on July 12, 2010, Douglas Jones wrote:
I believe that the National Popular Vote opens a can of worms.
Specifically, despite the fact that the NPV is being adopted on a state-by-state basis for the election of state electors, I believe it will face a challenge under Federal law because the different states have differing standards for who can vote and differing standards for what votes are counted. In effect, NPV under current state election laws is not consistent with one-man-one-vote.
I believe this will lead, invariably, to a court challenge as soon as a presidential election is held with NPV rules selecting enough electors to determine the outcome. I can only see two possible outcomes:
1) A court ruling against the states’ right to use NPV.
2) A court ruling requiring uniform election standards nationwide.
Option 2 would effectively federalize the conduct of elections for President, requiring the federal government to put into place a system of strong regulation, preempting the states right to set standards for voter registration, ballot interpretation and election conduct.
Option 2 would traumatic. The Federal government does not have the machinery in place to do what would be required, and the states have deeply entrenched election administrations and a deep tradition of states rights in this domain.
Disclaimer: These opinions are mine and do not necessarily reflect the opinions of any institutions with which I may be affiliated, including but not limited to the University of Iowa and the Technical Guidelines Development Committee.
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Doug Jones Bio from Wikipedia: Douglas W. Jones is a computer scientist at the University of Iowa. His research focuses primarily on computer security, particularly electronic voting. He has also contributed to the field of computer architecture, including an implementation of a one instruction set computer.
Jones’ involvement with electronic voting research began in 1994, when he was appointed to the Iowa Board of Examiners for Voting Machines and Electronic Voting Systems. He chaired the board from 1999 to 2003, and has testified before the United States Commission on Civil Rights, the United States House Committee on Science and the Federal Election Commission on voting issues. In 2005 he participated as an election observer for the presidential election in Kazakhstan. He is currently a member of the ACCURATE electronic voting project.
Jones received a B.S. in physics from Carnegie Mellon University in 1973, and a M.S. and Ph.D. in computer science from the University of Illinois at Urbana–Champaign in 1976 and 1980 respectively.
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4 thoughts on “Professor Doug Jones on National Popular Vote – two possible outcomes”
The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).
Every vote, everywhere, would be politically relevant and equal in presidential elections. Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states.
The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes–that is, enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).
The bill uses the power given to each state by the Founding Fathers in the Constitution to change how they award their electoral votes for president.
The bill has been endorsed or voted for by 1,922 state legislators (in 50 states) who have sponsored and/or cast recorded votes in favor of the bill.
In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state's electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). The recent Washington Post, Kaiser Family Foundation, and Harvard University poll shows 72% support for direct nationwide election of the President. Support for a national popular vote is strong in virtually every state, partisan, and demographic group surveyed in recent polls in closely divided battleground states: Colorado– 68%, Iowa –75%, Michigan– 73%, Missouri– 70%, New Hampshire– 69%, Nevada– 72%, New Mexico– 76%, North Carolina– 74%, Ohio– 70%, Pennsylvania — 78%, Virginia — 74%, and Wisconsin — 71%; in smaller states (3 to 5 electoral votes): Alaska — 70%, DC — 76%, Delaware –75%, Maine — 77%, Nebraska — 74%, New Hampshire –69%, Nevada — 72%, New Mexico — 76%, Rhode Island — 74%, and Vermont — 75%; in Southern and border states: Arkansas –80%, Kentucky — 80%, Mississippi –77%, Missouri — 70%, North Carolina — 74%, and Virginia — 74%; and in other states polled: California — 70%, Connecticut — 74% , Massachusetts — 73%, Minnesota — 75%, New York — 79%, Washington — 77%, and West Virginia- 81%.
The National Popular Vote bill has passed 30 state legislative chambers, in 20 small, medium-small, medium, and large states, including one house in Arkansas, Connecticut, Delaware, Maine, Michigan, Nevada, New Mexico, New York, North Carolina, and Oregon, and both houses in California, Colorado, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, Rhode Island, Vermont, and Washington. The bill has been enacted by Hawaii, Illinois, New Jersey, Maryland, and Washington. These five states possess 61 electoral votes — 23% of the 270 necessary to bring the law into effect.
The Founding Fathers only said in the U.S. Constitution about presidential elections (only after debating among 60 ballots for choosing a method): “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .” The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”
Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all rule) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation's first presidential election.
In 1789, in the nation's first election, the people had no vote for President in most states, Only men who owned a substantial amount of property could vote.
In 1789 only three states used the state-by-state winner-take-all rule to award electoral votes.
There is no valid argument that the winner-take-all rule is entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The current 48 state-by-state winner-take-all rule (i.e., awarding all of a state's electoral votes to the candidate who receives the most popular votes in a particular state) is not mentioned in the U.S. Constitution, the debates of the Constitutional Convention, or the Federalist Papers. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all rule.
The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding the state's electoral votes.
As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all rule is used by 48 of the 50 states.
The U.S. Constitution does not require that the election laws of all 50 states are identical in virtually every respect. The Equal Protection Clause of the 14th Amendment only restricts a given state in the manner it treats persons “within its jurisdiction.” The Equal Protection Clause imposes no obligation on a given state concerning a “person” in another state who is not “within its [the first state's] jurisdiction.” State election laws are not identical now nor is there anything in the National Popular Vote compact that would force them to become identical. Indeed, the U.S. Constitution specifically permits diversity of election laws among the states because it explicitly gives the states control over the conduct of presidential elections (article II) as well as congressional elections (article I). The fact is that the Founding Fathers and the U.S. Constitution permits states to conduct elections in varied ways.
A survey of 800 North Carolina voters conducted on December 17-18, 2008 showed 74% overall support for a national popular vote for President.
Support was 75% among liberal Democrats (representing 13% of respondents), 78% among moderate Democrats (representing 24% of respondents), 76% among conservative Democrats (representing 11% of respondents), 89% among liberal Republicans (representing 3% of respondents), 62% among moderate Republicans (representing 16% of respondents), 70% among conservative Republicans representing 21% of respondents), and 80% among independents (representing 12% of respondents).
Support was 75% among respondents living in Democratic state House of Representative districts (representing 59% of respondents) and 72% among respondents living in Republican state House of Representative districts (representing 41% of respondents)
By age, support was 69% among 18-29 year olds, 71% among 30-45 year olds, 77% among 46-65 year olds, and 72% for those older than 65.
By gender, support was 81% among women and 65% among men.