes?
If Coos County did not print the name of one of those 4 candidates wouldn’t that violate the rights of voters not just in Coos County, but in Multnomah County as well? So how is that different if Oklahoma does not print the name of those candidates on its ballots? Aren’t the rights of voters in Multnomah County impaired just the same?
California law is permissive as to whether independent elector slates designate a presidential candidate (see Sections 8303 and 8304 of Election Code).
An independent elector slate which did not designate a presidential candidate does not qualify as a “elector slate” as defined by the NPPV compact. A voter in California could cast a vote for a non-affiliated independent elector slate. Therefore, does an election in California qualify as a “statewide popular election”?
If California were a member of the NPPV compact, it is compelled to hold a “statewide popular election”. Would it simply discard any votes cast by its citizens for the non-affiliated elector slate? Or would it be required to void the political association rights of its citizens to choose a slate of presidential electors who are fully qualified and capable of exercising their duties under the United States Constitution and California law?
Under the new NPV plan it is possible for a candidate to be elected with a tiny fraction of the national vote. There is, in fact, no fraction too low to be elected. 40%, 30%, 20%, 10% … whoever gets the most votes wins.
This is perfectly fine for representative districts where there are numerous other such districts for balance and when the National Executive is elected in a system requiring some kind of majority.
But with the NPV, all such rationality is lost. The US becomes a lawless banana republic.
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IN FACT:
Under NPV, a candidate who has actually earned ZERO electoral votes could be elected President, after the NPV computation determines that all the Electoral Votes earned by some other candidate should be flipped to the NPV candidate.
A candidate who has carried the overwhelming majority of states and Electoral Votes could have enough states Electoral Votes flipped to the NPV to give the Presidency to someone who won NO states and just carried the biggest cities.
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NPV is a disaster waiting to end LIBERTY in America:
. it means the final end of the federal system
. it terminates the federal compact that binds the states together
. it makes the US a banana republic
. as the States break up, it could lead to civil war
. it ensures massive electoral corruption and fraud will occur in places untouched until today
. it is being pursued by political hacks attempting to gain some electoral advantage and evil F a s c i s t – S o c i a l i s t s lusting for power.
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Under the current Electoral College system, it is virtually impossible for anyone to be elected without having a super plurality of support. To garner the required MAJORITY of Electoral Votes means that a candidate must have demonstrated national support and support in states containing a majority of the electoral votes.
Even better would be the adoption of the Maine/Nebraska system nationwide.
We need to wake up and crush the NPV takeover.
Instead we need to adopt the Maine/Nebraska system:
Under the Maine/Nebraska system, not only are two electoral votes awarded for winning each state, but one vote is awarded within each Congressional District.
This greatly expands the number of competitive areas in the Naional Election.
IN ADDITION to focusing on every competitive statewide election, candidates will have to focus on competitive Congressional Districts.
So, in addition to the normal 1/3 of the States, more than 1/3 of the Congressional Districts will be in play.
(This fact is not discernable from the mere observation of past races, since in past races this system was not in use. To determine this we must use a prospective, pro-forma type comparison.)
Thus, under the Maine/Nebraska system more than half of all US areas will be in play. Even better results will come from expanding the size of the House of Representatives and the number of Electoral Districts.
At the same time, switching to the Maine/Nebraska electoral college system makes the perfect electoral system:
1) EVERY VOTER IS TREATED EQUALLY in selecting one vote per congressional district, which represent approximately the same number of voters.
2) EVERY STATE IS TREATED EQUALLY in selecting two votes per state. This preserves the federal compact and helps prevent civil war.
3) The advantage of ELECTORAL FRAUD IS REDUCED to the lowest possible level, and therfore we will have the least corrupted electoral system.
4) The Maine/Nebraska Electoral College system guarantees that the candidates elected will have demonstrated the greatest possible support nationwide, representing the greates number of voters, districts and states.
5) By ensuring that the candidates elected have the greatest possible nationwide support, the Maine/Nebraska Electoral College system ensures stability, peaceful transitions, national harmony and internal peace. It prevents the US from becoming a banana republic due to its electoral system.
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for the PEACE, PROSPERITY and LIBERTY of America,
we must preserve the Electoral College system and:
ADOPT
…. the Maine/Nebraska Electoral College system of chosing the President and Vice President of the United States. We must expand the House of Representatives to 600, 800, even 1,200 members.
and we must
REJECT
…. the dangerous and evil NPV plan before it leads to fraud, corruption, and the fractionalization of America. Eventually under the NPV system we would see the election of a candidate who represents fewer than 25% of the actual votes cast, and who has won ZERO or close to zero electoral votes prior to the NPV calculation. Which would result in violence, chaos, riots and civil war.
Let’s say that a party were to nominate Dianne Feinstein and Barbara Boxer for President and Vice President, and that they received the most “national popular votes”.
There would be no legal issue of two Californians being on the ballot in 49 States and the District of Columbia. And probably no problem in California. AFAIK, Both Feinstein and Boxer are legally qualified to be President. Only the electors would be prevented from casting their electoral vote for both candidates. They could hardly be called faithless if they were faithful to the Constitution.
Buoyed on the overwhelming support of Californians in a 4-way race, the Feinstein-Boxer presidential slate receives the most national popular vote. The mere existence of the NPPV compact may encourage more strong candidates to enter the race in order to get the “most” votes.
In 1824, the Jackson-Calhoun slate received 98% of the popular vote in Tennessee. It had the most popular votes in only 7 states, but those 7 States accounted for 70% of the “national” popular vote for the Jackson-Calhoun slate.
So it is not such a far-fetched scenario. Let’s assume that the NPPV compact is in effect, among States with 289 electoral, including California. Feinstein-Boxer carry only 10 States but including their 12 million votes from California they secure 35% of the vote, and a 118,000 vote plurality over the second place candidate.
So Feinstein-Boxer gain 289 electoral votes from compact members, plus 1 from Alabama’s proportional split of electors, 5 from non-compact-member Nevada, and one from Maine’s second congressional district, for a total of 296. Ironically, the 3rd and 4th place popular vote candidates receive the most of the remaining electoral votes (see 1860 election).
What happens if a situation similar to 1800 develops and some California electors conspire to vote for Boxer for VP rather than Feinstein for President. 28 California electors vote for Feinstein, giving her a total 269 presidential electoral votes. And Boxer receives 268 vice-presidential electoral votes.
The House must choose from among the top 3 candidates. Because the vote is by State delegation, California only gets one of 50 votes. Feinstein is not elected. Meanwhile the Senate elects Boxer as Vice President, and due to the failure of the House becomes acting President.
It would be ideal to have Presidential Elector districts or electors allocated by proportional votes.
This is a partisan issue in who it will help with the “2 major parties.” In this case, oregan votes Dem. So votes get taken away from Dem. and it helps the Rep. Thus the Rep. support. In Alabama, they vote Rep. So votes get taken away from the Rep. and it helps the Dem. Dems feel they can gain power over all with a national popular vote. Rep feel they will lose power with a national popular vote. There are exeptions, and that is why the 8 Rep voted for this.
A lot of loose talk about the NPV plan here in my book. You can see extremely well thought-out answers to most of these concerns here:
http://nationalpopularvote.com/pages/answers.php
Other alternative reforms like Maine-Nebraska system of allocating electoral votes by congressional district is an absolute non-starter. See FairVot’es review of it and proportional allocation:
http://fairvote.org/wrongwayreforms/
For folks concerned about liberty, I think they should think long and hard about endorsing the current system that allows winning candidates to ignore every voter in about two-thirds of states.
Myth 1.1 Of course the NPVP is an end run around the Constitution. That is a cleverly concocted scheme that may be legal does not change this. Susan may well be right that constitutional principles such as equal protection and due process do not apply across State boundaries – but that no way justifies ignoring them.
What kind of answer to the question: Shouldn’t the voters in each State have the same candidates on ballot?
Answer: It never occurred to me. Nevertheless, it would not be illegal.
Does “not illegal” make something a good idea?
Myth 1.2
6 of the 10 States that participated in the 1789 presidential election had popular participation in the election of presidential electors, including the 3 that we most associate with the Founding Fathers, Massachusetts, Pennsylvania, and Virgina.
Clever how your quote from Professor Pika notes a starting date of 1804, so as to ignore the 12th Amendment.
The Constitution requires that the electorate for Congress be the same as for the state legislature. It was reforms in the election of the state legislature that led to reforms in the election of Congress. Presidential elections got included as a matter of convenience for election officials. It is a straw man argument that you suggest that this might be a Constitutional end around with regard to the presidential election.
In fact, a State could set different qualifications for voting for president than it did for other offices, and the other members of the NPPV would be obligated to honor it.
You ignore the 12th, 14th, 20th, 22nd, and 23rd Amendments, those that directly changed the process of presidential elections; to put up your straw man arguments about suffrage. And the 14th and 24th Amendments explicitly apply to popular elections of presidential electors.
Myth 1.3
First, it is far easier to amend state legislation than to repeal a constitutional amendment if some “unintended consequence” or adjustment becomes apparent.
This presumes that the “unintended consequence” is in popular presidential election per se, and not in its implementation.
This is pure sophistry on your part. You are essentially arguing that popular presidential elections might turn out to be a good idea after all, despite your writing a book arguing precisely the opposite.
Next you will be arguing that perhaps we shouldn’t have the popular election of representatives hard-wired into the Constitution. Maybe we will find some “unintended consequence”.
But this ignores the time, place, manner provisions where both the States and Congress have fine tuned the election process over time.
Under Bill Nelson’s proposed Constitutional Amendment, Congress would have the authority to regulate the process, so that ballots could be made identical, so that there can be recount procedures in place, so that their can be majority elections.
Myth 1.7
“First, it is far easier to amend state legislation than to repeal a constitutional amendment if some “unintended consequence†or adjustment becomes apparent.”
This presumes that the “unintended consequence†is in popular presidential election per se, and not in its implementation.
This is pure sophistry on your part. You are essentially arguing that popular presidential elections might turn out to be a good idea after all, despite your writing a book arguing precisely the opposite.
Next you will be arguing that perhaps we shouldn’t have the popular election of representatives hard-wired into the Constitution. Maybe we will find some “unintended consequenceâ€.
But this ignores the time, place, manner provisions where both the States and Congress have fine tuned the election process over time.
Under Bill Nelson’s proposed Constitutional Amendment, Congress would have the authority to regulate the process, so that ballots could be made identical, so that there can be recount procedures in place, so that their can be majority elections.
Myth 3.1
Why do you ignore 1880? Is it because you are unaware of it?
Perhaps you can be appointed head of the NTSB. You will be out looking at a train wreck, with ambulances still pulling mangled bodies out, and the police moving onlookers back out of concern or secondary explosions of fuel.
You’ll look at your clipboard and claim that your calculations prove that this will not happen for another 1332 years.
In the 1880 election, more votes were changed in a single contested congressional election held at the same time than the margin of victory in the popular vote for president.
Let’s see. You mention 1876, and blithely note that that the popular vote margin was 3%, as solid at Bush’s margin in 2004. Were there any other close elections around 1876 (like 4, not 1332, years later).
Richard Nixon won the popular vote in 1960 using the definiton of “popular vote” proposed by the NPPV scheme. And yet you claim that JFK had a 118,000 vote margin. Won’t happen in 1332 years?
Myth 3.2
Which are the 5 elections you refer to?
1796 perhaps?
1800 – Fixed by 12th Amendment (maybe…After all Thomas Jefferson and Aaron Burr were running mates).
1824 – A badly organized primary system, with the leading candidate being incapacitated during the process (not too dissimilar to the same party’s nomination process in 1968; or 2008 where the 2nd place popular vote winner did not receive the most votes. Jackson only won the popular vote in 7 States. He piled up a 98% margin in his home state of Tennessee. But overall he only had about 40% of the vote. It’s hard to consider this a failed election when the VP was almost unanimously elected in the electoral college, and some electors voted for both Adams and Jackson.
1836 – VP election? But the presidential electors from Virginia were elected by the people, and the result in Virginia was the same as the country as a whole.
1860? 40% election?
1876? If there had been a real national popular vote election, there would not have been massive vote suppression in the South, and Hayes would have won the popular vote. In this case the NPPV scheme would have ratified this oppression. And of course, not all States used popular election.
1880? Are you sure who won the popular vote?
1884? The national popular vote margin was 26,000 (0.25%), less than in 12 States, 1/5 of the margin in Texas alone.
1888? A narrow margin for Cleveland (90,000). If this were a NPPV election, don’t you think that the Prohibitionist might have been kept off the ballot, so as to help defeat the Democrats and the 3 Rs. Or perhaps some more votes would turn up in other States.
1912? Dismayed by the total disregard of the primary results, Roosevelt bolts the Republican party, but retaliates by keeping Taft off the ballot in California.
Wilson elected with 42% of the popular vote.
This argues for a national popular direct presidential primary, and a majority election. The NPPV scheme could provide for both, but does not, why?
1940? Fixed by 22nd Amendment.
1960. Nixon wins popular vote, but loses electoral college vote. Where’s the outrage? But advocates of the NPPV scheme continue to claim that JFK had a popular vote victory.
2000?
2008? Controversy still rages whether Obama was qualified to elected President. What would happen under the NPPV scheme if a compact member refused to appoint the electors of a candidate they believed to be unqualified?
Myth 3.4
States provide in advance for close elections within their jurisdiction. Most would even make sure that all ballots were recounted throughout the whole State for a statewide election. When they do so, the State orders the resources “indigenous” to each county to do the recount.
You don’t seriously think that some compact member is going to successfully force some non-compact member to recount presidential ballots because it would have an impact on who they will appoint presidential elector?
Myth 3.5
Federal law requires that a state ascertain who its electors are by a certain date. That is, they must make a final determination. Their certificate must include the means that they made that determination. States have all kinds of ways of resolving ties in their vote. Some let the governor decide; others the legislature; other choose by lot.
In those cases, one certificate of ascertainment might have the votes or the legislature; another a signed decision by the governor; and in another McCain a pair of 8s, to Obama a pair of 4s.
For compact states their certificate of ascertainment would not include their popular vote, but rather the national popular vote. But they could not calculate the national popular vote until every State had determined its result. So if one State were delayed, then all compact States would be delayed.
3 USC 5 doesn’t say anything about “election returns”. That is your interpolation.
The current system allows each State to act independently, and make their final determination before the deadline. The NPPV scheme requires concurrent action by all the States collectively.
Myth 3.6
A switch of the 1960 popular vote in Illinois and South Carolina would NOT have given Nixon a majority of the presidential electors.
It would not have even given him the “most” electoral votes.
Maybe you are forgetting Harry Byrd’s 15 electoral votes. Would you happen to know whether you counted 318,000 votes from Alabama in determining that 118,000 popular vote victory?
Myth 3.7
Half of the Certificates of Ascertainment for 2008 give no indication of the presidential slates.
3 USC 6 says: “It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast;”
A State sends in its Certificate of Ascertainment after it appoints its electors. A NPPV compact member can not appoint its electors, until it determines a “national popular vote winner”. It can’t do that until each State has canvassed its popular vote. Ascertain means to make a final definitive, certain determination. Compact members do that based on the “national popular vote”. Those are the numbers that they would include in their Certificate of Ascertainment.
Myth 4.1
What if the presidential and vice presidential candidate of the winning slate were from the same State. Who would that State’s presidential electors vote for? Would they be faithful to the Constitution or to their party’s candidates?
Doesn’t the NPPV compact in fact provide an end around around the Constitution by allowing a massive popular vote from a single State for its favorite son and daughter to induce other States to appoint electors who will vote in a way that that home State electors are forbidden to do under the Constitution.
Myth 5.1
There have been 5 elections in which the “popular vote leader” has not been elected President – 1824, 1876, 1888, 1960, and 2000. I think I would be even more upset if I fell asleep reading my history book, and the plane to Chicago landed in Indianapolis, and I was not even aware of that.
Of course, in 1824, the “popular vote leader” was elected Vice President, so maybe we should only count that as a 1/2. So make it 4.5.
There have been 17 elections in which no candidate received most of the popular vote. We can make no conclusion about which candidate most American voters preferred in those election.
What you actually mean by “wrong winner” (your quotes) is to suggest that the winner under the actual rules would be someone else, if your rules had been used.
This is like looking back at an old NBA championship film and determining that the “wrong winner” had been chosen based on counting long-distance FG’s as 3 points.
But you don’t know if the same teams or players would have been playing if there were different rules, or if there would have been different strategies employed by the teams.
Presumably the 5 “wrong winners” knew the rules of the game and played according to those rules. They might have used different strategies under different rules.
In 1876, the Republicans would have made more of a GOTV effort in the South. In 1960, the Democrats might have dug up more votes in Illinois. In 2004, the GOP made a determined effort to get more votes in States in Texas and elsewhere to ensure that Bush had a national popular vote victory in addition to the electoral vote victory he had in 2000.
There might have even been different candidates, under different rules. If most States, the winning gubernatorial candidate must not only get the “most” votes in the general election, he must get the “most” votes in his party primary. So if we are going to retrospectively determine a winner in the general election, shouldn’t we do the same for the primaries? Was Barack Obama the “wrong winner” of the Democrat nomination in 2008, and therefore the “wrong winner” of the presidency.
If Cleveland had been elected in 1888, would he have been elected in 1892 as the first 3rd term President? So if Harrison was the “wrong winner” in 1888, perhaps Cleveland was the “wrong winner” in 1892, as he would be under the 22nd Amendment.
But let’s don’t look backwards, but look forward. Imagine we were going to have a race to determine the President. Under the NPPV compact, there would be no photo finish (recount) for close races. Some candidates would have to clear (ballot) hurdles to even compete. And we would not actually require the “winner” to cross the finish line (majority election).
If we had qualifying heats (primaries) we would not necessarily advance the heat winner to the final.
So the NPPV compact can not even guarantee a “right winner” based on its definition of a “winner”.
Myth 6.1
Gubernatorial elections can not be compared to presidential elections. There were 11 gubernatorial elections in 2008. 2 had margins comparable to the presidential landslides of 1920, 1928, 1936, 1964, and 1972. 6 had results that dwarfed those. In Utah, Jon Huntsman had 78% of the vote (and he had a Democrat opponent). There were two somewhat close races, in North Carolina and Washington. In Washington the margin of victory was 6.5% not much less than the national margin in the presidential race.
In Vermont, the winning candidate barely received a majority, but he clearly outdistanced two competitors.
The average percentage for the gubernatorial winner was 63%, greater than any candidate has received in a presidential race (at least since 1820).
Myth 6.1
There have been numerous instances of independent candidates being elected governor in recent times. While many of the particular candidates who have run for President may have been trying to exploit the electoral college, we simply don’t know whether other candidates would have come forward under a plurality election system.
And the presence of 3rd party (or similar candidacies) may have changed the popular vote result. For example, some people make the erroneous claim that JFK won the popular vote in 1960 – and by a significant margin: 118,000 votes. But these same advocates would have discarded those ballots under a NPPV scheme, that they also count as having given Kennedy a plurality victory.
In 1968, Wallace might still have run. Voters in States where they thought he might not have a chance might have voted for him. Or the whole Democratic party might have split. HHH only received 2.2% of the popular vote in the primary; and the candidacy of Eugene McCarthy was funded by a single person.
John Anderson is an advocate of the NPPV scheme. Is that because he was seeking to be an electoral college spoiler in 1980, and now regrets it? Or because he believes he might have won under a plurality scheme?
Had a NPPV scheme been used in 2000, Ralph Nader might have received more popular votes and changed the outcome of the popular vote. Would North Carolina and Georgia been able to keep him off their ballots? Would he have been squeezed in States like Oregon where there was a credible belief that he might flip the electoral votes?
Ross Perot would have run 1992, electoral vote or no. At one time in 1992, polls showed him to be the national popular vote leader. He ran a national campaign. The two States where he finished 2nd were Maine and Utah, not exactly two peas in a pod.
You are a strong advocate of majority election (through the use of IRV). Yet, here you are arguing the merits of plurality election. Do you only support IRV for reasons of expediency, or is there some underlying principle?
There is no reason that the NPPV compact can not provide for majority election of the president. When Congress in 1845 set the uniform date for appointing electors, they deliberately made provision for handling plurality State winners, through runoffs or other procedures.
Governor Rick Perry of Texas is regularly criticized for having only been elected by 40% of the vote in a 4-way race in 2006. Wouldn’t the same thing happen if a president were elected with 40% of the popular vote as happened in 1860; and might have happened in 1824 if a NPPV scheme had been in effect.
Myth 6.3
Nixon (1968) and Clinton (1992 and 1996) were not elected with a plurality of the popular vote. They were elected because they received a majority of the electoral vote. We do not know if there would have been an outcry from the media if they had been elected by a plurality of the popular vote.
Certainly in States where an executive officer has not been elected with a majority of the popular vote, there is an interest in runoffs, and the legitimacy of candidates who do not receive a majority is questioned. Had Jackson (1824), Lincoln (1860), Cleveland (1892), Wilson (1912), Nixon (1968), Clinton (1992) been elected by popular vote, the legitimacy of their election would have been questioned.
The reason 100% of the States currently do not require majority election of electors, has nothing to do with what the public wants, but rather is pure expediency on the part of the political parties, just as they switched to slate-based at large voting for electors. Remember why Michigan switched to district voting in 1892, and switched back to at-large voting in 1896.
Because of the unanimity required by the NPPV compact, it may be almost impossible to change it at a later date to provide for majority election. A State would have to drop out of the compact entirely in order to switch the system in its own State. It may in fact be more difficult to change the compact than it is to change the Constitution.
The compact should provide for uniform ballot access; nomination through direct national primaries; uniform voter qualification and conduct of the election; provision for a coordinated national recount; and majority election. All of these are feasible, none of them are unconstitutional, and all of them are good ideas.
Myth 10.1
While it is true that candidates attempt to raise as much money as they can from wherever the can get it, and spend it where it will do the most good; candidates would likely redouble their campaign fund raising if there were a national popular vote. Ordinary decent citizens in California or New York or Texas may see little point in spending money in Ohio, a State that they may never have visited or even have a desire to visit. But if the money would be spent to attract votes in their own States they would be more likely to contribute.
If saturation bombing with commercials can change a few 100,000 voters in battleground states, then the same tactic can change a few million votes nationwide, and therefore will be used. It is the need for funding that drives the fund raising.
Myth 15.1
An interstate compact is a contract, just like a contract between businesses, or a pre-nuptial agreement between persons who are entering into a marriage.
But can anyone imagine two businesses signing a contract, without first negotiating face to face over the terms of the deal. So why should States blindly sign on to a deal that is being peddled by 3rd parties.
Look at a map of congressional districts of Maryland, New Jersey, and Illinois. Are these really the kinds of State that one would enter into an agreement with?