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California Governor Signs National Popular Vote Bill, and Also Write-in Counting Bill

Published on August 8, 2011, by in General.

On August 8, California Governor Jerry Brown signed AB 459, the National Popular Vote Plan bill. He also signed AB 461, which says write-ins should be counted (if they are germaine to the election outcome) even when the voter forgot, or didn’t know, to “X” the box following the name written in.

Interestingly, both bills had been vetoed by former Governor Arnold Schwarzenegger. But, the legislature this year simply re-passed them. Thanks to Bob Mulholland for this news.

24 Responses

  1. mvymvy

    The National Popular Vote plan now has been enacted by jurisdictions representing 132 electoral votes, 49% of the total 270 needed for the law to go into effect.

  2. Baronscarpia

    SOMEBODY SEND AN EMS VEHICLE TO JIM RILEY’S – QUICK!!!

  3. Brad M

    The slow steady drumbeat of democracy continues.

  4. Demo Rep

    NPV scheme from Hell

    See # 6 in the earlier SD story.

    SCOTUS awaits.

  5. Brad M

    #5

    I’m taking bets that Scotus bodyslams the lame anti-NPVers.

  6. Baronscarpia

    6 -

    Brad, I wouldn’t take that bet.

    Let’s say sufficient states sign on to activate the agreement. The next step in the process for most (see below) interstate compacts would for the Congress to approve or disapprove it. I think it likely that the Congress would disapprove this one.

    The case which would then be brought before the USSC would be whether Congress’s approval wuld be required for this agreement. actually would have the right to disapprove the compact. This would be another instance where we’ll be able to see our esteemed Republican jurists do a political jig on the head of a pin. There is precedence in USSC rulings to indicate that “The application of the Compact Clause is limited to agreements that are ‘directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.’” (New Hampshire v Maine) This precedence helped settle Northeast Bancorp Inc v. Board of Governors of Federal Reserve System, a case in which the Rhenquist court held, again, that Congress does not have the power to disapprove a compact if the compact does not somehow encroach on any Federal power. As we all know from many lectures in this space by anti-NPV’ers, the EC was created to strengthen “states’ rights.” Therefore it should not be possible to craft a legal argument that state legislatures cannot change the manner in which their electors are chosen without encroaching on any Federal power, since there is no Federal power asserted in the process of electing the president.

    However as we also know, precedence, sound legal arguments, and even simple logic have not prevented the conservative Republicans on the bench from ruling on cases in a manner which is consistent with their political beliefs.

    So…I wouldn’t take the bet that the NPV compact will survive a SCOTUS ruling, if we get that far.

    Now…watch out, Brad. Here comes The Tool.

  7. Baronscarpia

    6 -

    (sorry – bad editing above)

    Brad, I wouldn’t take that bet.

    Let’s say sufficient states sign on to activate the agreement. The next step in the process for most (see below) interstate compacts would for the Congress to approve or disapprove it. I think it likely that the Congress would disapprove this one.

    The case which would then be brought before the USSC would be whether Congress’s approval would be required for this agreement. This would be another instance where we’ll be able to see our esteemed Republican jurists do a political jig on the head of a pin. There is precedence in USSC rulings to indicate that “The application of the Compact Clause is limited to agreements that are ‘directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.’” (New Hampshire v Maine) This precedence helped settle Northeast Bancorp Inc v. Board of Governors of Federal Reserve System, a case in which the Rhenquist court held, again, that Congress does not have the power to disapprove a compact if the compact does not somehow encroach on any Federal power. As we all know from many lectures in this space by anti-NPV’ers, the EC was created to strengthen “states’ rights.” Therefore it should not be possible to craft a legal argument that state legislatures cannot change the manner in which their electors are chosen without encroaching on any Federal power, since there is no Federal power asserted in the process of electing the president.

    However as we also know, precedence, sound legal arguments, and even simple logic have not prevented the conservative Republicans on the bench from ruling on cases in a manner which is consistent with their political beliefs.

    So…I wouldn’t take the bet that the NPV compact will survive a SCOTUS ruling, if we get that far.

    Now…watch out, Brad. Here comes The Tool.

  8. Brad M

    Red Baron,

    Very interesting comments.

    Based on NPV progress toward 270 it would be another 4.5 years until that # is achieved (maybe in time for 2016?). I wonder if the NPV folks would try to land at the magical 270 when there is a common-sensical congress sitting (is that possible?). That might be pretty tough to get a state legislature or two to figure out that timing.

    My guess is that they’d take the legislation wherever they can get it and just put it out there for consumption and challenge. Maybe a popular (pun intended) public uproar, in favor of NPV, would repeal simple-minded, selfish actions by a party in power in the House (you know who I am talking about).

  9. Baronscarpia

    Brad,

    I would think that if the NPV plan comes into being, it will be for the 2016 election, or never. I also doubt there will ever be a public outcry to implement the NPV plan. Very few people have heard of it still. If 270 is achieved, as with all other matters of politics these days, the attention that will be given to it will come primarily from the “you-know-whos” and that will be decidedly negative. All the usual blather – states’ rights, “Founding Fathers never intended…”, “whiney sore loser Democrats”, “back door amendment” and the wide assortment of “what-if” Chicken Little scenarios that never…EVER…occur because of our oh so groovey winner-take-all EC implementation.

    And of course we’ll be treated to our own personal, private performances right here as The Tool weighs in with his tortured, Republican propaganda.

  10. In my opinion, abolishing the Electoral College would be an extremely dangerous move that would invoke a transition from a republic to a more direct democracy, and like Baronscarpia said that anti-NPV people would say, the Framers didn’t want a direct democracy. They wanted a republic.

    Abolishing the Electoral College would severely hinder the ability of smaller states to have any say in the vote. North Dakota, being decisively rural, can’t hold a candle to California, with extreme populations. You’re practically handing the vote to city dwellers, and in many cities, that means a lefitst bent.

    Instead of swing states, you’d have swing cities. Populous areas like New York, San Francisco, Chicago, Miami, etc. etc. would be the targets of “get-out-the-vote” campaigns, and it would leave people in smaller places in the dust.

    I do not want to believe there is a byzantine conspiracy to wipe Republicans out of the picture. That’s an anti-thesis of the American ideal of free debate and would make se sound stupid.
    As such, I’ll give all of you the benefit of the doubt and overlook the fact that the most populous cities of all are either predominantly leftist or have a chunk of leftists in them.

    Sure, you’ll argue that EVERYONE can vote, but think about the turnout in a city and the turnout in the country. Which one will have more? Which one will be more targeted? Is it a coincidence? Probably not.

    I also do not believe that the SCOTUS will pull something out of their rear if it reaches them. Just because YOU don’t like it doesn’t mean it isn’t Constitional. Remember the Westboro cult case, ‘Snyder v. Phelps’? I hated that decision, but Constitutionally speaking, it was correct in my eyes.
    (Of course, the same can be said with my argument below, but court accuracy is in the eye of the beholder.)

    There’s no way the SCOTUS could warp this. IT’S BLACK AND STINKIGN WHITE. The Constitution clearly says that each state has the authority to select and hand out its Electoral College votes as THEIR LEGISLATURES SO BY LAW DIRECT. If states want to hand their votes out to the popular number, THEY HAVE THAT RIGHT. Any level-headed judge or reader can see that in the Constitution.

    Before you condemn the Rheinquiest SCOTUS for warping the Constitution to ideals, explain ‘Griswald v. Conneticut’, ‘Lawrence v. Texas’, and ‘Roe v. Wade’. “Roe v. Wade” was yanked out of their rear with “penumbras” and “implications” in our founding document, and ‘Lawrence v. Texas’ overturned a previous case that said that since sodomy wasn’t in the Constitution (nor implied), it was a political question. ‘Griswald v. Conneticut’ invented a fundamental right to sex (the case dealt with the banning of contraceptives) and paved the way to everything else I spoke of.
    The last time I checked, “life, liberty, and property” didn’t include sex. Sex isn’t a right.

    So, to sum it up:
    Is it stupid? Absolutely. Is it Constitutional? Absolutely. Does that mean it should be done? Absolutely not. I have a “RIGHT” to go out and preach hatred and genocide on every corner (like Westboro), but will I? No. I have a “RIGHT” to own and produce porn of consenting adults, but will I? NOT ON YOUR LIFE.
    Just because you CAN do it doesn’t mean you should. I CAN ride a bike without a helmet, but I won’t.

    The states CAN rewrite the Electoral College, but should they? No.

  11. Demo Rep

    The EVIL gerrymander Electoral College was one of the EVIL compromises dreamed up by the EVIL small States and the super-EVIL slave State party hacks in the 1787 top secret Federal Convention.

    See the slave = 3/5 free person stuff in Art. I for U.S.A. Rep gerrymanders

    De facto Prez math — since 1832 each Prez has been de facto elected by about 30 percent of ALL of the voters — a plurality of the votes in States/DC have a bare majority of the E.C. votes.

    P.R. and App.V. NOW

    — regardless of ALL brain dead math morons stuck in a political Stone Age (i.e. loving the ANTI-Democracy stuff in the 1787 Constitution).

    How many civil and foreign wars due to EVIL monarchs/oligarchs in the last 6000 plus years ???

    Since when do REAL Democracy regimes attack each other or attack domestic minorities ???

  12. Richard Winger

    #11, in relation to those social issue US Supreme Court cases, what about the 9th amendment?

  13. mvymvy

    #11 The National Popular Vote bill is a state-based approach. It preserves the Electoral College and state control of elections. It changes the way electoral votes are awarded in the Electoral College.

    When the bill is enacted by states possessing a majority of the Electoral College votes– enough Electoral College votes to elect a President (270 of 538), all the Electoral College votes from the enacting states would be awarded to the presidential candidate who receives the most popular votes in all 50 states and DC. The bill would thus guarantee the Presidency to the candidate who receives the most popular votes.

    National Popular Vote has nothing to do with whether the country has a “republican” form of government or is a “democracy.”

    In a republic, the citizens do not rule directly but, instead, elect officeholders to represent them and conduct the business of government in the periods between elections. That wouldn’t change.

    Instead of playing mostly to local concerns in Ohio and Florida, candidates finally would have to form broader platforms for broad national support. Elections wouldn’t be about winning states.

    With National Popular Vote, big cities would not get all of candidates’ attention, much less control the outcome. The population of the top five cities (New York, Los Angeles, Chicago, Houston and Philadelphia) is only 6% of the population of the United States and the population of the top 50 cities (going as far down as Arlington, TX) is only 19% of the population of the United States. A “big city” only campaign would not win.
    Suburbs and exurbs often vote Republican.

    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. Inside Ohio or Florida, the big cities do not receive all the attention. And, the cities of Ohio and Florida certainly do not control the outcome in those 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.

    Even in blue states with the biggest cities, urban voters don’t control statewide elections, so they can hardly control a national election. In California state-wide elections, candidates for governor or U.S. Senate don’t campaign just in Los Angeles and San Francisco, and there have recently been Republican governors Reagan, Dukemejian, Wilson, and Schwarzenegger. Just as with a national vote, a vote in rural Alpine county is just an important as a vote in Los Angeles.

    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. Wining states would not be the goal. Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states.

    Now political clout comes from being a battleground state.

    Now with state-by-state winner-take-all laws presidential elections ignore 12 of the 13 lowest population states (3-4 electoral votes), that are almost invariably non-competitive, and ignored, in presidential elections. Six regularly vote Republican (Alaska, Idaho, Montana, Wyoming, North Dakota, and South Dakota), and six regularly vote Democratic (Rhode Island, Delaware, Hawaii, Vermont, Maine, and DC) in presidential elections.

    Support for a national popular vote is strong in every smallest state surveyed in recent polls among Republican voters, Democratic voters, and independent voters, as well as every demographic group. Support in smaller states (3 to 5 electoral votes): Alaska — 70%, DC — 76%, Delaware –75%, Idaho – 77%, Maine — 77%, Montana – 72%, Nebraska — 74%, New Hampshire –69%, Nevada — 72%, New Mexico — 76%, Oklahoma – 81%, Rhode Island — 74%, South Dakota – 71%, Utah – 70%, Vermont — 75%, and West Virginia – 81%, and Wyoming – 69%.

    Nine state legislative chambers in the lowest population states have passed the National Popular Vote bill. It has been enacted by the District of Columbia, Hawaii, and Vermont.

    None of the 10 most rural states (VT, ME, WV, MS, SD, AR, MT, ND, AL, and KY) is a battleground state.
    The current state-by-state winner-take-all method of awarding electoral votes does not enhance the influence of rural states, because the most rural states are not battleground states.

  14. Baronscarpia

    11 -

    Let’s see…

    “states’ rights”…check

    “Founding Fathers never intended…”…check

    “whiney sore loser Democrats…” check.

    Good job, Mushy!

    You use North Dakota as an example. That’s a good one. Small population, predictably Republican in presidential elections. OK.

    You say: “North Dakota, being decisively rural, can’t hold a candle to California, with extreme populations. You’re practically handing the vote to city dwellers, and in many cities, that means a leftist bent.”

    So the Electoral College somehow guarantees North Dakotans equitable participation in the presidential election? Well…how? Certainly not by guaranteeing that presidential candidates will roll up their pant legs and stroll out into the cornfields to speak with farmers on issues of the day. No Republican nor Democratic candidates for president has made a campaign stop during the general election in recent memory, excepting perhaps a few possible small party “quickies” to collect checks from contribution “bundlers.”

    Why is that? Because the Electoral College system as currently employed guarantees that candidates will campaign only in states which are close enough to go red or blue. That has nothing to do with “rural” versus “urban” interests.

    And by the way…what makes a rural point of political view intrinsically more worthy than an urban point of view? You stout conservatives are always telling us that it’s the liberals who are the elitists, and yet you have no problem gainsaying the values of millions of people based solely on their address. If you think this was the Founding Fathers’ purpose in creating the EC, then I tell you what – YOU read Madison’s notes on the Constitutional Convention and give us some evidence to believe that’s true.

    The Electoral College as presently employed assures that individual voters, whether rural or urban, rich or poor, black or white, liberal or conservative, will NOT have the same power in electing a president. And that comparison doesn’t have to be made between a small Republican state and a large Democratic state. Some simple very simple math (compare this ratio for any two states: EC votes for that state/registered voters for that state) will tell you that the vote of a Republican voter in North Dakota, with its three electoral votes, is worth roughly THREE times more than the vote of a…wait for it…REPUBLICAN voter in a …wait again…populous state like…wait just one more time…deep red TEXAS!!! Not liberal California, not liberal New York…conservative Texas. So how do you explain to Republican friends in Texas why people who live in North Dakota should have three votes for every one of theirs, because that’s the real effect of the EC as it is presently employed?

    As for the direct democracy red herring, I’ll respond again as I have in the past. As soon as a project is undertaken to enlarge the Capitol building to allow 150 million voters or so to sit in Congress and vote on bills, I wouldn’t worry too much about us becoming a direct democracy. Because we aren’t going to. But you’re deluding yourself and your readers to maintain that just because some party stooges are appointed to attend a ceremony in a state capital to formally award their state’s electors to the winner of the POPULAR vote in their states, that somehow that is a “republican” form of electing a president. It’s an election based on a popular vote, but one which the winner-take-all EC method has skewed and contorted with the result that all votes are not equal, and that only certain states have the presumed advantage of the candidate’s interests in the general election. I think that’s wrong.

    But I do want to thank you for your refreshing honesty in opposing a change to the way the EC is used because you feel the system is currently racked up for Republicans. Please…I’m BEGGING YOU…please keep making that assessment the centerpiece of your arguments against the NPV compact. The best possible argument for one’s position on any matter is the worst argument possible for the opposing point of view.

    Keep it up, Mushy!

  15. Demo Rep

    #14 Where are the poll stats for having a CONST AMDT –

    Uniform definition of Elector in ALL of the U.S.A.
    P.R.
    App.V.

    NO party hack robot caucuses, conventions and primaries are needed — which are now EVIL super-dangerous timebombs producing the NUT CASE candidates for Prez especially.

  16. mvymvy

    A federal constitutional amendment favored by states containing 97% of the people of the U.S. could be blocked by states containing 3% of the people. The process for amending the U.S. Constitution does not reflect the will of the people.

  17. Jim Riley

    #11 The dissent in Anderson v Celebrezze argued that Article II of the Constitution gave each State the plenary power to direct the manner in which their State appointed its presidential electors. They were outvoted (4-5).

    The California Constitution mandates that a political party that participates in the presidential primary, may participate in the general election. If a party’s candidates can not receive popular votes because their associated presidential candidate is not on the ballot in some areas, or a State refuses to count write-in votes, then that party is not meaningfully participating in the general election. Even if there were not the participation provisions in the California Constitution, it would violate equal protection since it discriminates against California citizens who support minor party and independent candidates.

  18. Jim Riley

    #17 Susan,

    Do you think we should have a popularly elected president so that he can reflect the Will of the People?

  19. Baronscarpia

    18

    Jimbo, you imply that in Anderson v. Celebrezze the majority of the USSC ruled that states do not have the power to appoint electors in whatever manner they may choose simply because that power was mentioned in a dissenting court opinion…in a case which dealt with an arbitrary and seemingly punitive deadline for filing nominating petitions by minority parties.

    That is a lie.

  20. Baronscarpia

    21 -

    The Great Republican Tool apparently engages in yet more obfuscation. Here is the relevant text from Article II of the California Constitution:

    (c) The Legislature shall provide for partisan elections for presidential candidates, and political party and party central committees, including an open presidential primary whereby the candidates on the ballot are those found by the Secretary of State to
    be recognized candidates throughout the nation or throughout California for the office of President of the United States, and those whose names are placed on the ballot by petition, but excluding any candidate who has withdrawn by filing an affidavit of noncandidacy.
    (d) A political party that participated in a primary election for a partisan office pursuant to subdivision (c) has the right to participate in the general election for that office and shall not be denied the ability to place on the general election ballot the
    candidate who received, at the primary election, the highest vote among that party’s candidates.

    I see nothing in that text which precludes California from allocating their electoral votes to any candidate for President. If a third party candidate…say the American Shaker Furniture Artisans Party…runs in 49 other states but not in California, and wins a plurality of votes nation-wide, no California voters rights as defined in their own constitution are violated.

    Now, if the American Shaker Furniture Artisans Party were to conduct a primary in California and were denied a position on the California ballot, you’d have a case to make.

    But again…by all means I encourage you to cc: your Republican buds on the high court with this fascinating interpretation of constitutional law. I’m sure they’ll be most appreciative of your ideas as they try to conjure up a way to insinuate themselves into matters of states’ laws which are not “trumped” by the US Constitution or federal statute.

  21. Jim Riley

    #21 There is no difference between denying the ASFAP a place on the California ballot, and including votes from places where the ASFAP is denied a place on the ballot.

    California could not include the ASFAP on the ballot, and then not count the votes for ASFAP from Modoc County. And they could not count the votes from ASFAP but refuse to certify the ASFAP candidates as the winner if they did receive the most votes.

    Now you and Susan Mvymvy are telling me that under the NPV scheme, it is OK to mix in “votes” from States where the ASFAP candidate was not on the ballot, or maybe they refused to count the votes, and after they’ve been laundered and mixed together it is OK.

    Were you part of the Liz Holtzman and Toby Moffat scheme to keep Ralph Nader off the ballot in 2004?

  22. Jim Riley

    #18 The Rehnquist dissent said that Ohio could appoint the electors from Ohio in any way they wanted to, that the legislative power was supreme and plenary.

    That authority was not just “mentioned” in the dissent, it was the fundamental basis of that dissent.

  23. Baronscarpia

    23 -

    I stand by my assertion that you intentionally worded your post to suggest that the majority of a former SCOTUS held that state legislatures do NOT have the right to appoint electors as they may choose. That is, without a question of a doubt, incorrect, and to assert so is obfuscation, something at which you are quite adept.

    22 – Yes, I’m telling you that. Or rather, the actual text of the California constitution is NOT telling you that NPV cannot be agreed by the California state legislature and implemented in California without violating the California Constitution.

    And no, I had nothing to do with trying to keep Ralph Nader off the ballot in 2004.

    See? It’s pretty easy to answer a simple question with a simple answer. Try it some time.

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