"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ..." -- U.S. Constitution
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Short Explanation
The National Popular Vote bill would guarantee a majority of the Electoral College to the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia. The bill would reform the Electoral College so that the electoral vote in the Electoral College reflects the choice of the nation's voters for President of the United States.   more
11 Enactments
The National Popular Vote bill has been enacted into law in states possessing 165 electoral votes — 61% of the 270 electoral votes needed to activate the legislation.

  • Maryland - 10 votes
  • Massachusetts - 11
  • Washington - 12 votes
  • Vermont - 3 votes
  • Rhode Island - 4 votes
  • DC - 3 votes
  • Hawaii - 4 votes
  • New Jersey - 14 votes
  • Illinois - 20 votes
  • New York - 29 votes
  • California - 55 votes

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    40. Myth about Perfection

    40.1  MYTH: The National Popular Vote compact is not perfect.

    QUICK ANSWER:

  • The test of whether the National Popular Vote compact should be adopted is whether it is an improvement over the current system of electing the President—not whether it is perfect.
  • MORE DETAILED ANSWER:

    The authors believe that their responses in this book to the numerous myths about the National Popular Vote compact establish that the compact would address the shortcomings of the current state-by-state winner-take-all method of awarding electoral votes, while handling conjectured adverse scenarios in a manner that is equal to, or superior to, the current system.

    There is, however, no need to address the philosophical question as to whether the National Popular Vote compact is perfect. The test of whether the National Popular Vote compact should be adopted is whether it is a significant improvement over the current system of electing the President—not whether it is perfect. The authors of this book believe that they have made the case that the National Popular Vote compact is a significant improvement over the current system because it would remedy the current system’s three major shortcomings, namely

  • Four out of five states and four out of five voters are ignored in presidential campaigns under the current system (as discussed in section 1.2.1);
  • The current system does not reliably reflect the nationwide popular vote (as discussed in section 1.2.2); and
  • Every vote is not equal under the current system (as discussed in section 1.2.3).
  •  

     



    [1] The complete wording of clause 2 is “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

    [2] Edwards, George C., III. 2004. Why the Electoral College Is Bad for America. New Haven, CT: Yale University Press.

    [3] The 17th Amendment (ratified in 1913) provided for popular election of U.S. Senators.

    [4] When a concurrent resolution is used, the two houses of the legislature meet separately, and a majority of both houses must agree on a common slate of presidential electors. When both houses of the legislature meet in a joint convention, a majority of the joint convention controls the choice of presidential electors. Use of a concurrent resolution makes the individual members of the smaller body (i.e., the state Senate) relatively more important.

    [5] In some early versions of the winner-take-all rule, an absolute majority of the state’s voters was required to choose presidential electors.

    [6] The three states that used the winner-take-all rule in 1789 were New Hampshire, Pennsylvania, and Maryland. All three states abandoned it by 1800, but later returned to it. In the version of the winner-take-all rule that was used in 1789 (and, indeed, until the middle of the 20th century in most states), each voter was allowed to cast as many votes as the state’s number of presidential electors. Voting for individual presidential electors remained in use as late as 1980 in Vermont. During the early 20th century, states started to shift to the so-called “short presidential ballot.” The short presidential ballot enables a voter to conveniently vote for an entire slate of presidential electors merely by casting one vote for a named candidate for President and Vice President. Under the short presidential ballot, a vote for the presidential and vice-presidential candidate whose names appear on the ballot is deemed to be a vote for all of the individual presidential electors nominated in association with the named candidates. For example, when a voter cast a vote for McCain–Palin in California in 2008, the voter was deemed to be casting a vote for each of 55 individual candidates for the position of presidential elector nominated by the California Republican Party. See section 2.2.6.

    [7] Maine and Nebraska currently choose presidential electors by congressional district (and also choose two presidential electors statewide).

    [8] McPherson v. Blacker. 146 U.S. 1 at 29. 1892.

    [9] Bush v. Gore. 531 U.S. 98. 2000.

    [10] All powers delegated to Congress and the states are subject to general restrictions found elsewhere in the Constitution. For example, in Bush v. Gore (531 U.S. 98), the Court observed that “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966) (‘[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment’). It must be remembered that ‘the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.’ Reynolds v. Sims, 377 U.S. 533, 555 (1964). There is no difference between the two sides of the present controversy on these basic propositions.”

    [11] As the U.S. Supreme Court noted in McPherson v. Blacker, the state legislature’s discretion over the manner of appointing presidential electors may be limited by the state constitution. For example, the Colorado constitution prohibited the state legislature from appointing presidential electors after 1876.

    [12] DenBoer, Gordon (editor). 1986. The Documentary History of the First Federal Elections. Madison, WI: The University of Wisconsin Press. Volume III. Page 29.

    [13] Since 2000, both the North Carolina Senate and House have voted, in different years, to change from the statewide winner-take-all rule to a congressional-district system for awarding electoral votes.

    [14] Samples, John. A Critique of the National Popular Vote Plan for Electing the President. Cato Institute Policy Analysis No. 622. October 13, 2008. Page 1.

    [15] McPherson v. Blacker. 146 U.S. 1 at 27. 1892.

    [16] Bush v. Gore. 531 U.S. 98. 2000.

    [17] DenBoer, Gordon; Brown, Lucy Trumbull; and Hagermann, Charles D. (editors). 1986. The Documentary History of the First Federal Elections 1788–1790. Madison, WI: University of Wisconsin Press. Volume III.

    [18] In this book, we are somewhat generous in counting Massachusetts among the six states that permitted the people to vote for President in 1789. The legislature appointed the state’s presidential electors from the top two candidates from each district. In modern-day terminology, the people “nominated” the candidates for the position of presidential elector, and the legislature “elected” them.

    [19] New Hampshire, Pennsylvania, and Maryland used the winner-take-all method, whereas Virginia, Delaware, and Massachusetts used districts to elect presidential electors.

    [20] Justice Louis Brandeis wrote in the 1932 case of New State Ice Co. v. Liebmann (285 U.S. 262), “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

    [21] The appointment of presidential electors by the legislature of the newly admitted state of Colorado in 1876 was the last occasion when presidential electors were not chosen by a direct vote of the people.

    [22] In many states, there were different requirements for voting for the lower house of the state legislature than for the upper house.

    [23] Keyssar, Alexander. 2000. The Right to Vote: The Contested History of Democracy in the United States. New York, NY: Basic Books. Table A.3. Page 314.

    [24] The amendment also served to extend women’s suffrage to all offices in those states where women only had the right to vote for certain specified offices (e.g., just President, just local offices). In addition, the constitutional amendment made it more difficult to ever reverse the granting of the vote to women.

    [25] The reasons that the 19th Amendment passed Congress in 1919 was that (1) women already constituted half the electorate in 30 states and (2) members of Congress from the remaining states knew that it was only a matter of time before women would obtain the right to vote in the remaining states—with or without a federal constitutional amendment.

    [26] The 12th Amendment acknowledged the reality of the emergence of political parties. When political parties emerged in the 1796 election, each party centrally nominated its candidate for President and Vice President (through the party’s congressional caucus). Once there were national nominees, presidential electors were expected to vote for their party’s nominee for President in the Electoral College. The emergence of political parties extinguished the vision of the Founding Fathers that the Electoral College would act as a deliberative body. In the 1800 presidential election, the winning party’s electors each dutifully cast one vote for their party’s presidential and vice-presidential nominees—thus creating a tie in the Electoral College and throwing the election of the President and Vice President into Congress. The 1800 election made it clear that ties in the Electoral College would be a continuing occurrence if political parties continued to exist. Thus, a constitutional amendment was necessary. See Ferling, John. 2004. Adams vs. Jefferson: The Tumultuous Election of 1800. Oxford: Oxford University Press. See also Kuroda, Tadahisa. 1994. The Origins of the Twelfth Amendment: The Electoral College in the Early Republic, 1787–1804. Westport, CT: Greenwood Press.

    [27] Pika, Joseph. Improving on a doubly indirect selection system. Delaware On-Line. September 16, 2008. http://www.delawareonline.com/apps/pbcs.dll/article?AID=/20080916/OPINION09/809160318/1004/OPINION.

    [28] U.S. Constitution. Article II, section 1, clause 2.

    [29] McPherson v. Blacker. 146 U.S. 1 at 36. 1892.

    [30] As explained in section 2.2.2, the Tennessee legislature effectively appointed the state’s presidential electors.

    [31] The winner-take-all rule was used in New Hampshire and Georgia, and the votes cast in the Electoral College were cast unanimously for the statewide preference (Adams and Jefferson, respectively). Multi-member regional districts were used in Massachusetts, and the votes cast in the Electoral College mirrored voter sentiment (for Adams) in the four districts. Districts were used in Kentucky, and the votes cast in the Electoral College matched voter sentiment (for Jefferson). Districts were used in Virginia, North Carolina, and Maryland, and the votes cast in the Electoral College (although not unanimous) matched voter sentiment in each district.

    [32] Fifteen of the 17 deviating electoral votes for President were “grand-standing” votes (that is, votes cast after the presidential elector knew that his vote would not affect the national outcome). One electoral vote (in Minnesota in 2004) was cast by accident. In addition, 63 electoral votes were cast in an unexpected way in the 1872 presidential election when the losing Democratic candidate died after Election Day, but before the Electoral College met. For details, see section 2.12.

    [33] In 2010, the National Conference of Commissioners on Uniform State Laws drafted a “Uniform Faithful Presidential Electors Act” and recommended it for enactment by all the states.

    [34] Ray v. Blair 343 U.S. 214 at 232. 1952.

    [35] England, Trent. Op-Ed: Bypass the Electoral College? Christian Science Monitor. August 12, 2010.

    [36] See section 2.12.

    [37] As discussed in greater detail in section 2.12, all but one of the other instances of faithless electors should be considered grand-standing votes. One electoral vote (in 2004) was cast by accident.

    [38] Weisberger, Bernard A. 2001. America Afire: Jefferson, Adams, and the First Contested Election. William Morrow. Page 238.

    [39] Ferling, John. 2004. Adams vs. Jefferson: The Tumultuous Election of 1800. Oxford, UK: Oxford University Press. Page 131.

    [40] The complete letter can be found in Brief of F.A. Baker for Plaintiffs in Error in McPherson v. Blacker. 1892. Pages 30–31. See also Cunningham, Noble E., Jr. 1957. Jeffersonian Republicans: The Formation of Party Organizations. Chapel Hill, NC: University of North Carolina Press. Page 185. See also Weisberger, Bernard A. 2001. America Afire: Jefferson, Adams, and the First Contested Election. William Morrow. Page 239.

    [41] Brief of F.A. Baker for Plaintiffs in Error in McPherson v. Blacker. 1892. Page 31.

    [42] After 1832 (and until 1992), there was never more than one state, in any one presidential election, that did not employ the winner-take-all rule to award all of its electoral votes to the candidate who received the most popular votes in the state.

    [43] Samples, John. A Critique of the National Popular Vote Plan for Electing the President. Cato Institute Policy Analysis No. 622. October 13, 2008. Page 8.

    [44] Samples, John. A Critique of the National Popular Vote Plan for Electing the President. Cato Institute Policy Analysis No. 622. October 13, 2008. Page 13.

    [45] Williams, Norman. Why the National Popular Vote compact is unconstitutional. Brigham Young University Law Review. November 19, 2012. Page 138. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2188020.

    [46] Edwards, George C., III. 2004. Why the Electoral College Is Bad for America. New Haven, CT: Yale University Press.

    [47] Madison Debates. Yale Law School. The Avalon Project: Documents in Law, History, and Diplomacy. On June 2, 1787, http://avalon.law.yale.edu/18th_century/debates_602.asp.

    [48] McPherson v. Blacker, 146 U.S. 1. 1892.

    [49] In Bush v. Gore in 2000, the U.S. Supreme Court agreed that state legislators could appoint presidential electors. 531 U.S. 98.

    [50] An Act for carrying into effect, on the part of the state of New Jersey, the Constitution of the United States. November 21, 1788. Acts of the General Assembly of the State of New Jersey. Page 481. See also DenBoer, Gordon; Brown, Lucy Trumbull; and Hagermann, Charles D. (editors). 1986. The Documentary History of the First Federal Elections 1788–1790. Madison, WI: University of Wisconsin Press. Volume III. Page 29. Interestingly, the U.S. Supreme Court’s opinion in the 1892 case of McPherson v. Blacker contains an error concerning New Jersey. In its historical review of methods used to appoint presidential electors in 1789, the Court (incorrectly) stated, “At the first presidential election, the appointment of electors was made by the legislatures of Connecticut, Delaware, Georgia, New Jersey, and South Carolina.” 146 U.S. 1 at 29. The source of this misinformation about New Jersey appears to be page 19 of the plaintiff’s brief in the 1892 case. Brief of F.A. Baker for Plaintiffs in Error in McPherson v. Blacker. 1892.

    [51] An Act Directing the Mode of Appointing Electors to Elect a President and Vice President of the United States. Passed November 3, 1791. Laws of 1791. Page 43.

    [52] Samples, John. A Critique of the National Popular Vote Plan for Electing the President. Cato Institute Policy Analysis No. 622. October 13, 2008. Page 8.

    [53] Ross, Tara. 2004. Enlightened Democracy: The Case for the Electoral College. Los Angeles, CA: World Ahead Publishing Company. Page 51.

    [54] Ross, Tara. 2010. Federalism & Separation of Powers: Legal and Logistical Ramifications of the National Popular Vote Plan. Engage. Volume 11. Number 2. September 2010. Pages 37–44.

    [55] Ross, Tara. 2010. Federalism & Separation of Powers: Legal and Logistical Ramifications of the National Popular Vote Plan. Engage. Volume 11. Number 2. September 2010. Pages 37–44.

    [56] Clause 1 of section 9 of Article I states, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”

    [57] Clause 4 of section 9 of Article I of the Constitution states “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”

    [58] Brief of F.A. Baker for Plaintiffs in Error in McPherson v. Blacker. 1892. Page 73.

    [59] McPherson v. Blacker. 146 U.S. 1 at 27. 1892.

    [60] McPherson v. Blacker. 146 U.S. 1 at 25. 1892.

    [61] Id. at 29.

    [62] Brief of F.A. Baker for Plaintiffs in Error in McPherson v. Blacker. 1892. Page 80.

    [63] Id. At 80.

    [64] Brief of F.A. Baker for Plaintiffs in Error in McPherson v. Blacker. 1892. Page 80.

    [65] Williams, Norman. Why the National Popular Vote Compact is unconstitutional. Brigham Young University Law Review. November 19, 2012. Pages 139–140. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2188020.

    [66] Williams, Norman. Why the National Popular Vote Compact is unconstitutional. Brigham Young University Law Review. November 19, 2012. Page 151. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2188020.

    [67] McPherson v. Blacker. 146 U.S. 1 at 36. 1892.

    [68] U.S. Constitution. Article II, section 1, clause 2.

    [69] Among the specific restrictions on the states concerning the manner of appointing their presidential electors are those contained in the 14th Amendment (equal protection), 15th Amendment (prohibiting denial of the vote on account of “race, color, or previous condition of servitude”), the 19th Amendment (woman’s suffrage), the 24th amendment (prohibiting poll taxes), and the 26th Amendment (18-year-old vote). The Constitution’s explicit prohibition against ex post facto laws and the Impairments Clause also operate as restraints on section 1 of Article II.

    [70] Senate Report 395. Forty-Third Congress.

    [71] The original Constitution contains few specific restrictions on state action that bear on the appointment of presidential electors. Thus, under Article II, section 1, clause 1, a state legislature may, for example, pass a law making it a crime to commit fraud in a presidential election. However, a state legislature certainly may not pass an ex post facto (retroactive) law making it a crime to commit fraud in a presidential election. Similarly, a state legislature may not pass a law imposing criminal penalties on specifically named persons who may have committed fraudulent acts in connection with a presidential election (that is, a bill of attainder). Also, the Constitution’s explicit prohibition against a “law impairing the obligation of contract” operates as a restraint on the delegation of power contained in section 1 of Article II. Of course, various later amendments restrict state choices, including the 14th Amendment (equal protection), 15th Amendment (prohibiting denial of the vote on account of “race, color, or previous condition of servitude”), the 19th Amendment (woman’s suffrage), the 24th amendment (prohibiting poll taxes), and the 26th Amendment (18-year-old vote).

    [72] Samples, John. A Critique of the National Popular Vote Plan for Electing the President. Cato Institute Policy Analysis No. 622. October 13, 2008.

    [73] Debate entitled “Should We Dispense with the Electoral College?” sponsored by PENNumbra (University of Pennsylvania Law Review) available at http://www.pennumbra.com/debates/pdfs/electoral_college.pdf.

    [74] Congressional Record. September 18, 1969. Pages 25,990–25,991.

    [75] Zinn, Brad. Does Fred Thompson really understand the Constitution? Patriot Action Network. July 19, 2012. http://resistance.ning.com/forum/topics/does-fred-thompson-really-understand-the-constitution?page=1&commentId=2600775%3AComment%3A5855088&x=1#2600775Comment5855088.

    [76] Publius. The utility of the union as a safeguard against domestic faction and insurrection (continued). Daily Advertiser. November 22, 1787. Federalist No. 10.

    [77] Publius. Objections to the proposed constitution from extent of territory answered. New York Packet. November 30, 1787. Federalist No. 14.

    [78] U.S. Constitution. Article IV, section 4, clause 1.

    [79] Dubin, Michael J. 2003. United States Gubernatorial Elections 1776–1860. Jefferson, NC: McFarland & Company. Page xx.

    [80] Vermont was not one of the 13 original states that ratified the Constitution.

    [81] U.S. Constitution. Article IV, section 4, clause 1.

    [82] Feeley, Kristin. 2009. Guaranteeing a federally elected president. 103 Northwestern University Law Review 1427–1460.

    [83] Publius. The utility of the union as a safeguard against domestic faction and insurrection (continued). Daily Advertiser. November 22, 1787. Federalist No. 10.

    [84] Publius. Objections to the proposed constitution from extent of territory answered. New York Packet. November 30, 1787. Federalist No. 14.

    [85] Brown, Adam. Do we live in a “compound Constitutional Republic” or something else? Utah Data Points. July 11, 2011. http://utahdatapoints.com/2011/07/do-we-live-in-a-compound-constitutional-republic-or-something-else/.

    [86] Publius. The structure of the government must furnish the proper checks and balances between the different departments. Independent Journal. February 6, 1788. Federalist No. 51.

    [87] Publius. Federalist No. 62. The Senate. Independent Journal. February 27, 1788. Federalist No. 62.

    [88] We also refer the reader to the discussion in section 9.1.9 of whether direct popular election of governors was viewed as incompatible with a “republican Form of Government” at the time of drafting of Constitution and immediately thereafter.

    [89] The full text of the 12th Amendment is available in appendix A.

    [90] Section 15.30.070.

    [91] Von Spakovsky, Hans. Destroying the Electoral College: The Anti-Federalist National Popular Vote Scheme. Legal memo. October 27, 2011. http://www.heritage.org/research/reports/2011/10/destroying-the-electoral-college-the-anti-federalist-national-popular-vote-scheme.

    [92] Ross, Tara. 2010. Federalism & Separation of Powers: Legal and Logistical Ramifications of the National Popular Vote Plan. Engage. Volume 11. Number 2. September 2010. Page 41.

    [93] U.S. Constitution. Article II, section 1, clause 2.

    [94] McPherson v. Blacker. 146 U.S. 1 at 29. 1892.

    [95] Bush v. Gore. 531 U.S. 98. 2000.

    [96] Ross, Tara. 2010. Federalism & Separation of Powers: Legal and Logistical Ramifications of the National Popular Vote Plan. Engage. Volume 11. Number 2. September 2010. Page 41.

    [97] The original Constitution contains few specific restrictions on state action that bear on the appointment of presidential electors. Thus, under Article II, section 1, clause 1, a state legislature may, for example, pass a law making it a crime to commit fraud in a presidential election. However, a state legislature certainly may not pass an ex post facto (retroactive) law making it a crime to commit fraud in a presidential election. Similarly, a state legislature may not pass a law imposing criminal penalties on specifically named persons who may have committed fraudulent acts in connection with a presidential election (that is, a bill of attainder). Also, the Constitution’s explicit prohibition against a “law impairing the obligation of contract” operates as a restraint on the delegation of power contained in section 1 of Article II. Of course, various later amendments restrict state choices, including the 14th Amendment (equal protection), 15th Amendment (prohibiting denial of the vote on account of “race, color, or previous condition of servitude”), the 19th Amendment (woman’s suffrage), the 24th amendment (prohibiting poll taxes), and the 26th Amendment (18-year-old vote).

    [98] In particular, clause 2 of Article IV of the National Popular Vote compact would permit a state to withdraw from the compact by simply repealing the statute under which it entered the compact. The effective date of the withdrawal is immediate during 3½ years of every four-year presidential election cycle. The withdrawal is subject to a delay until after Inauguration Day if the withdrawal occurs during a blackout period running between July 20 of a presidential election year and the following January 20 (Inauguration Day).

    [99] Brief of F.A. Baker for Plaintiffs in Error in McPherson v. Blacker. 1892. Page 64.

    [100] Brief of Otto Kirchner for Defendants in Error in McPherson v. Blacker. 1892.

    [101] The Constitution does not require an absolute majority of the electoral votes to become President but only an absolute majority of the electoral votes “appointed.” There have been occasional cases when a state failed to appoint its presidential electors. For example, New York did not in 1789 because the legislature could not agree on how to appoint them. Notably, the Southern states did not appoint presidential electors in 1864.

    [102] Senate Report 395. Forty-Third Congress.

    [103] McPherson v. Blacker. 146 U.S. 1 at 27. 1892.

    [104] Bush v. Gore. 531 U.S. 98. 2000.

    [105] The term “statewide popular election” is defined in article V of the compact as “a general election at which votes are cast for presidential slates by individual voters and counted on a statewide basis.”

    [106] Williams, Norman R. Reforming the Electoral College: Federalism, majoritarianism, and the perils of subconstitutional change. 100 Georgetown Law Journal 173. November 2011.

    [107] U.S. Constitution. 14th Amendment. Section 1.

    [108] Amar, Vikram David. 2011. Response: The case for reforming presidential elections by sub-constitutional means: The Electoral College, the National Popular Vote compact, and congressional power. 100 Georgetown Law Journal 237 at 250.

    [109] Wilson, Jennings Jay. 2006. Bloc voting in the Electoral College: How the ignored states can become relevant and implement popular election along the way. 5 Election Law Journal 384 at 387.

    [110] Williams v. Virginia State Board of Elections, 288 F. Supp. 622. Dist. Court, E.D. Virginia (1968). This decision was affirmed by U.S. Supreme Court at 393 U.S. 320 (1969) (per curiam). The opinion of the federal court in Virginia is found in appendix FF.

    [111] Ross, Tara. 2012. Enlightened Democracy: The Case for the Electoral College. Los Angeles, CA: World Ahead Publishing Company. Second edition. Pages 177–178.

    [112] States vary considerably in their policies concerning early voting, absentee voting, and mail voting as shown in a summary chart prepared by the National Conference of State Legislatures at http://www.ncsl.org/legislatures-elections/elections/absentee-and-early-voting.aspx.

    [113] Congressional Record. September 18, 1969. Pages 25,990–25,991.

    [114] Ridgeway, Marian E. 1971. Interstate Compacts: A Question of Federalism. Carbondale, IL: Southern Illinois University Press. Page 300.

    [115] Hellmuth and Associates v. Washington Metropolitan Area Transit Authority (414 F.Supp. 408 at 409). 1976.

    [116] Hinderlider v. La Plata River & Cherry Creek Ditch Co. 304 U.S. 92 at 104. 1938.

    [117] Texas Learning Technology Group v. Commissioner of Internal Revenue. 958 F.2d 122 at 124 (5th Cir. 1992).

    [118] See, e.g., Kingston Associates Inc. v. LaGuardia, 281 N.Y.S. 390, 398 (S.Ct. 1935) (the exercise of public offices within the legislative, executive, or judicial branches of government); People v. Brady, 135 N.E. 87, 89 (Ill. 1922) (same); People v. Hardin, 356 N.E.2d 4 (Ill. 1976) (the power to appoint officials to commissions or agencies within the three branches of state government); State v. Schorr, 65 A.2d 810, 813 (Del. 1948) (same); and Forty-Second Legislative Assembly v. Lennon, 481 P.2d 330, 330 (Mont. 1971) (the role of a delegate to a state constitutional convention).

    [119] Engdahl, D. E. 1965. Characterization of Interstate Arrangements: When Is a Compact Not a Compact? 64 Michigan Law Review 63 at 64–66.

    [120] Commissioner of Internal Revenue v. Shamberg’s Estate 144 F.2d 998 at 1005–1006. (2nd Cir. 1944).

    [121] West Virginia ex rel. Dyer v. Sims. 341 U.S. 22 at 30–31. 1950.

    [122] Oregon v. Mitchell. 400 U.S. 112 at 286–287.

    [123] Ridgeway, Marian E. 1971. Interstate Compacts: A Question of Federalism. Carbondale, IL: Southern Illinois University Press.

    [124] See, for example, the 1793 case of Chisholm v. Georgia for a discussion of the historic origins of state sovereignty.

    [125] McPherson v. Blacker. 146 U.S. 1 at 25. 1892.

    [126] McPherson v. Blacker. 146 U.S. 1 at 24–25. 1892.

    [127] McPherson v. Blacker. 146 U.S. 1 at 27. 1892.

    [128] Hinderlider v. La Plata River & Cherry Creek Ditch Company. 304 U.S. 92 at 106. 1938.

    [129] McPherson v. Blacker. 146 U.S. 1. 1892.

    [130] See Northeast Bancorp, Inc. v. Board of Governors of the Federal Reserve System. 472 U.S. 159 at 176. 1985.

    [131] U.S. Constitution. Article I, section. 2. clause 2.

    [132] U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 at 831. 1995.

    [133] McPherson v. Blacker. 146 U.S. 1 at 29. 1892.

    [134] U.S. Constitution. Article I, section 7, clause 2.

    [135] Clinton v. City of New York. 524 U.S. 417. 1998.

    [136] Edwards, George C., III. 2004. Why the Electoral College Is Bad for America. New Haven, CT: Yale University Press. Pages 79–80.

    [137] Ross, Tara. 2010. The Electoral College Takes Another Hit. September 22, 2010. http://www.nationalreview.com/corner/247368/electoral-college-takes-another-hit-tara-ross

    [138] U.S. Constitution. Article II, section 1, clause 2.

    [139] These polls (and many others) are available on National Popular Vote’s web site at http://www.nationalpopularvote.com/pages/polls.

    [140] In October 2008, the Mayor of New York City, in conjunction with the City Council, amended the City’s term-limits law to permit the Mayor to run for a third term.

    [141] The 27th Amendment provides, “No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened.”

    [142] U.S. Constitution. Article II, section 1, clause 2.

    [143] U.S. Constitution. Article I, section 4, clause 1. State power over congressional elections in Article I (unlike state power over presidential elections in Article II) is subject to oversight by Congress.

    [144] Schleifer, Adam. 2007. Interstate agreement for electoral reform. 40 Akron Law Review 717 at 739–40.

    [145] Ross, Tara. 2010. Federalism & Separation of Powers: Legal and Logistical Ramifications of the National Popular Vote Plan. Engage. Volume 11. Number 2. September 2010. Pages 37–44.

    [146] Amira, Dan. 2010. 16 Plausible ways the electoral college could tie in 2012. New York. December 23, 2010.

    [147] Gregg, Gary L, II 2008. The origins and meaning of the Electoral College. In Gregg, Gary L, II (editor). Securing Democracy: Why We Have an Electoral College. Wilmington, DE: ISI Books. Pages 1–26.

    [148] Gregg, Gary L, II 2008. The origins and meaning of the Electoral College. In Gregg, Gary L, II (editor). Securing Democracy: Why We Have an Electoral College. Wilmington, DE: ISI Books. Pages 7–9.

    [149] The lower courts rejected the argument advanced by Clemons, and the U.S. Supreme Court declined to hear the case.

    [150] Res. 3, 1st Cong., 1st Sess., Art. I, 1 Stat. 97.

    [151] Dunn, Susan. 2004. Jefferson’s Second Revolution: The Elections Crisis of 1800 and the Triumph of Republicanism. Boston, MA: Houghton Mifflin.

    [152] Ferling, John. 2004. Adams vs. Jefferson: The Tumultuous Election of 1800. Oxford, UK: Oxford University Press.

    [153] Kuroda, Tadahisa. 1994. The Origins of the Twelfth Amendment: The Electoral College in the Early Republic, 1787–1804. Westport, CT: Greenwood Press.

    [154] Samples, John. A Critique of the National Popular Vote Plan for Electing the President. Cato Institute Policy Analysis No. 622. October 13, 2008.

    [155] U.S. Constitution. Article II, section 1, clause 2.

    [156] McPherson v. Blacker. 146 U.S. 1 at 29. 1892.

    [157] Oral and written testimony presented by Tara Ross at the Nevada Senate Committee on Legislative Operations and Elections on May 7, 2009.

    [158] Written testimony submitted by Tara Ross to the Delaware Senate in June 2010.

    [159] Virtually all of the states that were considered “battleground states” in 2008 (e.g., the states in table 9.1 that received campaign events and the states in table 9.2 that received substantial amounts of advertising money) lie in this range. This same pattern persisted in 2012 and applied to 2004 and 2000.

    [160] Already, Obama and McCain Map Fall Strategies. New York Times. May 11, 2008.

    [161] http://fairvote.org/tracker/?page=27&pressmode=showspecific&showarticle=230.

    [162] For the reader’s convenience, this same data are sorted according to the number of campaign events in table 1.10 and sorted by state size in table 9.7.

    [163] This table is based on public campaign events (e.g., rallies, speeches, town hall meetings). It does not include private fund-raisers, private meetings (e.g., Palin's meetings with world leaders in New York), non-campaign events (e.g., the Al Smith Dinner in New York City or the Clinton Global Initiative dinner), televised national debates (e.g., flying into Mississippi, New York, Tennessee, and Missouri for the sole purpose of participating in the debate), or interviews in television studios (e.g., flying into New York City to do an interview). A “visit” to a state may consist of one or more individual events held at different places and times within the state. A joint appearance of a presidential and vice-presidential candidate is counted as one event.

    [164] Edwards, George C., III. 2011. Why the Electoral College Is Bad for America. New Haven, CT: Yale University Press. Second edition. Pages 3–5.

    [165] On October 2, 2010, the McCain campaign abruptly pulled out of Michigan after it concluded that McCain could not win Michigan. Thus, Michigan appears on this list even though it was a “jilted battleground” state.

    [166] The remaining six of the 300 post-convention events (representing 2% of the events) occurred in five additional places, namely Maine (2 events), Minnesota (2 events), the District of Columbia (1 event), Tennessee (1 event), and West Virginia (1 event).

    [167] Tures, John A. 2009. The Electoral College is stacked against the South. Southern Political Report. November 30, 2009.

    [168] http://www.fairvote.org/following-the-money-campaign-donations-and-spending-in-the-2008-presidential-race.

    [169] An alternative way of looking at these data is available in table 1.11 where the states are ranked in order of the data in column 4.

    [170] FairVote. 2005. The Shrinking Battleground: The 2008 Presidential Election and Beyond. Takoma Park, MD: The Center for Voting and Democracy. http://archive.fairvote.org/?page=1555.

    [171] Freedomworks debate on December 1, 2010, available at http://www.freedomworks.org/rnc.

    [172] Peters, Jeremy W. Campaigns Blitz 9 Swing States in a Battle of Ads. New York Times. June 8, 2012.

    [173] This count is based on public campaign events (e.g., rallies, speeches, town hall meetings). It does not include private fund-raisers, private meetings, non-campaign events (e.g., the Al Smith Dinner in New York City, the Clinton Global Initiative dinner), televised national debates (e.g., flying into a state just to participate in the debate), or interviews in television studios (e.g., flying into New York to do an interview). A “visit” to a state may consist of one or more individual events held at different places and times within the state. A joint appearance of a presidential and vice-presidential candidate is counted as one event. Additional information is available at http://www.fairvote.org/presidential-tracker.

    [174] For the reader’s convenience, the same information is also presented in table 9.8 where is it sorted by state size.

    [175] These facts are highlighted in table 9.3 in which the data from table 9.8 are sorted according to each state’s number of electoral votes.

    [176] Note that the Democratic National Committee did not run any advertising for the 2012 Obama campaign.

    [177] Bell, Peter and Wilson, Reid. Ad Spending in presidential battleground states. National Journal. November 4, 2012. http://www.nationaljournal.com/hotline/ad-spending-in-presidential-battleground-states-20120620. This web site also details the spending by each individual group.

    [178] The cost per electoral vote of reaching voters in battleground states varies considerably from state to state. Television advertising is highly inefficient for many battleground states. For example, reaching voters in the populous southern part of the battleground state of New Hampshire (with four electoral votes) is highly inefficient because it requires advertising on premium-priced metropolitan Boston TV stations (that primarily reaches politically irrelevant voters in Massachusetts and Rhode Island). Similarly, reaching the northern part of the battleground state of Virginia requires advertising on pricey metropolitan Washington stations (that reaches many politically irrelevant voters in Maryland and the District of Columbia). In contrast, television advertising in the states of Florida, Colorado, and Nevada is more efficient in that it is seen mostly by voters living inside those battleground states.

    [179] Levien, Andrea. Tracking presidential campaign field operations. Fair Vote report. November 14, 2012. http://www.fairvote.org/tracking-presidential-campaign-field-operations/.

    [180] Goldman, Bruce. Romney campaign releases 15 new commercials in eight states. Examiner. September 7, 2012.

    [181] Markon, Jerry and Crites, Alice. Obama showering Ohio with attention and money. Washington Post. September 25, 2012.

    [182] Cook, Charlie. 2004. Convention dispatches—As the nation goes, so do swing states. Cook’s Political Report. August 31, 2004.

    [183] John Kerry’s 2004 campaign similarly concentrated on a small handful of states in the general election campaign.

    [184] Washington Post. June 21, 2009.

    [185] Samples, John. A Critique of the National Popular Vote Plan for Electing the President. Cato Institute Policy Analysis No. 622. October 13, 2008. Page 1.

    [186] Owsiany, David J. Electoral College helps to make sure that president represents entire nation. Columbus Dispatch. September 22, 2012.

    [187] Shapiro, Ari. Ads slice up swing states with growing precision. NPR. September 24, 2012. http://www.npr.org/2012/09/24/161616073/ads-slice-up-swing-states-with-growing-precision.

    [188] Oral and written testimony presented by Tara Ross at the Nevada Senate Committee on Legislative Operations and Elections on May 7, 2009.

    [189] Written testimony submitted by Tara Ross to the Delaware Senate in June 2010.

    [190] Debate at the Dole Institute in Lawrence, Kansas, between Tara Ross and John Koza on November 7, 2011. Time stamp 16:30.

    [191] Nine of the states in table 9.41 that voted Democratic once or twice between 1992 and 2012 (Arkansas, Kentucky, Louisiana, Missouri, Tennessee, West Virginia, Arizona, Georgia, and Montana) did so during the Clinton years. Since then, these nine states have consistently voted Republican in presidential elections between 2000 and 2012. Thus, there are 41 states that have voted for the same party between 2000 and 2012.

    [192] Silver, Nate. State and national polls tell different tales about state of campaign. FiveThirtyEight column in New York Times. July 24, 2012.

    [193] Silver, Nate. What polls suggest about the national popular vote. FiveThirtyEight column in New York Times. October 31, 2012.

    [194] Written testimony submitted by Tara Ross to the Delaware Senate in June 2010.

    [195] Evergreen Freedom Foundation. 2010. Brochure. Olympia, Washington.

    [196] Oral and written testimony presented by Tara Ross at the Nevada Senate Committee on Legislative Operations and Elections on May 7, 2009.

    [197] Id.

    [198] Debate at the Larimer County, Colorado, League of Women Voters on June 28, 2012 with Robert Hardaway of the University of Denver Sturm College of Law, Professor Robert Hoffert of Colorado State University, Elena Nunez of Colorado Common Cause, and Patrick Rosenstiel of Ainsley-Shea. 18:00 minute mark. http://www.youtube.com/watch?v=U_yCSqgm_dY.

    [199] McConnell, Mitch. The Electoral College and National Popular Vote Plan. December 7, 2011. Washington, DC. 19:36 minute mark.

    [200] Williams, Walter E. In defense of the Electoral College. Gaston Gazette. November 21, 2012.

    [201] Gregg, Gary. Keep Electoral College for fair presidential votes. Politico. December 5, 2012.

    [202] For the reader’s convenience, the same information is presented in table 1.10 (where it is sorted according to the number of post-convention campaign events in 2008) and in table 9.1 (where it is sorted according to Obama’s percentage of the two-party vote in 2008).

    [203] This count is based on public campaign events (e.g., rallies, speeches, town hall meetings). It does not include private fund-raisers, private meetings (e.g., Palin's meetings with world leaders in New York), non-campaign events (e.g., the Al Smith Dinner in New York City or the Clinton Global Initiative dinner), televised national debates (e.g., flying into Mississippi, New York, Tennessee, and Missouri just to participate in the debate), or interviews in television studios (e.g., flying into New York City to do an interview). A “visit” to a state may consist of one or more individual events held at different places and times within the state. A joint appearance of a presidential and vice-presidential candidate is counted as one event.

    [204] This count is based on public campaign events (e.g., rallies, speeches, town hall meetings). It does not include private fund-raisers, private meetings, non-campaign events (e.g., the Al Smith Dinner in New York City, the Clinton Global Initiative dinner), televised national debates (e.g., flying into a state just to participate in the debate), or interviews in television studios (e.g., flying into New York to do an interview). A “visit” to a state may consist of one or more individual events held at different places and times within the state. A joint appearance of a presidential and vice-presidential candidate is counted as one event. Additional information is available at http://www.fairvote.org/presidential-tracker.

    [205] For the reader’s convenience, the same information (including breakdowns for Obama, Biden, Romney, and Ryan) is presented in table 9.3 and table 1.10 where it is sorted according to the number of post-convention campaign events.

    [206] There were only four exceptions to this 6–6 split in the 60 state-level presidential elections conducted in these 12 states between 1988 and 2012. In 1992, Bill Clinton carried Montana (presumably due to Ross Perot’s presence on the ballot). In 1988, George H.W. Bush carried Delaware, Maine, and Vermont. Since then, these states have become reliably Democratic in presidential elections.

    [207] New Hampshire went Republican in 1988, Democratic in 1992 and 1996, Republican in 2000, and Democratic in 2004, 2008, and 2012.

    [208] The two campaign events in Maine in 2008 were the “exceptions that prove the rule.” Maine awards two of its electoral votes by congressional district. The two events in Maine in 2008 were in the state’s 2nd congressional district. That particular district was closely divided—that is, it was a “battleground district.” When there is even one electoral vote to be won or lost, candidates pay attention. The presidential candidates ignored Maine’s other congressional district because it was reliably Democratic. Therefore, neither party had anything to gain by paying any attention to it. The third campaign event in a small jurisdiction in 2008 was another “exception that proves the rule.” This event occurred in the District of Columbia (which occasionally receives campaign events because it is convenient to the candidates).

    [209] It should be noted that it is only since 1992 that New Hampshire has been a closely divided battleground state in the post-convention campaign period. Prior to 1992, New Hampshire received virtually no attention in general election campaigns because it reliably voted Republican in presidential elections.

    [210] See table 1.2.

    [211] Congressional Record. July 10, 1979. Page 17748.

    [212] Congressional Record. January 14, 1979. Page 309.

    [213] State of Delaware v. State of New York, 385 U.S. 895, 87 S.Ct. 198, 17 L.Ed.2d 129 (1966).

    [214] In the 1960s, New York was a battleground state and also the state with the most electoral votes (43).

    [215] Delaware’s brief, New York’s brief, and Delaware’s argument in its request for a re-hearing in the 1966 case of State of Delaware v. State of New York may be found at http://www.nationalpopularvote.com/pages/misc/de_lawsuit.php.

    [216] Already, Obama and McCain Map Fall Strategies. New York Times. May 11, 2008.

    [217] Freedomworks debate on December 1, 2010, available at http://www.freedomworks.org/rnc.

    [218] Written testimony submitted by Tara Ross to the Delaware Senate in June 2010.

    [219] See section 9.31.10 for a discussion of rural states..

    [220] Blackwell, Morton C. National Popular Vote plan would hurt most states. June 25, 2011. http://www.westernjournalism.com/national-popular-vote-plan-would-hurt-most-states/.

    [221] The 2008 ad spending figure was reported in Steinhauser, Paul. Nevada number one in ad spending per electoral vote. CNN Politics. July 4, 2012.

    [222] Walton, Don. Romney will compete for Omaha electoral vote. Lincoln Journal Star. July 19, 2012.

    [223] Henderson, O. Kay. Obama trip targets seven electoral college votes in Iowa, Nebraska. Radio Iowa. August 13, 2012.

    [224] These polls (and many others) are available on National Popular Vote’s web site at http://www.nationalpopularvote.com/pages/polls.

    [225] Edwards, George C., III. 2004. Why the Electoral College Is Bad for America. New Haven, CT: Yale University Press.

    [226] In order to promote free-flowing debate of speculative ideas, the blog involved does not permit attribution.

    [227] The U.S. Supreme Court has ruled the winner-take-all rule is constitutional. Williams v. Virginia State Board of Elections, 288 F. Supp. 622 - Dist. Court, ED Virginia 1968. The full opinion may be found in appendix FF. The U.S. Supreme Court affirmed this decision in a per curiam decision in 1969. Williams v. Virginia State Board of Elections. 393 U.S. 320 (1969) (per curiam).

    [228] Von Spakovsky, Hans A. Protecting Electoral College from popular vote. Washington Times. October 26, 2011.

    [229] The powers of the senate. Independent Journal. March 5, 1788. Federalist No. 64.

    [230][230] Publius. The mode of electing the President. Independent Journal. March 12, 1788. Federalist No. 68.

    [231] The Nebraska legislature is officially non-partisan; however, two-thirds of the legislators are known Republicans.

    [232] The Utah survey (and the others cited in this section) was conducted by Public Policy Polling and had a margin of error of plus or minus 3 1/2%. See http://www.nationalpopularvote.com/pages/polls.

    [233] Written testimony submitted by Tara Ross to the Delaware Senate in June 2010.

    [234] Samples, John. A Critique of the National Popular Vote Plan for Electing the President. Cato Institute Policy Analysis No. 622. October 13, 2008. Page 2.

    [235] Bill Clinton received 53% of the popular vote in Arkansas in 1992. He also won 84% of the popular vote in the District of Columbia.

    [236] Written testimony submitted by Tara Ross to the Delaware Senate in June 2010.

    [237] Ross, Tara. 2012. Enlightened Democracy: The Case for the Electoral College. Los Angeles, CA: World Ahead Publishing Company. Second edition. Page 160.

    [238] Bill Clinton received 53% of the popular vote in Arkansas in 1992. He also won 84% of the popular vote in the District of Columbia.

    [239] If, at some time in the future, the public decides that it wants the benefits of a run-off election without the problems of a traditional run-off system, instant run-off voting (also called “ranked voting”) offers a method for combining a run-off into the original election. In instant run-off voting, voters have the option of indicating their second choice for the office involved (and, in some variations of the system, additional choices). If no candidate receives an absolute majority of the first-place votes, the votes of the candidate receiving the fewest votes are distributed according to the second choices of those voters. This process of redistributing the votes received by the lowest candidate continues until one candidate receives an absolute majority of the voters expressing a choice. Instant run-off voting is currently used in a number of municipalities around the country. It is also used in many elections conducted among delegates at conventions of various organizations. Information about instant run-off voting is available from www.FairVote.org.

    [240] Written testimony submitted by Tara Ross to the Delaware Senate in June 2010.

    [241] http://www.fairvote.org/plurality-in-gubernatorial-elections/.

    [242] In North Carolina in 2008, Bob Barr (the Libertarian candidate) received considerably more votes than the margin between Barack Obama (the winner of the state) and John McCain (the second-place candidate).

    [243] In Florida and New Hampshire in 2000, Ralph Nader received considerably more votes than the margin between George W. Bush (the winner of these two states) and Al Gore (the second-place candidate).

    [244] Written testimony submitted by Tara Ross to the Delaware Senate in June 2010.

    [245] Dubin, Michael J. 2003. United States Gubernatorial Elections 1776–1860. Jefferson, NC: McFarland & Company. Page xx.

    [246] A simulation conducted by FairVote suggests that if Ross Perot had doubled his national popular vote from 19% to 38%, he probably would have won a majority of the electoral votes. http://www.fairvote.org/the-perot-simulator. But with 19% of the national popular vote broadly spread out over the entire country, Perot won no electoral votes.

    [247] Hickey, Walter. 2012. The Electoral College is brilliant, and we would be insane to abolish it. Business Insider. October 3, 2012. http://www.businessinsider.com/the-electoral-college-is-brilliant-2012-10.

    [248] In 1992, Bill Clinton received 53% of the popular vote in Arkansas and 84% of the popular vote in the District of Columbia.

    [249] The 1992 poll was cited in Stanley, Timothy. Why Romney is stronger than he seems. CNN Election Center. April 10, 2012.

    [250] Written testimony submitted by Tara Ross to the Delaware Senate in June 2010.

    [251] Von Spakovsky, Hans. Popular vote scheme. The Foundry. October 18, 2011.

    [252] Singal, Daniel J. The genius of the Electoral College. Democrat and Chronicle. Rochester, New York. August 23, 2012.

    [253] Oral and written testimony presented by Tara Ross at the Nevada Senate Committee on Legislative Operations and Elections on May 7, 2009.

    [254] In Florida and New Hampshire in 2000, Ralph Nader received considerably more votes than the margin between George W. Bush (the winner of these two states) and Al Gore (the second-place candidate).

    [255] In North Carolina in 2008, Bob Barr (the Libertarian candidate) received considerably more votes than the margin between Barack Obama (the winner of the state) and John McCain (the second-place candidate).

    [256] England, Trent. What Grover learned at (the) Electoral College: American politics are more inclusive, moderate, stable, and nationally unified because of the Electoral College. December 15, 2009. http://www.saveourstates.com/2009/what-grover-learned-at-the-electoral-college/.

    [257] Written testimony submitted by Tara Ross to the Delaware Senate in June 2010.

    [258] Id.

    [259] Ballot Access News. October 2012.

    [260] Figure 9.5 shows North Dakota’s 2008 Certificate of Ascertainment.

    [261] Clause 4 of section 1 of Article II of the U.S. Constitution provides, “The Congress may determine the Time of chusing the Electors.” Under existing federal law, Congress has chosen a uniform national day for choosing electors (namely, the Tuesday after the first Monday in November). However, Congress could specify the time of day as well.

    [262] Written testimony submitted by Tara Ross to the Delaware Senate in June 2010.

    [263] Congressional Record. September 18, 1969. Pages 25,990–25,991.

    [264] Written testimony submitted by Tara Ross to the Delaware Senate in June 2010.

    [265] Written testimony submitted by Tara Ross to the Delaware Senate in June 2010.

    [266] See section 2.12.

    [267] The accidental vote was cast in Minnesota in 2004. After the ballots were counted, all 10 electors said that they intended to vote for John Kerry for President and John Edwards for Vice President. However, one of the 10 accidentally voted for John Edwards for both President and Vice President.

    [268] Baker, Mike. Three Electoral College members may pass on GOP ticket. Associated Press. September 12, 2012.

    [269] As discussed in section 2.12, in 1836, 23 Democratic presidential electors from Virginia did not vote for the Democratic Party’s vice-presidential nominee (Richard M. Johnson). The Virginia Democratic Party had announced their vigorous opposition to Johnson at the party’s national convention (both before and after Johnson’s nomination). Johnson failed to receive an absolute majority of the electoral votes and the vice-presidential election was therefore thrown into the U.S. Senate. The Democratic Party was in control of the Senate, and Johnson won by an overwhelmingly 33–16 vote.

    [270] Ray v. Blair 343 U.S. 214 at 232. 1952.

    [271] In two states (Maine and Nebraska), the elector candidates associated with the presidential candidate who receives the most popular votes in each of the state’s congressional districts are elected (along with the two additional at-large elector candidates associated with the presidential candidate who receives the most popular votes in the state as a whole).

    [272] Samples, John. A Critique of the National Popular Vote Plan for Electing the President. Cato Institute Policy Analysis No. 622. October 13, 2008. Page 1.

    [273] The people participated in directly choosing presidential electors in only six states in the nation’s first presidential election in 1789. In 1789, state legislatures appointed presidential electors in a number of states. In New Jersey in 1789, the Governor and his Council appointed the state’s presidential electors. The last time when the people did not directly choose presidential electors was in 1876, when the Colorado legislature appointed the state’s presidential electors.

    [274] As explained in a later part of this section, because of section 5 of Title 3 of the United States Code, South Carolina would also have had to repeal its law providing for popular election of presidential electors prior to Election Day.

    [275] The authors appreciate conversations with former Congressman Tom Feeney, who was Speaker of the Florida House of Representatives in November 2000, for clarifying the nature of the “reaffirming” resolution.

    [276] The 12th Amendment (ratified in 1804) states, “The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed.” There have been occasional cases when a state failed to appoint its presidential electors. For example, New York did not in 1789 because the legislature could not agree on how to appoint them. Notably, the Southern states did not appoint presidential electors in 1864.

    [277] The Democrats also controlled the Governor’s office in North Carolina, West Virginia, and Alabama. In Arkansas (where the governor was Republican at the time), a veto can be overridden by a majority vote in the Legislature, so the Democrats had a veto-proof majority in the legislature.

    [278] See section 9.35.1 and 7.1 for information about these polls. Detailed reports on these and other polls, including the cross-tabs, are available at the web site of National Popular Vote at http://www.nationalpopularvote.com/pages/polls.php.

    [279] As explained in later parts of this section, this hypothetical scenario would also have to overcome potential problems under section 5 of Title 3 of the United States Code.

    [280] Petty v. Tennessee-Missouri Bridge Commission. 359 U.S. 275 at 285. 79 S.Ct. 785 at 792. 1952.

    [281] Hellmuth and Associates v. Washington Metropolitan Area Transit Authority (414 F.Supp. 408 at 409). 1976.

    [282] Missouri Revised Statutes. Chapter 217. Section 217.810.

    [283] Aveline v. Pennsylvania Board of Probation and Parole (729 A.2d. 1254 at 1257, note 10).

    [284] McComb v. Wambaugh, 934 F.2d 474 at 479 (3d Cir. 1991).

    [285] The Gillette Company et al. v. Franchise Tax Board. Court of Appeal of the State of California, First Appellate District, Division Four. July 24, 2012. Page 10. Appendix GG contains the full opinion.

    [286] The Council of State Governments. 2003. Interstate Compacts and Agencies 2003. Lexington, KY: The Council of State Governments. Page 6.

    [287] After the California court’s decision in The Gillette Company et al. v. Franchise Tax Board, the state of California enacted a law (Senate Bill 1015 of 2012) exercising California’s right to withdraw from the Multistate Tax Compact. After the effective date of the statute withdrawing from the compact, the state of California became free to change its formula for taxing multi-state businesses. Senate Bill 1015 took effect as a “budget trailer” on July 27, 2012.

    [288] The Gillette Company et al. v. Franchise Tax Board. Court of Appeal of the State of California, First Appellate District, Division Four. July 24, 2012. Page 8. Appendix GG contains the full opinion.

    [289]Ibid. Page 9.

    [290] Ibid. Pages 9–11.

    [291]Ibid. Pages 15–16.

    [292] West Virginia ex rel. Dyer v. Sims. 341 U.S. 22 at 28. 1950.

    [293] Id. at 30–31.

    [294] Id. at 36.

    [295] State of Nebraska v. Central Interstate Low-Level Radioactive Waste Commission. 902 F.Supp. 1046, 1049 (D.Neb. 1995).

    [296] Hess v. Port Authority Trans-Hudson Corp. 513 U.S. 30 at 42. 1994.

    [297] Lake Country Estates, Inc. v. Tahoe Regional Planning Agency. 440 U.S. 391 at 399 and 402. 1979.

    [298] Kansas City Area Transportation Authority v. Missouri. 640 F.2d 173 at 174 (8th Cir.). 1979.

    [299] Alcorn v. Wolfe. 827 F.Supp. 47, 53 (D.D.C. 1993).

    [300] State of Nebraska v. Central Interstate Low-Level Radioactive Waste Commission. 834 F.Supp. 1205 at 1215 (D.Neb. 1993).

    [301] New York v. United States. 505 U.S. 144 at 183. 1992.

    [302] Generic contract law (applicable to parties to any contact, whether the parties are state governments or not) provides a separate and independent non-constitutional legal basis for preventing a state from attempting to withdraw from a compact except in the manner specified by the compact.

    [303] Williams, Norman R. Reforming the Electoral College: Federalism, majoritarianism, and the perils of subconstitutional change. 100 Georgetown Law Journal 173. November 2011. Page 219.

    [304] U.S. Constitution. Article II, section 1, clause 2.

    [305] In most states, a super-majority vote of both houses is necessary to override a governor’s veto. In Alabama, Arkansas, Indiana, Kentucky, North Carolina, Pennsylvania, Tennessee, and West Virginia, a gubernatorial veto can be overridden by a majority vote of both houses of the legislature.

    [306] The number dropped to 13 after the 2012 elections. See Davey, Monica. One-party control opens states to partisan rush. New York Times. November 22, 2012. See chart showing partisan control of state government at http://www.nytimes.com/interactive/2012/11/23/us/state-government-control-since-1938.html?ref=politics.

    [307] Dubin, Michael J. 2007. Party Affiliations in the State Legislatures: A Year by Year Summary 1796–2006. Jefferson, NC: McFarland & Company Inc.

    [308] In order to promote free-flowing debate of speculative ideas, the blog involved does not permit attribution.

    [309] U.S. Constitution. Article II, section 1, clause 2.

    [310] Al Gore’s home state of Tennessee, Alaska, Arkansas, Georgia, Kentucky, Mississippi, Missouri, New Hampshire, North Carolina, and West Virginia.

    [311] In Alaska, there is no Secretary of State, and the Lieutenant Governor is the state’s chief elections official.

    [312] George W. Bush received 271 electoral votes in 2000 (including Florida’s 25 electoral votes), and 270 electoral votes are required for election.

    [313] All of those previously mentioned except Alaska.

    [314] Georgia, Missouri, and North Carolina.

    [315] In order to promote free-flowing debate of speculative ideas, the blog involved does not permit attribution. November 13, 2007.

    [316] Williams, Norman R. Reforming the Electoral College: Federalism, majoritarianism, and the perils of subconstitutional change. 100 Georgetown Law Journal 173. November 2011. Pages 215–216.

    [317] Williams, Norman R. Reforming the Electoral College: Federalism, majoritarianism, and the perils of subconstitutional change. 100 Georgetown Law Journal 173. November 2011. Page 216.

    [318] Virginia v. Tennessee. 148 U.S. 503. 1893.

    [319] U.S. Steel Corporation v. Multistate Tax Commission. 434 U.S. 452. 1978.

    [320] Virginia v. Tennessee. 148 U.S. 503. 1893.

    [321] New Hampshire v. Maine, 426 U.S. 363. 1976.

    [322] U.S. Steel Corporation v. Multistate Tax Commission. 434 U.S. 452. at 459–460. 1978.

    [323] U.S. Constitution. Article I, section 10, clause 1.

    [324] The Gillette Company et al. v. Franchise Tax Board. Court of Appeal of the State of California, First Appellate District, Division Four. July 24, 2012. Page 6. Appendix GG contains the full opinion.

    [325] The Gillette Company et al. v. Franchise Tax Board. Court of Appeal of the State of California, First Appellate District, Division Four. July 24, 2012. Page 8. Appendix GG contains the full opinion.

    [326] The Gillette Company et al. v. Franchise Tax Board. Court of Appeal of the State of California, First Appellate District, Division Four. July 24, 2012. Page 9. Appendix GG contains the full opinion.

    [327] The Gillette Company et al. v. Franchise Tax Board. Court of Appeal of the State of California, First Appellate District, Division Four. July 24, 2012. Pages 9–11. Appendix GG contains the full opinion.

    [328] After the California court’s decision in The Gillette Company et al. v. Franchise Tax Board, the state of California enacted a law (Senate Bill 1015 of 2012) exercising California’s right to withdraw from the Multistate Tax Compact. After the effective date of the statute withdrawing from the compact, the state of California became free to change its formula for taxing multi-state businesses. Senate Bill 1015 took effect as a “budget trailer” on July 27, 2012.

    [329] Zimmerman, Joseph F. 2006. Interstate Disputes: The Supreme Court’s Original Jurisdiction. Albany, NY: State University of New York Press.

    [330] U.S. Constitution. Article III, section 2, clause 2.

    [331] Williams, Norman R. Reforming the Electoral College: Federalism, majoritarianism, and the perils of subconstitutional change. 100 Georgetown Law Journal 173. November 2011. Page 216.

    [332] West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 33-34 (1951).

    [333] West Virginia ex rel. Dyer v. Sims. 341 U.S. 22 at 28. 1950.

    [334] Williams, Norman R. Reforming the Electoral College: Federalism, majoritarianism, and the perils of subconstitutional change. 100 Georgetown Law Journal 173. November 2011. Page 216.

    [335] State ex rel. Stenberg v. Moore, 544 N.W.2d 344, 348 (Neb. 1996).

    [336] Visor v. Waters, 182 A. 241, 247 (Pa. 1936).

    [337] State ex rel. Stenberg v. Moore, 544 N.W.2d 344, 348 (Neb. 1996).

    [338] Visor v. Waters. 41 Dauphin County Reports. Volume 219 at 227. 1935. In 1936, the Pennsylvania Supreme Court upheld the lower court decision by saying, “The judgment in this case is affirmed on the full and comprehensive opinion of the learned President Judge of the lower court, which is printed at length in 41 Dauphin County Reports 219. Visor v. Waters, 182 A. 241, 247 (Pa. 1936).

    [339] The Interstate Compact for the Placement of Children was written with the expectation that congressional consent would not be required if its membership were limited to states of the United States, the District of Columbia, and Puerto Rico. However, the compact invites the federal government of Canada and Canadian provincial governments to become members. The compact specifically recognizes that congressional consent would be required if a Canadian entity desired to become a party to the compact by saying, “This compact shall be open to joinder by any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and, with the consent of congress, the government of Canada or any province thereof.” At the present time, no Canadian entity has sought membership in the compact.

    [340] McComb v. Wambaugh, 934 F.2d 474 at 479 (3d Cir. 1991).

    [341] http://fairvote.org/tracker/?page=27&pressmode=showspecific&showarticle=230.

    [342] Hickey, Walter. 2012. The Electoral College is brilliant, and we would be insane to abolish it. Business Insider. October 3, 2012. http://www.businessinsider.com/the-electoral-college-is-brilliant-2012-10.

    [343] U.S. Constitution. Article II, section 1, clause 4.

    [344] United States Code. Title 3, chapter 1, section 7.

    [345] For example, in 2008, the election was Tuesday, November 4, and the “safe harbor” day was 33 days later on Monday, December 8. The Electoral College met on the following Monday, December 15 (the Monday after the second Wednesday in December). Congress met to count votes on January 6, 2009. According to the Constitution, the outgoing President’s term ended on January 20, 2009.

    [346] Van Sickler, Michael. Provisional ballots spike, but Florida elections supervisors say they’re not needed. Miami Herald. December 17, 2012. http://www.miamiherald.com/2012/12/17/3145753/provisional-ballots-spike-but.html.

    [347] Langley, Karen and McNulty, Timothy. Verifying provisional ballots may be key to election. Pittsburgh Post-Gazette. August 26, 2012.

    [348] Von Spakovsky, Hans. Popular vote scheme. The Foundry. October 18, 2011.

    [349] Von Spakovsky, Hans. Destroying the Electoral College: The Anti-Federalist National Popular Vote Scheme. Legal memo. October 27, 2011. http://www.heritage.org/research/reports/2011/10/destroying-the-electoral-college-the-anti-federalist-national-popular-vote-scheme.

    [350] Von Spakovsky, Hans. Destroying the Electoral College: The Anti-Federalist National Popular Vote Scheme. Legal memo. October 27, 2011. http://www.heritage.org/research/reports/2011/10/destroying-the-electoral-college-the-anti-federalist-national-popular-vote-scheme.

    [351] Langley, Karen and McNulty, Timothy. Verifying provisional ballots may be key to election. Pittsburgh Post-Gazette. August 26, 2012.

    [352] Roarty, Alex. The Ohio vote count could be a mess. National Journal. November 6, 2012.

    [353] November 27, 2012. In order to promote free-flowing debate of speculative ideas, the blog involved does not permit attribution.

    [354] Ohio was not the only key state in the Electoral College in 2004. A shift of 6,743 votes in Iowa (with 7 electoral votes), 4,295 in New Mexico (with 5 electoral votes), and 10,784 in Nevada (with 5 electoral votes) would have given George W. Bush and John Kerry each 269 electoral votes. If this shift of 21,822 popular votes had occurred, the presidential election would have been thrown into the House of Representatives (with each state casting one vote, and states with an equal division casting no vote), and the vice-presidential election would have been thrown into the Senate (with each Senator having one vote).

    [355] Wasserman’s counts are at https://docs.google.com/spreadsheet/lv?key=0AjYj9mXElO_QdHpla01oWE1jOFZRbnhJZkZpVFNKeVE&toomany=true.

    [356] Kennedy is the apparent victor. New York Times. November 9, 1960. Page 1.

    [357] Kennedy’s victory won by close margin. New York Times. November 10, 1960. Page 1.

    [358] Nixon shuns move for vote recount. New York Times. November 12, 1960. Page 1.

    [359] California is put in Nixon’s column by absentee vote. New York Times. November 17, 1960. Page 1.

    [360] Langley, Karen and McNulty, Timothy. Verifying provisional ballots may be key to election. Pittsburgh Post-Gazette. August 26, 2012.

    [361] New York’s December 10, 2012, Certificate of Ascertainment showing that the Obama-Biden slate received 4,159,441 votes and that the Romney-Ryan slate had received 2,401,799 votes can be viewed at http://www.archives.gov/federal-register/electoral-college/2012-certificates/pdfs/ascertainment-new-york.pdf.

    [362] Opponents of the proposed controversial measures, in turn, argued that the proposed measures would disenfranchise legitimate voters and discourage voter participation.

    [363] Florida election laws threaten the vote in a key swing state. Washington Post. August 26, 2012.

    [364] MacManus, Susan A. The battle over election reform in the swing state of Florida. New England Journal of Political Science. Volume VI. Number 2. Pages 237–292.

    [365] Election official could be pivotal in battleground Colorado. July 27, 2012. http://nbcpolitics.msnbc.msn.com/_news/2012/07/27/12991424-election-official-could-be-pivotal-in-battleground-colorado#.UBK3Tifzldo.twitter.

    [366] Cernetich, Kelly. Turzai: Voter ID Law Means Romney Can Win PA. PoliticsPA. June 25, 2012. Video available on YouTube at http://www.youtube.com/watch?v=EuOT1bRYdK8.

    [367] Roarty, Alex. The Ohio vote count could be a mess. National Journal. November 6, 2012.

    [368] For the 2012 presidential election, see http://www.archives.gov/federal-register/electoral-college/2012/certificates_of_ascertainment.html. The web address is the similar for 2000, 2004, and 2008.

    [369] For the 2012 presidential election, see http://www.archives.gov/federal-register/electoral-college/2012/popular-vote.html. The web address is the similar for 2000, 2004, and 2008.

    [370] Weeks, Luther. Lawmakers seek to change presidential elections to make them more risky, reduce confidence. February 3, 2011. http://ctvoterscount.org/lawmakers-seek-to-change-presidential-elections-to-make-them-more-risky-reduce-confidence/.

    [371] In order to promote free-flowing debate of speculative ideas, the blog involved does not permit attribution.

    [373] Williams, Norman R. Reforming the Electoral College: Federalism, majoritarianism, and the perils of subconstitutional change. 100 Georgetown Law Journal 173. November 2011. Page 213.

    [374] As for public attachment to the winner-take-all rule, the political reality is that the public is not attached to the winner-take-all rule. Public opinion surveys show high levels of public support for a national popular vote for President in every state for which state-level polls are available, including battleground states, small states, Southern states, border states, and other states (as itemized in section 9.24.1). Numerous polls are available on National Popular Vote’s web site at http://www.nationalpopularvote.com/pages/polls.

    [375] Blog posting by Southerner01. Real Clear Politics. October 12, 2012. http://www.realclearpolitics.com/articles/2012/10/12/how_likely_is_an_electo ral_votepopular_vote_split_115749-comments.html.

    [376] Written testimony submitted by Tara Ross to the Delaware Senate in June 2010.

    [377] Oral and written testimony presented by Tara Ross at the Nevada Senate Committee on Legislative Operations and Elections on May 7, 2009.

    [378] Oral and written testimony presented by Tara Ross at the hearing of the Alaska Senate State Affairs Committee in February 2011.

    [379] Although the 1876 dispute focused primarily on the statewide vote counts in Louisiana, South Carolina, and Florida, the vote count was also close in other states, including California (where the margin was 2,798), Oregon (where the margin was 1,050 votes), and Nevada (where the margin was 1,075 votes).

    [380] Rob Richie and Mollie Hailey of FairVote updated FairVote’s 2010 report covering the 10-year period between 2000 and 2009 by adding data for the three-year period between 2010 and 2012. See Richie, Rob; Talukdar, Monideepa; and Hellman, Emily. 2010. A Survey and Analysis of Statewide Election Recounts, 2000–2009. FairVote.

     

    [381] In Wyoming, a constitutional amendment must be approved by a majority of the total number of votes cast on Election Day (rather than a majority of those voting on the amendment). On Election Day in Wyoming in November 2004, 245,789 votes were cast, so the required majority to pass an amendment was 122,896. Thus, the outcome was determined by the difference between the number of “yes” votes and 122,896 (rather than the difference between the number of “yes” and “no” votes). In other words, failure to vote on an amendment counts as a “no” vote. Amendment A received 122,038 “yes” votes (and 96,792 “no” votes) in the initial count and was thus only 858 votes short of the 122,896 votes required for passage. This shortfall (0.3491% of 245,789) triggered an automatic recount of Amendment A. The recount of Amendment A changed 55 votes (0.0223% of 245,789). Amendment C received 124,178 “yes” votes (and 110,169 “no” votes) in the initial count and was thus was only 1,282 over the 122,896 votes required for passage. This overage (0.5216% of 245,789) triggered an automatic recount of Amendment C. The recount of Amendment C changed 50 votes (0.0203% of the 245,789).

    [382] Note that the recount of the presidential vote in Florida in 2000 was the automatic recount that was required by Florida law and that was held shortly after Election Day. This recount did not involve a hand inspection of each ballot. It reduced Bush’s initial 1,784-vote lead to a 537-vote lead. The hand recount that was begun later was halted by the U.S. Supreme Court, thus leaving the 537-vote margin as Bush’s final margin in Florida.

    [383] Dalesio, Emery P. Democrat concedes in N.C. lieutenant gov. race. Associated Press article in Pilot Online. November 19, 2012. Dalesio, Emery P. Democrat concedes in N.C. lieutenant gov. race. Pilot OnLine. November 19, 2012 http://hamptonroads.com/2012/11/democrat-concedes-nc-lieutenant-gov-race.

    [384] Associated Press. Welch drops recount after coming up short on $115K. Independent Record. Helena, Montana. December 11, 2012. http://helenair.com/news/state-and-regional/welch-drops-recount-after-coming-up-short-on-k/article_8d5e1d2a-efe9-5f59-ba5c-ef91a31e960d.html?comment_form=true.

    [385]The National Conference of State Legislatures has summarized the characteristics of the 19 state-level automatic recount laws at http://www.ncsl.org/legislatures-elections/elections/conducting-recounts.aspx.

    [386] National Conference of State Legislatures. Lottery Payouts and State Revenue. http://www.ncsl.org/issues-research/econ/lottery-payouts-and-state-revenue.aspx.

    [387] Federal Reserve System. The 2010 Federal Reserve Payment Study: Noncash Payment Trends in the United States: 2006-2009. April 5, 2011. Page 54.

    [388] Loy, Brendan Loomer, “Count Every Vote—All 538 of Them” Social Science Research Network. September 12, 2007. Available at http://ssrn.com/abstract=1014431.

    [389] England, Trent. Op-Ed: Bypass the Electoral College? Christian Science Monitor. August 12, 2010.

    [390] Loy, Brendan Loomer. 2007. “Count Every Vote—All 538 of Them. Social Science Research Network. September 12, 2007. Available at http://ssrn.com/abstract=1014431.

    [391] U.S. Constitution. Article II, section 1, clause 4.

    [392] United States Code. Title 3, chapter 1, section 7.

    [393] For example, in 2008, the election was Tuesday, November 4, and the “safe harbor” date was 33 days later on Monday, December 8. The Electoral College met on the following Monday, December 15 (the Monday after the second Wednesday in December). Congress met to count the votes on January 6, 2009. According to the Constitution, the outgoing President’s term ended on January 20, 2009.

    [394] Congressional Record. July 10, 1979. Pages 17706–17707.

    [395] United States Code. Section 5 of Title 3, chapter 1.

    [396] Written testimony submitted by Tara Ross to the Delaware Senate in June 2010.

    [397] Richie, Rob; Talukdar, Monideepa; and Hellman, Emily. 2010. A Survey and Analysis of Statewide Election Recounts, 2000–2009. FairVote.

    [398] Langley, Karen and McNulty, Timothy. Verifying provisional ballots may be key to election. Pittsburgh Post-Gazette. August 26, 2012.

    [399] See section 9.13.7 and, in particular, table 9.14.

    [400] There was a dispute concerning the 1876 returns from Oregon; however, that dispute did not involve Hayes’ relatively small margin in the state (which both parties accepted), but around whether a Republican or Democrat would replace a clearly ineligible Republican presidential elector (a federal appointee). Rehnquist, William H. 2004. Centennial Crisis: The Disputed Election of 1876. New York, NY: Alfred A. Knopf. Pages 109–112.

    [401] Congressional Quarterly. 2002. Presidential Elections 1789–2002. Washington, DC: CQ Press. Page 125.

    [402] Morris, Roy B. 2003. Fraud of the Century: Rutherford B. Hayes, Samuel Tilden, and the Stolen Election of 1876. Waterville, ME: Thorndike Press.

    [403] Robinson, Lloyd. 1996. The Stolen Election: Hayes versus Tilden—1876. New York, NY: Tom Doherty Associates Books.

    [404] The 1960 difference of 118,574 reflects the most commonly used method of accounting for the votes from Alabama as discussed in section 2.11.

    [405] Ross, Tara. 2012. Enlightened Democracy: The Case for the Electoral College. Los Angeles, CA: World Ahead Publishing Company. Second edition. Page 159.

    [406] See figure 9.5 in section 9.14.1 showing Oregon’s 2012 Certificate of Ascertainment.

    [407] See appendix F for Maine’s 2004 Certificate of Ascertainment and appendix G for Nebraska’s 2004 Certificate of Ascertainment.

    [408] See section 9.15.1 for details of the 22 statewide recounts in the 4,072 statewide general elections in the 13-year period between 2000 and 2012.

    [409] Langley, Karen and McNulty, Timothy. Verifying provisional ballots may be key to election. Pittsburgh Post-Gazette. August 26, 2012.

    [410] Tokaji, Daniel. 2012. Election Law@Moritz: Information and Insight on the Laws Governing Federal, State, and Local Elections. The quotation is from a continuously updated eBook on December 27, 2012. http://moritzlaw.osu.edu/electionlaw/ebook/part5/procedures_recount05.html#_edn9.

    [411] See section 9.13.7 and, in particular, table 9.14.

    [412] Of course, candidates do not concede on Election Night (or they hastily retract their concession) if available information indicates that the race is close and that they might possibly win.

    [413] Question called in by Arthur from Palo Alto, California, on KQED debate on October 26, 2012, involving Dr. John R. Koza (Chair of National Popular Vote), Stanford Professor Jack Rakove, Trent England (a lobbyist opposing the National Popular Vote compact and Vice-President of the Evergreen Freedom Foundation of Olympia, Washington), and Ace Smith (a political consultant headquartered in San Francisco). http://www.kqed.org/a/forum/R201210260900.

    [414] Vijayan, Jaikumar. Election watchdogs keep wary eye on paperless e-voting systems. Computer World. October 30, 2012.

    [415] Norden, Lawrence. Issue Brief: Election 2012 Recounts. New York, NY: Brennan Center for Justice. Page 32.

    [416] Norden, Lawrence. Issue Brief: Election 2012 Recounts. New York, NY: Brennan Center for Justice. Page 29.

    [417] Norden, Lawrence. Issue Brief: Election 2012 Recounts. New York, NY: Brennan Center for Justice. Page 3.

    [418] See table 9.17 in section 9.15.1.

    [419] Richie, Rob; Talukdar, Monideepa; and Hellman, Emily. 2010. A Survey and Analysis of Statewide Election Recounts, 2000–2009. FairVote. Moreover, three-quarters of all recounts do not change the outcome.

    [420] U.S. Constitution. Article I, section 10, clause 3.

    [421] U.S. Constitution. Article I, section 10, clause 1.

    [422] Council of State Governments. 2003. Interstate Compacts and Agencies 2003. Lexington, KY: The Council of State Governments. Page 6.

    [423] U.S. Constitution. Article II, section 1, clause 2.

    [424] McPherson v. Blacker. 146 U.S. 1 at 35. 1892.

    [425] There have been cases where a higher court has invalidated a ruling by a lower court invalidating an interstate compact. See, for example, West Virginia ex rel. Dyer v. Sims. 341 U.S. 22. 1950.

    [426] Oregon v. Mitchell. 400 U.S. 112 at 286–287. 1970.

    [427] There have been cases where a higher court corrected a ruling by a lower court invalidating an interstate compact. See, for example, West Virginia ex rel. Dyer v. Sims. 341 U.S. 22. 1950.

    [428] The original Constitution contains few specific restrictions on state action that bear on the appointment of presidential electors. Thus, under Article II, section 1, clause 1, a state legislature may, for example, pass a law making it a crime to commit fraud in a presidential election. However, a state legislature certainly may not pass an ex post facto (retroactive) law making it a crime to commit fraud in a previous presidential election. Similarly, a state legislature may not pass a law imposing criminal penalties on specifically named persons who may have committed fraudulent acts in connection with a presidential election (that is, a bill of attainder). Also, the Constitution’s explicit prohibition against a “law impairing the obligation of contract” operates as a restraint on the delegation of power contained in section 1 of Article II. Of course, various later amendments restrict state choices, including the 14th Amendment (equal protection), the 15th Amendment (prohibiting denial of the vote on account of “race, color, or previous condition of servitude”), the 19th Amendment (woman’s suffrage), the 24th amendment (prohibiting poll taxes), and the 26th Amendment (18-year-old vote).

    [429] Congress has, on rare occasions, consented to compacts in advance of action by the states. For example, Congress consented in advance to certain interstate crime control compacts in the Crime Control Consent Act of 1934. Other examples include the Weeks Act of 1911 and the Tobacco Control Act of 1936. See section 5.9.

    [430] Virginia v. Tennessee. 148 U.S. 503 at 521. 1893.

    [431] U.S. Steel Corporation v. Multistate Tax Commission. 434 U.S. 452. 1978.

    [432] U.S. Constitution. Article I, section 10, clause 3.

    [433] Virginia v. Tennessee. 148 U.S. 503 at 519. 1893.

    [434] Virginia v. Tennessee. 148 U.S. 503. 1893.

    [435] The Gillette Company et al. v. Franchise Tax Board. Court of Appeal of the State of California, First Appellate District, Division Four. July 24, 2012. Page 4. Appendix GG contains the full opinion.

    [436] Virginia v. Tennessee. 148 U.S. 503. 1893.

    [437] New Hampshire v. Maine, 426 U.S. 363. 1976.

    [438] U.S. Steel Corporation v. Multistate Tax Commission. 434 U.S. 452. at 459–460. 1978.

    [439] U.S. Constitution. Article II, section 1, clause 2.

    [440] McPherson v. Blacker. 146 U.S. 1 at 29. 1892.

    [441] Virginia v. Tennessee. 148 U.S. 503. 1893.

    [442] U.S. Steel Corporation v. Multistate Tax Commission. 434 U.S. 454 at 473. 1978. Justice Powell wrote the opinion of the Court, joined by Chief Justice Burger and Justices Brennan, Stewart, Marshall, Rehnquist, and Stevens.

    [443] Ross, Tara. 2010. Federalism & Separation of Powers: Legal and Logistical Ramifications of the National Popular Vote Plan. Engage. Volume 11. Number 2. September 2010. Page 40.

    [444] U.S. Steel Corporation v. Multistate Tax Commission. 434 U.S. 452 at 479. 1978.

    [445] U.S. Steel Corp. v. Multistate Tax Commission. 434 U.S. at 494. 1978.

    [446] Id. at 477–478.

    [447] Northeast Bancorp, Inc. v. Board of Governors of the Federal Reserve System. 472 U.S. 159 at 176. 1985.

    [448] Ross, Tara. 2010. Federalism & Separation of Powers: Legal and Logistical Ramifications of the National Popular Vote Plan. Engage. Volume 11. Number 2. September 2010. Page 40.

    [449] Ross, Tara. 2010. Federalism & Separation of Powers: Legal and Logistical Ramifications of the National Popular Vote Plan. Engage. Volume 11. Number 2. September 2010. Page 40.

    [450] Delaware’s brief, New York’s brief, and Delaware’s argument in its request for a re-hearing in the 1966 case of State of Delaware v. State of New York may be found at http://www.nationalpopularvote.com/pages/misc/de_lawsuit.php.

    [451] State of Delaware v. State of New York, 385 U.S. 895, 87 S.Ct. 198, 17 L.Ed.2d 129 (1966).

    [452] Williams v. Virginia State Board of Elections, 288 F. Supp. 622 - Dist. Court, ED Virginia 1968.

    [453] Williams v. Virginia State Board of Elections. 393 U.S. 320 (1969) (per curiam).

    [454] U.S. Constitution. Article II, section 1, clause 2.

    [455] Von Spakovsky, Hans. Destroying the Electoral College: The Anti-Federalist National Popular Vote Scheme. Legal memo. October 27, 2011. http://www.heritage.org/research/reports/2011/10/destroying-the-electoral-college-the-anti-federalist-national-popular-vote-scheme.

    [456] The Interstate Compact for the Placement of Children was written with the expectation that congressional consent would not be required if its membership were limited to states of the United States, the District of Columbia, and Puerto Rico. However, the compact invites the federal government of Canada and Canadian provincial governments to become members. The compact specifically recognizes that congressional consent would be required if a Canadian entity desired to become a party to the compact by saying, “This compact shall be open to joinder by any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and, with the consent of congress, the government of Canada or any province thereof.” As of 1991, no Canadian entity had sought membership in the compact, and the compact was thus put into operation without congressional consent.

    [457] McComb v. Wambaugh, 934 F.2d 474 at 479 (3d Cir. 1991).

    [458] U.S. Steel Corporation v. Multistate Tax Commission. 434 U.S. 454 at 473. 1978.

    [459] See section 9.11 for answers to Professor Hardaway’s concern about withdrawal.

    [460] Ross, Tara. 2004. Enlightened Democracy: The Case for the Electoral College. Los Angeles, CA: World Ahead Publishing Company. Page 235.

    [461] U.S. Constitution. Article II, section 1, clause 2.

    [462] State legislatures frequently chose presidential electors in the nation’s early years; however, the last time presidential electors were chosen by a state legislature was 1876 in Colorado.

    [463] The powers of the senate. Independent Journal. March 5, 1788. Federalist No. 64.

    [464][464] Publius. The mode of electing the President. Independent Journal. March 12, 1788. Federalist No. 68.

    [465] A Federalist supporter famously complained in the December 15, 1796, issue of United States Gazette that Samuel Miles, a Federalist presidential elector, had voted for Thomas Jefferson, instead of John Adams, by saying, “What, do I chufe Samuel Miles to determine for me whether John Adams or Thomas Jefferfon is the fittest man to be President of the United States? No, I chufe him to act, not to think.” [Spelling per original]. Of the 22,991 electoral votes cast for President in the nation’s 57 presidential elections between 1789 and 2012, only 17 were cast in a deviant way. As explained in greater detail in section 2.12, the vote of Federalist elector Samuel Miles for Anti-Federalist Thomas Jefferson in 1796 remains the only instance when the elector might have intended, at the time he cast his unexpected vote, that his vote might affect the national outcome.

    [466] McPherson v. Blacker. 146 U.S. 1 at 36. 1892.

    [467] The issue of a demagogue becoming President comes up with moderate frequency, including at a November 13, 2012, debate on the National Popular Vote compact held at a meeting of the National Policy Council of the American Association of Retired Persons in Washington, DC. The debaters included Vermont State Representative Chris Pearson, Professor Curtis Gans, and Dr. John R. Koza (chair of National Popular Vote).

    [468] Shirer, William L. 1960. The Rise and Fall of the Third Reich. New York, NY: Simon and Shuster.

    [469] Debate entitled “Should We Dispense with the Electoral College?” sponsored by PENNumbra (University of Pennsylvania Law Review) available at http://www.pennumbra.com/debates/pdfs/electoral_college.pdf.

    [470] Gringer, David. 2008. Why the National Popular Vote plan is the wrong way to abolish the Electoral College. 108 Columbia Law Review 182. January 2008. Pages 182–230.

    [471] In fact, Gringer has gone so far as to state (without any knowledge about the operation of the National Popular Vote organization or any attempt to acquire the facts) that the authors of the National Popular Vote compact have “failed to recognize that their plan implicates the Voting Rights Act.” The fact that pre-clearance would be required was recognized by the National Popular Vote organization as early as the period when the National Popular Vote legislation was being debated by the California Assembly in 2006.

    [472] Gringer, David. 2008. Why the National Popular Vote plan is the wrong way to abolish the Electoral College. 108 Columbia Law Review 182. January 2008. Pages 182–230.

    [473] Butts v. City of New York Dept. of Housing Preservation and Development, 779 F.2d 141 at 148 (1985).

    [474] Dillard v. Crenshaw County, 831 F.2d 246 at 253 (11th Cir. 1987).

    [475] Southern Leadership Conference v. Siegelman, 714 F. Supp. 511 at 518 (M.D. Ala. 1989).

    [476] Gringer, David. 2008. Why the National Popular Vote plan is the wrong way to abolish the Electoral College. 108 Columbia Law Review 182. January 2008.

    [477] Letter dated January 13, 2012, concerning Assembly Bill 459 (the National Popular Vote compact) from T. Christian Herren of the Civil Rights Division of the Department of Justice to Robbie Anderson, Senior Elections Counsel of the state of California.

    [478] Statement signed by Professors Robert D. Loevy, Danial Clayton, Edward Roche, Robert M. Hardaway, Jim L. Riley, and Dennis Steele.

    [479] FairVote. 2006. Presidential Elections Inequality: The Electoral College in the 21st Century. http://www.fairvote.org/media/perp/presidentialinequality.pdf.

    [480] Letter dated January 13, 2012, concerning Assembly Bill 459 (the National Popular Vote compact) from T. Christian Herren of the Civil Rights Division of the Department of Justice to Robbie Anderson, Senior Elections Counsel of the state of California.

    [481] Evergreen Freedom Foundation. Olympia, Washington.

    [482] England, Trent. Op-Ed: Bypass the Electoral College? Christian Science Monitor. August 12, 2010.

    [483] Note that the Congressional Budget Office has nothing to do with elections, and that the Congressional Quarterly is a private publishing corporation.

    [484] Gregg, Gary. Keep Electoral College for fair presidential votes. Politico. December 5, 2012.

    [485] Appendices E, F, G, H, and I show examples of certificates of ascertainment from Minnesota, Maine, Nebraska, New York, and Mississippi. Figure 6.1 shows Vermont’s 2008 Certificate of Ascertainment. Figure 9.5 shows Oregon’s 2012 Certificate of Ascertainment. The Certificates of Ascertainment from all 50 states and the District of Columbia are available online for the 2000, 2004, and 2008 presidential elections. For the 2004 presidential election, see http://www.archives.gov/federal-register/electoral-college/2004/certificates_of_ascertainment.html.

    [486] Council of State Governments. 2003. Interstate Compacts and Agencies 2003. Lexington, KY: The Council of State Governments.

    [487] D.C. Code § 1-233.

    [488] D.C. Code § 24-452.

    [489] Title 4, Chapter 3, D.C. St § 4-326, June 27, 2000, D.C. Law 13-136, § 406, 47 DCR 2850.

    [490] Interestingly, the Council originally entered into this compact on an emergency 90-day temporary basis (by D.C. Council Act 14-0081) under the authority of section 412(a) of the Home Rule Act. The Council subsequently entered into this same compact (by D.C. Council Act A14-0317) under the authority of section 602(c)(1) of the Home Rule Act (providing for the usual 30-day congressional review period).

    [491] D.C. Code § 1-233.

    [492] P.L. 93-198 , 87 Stat. 774, (1973), codified at D.C. Statutes section 1-207.52.

    [493] In order to promote free-flowing debate of speculative ideas, the blog involved does not permit attribution. September 23, 2010.

    [494] U.S. Constitution. Article I, section 10, clause 3.

    [495] D.C. Code § 1-233.

    [496] Ross, Tara. The electoral college takes another hit. National Review. September 22, 2010. http://www.nationalreview.com/corner/247368/electoral-college-takes-another-hit-tara-ross.

    [497] Id.

    [498] The entire legislative history of bill B18-0769 is available at http://www.dccouncil.us/lims/legislation.aspx?LegNo=B18-0769.

    [499] District of Columbia Register. Volume 57. Page 9869.

    [500] Congressional Record. December 15, 2010. Page E2143.

    [501] There are variations on the district approach. For example, in the nation’s first presidential election in 1789, when Virginia had 12 electoral votes, Virginia chose electors from 12 special presidential elector districts. Virginia used this same system in 1789, 1792, and 1796. In 1892, Michigan chose one presidential elector from each of its 12 congressional districts and one additional elector from each of two special districts (each encompassing six congressional districts).

    [502] Gans, Curtis and Francis, Leslie. Why National Popular Vote is a bad idea. Huffington Post. January 6, 2012.

    [503] Thomas, A. C.; Gelman, Andrew; King, Gary; and Katz, Jonathan N. 2012. Estimating partisan bias of the Electoral College under proposed changes in elector apportionment. SSRN-id2136804. August 27, 2012.

    [504] The January 12, 1800, letter is discussed in greater detail and quoted in its entirety in section 2.2.3. Ford, Paul Leicester. 1905. The Works of Thomas Jefferson. New York, NY: G.P. Putnam’s Sons. 9:90.

    [505] Quinn, Bowman. Pennsylvania Electoral College proposal divides GOP officials, public. PBS News Hour. September 27, 2011. http://www.pbs.org/newshour/rundown/2011/09/republican-officials-divided-over-pennsylvania-electoral-college-proposal-slim-majority-of-public-op.html.

    [506] DeCoursey, Peter L. Specter bluntly says electoral change will cut fed funding for PA. Pennsylvania Capitol Wire. September 27, 2011. http://www.politicspa.com/927-morning-buzz/28145/.

    [507] Chron.com. September 17, 2011.

    [508] Wereschagin, Mike and Bumsted, Brad Bumsted. GOP plan could jeopardize Pennsylvania's political clout. Pittsburgh Tribune-Review. September 13, 2011. http://triblive.com/x/pittsburghtrib/news/regional/s_756446.html#axzz2FzxzjtKI.

    [509] Heidenreich, Sari and Gibson, Keegan. Less hawkish tone from Gleason, Priebus about Electoral College changes. PoliticsPA. September 17, 2011. http://www.politicspa.com/less-hawkish-tone-from-gleason-priebus-about-electoral-college-changes/27881/.

    [510] Yadron, Danny. Pete Sessions: Pa. Electoral College change would put house races at risk. September 15, 2011. http://blogs.wsj.com/washwire/2011/09/15/pete-sessions-pa-electoral-college-change-would-put-house-races-at-risk/?mod=WSJBlog&utm_source=twitterfeed&utm_medium=twitter.

    [511] Richie, Rob. Electoral College chaos: How Republicans could put a lock on the presidency. December 13, 2012. http://www.fairvote.org/electoral-college-chaos-how-republicans-could-put-a-lock-on-the-presidency.

    [512] Wilson, Reid. The GOP’s Electoral College scheme. National Journal. December 17, 2012. http://www.nationaljournal.com/columns/on-the-trail/the-gop-s-electoral-college-scheme-20121217.

    [513] Gibson, Keegan. House Republicans resurrect congressional-based Electoral College plan. PoliticsPA. December 20, 2012. http://www.politicspa.com/house-rs-resurrect-congressional-based-electoral-college-plan/44960/.

    [514] Oosting, Jonathan. Shake up the Electoral College? GOP proposal would have helped Mitt Romney win Michigan. MLive. December 18, 2012. http://www.mlive.com/politics/index.ssf/2012/12/shake_up_the_electoral_college.html.

    [515] Lund: Divide Electoral College votes by congressional district. Michigan Information and Research Service. December 17, 2012. www.mirsnews.com/alert.php?alert_id=1352.

    [516] Associated Press. Changes advocated in Pennsylvania electoral vote counting. PennLive. December 22, 2012. http://www.pennlive.com/midstate/index.ssf/2012/12/changes_advocated_in_pennsylva.html.

    [517] Nazworth, Napp. GOP operatives eye reversal of Democrats' Electoral College edge. Christian Post. December 20, 2012. http://www.christianpost.com/news/gop-operatives-eye-reversal-of-democrats-electoral-college-edge-87014/.

    [518] Lee, Tony. OH, VA Republicans Consider Changes to Electoral Vote System. Breitbart. December 10, 2012. http://www.breitbart.com/Big-Government/2012/12/10/OH-VA-Republicans-Float-Idea-Of-Getting-Rid-Of-Winner-Take-All-System-Of-Awarding-Electoral-Votes.

    [519] Marley, Patrick. Walker open to changing state’s Electoral College allocations. Milwaukee Journal Sentinel. December 22, 2012. http://www.jsonline.com/news/statepolitics/walker-open-to-changing-states-electoral-college-allocations-8884ck6-184566961.html.

    [520] Marley, Patrick. Vos previously backed changing electoral vote rules. Milwaukee Journal Sentinel. December 27, 2012. http://www.jsonline.com/news/statepolitics/vos-previously-backed-changing-electoral-vote-rules-jb865ct-184975431.html.

    [521] For more details, see section 3.2 and chapter 4.

    [522] As previously discussed in section 9.32.1, Senator Pileggi proposed the congressional-district approach for dividing Pennsylvania’s electoral votes in September 2011.

    [523] Varghese, Romy. Pennsylvania proposal may help Republicans win electoral votes. Bloomberg. December 3, 2012. http://www.bloomberg.com/news/2012-12-03/pennsylvania-proposal-may-help-republicans-win-electoral-votes.html.

    [524] The whole-number proportional approach can be implemented in several slightly different ways, depending how third parties, fractions, and round-offs are treated. Senator Pileggi did not release legislative language at the time of announcing his proposal in December 2012. The calculation here assumes use of the whole-number proportional approach as described in section 4.1 of this book and also assumes only two major-party candidates.

    [525] Richie, Rob. Electoral College chaos: How Republicans could put a lock on the presidency. December 13, 2012. http://www.fairvote.org/electoral-college-chaos-how-republicans-could-put-a-lock-on-the-presidency.

    [526] The whole-number proportional approach can be implemented in several slightly different ways, depending how fractions, round-offs, and third parties are treated. Senator Pileggi did not release legislative language for his 2012 proportional proposal as of the time of this writing. The calculation here assumes use of the whole-number proportional approach as described in chapter 4 of this book.

    [527] Levine, Clifford B. Hands off the Electoral College! Pittsburgh Post-Gazette. December 30, 2012. http://www.post-gazette.com/stories/opinion/perspectives/hands-off-the-electoral-college-668327/.

    [528] Williams, Norman R. Reforming the Electoral College: Federalism, majoritarianism, and the perils of subconstitutional change. 100 Georgetown Law Journal 173. November 2011. Pages 209–210.

    [529] Belenky, Alexander S. The Achilles Heel of the popular vote plan. Guest column. Daily News Tribune. January 30, 2009. http://www.dailynewstribune.com/opinion/x625264242/Belenky-The-Achilles-Heel-of-the-popular-vote-plan.

    [530] The last state to adopt the short presidential ballot was Vermont (in 1980).

    [531] The Colorado Constitution is unique in that it establishes the right of the people to vote for President (starting in 1880). Thus, legislation alone could not deprive the people of the right to vote for President in Colorado. Such a change would require a state constitutional amendment in Colorado.

    [532] These polls (and many others) are available on National Popular Vote’s web site at http://www.nationalpopularvote.com/pages/polls.

    [533] Williams, Norman R. Reforming the Electoral College: Federalism, majoritarianism, and the perils of subconstitutional change. 100 Georgetown Law Journal 173. November 2011. Pages 214–215.

    [534] Amar, Vikram David. 2011. Response: The case for reforming presidential elections by sub-constitutional means: The Electoral College, the National Popular Vote compact, and congressional power. 100 Georgetown Law Journal 237 at 249.

    [535] Gans, Curtis and Francis, Leslie. Why National Popular Vote is a bad idea. Huffington Post. January 6, 2012.

    [536] The figures are from the web page entitled “2012 General Election Turnout Rates” found at http://elections.gmu.edu/Turnout_2012G.html on December 31, 2012. The voter turnout figures are those for the number of ballots that were counted, except for Wisconsin where the highest office turnout rate was used.

    [537] America Goes to the Polls: A Report on Voter Turnout in the 2008 Election. Nonprofit Voter Engagement Network. 2008.

    [538] Bergan, Daniel E. et al. 2005. Grassroots mobilization and voter turnout in 2004. 69 Public Opinion Quarterly. Volume 69. Pages 760 and 772.

    [539] Page, Susan. Swing states poll: Amid barrage of ads, Obama has edge. USA Today. July 8, 2012.

    [540] Nivola, Pietro S. 2005. Thinking About Political Polarization. Washington, DC: The Brookings Institution. Policy Brief 139. January 2005.

    [541] Voter turnout is adversely affected in non-battleground states because voters of both parties in such states realize that their votes do not matter in presidential elections. As reported by the Committee for the Study of the American Electorate, “Turnout in battleground states increased by 6.3 percentage points, while turnout in the other states (and the District of Columbia) increased by only 3.8 percentage points.” See Committee for the Study of the American Electorate. President Bush, mobilization drives propel turnout to post-1968 high. November 4, 2004.

    [542] Bipartisan Policy Center examines voter turnout statistics. C-SPAN. November 9, 2012. Quotation from Curtis Gans appears at time stamp of 36 minutes into program.

    [543] Written testimony submitted by Tara Ross to the Delaware Senate in June 2010.

    [544] Evergreen Freedom Foundation. 2010. Olympia, Washington.

    [545] Panel discussion at the Commonwealth Club in San Francisco on October 24, 2008.

    [546] Debate entitled “Should We Dispense with the Electoral College?” sponsored by PENNumbra (University of Pennsylvania Law Review) available at http://www.pennumbra.com/debates/pdfs/electoral_college.pdf.

    [547] Lowenstein includes Thomas Jefferson on his list even though the Electoral College defeated Jefferson in 1796.

    [548] New Hampshire, Maryland, and Pennsylvania used the winner-take-all rule in the nation’s first presidential election (1789) and in the second (1792).

    [549] Only Virginia used the winner-take-all rule in the 1800 election. The legislatures of New Hampshire and Pennsylvania directly appointed presidential electors in 1800, and Maryland switched to a district system in 1796.

    [550] McConnell, Mitch. The Electoral College and National Popular Vote Plan. December 7, 2011. Washington, DC.

    [551] Wilson, Jennings Jay. 2006. Bloc voting in the Electoral College: How the ignored states can become relevant and implement popular election along the way. 5 Election Law Journal 384 at 387.

    [552] Debate at the League of Women Voters of Larimer County, Colorado on June 28, 2012, involving Professor Robert Hardaway of University of Denver Sturm College of Law, Professor Robert Hoffert of Colorado State University, Elena Nuñez of Common Cause of Colorado, and Patrick Rosenstiel of Ainsley-Shea. YouTube video at 31:53. http://www.youtube.com/watch?v=U_yCSqgm_dY.

    [553] Our response to Professor Hardaway’s claim that the National Popular Vote compact would involve only 13 states is covered in section 9.1.23. Our response to Professor Hardaway’s claim that the National Popular Vote compact is a “conspiracy” is covered in section 9.16.8.

    [554] WND Exclusive: Gore’s ‘popular vote’ scheme to ensure Democrat rule? Plan would see majority-Dem states decide presidency for all voters. WND. August 31, 2012. http://www.wnd.com/2012/08/gores-popular-vote-scheme-to-ensure-democrat-rule/.

    [555] Tancredo, Tom. Should every vote count? November 11, 2011. http://www.wnd.com/index.php?pageId=366929.

    [556] Detailed reports on all of these polls (and others), including the cross-tabs, are available at the web site of National Popular Vote at http://www.nationalpopularvote.com/pages/polls.php.

    [557] The exception is that George W. Bush carried New Hampshire in 2000.

    [558] The exception is that Bill Clinton carried Montana in 1992 (undoubtedly because of Ross Perot’s presence on the ballot).

    [559] A 46%–54% margin is generally viewed as the boundary that places a state out of reach for the opposition during a typical presidential campaign (as discussed in section 1.2.1). Thus, the Democrats secured all the electoral votes from these three states (Delaware, Hawaii, and Maine) without having to devote any effort or money to win them.

    [560] Nebraska awards three of its five electoral votes by congressional district. In 2008, Barack Obama won one electoral vote by carrying the 2nd congressional district of Nebraska (the Omaha area). Thus, Nebraska’s electoral votes in 2008 were divided 4–1 in favor of McCain. In 2012, Governor Romney won all three of Nebraska’s congressional districts.

    [561] Tancredo, Tom. Should every vote count? November 11, 2011. http://www.wnd.com/index.php?pageId=366929.

    [562] Von Spakovsky, Hans A. Protecting Electoral College from popular vote. Washington Times. October 26, 2011.

    [563] See table 2.1 for the distribution of electoral votes for the elections between 1992 and 2020.

    [564] Arizona has voted Republican in every presidential election since 1952, except for Johnson’s win in 1964 and Clinton’s win in 1996, Obama lost Arizona in 2008 by only 8%, despite Arizona being John McCain’s home state. The Obama campaign tested the waters in Arizona in 2012 to determine whether it might become a battleground state. The growth of the state’s Hispanic population has suggested that Arizona might soon become a battleground state. As a result, the Obama campaign opened numerous campaign offices in Arizona in early 2012. However, Arizona did not become a battleground state in 2012. The 2012 Obama campaign made similar explorations in Georgia.

    [565] Mahtesian, Charles. Obama’s Texas battleground prediction. Politico. July 18, 2012.

    [566] Hallman, Tristan. Obama: Texas will be a battleground state “soon.” Dallas Morning News. July 17, 2012. The quote from Obama was “You’re not considered one of the battleground states, although that’s going to be changing soon.”

    [567] Von Spakovsky, Hans A. Protecting Electoral College from popular vote. Washington Times, October 26, 2011.

    [568] McConnell, Mitch. The Electoral College and National Popular Vote Plan. December 7, 2011. Washington, DC.

    [569] Note that Gillespie’s statement that the 11 biggest states possessed 56% of the nation’s population was correct according to the 2000 census, but not according to the 2010 census. Hence, criticisms of this genre are couched in terms of both 11 and 12 states.

    [570] Gillespie, Ed. National Popular Vote compact won't be popular, or democratic. Washington Examiner. January 30, 2012.

    [571] Letter dated June 29, 2011.

    [572] Belenky, Alexander S. 2008. A 0-1 knapsack model for evaluating the possible Electoral College performance in two-party U.S. presidential elections. Mathematical and Computer Modelling. Volume 48. Pages 665–676.

    [574] In 2004, Bush received 62,040,610 votes nationwide and Kerry received 59,028,439 votes. Bush’s nationwide margin of victory was 3,012,171 votes. Bush received 51.2% of these 121,069,049 votes.

    [575] In 2012, Obama received 65,897,727 votes nationwide and Romney received 60,930,782 votes. Obama’s nationwide margin of victory was 4,966,945 votes. Obama received 51.96% of these 126,828,509 votes.

    [576] The 2012 election returns shown in table 9.35, table 9.36, table 9.45, and appendix HH were obtained from the National Archives and Record Administration (NARA) web site at http://www.archives.gov/federal-register/electoral-college/2012/popular-vote.html. The NARA web site presents the number of votes shown on each state’s Certificate of Ascertainment. There are two differences between our tables and that on the NARA web site. First, the NARA web site presents votes by party, whereas our table is based on votes by candidate. This difference in treatment creates a difference in the case of New York (which uses fusion voting). The NARA web site (as of January 4, 2013) showed the 141,056 votes that the Obama-Biden slate received on the Working Families Party line (and contained in New York’s Certificate of Ascertainment) as minor-party votes in column 6 of their table, instead of showing these votes as Obama-Biden votes in column 2 of their table. Similarly, the web site shows the 256,171 votes that the Romney-Ryan slate received on the Conservative Party line as minor-party votes in column 6, instead of showing these votes as Romney-Ryan votes in column 3. Our table puts these Obama-Biden votes and Romney-Ryan votes in columns 2 and 3, respectively, in conformity with the practice of the New York State Board of Elections. Thus, our table shows (in column 6) only 8,652 votes for minor-party candidates in New York. See section 2.10 for additional details on fusion in New York and figure 2.11 for an example of a presidential ballot in New York. Secondly, our table reflects the adjustment (certified on December 31, 2012) to New York state’s vote totals resulting from the fact that an executive order issued on the evening before Election Day allowed voters in counties affected by Hurricane Sandy to cast a provisional ballot at any polling place in the state. A total of 400,629 additional ballots (over 300,000 in New York City alone) were counted as a result of this executive order.

    [577] Samples, John. A Critique of the National Popular Vote Plan for Electing the President. Cato Institute Policy Analysis No. 622. October 13, 2008.

    [578] The debate at the Sutherland Institute on January 20, 2012, in Salt Lake City involved Dr. John R. Koza, Chair of National Popular Vote, Claremont College Professor Michael Uhlmann, and Trent England (a lobbyist opposing the National Popular Vote compact and Vice-President of the Evergreen Freedom Foundation of Olympia, Washington). The event was moderated by Sutherland President Paul T. Mero.

    [579] The Nielsen “Live+3” ratings track both live airings and DVR playback (through 3:00 A.M.). Based on November 2011 DMA.

    [580] Shapiro, Ari. Ads slice up swing states with growing precision. NPR. September 24, 2012. http://www.npr.org/2012/09/24/161616073/ads-slice-up-swing-states-with-growing-precision.

    [581] Edwards, George C., III. 2011. Why the Electoral College Is Bad for America. New Haven, CT: Yale University Press. Second edition. Page 46.

    [582] U.S. Constitution. Article I, section 2, clause 3. The provisions concerning indentured servants, “Indians not taxed,” and slaves (“other persons”) are not applicable today.

    [583] No doubt, the reason why the Constitution specified that the census would count “persons,” instead of trying to count eligible voters, was that the states had complicated and widely varying criteria for voter eligibility in 1787. In most states, eligibility depended on property, wealth, or income. Moreover, the requirements for voting often differed for the lower versus upper house of the state legislature.

    [584] The mathematical formula is presented at https://www.census.gov/population/apportionment/about/computing.html. The history of methods used to apportion seats in the U.S. House of Representatives is discussed at https://www.census.gov/population/apportionment/about/history.html. The U.S. Supreme Court upheld the constitutionality of the “method of equal proportions” in 1992 in Department of Commerce v. Montana (112 S.Ct. 1415) and Franklin v. Massachusetts (112 S.Ct. 2767).

    [585] Steinhorn, Leonard. Without voting, noncitizens could swing the election for Obama. Washington Post. October 5, 2012.

    [586] Bishop, Bill. 2008. The Big Sort: Why the Clustering of Like-Minded America Is Tearing Us Apart. Boston, MA: Houghton Mifflin Harcourt.

    [587] Nine of the states in table 9.41 that voted Democratic once or twice between 1992 and 2012 did so during the Clinton years. Since then, these nine states have voted Republican in presidential elections consistently between 2000 and 2012. These nine states are Arkansas, Kentucky, Louisiana, Missouri, Tennessee, West Virginia, Arizona, Georgia, and Montana. Thus, there are 41 states that have voted for the same party between 2000 and 2012.

    [588] Written testimony submitted by Tara Ross to the Delaware Senate in June 2010.

    [589] Von Spakovsky, Hans. Destroying the Electoral College: The Anti-Federalist National Popular Vote Scheme. Legal memo. October 27, 2011. http://www.heritage.org/research/reports/2011/10/destroying-the-electoral-college-the-anti-federalist-national-popular-vote-scheme.

    [590] 2012 Republican National Platform adopted in Tampa, Florida, on August 28, 2012.

    [591] The four states involved are Florida (29 electoral votes), Ohio (18), New Hampshire (4), and Virginia (13). They cumulatively possess 64 electoral votes. A shift of 64 electoral votes would have given Mitt Romney the 270 electoral votes needed for election. See appendix HH for the two-party results of the 2012 election. Table 9.45 presents the presidential vote for Barack Obama (Democrat), Mitt Romney (Republican), Gary Johnson (Libertarian), Jill Stein (Green), and the other 22 minor-party and independent candidates who were on the ballot in 2012 in at least one state.

    [592] Tancredo, Tom. Should every vote count? November 11, 2011. http://www.wnd.com/index.php?pageId=366929.

    [593] Congressional Record. March 14, 1979. Page 5000.

    [594] 2012 Republican National Platform adopted in Tampa, Florida, on August 28, 2012.

    [595] The number of electoral votes shown here are those applicable to the 2012 presidential election.

    [596] Written testimony submitted by Tara Ross to the Delaware Senate in June 2010.

    [597] Rove, Karl. Romney’s roads to the White House: A 3-2-1 strategy can get him to the magic 270 electoral votes. Wall Street Journal. May 23, 2012.

    [598] Rosenbaum, David E. The 2000 campaign: The Battlegrounds: Florida interstate’s heavy campaign traffic. New York Times. October 25, 2000.

    [599] Brad T. Gomez, Brad T.; Hansford, Thomas G.; and Krause, George A. 2007. The Republicans should pray for rain: weather, turnout, and voting in U.S. Presidential Elections. The Journal of Politics. Volume 69, number 3. August 2007. Pages 649–663.

    [600] Wand, Jonathan N.; Shotts, Kenneth W.; Sekhon, Jasjeet S.; Mebane, Walter R.; Herron, Michael C.; and Brady, Henry E. The butterfly did it: The aberrant vote for Buchanan in Palm Beach County, Florida. American Political Science Review. Volume 95. Number 1. December 2001. sekhon.berkeley.edu/elections/election2000/butterfly.review.pdf.

    [601] Kramer, Michael. Bush set to fight an electoral college loss: They’re not only thinking the unthinkable, They’re planning for it. New York Daily News. November 1, 2000. http://articles.nydailynews.com/2000-11-01/news/18145743_1_electoral-votes-popular-vote-bush-aide.

    [602] Eligon, John. Kansas ballot challenge over Obama’s birth is ended. New York Times. September 14, 2012.

    [603] Valarauko. October 20, 2012. http://www.volokh.com/2012/10/30/the-popular-vote-and-presidential-legitimacy/

    [604] Rutenberg, Jim. Spoiler alert! G.O.P. fighting Libertarian’s spot on the ballot. New York Times. October 15, 2012.

    [605] U.S. Constitution. Article IV, section 4, clause 1.

    [606] Von Spakovsky, Hans. Destroying the Electoral College: The Anti-Federalist National Popular Vote Scheme. Legal memo. October 27, 2011. http://www.heritage.org/research/reports/2011/10/destroying-the-electoral-college-the-anti-federalist-national-popular-vote-scheme.

    [607] 41 Annals of Congress 169–170. 1824.

    [608] The 2012 election returns shown in table 9.35, table 9.36, table 9.45, and appendix HH were obtained from the National Archives and Record Administration (NARA) web site at http://www.archives.gov/federal-register/electoral-college/2012/popular-vote.html. The NARA web site presents the number of votes shown on each state’s Certificate of Ascertainment. There are two differences between our tables and that on the NARA web site. First, the NARA web site presents votes by party, whereas our table is based on votes by candidate. This difference in treatment creates a difference in the case of New York (which uses fusion voting). The NARA web site (as of January 4, 2013) showed the 141,056 votes that the Obama-Biden slate received on the Working Families Party line (and contained in New York’s Certificate of Ascertainment) as minor-party votes in column 6 of their table, instead of showing these votes as Obama-Biden votes in column 2 of their table. Similarly, the web site shows the 256,171 votes that the Romney-Ryan slate received on the Conservative Party line as minor-party votes in column 6, instead of showing these votes as Romney-Ryan votes in column 3. Our table puts these Obama-Biden votes and Romney-Ryan votes in columns 2 and 3, respectively, in conformity with the practice of the New York State Board of Elections Thus, our table shows (in column 6) only 8,652 votes for minor-party candidates in New York. See section 2.10 for additional details on fusion in New York and figure 2.11 was an example of a presidential ballot in New York. Secondly, our table reflects the adjustment (certified on December 31, 2012) to New York state’s vote totals resulting from the fact that an executive order issued on the evening before Election Day allowed voters in counties affected by Hurricane Sandy to cast provisional ballot at any polling place in the state. A total of 400,629 additional ballots (over 300,000 in New York City alone) were counted as a result of this executive order.

    [609] See the discussion of the 1888 election in section 9.8.3.

    [610] Publius. The structure of the government must furnish the proper checks and balances between the different departments. Independent Journal. February 6, 1788. Federalist No. 51.

    [611] Gringer, David. 2008. Why the National Popular Vote plan is the wrong way to abolish the Electoral College. 108 Columbia Law Review 182. January 2008. Pages 219–220.

    [612] Kramer, Michael. Bush set to fight an electoral college loss: They’re not only thinking the unthinkable, They’re planning for it. New York Daily News. November 1, 2000. http://articles.nydailynews.com/2000-11-01/news/18145743_1_electoral-votes-popular-vote-bush-aide.

    [613] Cohn, Nate. 2012. No, we don’t have evidence of an Obama advantage in the Electoral College. The New Republic. June 27, 2012.

    [614] Silver, Nate. State and national polls tell different tales about state of campaign. FiveThirtyEight column in New York Times. July 24, 2012.

    [615] The 1992 poll was cited in Stanley, Timothy. Why Romney is stronger than he seems. CNN Election Center. April 10, 2012.

    [616] Von Spakovsky, Hans A. Protecting Electoral College from popular vote. Washington Times. October 26, 2011.

    [617] Detailed reports on the polls, including the cross-tabs, are available on the web site of National Popular Vote at http://www.nationalpopularvote.com/pages/polls.php.

    [618] Dobracki, Thaddeus. The Morning Call. September 21, 2012. http://discussions.mcall.com/20/allnews/mc-electoral-college-madonna-young-yv--20120920/10?page=2.

    [619] White, Theodore H. 1969. The Making of the President 1968. New York, NY: Atheneum Publishers. Page 7.

    [620] See the tabulation of statewide polls found at the web site using the Gott-Colley median method of analyzing poll statistics at http://www.colleyrankings.com/election2012/.

    [621] The weather and the election. 2008. Oklahoma Weather Lab at the University of Oklahoma. http://hoot.metr.ou.edu/archive/story&docId=21. See also http://www.thorntonweather.com/blog/local-news/will-the-weather-determine-the-next-president/. See section 9.31.13 for a quotation from the Gomez article from the August 2007 issue of Journal of Politics.

    [622] Brad T. Gomez, Brad T.; Hansford, Thomas G.; and Krause, George A. 2007. The Republicans should pray for rain: weather, turnout, and voting in U.S. Presidential Elections. The Journal of Politics. Volume 69, number 3. August 2007. Pages 649–663.

    [623] Herb, Jeremy. Former Gov. Barbour: Hurricane Sandy broke Romney’s momentum. The Hill. November 4, 2012.

    [624] Written testimony submitted by Tara Ross to the Vermont Committee on Government Operations. February 9, 2011.

    [625] Williams, Norman R. Reforming the Electoral College: Federalism, majoritarianism, and the perils of subconstitutional change. 100 Georgetown Law Journal 173. November 2011. Page 204.

    [626] Dubin, Michael J. 2003. United States Gubernatorial Elections 1776–1860. Jefferson, NC: McFarland & Company. Page xx.


    167 http://www.fairvote.org/following-the-money-campaign-donations-and-spending-in-the-2008-presidential-race.

    Reform the Electoral College so that the electoral vote reflects the nationwide popular vote for President