National Popular Vote | CTVotersCount.org

Lessons we likely will NOT learn from Iowa

There is a lot of lessons that could be learned from Iowa. Yet we may not learn them. On the other hand we may learn other lessons. In no particular order:

Bernie and Pete both won…
Change anything in the rules, and the result is likely to have been different…
People tend to tout their favorite reform as a cure for any crisis….

The bottom line: Be careful what you ask for, the cure may be worse than the disease. Its complicated. Don’t let a crisis go to waste, but avoid knee-jerk solutions.

“‘It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” – Mark Twain

There is a lot of lessons that could be learned from Iowa. Yet we may not learn them. On the other hand we may learn other lessons. As Mark Twain said “‘It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.”

In no particular order:

Bernie and Pete both won. We go crazy over exactly who won by a few votes or delegates. Sometimes it is critical and important, like in a close election where we need to declare a winner. Not in a single primary where one or a couple delegates are hardly likely to make a difference in the end. Pursue every vote, count everything as accurately as possible. Pursue every irregularity and act on that (unfortunately, that often does not happen.) No matter if Bernie won by 0.2% or Mayor Pete did, they both won. It is amazing the Pete came from nowhere and did so well. It is amazing that Bernie, with obstacle after obstacle placed in his way by the DNC and the media, rose to the top.
Change anything in the rules, and the result is likely to have been different.
Did Bernie win the popular vote? No more than Hillary did in 2016. That will likely outrage my democrat and Bernie friends, yet it is true for several reasons that we do not know. First, this is a town by town delegate contest. That is the rules. The turnout at the caucuses varies from district to district far from the population, and far from November. Those that propose the National Popular Vote claim that would cause more people to vote – more Democrats in blue states, more Republicans in red states, yet also more Democrats in red states, more Republicans in blue states – they are correct. Yet,nobody knows what the results of a true popular vote would have been in either case. Second, more in the case of Hillary or Al Gore, than in Iowa – there is very little scrutiny of the exact vote, no audit across the country. Who cares if Hillary won by 3,000,000 votes in CA or 2,500,000 or 200,000 in CT or 250,000. We do not have an accurate popular vote number for 2016 or 2000 or for any other year for that matter. Change the rules and it would matter.
People tend to tout their favorite reform as a cure for any crisis. This week, one reputedly smart state representative claimed that Iowa was a case for paper ballots. I agree we need paper ballots everywhere, yet Iowa had paper ballots. Even better the caucus votes were held in public so there was no question that the ballots were correct and not compromised in the reported vote count. That same representative votes in the General Assembly all the time without paper ballots. They push a button and it lights up a screen. That is a very transparent, publicly verifiable vote, closer to the Iowa caucus than elections in Connecticut, much safer than any secret voting system. Regularly in Connecticut insiders and political operative steal votes via absentee, almost as regularly that is used as a reason to call for more main-in voting.
Many say Iowa is a reason to get rid of caucuses. I agree.
Many say Iowa is a reason for Ranked Choice Voting. Actually the Iowa system is more like Ranked Choice Voting than winner take all. Like Ranked Choice Voting it takes more math and accuracy to determine the results, it makes close votes more likely, not just in the end, but at every round where a close vote can determine the ultimate result in a caucus or a RCV. RCV can take much longer for results to be determined. Errors in single RCV precincts are much more likely to effect the final result than in the Iowa Caucus.
Elections are complex, people don’t know that. It is hard to account for over 1700 precincts. It is hard to manage dozens or hundreds of people and count their votes correctly in a caucus. Its hard to apply the difficult equations to determine deligates accurately, in the environment of a caucus. It is hard to double check all that. Especially hard since there apparently is no training for caucus leaders, many recruited the day before. Hard to get 1700+ of those counts all correct, add them up and double check them. Hard for a candidate to have individuals in every precinct to collect the data, verify the vote counts, verify the formulas and get all that information to the campaign and then for the campaign to redo and double check that information.
May say Connecticut is better off because we have trained election officials. They are mostly correct. Yet, how do you know there are no errors in the results from Connecticut? How many inaccurate results are reported? In how many cases are results reported with more votes than voters signed in? In how many cases are more voters signed in than ballots counted? I do not know the answers exactly, yet there are many in every November election. Many times they do not matter when contests are decided by many votes. Yet in many cases they do matter. A rare example from 2018 where such a situation was uncovered, investigated and ultimately not remedied.
The Iowa app was a badly botched system implementation, with no real backup. Yet a few years ago Connecticut’s Secretary of the State tried to mandate a system where polling place moderators would put in all our results on election night with smart phones – with greatly tired officials who had worked a 17 hour day, with many times the small number of results posted from each caucus. That system was stopped by an uprising from election officials, who should have been part of designing the system. That took a couple of years for them to be heard by the Secretary’s Office who blamed the officials as being against technology. We now have a pretty good system that uses fresh staff with laptops in town hall to enter data using laptops, not smart phones. Yet that system took a couple of years of Novembers to work out all the bugs to work well enough to be mandated to every town.
Connecticut is fine. Until the next thing happens. Then the Secretary of the State will again say it was outside her responsibility as Chief Election Official, ask for more power and laws to prevent that specific problem. All will be well until the next thing happens…
Having paper ballots and checkin lists means we can resolve most issues, yet it will take time. Maybe weeks. Yet we cannot resolve all problems, missing ballots, voter suppression, screw-ups like the one in Stratford above, illegal absentee ballots etc. We need better plans and processes to resolve those issues, including more re-voting.

The bottom line: Be careful what you ask for, the cure may be worse than the disease. Its complicated. Don’t let a crisis go to waste, but avoid knee-jerk solutions.

“‘It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” – Mark Twain

We Told You So Dept: NPV Compact Author Admits One of Its Flaws

In the hypothetical that all states agreed to the compact, Aram thinks some election reforms would be in order:

“One of the things that I think should be done, that would need to be done, after enough states sign onto this but before it goes into effect – there should be some standardization of the balloting process, and the counting process, so we can get a reliable national tally.”..

“I’ve advocated for states to adopt this idea, but defer implementation until say 2032. So, Florida would adopt it today, but say ‘our adoption takes effect when you get to 270, but no earlier than 2032,” Amar said. “That would both give Congress time, in the meanwhile, to iron out any logistical wrinkles of the kind that you just mentioned. And it would also defuse the wrongheaded, but persistent, assumption that some people have that this is going to help one political party and hurt the other.”

Unfortunately, his recommendations do not go far enough to cure the problem he now recognizes..

Testimony in FL by Prof Vik Amer: Bill Looks To Create ‘National Popular Vote,’ Lawmakers Hear From One Of The Idea’s Authors <read/listen>

In the hypothetical that all states agreed to the compact, Aram thinks some election reforms would be in order:

“One of the things that I think should be done, that would need to be done, after enough states sign onto this but before it goes into effect – there should be some standardization of the balloting process, and the counting process, so we can get a reliable national tally.”

That kind of overhaul would take time. For that reason and others, Aram wants his plan to have a delayed implementation.

“I’ve advocated for states to adopt this idea, but defer implementation until say 2032. So, Florida would adopt it today, but say ‘our adoption takes effect when you get to 270, but no earlier than 2032,” Amar said. “That would both give Congress time, in the meanwhile, to iron out any logistical wrinkles of the kind that you just mentioned. And it would also defuse the wrongheaded, but persistent, assumption that some people have that this is going to help one political party and hurt the other.”

Unfortunately, his recommendations do not go far enough to cure the problem he now recognizes. To implement the NPV there needs to be a Constitutional Amendment and reform of the Electoral Count Act. We would need a sufficient uniform system, uniform franchise, enforceable and enforced to make a national popular vote system that would truly make every vote equal and verifiable. For more see our latest testimony before the CT General Assembly <read>

NPV Compact – for the 7th or 8th time: It sounds good but has Unintended Consequences

On Monday we testified against the National Popular Vote Compact. We have been testifying against it since it was first proposed in Connecticut in 2007. There are two companion bills, you can link to them from our testimony. We have been saying pretty much the same things for the last several years. Each year we hone our testimony a bit and listen to new and predominant arguments from the proponents and make small adjustments.

As I have said many times, most of the democrats (and my friends) who support the Compact are wrong. And most of the Republicans opposed, are opposed for the wrong reason. Unlike the National “Experts” that fly in each year to testify, I provide complete testimony with facts that they have not successfully disputed since 2007.

On Monday we testified against the National Popular Vote Compact. We have been testifying against it since it was first proposed in Connecticut in 2007. There are two companion bills, you can link to them from our testimony <here> We have been saying pretty much the same things for the last several years. Each year we hone our testimony a bit and listen to new and predominant arguments from the proponents and make small adjustments. Here is the excerpt I spoke on Monday, with the changes for this year highlighted:

Chairs and members of the Committee, my name is Luther Weeks, Executive Director of CTVotersCount. I am a computer scientist and a certified election moderator.

I understand the theoretical advantages of the national popular vote, yet there are extreme risks in its mismatch with our existing state-by-state voting system.

Many concepts such as Nuclear Power, GMOs, DDT, and Fracking have benefits, but also have unintended, unrecognized, and unappreciated consequences. This Compact is another.

What often appears simple is not. The Compact would cobble the national popular vote onto a flawed system designed for the Electoral College. It does not change that system. It magnifies the risks.

Developments since the 2016 election make the real dangers more apparent than ever. Most recently the risks of cyber vulnerability from foreign, domestic, and other actors. After the 2016 election, citizens and a candidate attempted to obtain recounts in three closely contested states, (Wisconsin, Minnesota, and Pennsylvania). Apparent, is a flawed system with errors and uncertainty, ultimately unable to prove accuracy and integrity, with strong official resistance to audits and recounts.

Six major concerns with the Compact include:

The 12^th Amendment and the Electoral Count Act govern declaring the President. They have been called a “Ticking Time Bomb” because of strict, yet, ambiguous rules, causing problems seen in 1876 and 2000. The Compact would exacerbate that risky system. (see page 6)

There is no official national popular vote number compiled in time, such that it could be used to officially and accurately determine the winner in any close election. (see page 3)

Even if there were such a number, it would aggravate the flaws in the system. The Electoral College limits the risks and damage to a few swing states. With the National Popular Vote Compact, errors, voter suppression, and fraud in all states would count against the national totals. (see page 5)

There is no national audit or recount available for close elections, to establish an accurate popular vote number. (see page 4)

With the Compact there is every reason to believe that any close election would be decided by partisian action of the Congress or the Supreme Court, as in Gore v. Bush. (see page 6)

This Compact will not make every voter equal.

Recently proponents of the Compact have highlighted the fact that the “U.S. Presidential election is the only U.S. election not decided by popular vote.”

Note that it is also the only U.S. election decided by a voting system that is not uniform in voting methods and franchise, and with votes not subject to uniform adjudication and totaling.” With the Compact, it would be the only such election in the World.

I urge you to consider the risks and chaos made possible if Connecticut were to endorse the National Popular Vote Compact, including reading the attached editorials and detailed arguments.

Thank You

As I have said many times, most of the democrats (and my friends) who support the Compact are wrong. And most of the Republicans opposed, are opposed for the wrong reason:

I would support a national popular vote amendment to the U.S. Constitution, if and only if, it provided for a uniform franchise, required sufficient voting systems, sufficient audits and recounts nationwide. And sufficient laws that were enforceable and enforced to provide a trustworthy and trusted national popular vote number. Those ifs are a large leap for our democracy, yet are reasonable, economical, realistic requirements to achieve trustworthy democracy,

Unlike the National “Experts” that fly in each year to testify, I provide complete testimony with facts that they have not successfully disputed since 2007. The experts got about 30min, 90min, and 105min of testimony and questions. I got 3min. I would put my credentials up against any of them. Here is all the testimony <here>

Let me add that there were at least three fact free arguments and statements today:

Chair Sen McLachlan early on incorrectly stated that I was not present – I was signed up as con, as number 7 on the public list. As Mark Twain would have said, “The report of my demise was premature”. Some of the media picked up on and reported his statement.
Rep Matt Lesser incorrectly stated that there was no election fraud. This is a usual proponent tactic. There is negligible votER fraud, but plenty of votING fraud, including in Connecticut. <see this recent summary>
After I testified, Chris Pearson, one of those national “experts”, testified that my contention that “There is no official national popular vote number compiled in time, such that it could be used to officially and accurately determine the winner in any close election.”, was incorrect. He made claims that continue to be refuted by the law, precedent, and practices as articulate for several years on page 3 of my testimony. Consider that there is a reason that none of the leaders from NPV have ever dared join me at any of the three well-publicized debates on the issue.

National Popular Vote Compact fails 90 minute debate, sanity prevails for unknown reasons

It is rare that a bill is debated that has insufficient majority caucus support to pass.

[Speaker] Aresimowicz said he’s heard from his constituents that they want the issue debated.“I’m saying let’s at least hear it out and have the discussion,” Aresimowicz said Thursday morning during a press conference in his office before the House debated the bill.

House Majority Leader Matt Ritter, D-Hartford, said he expects the vote to be close and it’s unclear what will happen.

Here, we disagree with both sides. We do not buy the Republican arguments against nor the Democratic arguments for the bill. We would support a sufficient Constitutional Amendment. The Compact approach is dangerous making, a flawed system worse. It will lead to increased voter suppression and skulduggery.v

CTNewsJunkie: House Tables Debate On National Popular Vote <read>
It is rare that a bill is debated that has insufficient majority caucus support to pass. Yet we cannot fault the Speaker’s logic:

House Speaker Joe Aresimowicz, D-Berlin, said at the beginning of the session that he wouldn’t allow for a debate to move forward on the National Popular Vote out of respect for the results of the November 2016 election. Trump won the election with 304 Electoral College votes.

What changed?

“My view of the president,” Aresimowicz said. “As far as credibility goes he’s damaging his own credibility, it’s not like we have to pile on here in the state of Connecticut.”

All joking aside, Aresimowicz said he’s heard from his constituents that they want the issue debated.

“I’m saying let’s at least hear it out and have the discussion,” Aresimowicz said Thursday morning during a press conference in his office before the House debated the bill.

House Majority Leader Matt Ritter, D-Hartford, said he expects the vote to be close and it’s unclear what will happen.

“We’ve asked members to think on their own about what they want to do,” Ritter said. “We think there’s a lot of merit sometimes in having things debated even if you don’t know what the outcome is going to be.”

Aresimowicz said there are members who have told them they won’t commit to vote one way or another before hearing the debate.

It’s rare that a bill would be raised for what’s likely to be hours of debate if there’s no guarantee it will be able to pass. The bill was tabled and could be raised in the future for a vote.

The Connecticut House approved legislation to join the National Popular Vote compact in 2009, but that year the Senate failed to take up the bill.

You can read the article for some of the arguments for and against. Here, we disagree with both sides. We do not buy the Republican arguments against nor the Democratic arguments for the bill. We would support a sufficient Constitutional Amendment. The Compact approach is dangerous, making a flawed system worse. It will lead to increased voter suppression and skulduggery. See our recent Op-Ed and Full Testimony.

As for 2009, that was a also rare case where the NPV Compact went down by one vote and several Democrats then changed their votes so that it would pass <read>

NPV Forum in Greenwich

Tuesday I participated in a forum/debate on the National Popular Vote Compact. Greenwich Time has a vary fair article on the event <read>

In one of the photos I am holding a 1118 page book that is free. Instead, I recommend two books that are shorter, that are worth reading, and worth much more than you will pay for them!

I also have some comments on the uniqueness of an event where individuals claim that Connecticut voters would appreciate more money in politics.

Tuesday I participated in a forum/debate on the National Popular Vote Compact. Greenwich Time has a vary fair article on the event <read>

Nearly 150 people were curious enough about plans to change how presidential election votes are counted to devote nearly two hours Tuesday night to the discussion…

“Frankly this is something that makes sense for all the states,” said Pam Wilmot, a member of Common Cause, who had pushed for Massachusetts to be a part of the compact.

“It particularly makes sense for states like Connecticut, Massachusetts, California, Texas, Idaho and Oklahoma because they are all part of the three-fourths of states that are ignored in the current system. The current system doesn’t help small states. It doesn’t help big states. It helps battleground states.”

Countered Luther Weeks of the grassroots Ctvoterscount.org, which describes itself as dedicated to election fairness and integrity: “I understand the theoretical advantages of the popular vote, but there is a mismatch with the electoral college system and one the compact does not change. There are things like nuclear power and DDT and fracking that all sound good but have unintended consequences that might not be apparent at the beginning.”

The compact, crafted more than a decade ago, has been picking up political backing since November’s election of President Donald Trump. Despite losing the popular election by more than 3 million votes, Trump won the electoral college and the presidency.

Its bipartisan support includes former Democratic Vice President Al Gore, who famously lost the 2000 race despite winning the popular vote; former Republican Speaker of the House Newt Gingrich and former Republican Congressman and Libertarian presidential candidate Bob Barr.

Actually opposition is bi-partisan as well. I noted this list from my recent testimony:

Susan Bysiewicz (D), former Connecticut Secretary of the State
Arnold Schwarzenegger (R), former California Governor
Mark Ritchie (D), Minnesota Secretary of State and former President of the National Association of Secretaries of State
Daniel Patrick Moynihan(D), former Wesleyan professor and U.S. Senator
William Cibes (D), former State University System Chancellor

In one of the photos I am holding a 1118 page book that is free. Instead, I recommend two books that are shorter, that are worth reading, and worth much more than you will pay for them!

The book Every Vote Equal is a tiresome read and quite redundant. Reading it is like being locked in a room with an infomercial blaring away 24×7. It claims to refute my claim that “There is no official national popular vote number available in time for states to choose their electors”. They leave out the “in time” and point to the Certificates of Ascertainment which are submitted to the National Archivist. That claim was repeated in the debate. Fortunately, I brought along and held up the two forms from 2016 that were signed and submitted on the date the electors vote (a week after they must be selected) and the two certificates that were signed the day after. For more see my recent testimony, page 3.

Instead I recommend Ballot Battles which articulates the partisan nature of battles over close election results. It is clear to me that it portends the battles that would ensue if the Compact were enacted. I also recommend Broken Ballots which details the risks inherent in our voting methods.

I also got in some comments on the uniqueness of an event where individuals claim that Connecticut voters would appreciate more money in politics. I did not say everything in the debate but here is what I have said:

There are valid reasons for a National Popular Vote and against the Compact, yet more money in Connecticut Politics is not one of them. I do not agree with the argument that increasing political spending in Connecticut is a benefit of the Compact:

Most Connecticut voters and several sponsors of this event want less money in Connecticut Politics, not more.
Connecticut voters do not need more calls, robo-calls, and 30 second attack ads to choose how they will vote.
I don’t think Trump’s visit to Connecticut last year, nor any other candidate in person, sways many voters who can see the same talking points on the news, almost every night.
The money raised here from Drug companies, Insurance Companies and Traders mostly would not be spent here anyway.
In any case, the money spent for adds and robo-calls would largely go to out of state political consultants, vendors, and media moguls.

Testimony on several bills, including the National Popular Vote Compact

Yesterday, we testified on several bills, submitting three packages of written testimony. Most of the bills were proposals for the National Popular Vote Compact. We half agree with those testifying for the Compact and half disagree. We would be in favor of a National Popular Vote with a sufficient Constitutional Amendment. We oppose the Compact. Its misfit with our presidential election laws portent chaos.

We also testified against two partisan changes to the presidential election <Proportional Electors>

We testified in favor of needed changes to the Election Day Registration law. We have long argued that the 8:00pm cutoff is a civil rights violation waiting to happen . Although it happened in New Haven in 2014, it apparently happened all over the state in 2016. Secretary Merrill received much criticism in the hearing for her past opposition and proclamations keeping the cutoff in place. <EDR and Civil Rights>

Be Careful What You Ask For: NPV Compact Has Unintended Consequences

Once again, we have an election where it is alleged that the losing candidate won the popular vote. Understandably we have calls from her supporters to abolish the Electoral College by means of the National Popular Vote Compact.

Once again, we must articulate to our friends why this is a bad idea. Once again, we point out to most of those that support the Electoral College that they support it primarily for the wrong reasons.

We have a broken, risky, unequal election system. Cobbling a well-intended compact on top of it makes it more risky, more vulnerable, and the results even less credible:

*****Update 11/16/2016 Pleased to be republished at the CTMirror.

We have a broken, risky, unequal election system. Cobbling a well-intended compact on top of it makes it more risky, more vulnerable, and the results even less credible:

Our current system is subject to multiple risks from officials, other insiders, domestic partisans, independent hackers, and foreign powers. The Compact does not change any of that. It makes the system more risky to manipulation in every state. Currently the risk is limited to the so-called swing states.
Our current system is not audited at all in half the states and insufficiently audited in the majority the states that have audits. The public should have little confidence in the accuracy of vote totals in each state and in the unofficial and official national totals. We should have little confidence in the purported popular vote winner, and even less if the compact is enabled.
The compact is flawed in that there is no official national popular vote number until after the Electoral College is required to vote. The Compact does not and cannot change that. Its supporters attempt to refute that fact with obfuscation.
Voters are unequal between states. The Compact will not fix that. It will aggravate that. Different voters are enfranchised and disenfranchised by differing state laws for eligibility. Voting is easier or more difficult by differing ease of registration and voting across the states. Frequently there are obvious attempts to make it easier or more difficult for certain classes of voters to vote. The Compact will increase those trends.
Contrary to the Compact’s proponents contentions there is no national recount possible. Only half the states have some form of recount available. Those recounts are based on state margins, not on the alleged national popular vote number. The Compact does not change that. It could not, since the Compact will be triggered and apply to states representing barely more than half the votes. It would also require the establishment of a national body to declare and manage a recount. Once again, proponents claim through obfuscation that a recount would be possible.
Let us not forget that we do not have voter verified paper records for a significant percentage of votes, so those votes are not actually auditable or recountable.

I would favor a national popular vote amendment to the U.S. Constitution, if and only if, it provided for a uniform franchise, required sufficient voting systems, sufficient audits and recounts nationwide. And sufficient laws that were enforceable and enforced to provide a trustworthy and trusted national popular vote number. Those ifs are a large leap for our democracy, yet are reasonable, economical, realistic requirements to achieve trustworthy democracy.

For more, here is my most recent testimony to the Connecticut Legislature: <read>

And all of our posts related to the national popular vote: <NPV posts>

*****Update 11/16/2016 Pleased to be republished at the CTMirror <read>

NPV Note: Trump and Hillary visit Connecticut

Donald Trump is visiting Connecticut tonight at Sacred Heart University in Fairfield, while Hillary is visiting Greenwich on Monday for a fundraiser <read>

This provides a great opportunity to discuss a couple of points often touted in favor of the National Popular Vote.

That presidential candidates will never campaign in Connecticut until we have a national popular vote.
That candidates only come to Connecticut to take money out of the state.
And apparently we would benefit from the money they would spend here.

Donald Trump is visiting Connecticut tonight at Sacred Heart University in Fairfield, while Hillary is visiting Greenwich on Monday for a fundraiser <read>

This provides a great opportunity to discuss a couple of points often touted in favor of the National Popular Vote.

That presidential candidates will never campaign in Connecticut until we have a national popular vote.
That candidates only come to Connecticut to take money out of the state.
And apparently we would benefit from the money they would spend here.

We have long opposed, not because we are against the idea in theory, but because imposing a popular vote on our current unequal and risky state-by-state system would make presidential elections much more risky. <See our posts here>

Overall we do not think campaigning in a state or the money issue is that relevant in choosing for or against the National Popular vote. Yet, since the proponents tout it so strongly, we point out:

Obviously a candidate is campaigning here in spite of their claims. (We also had several candidates here during the presidential primary season)
Many of those same legislators and advocates for the National Popular Vote are arguing Trump should not come.
Rather than bringing money to the state it may cost the Town of Fairfield $37,000 in security <read>
Ask yourself if this visit or the visits during the primary campaign changed the minds of many who could have watched similar rallies on TV or the Internet?
We note it is a myth that campaigns bring huge amounts of money to states where they campaign. The big money goes to media conglomerates, national headquarters staff, and consultants.
Presumably Hillary will take some huge donations from Greenwich, where apparently financial barons live to enjoy New England and avoid NYC taxes, while threatening to leave Connecticut for some sunbelt tax haven.
Yet the amounts are peanuts compared to the money those people spend in Connecticut. Which in-turn, is peanuts compared to their investments around the country and in offshore tax havens. In any case they would still donate that money no matter where they lived and where the candidates campaigned.
There is a problem with money in campaigns that demands reform directly, a National Popular Vote would not change that, if anything it would make it worse creating the demand for more of those television and web political ads that we all would rather avoid.

Remember this is not a reason to be for or against the National Popular Vote. It is an example of supporters grabbing at straws to make their case.

Update 8/19/2016**********

This week Hillary Clinton campaigned in NY, a very safe state for her campaign.

Judge Stevens: Missing at least one amendment to the Constitution

Retired Justice Stevens has a new book: Six Amendments: How and Why We Should Change the Constitution. We have not read the book, but we have seen Justice Stevens interviewed on NPR and from the table on contents understand the outlines of his six proposed amendments. From the interview he indicated his goal was correcting recent errors of the Court in following the intent of the Founders.

We say he missed a big one. The problems of our electoral system and the Gore v. Bush decision in 2000.

Perhaps it is his criteria that was too restrictive or perhaps he will issue a sequel. (Gore v. Bush was really based on decisions in 1876, not so recent. And apparently the Founders did not anticipate the partisan election systems and problems that quickly evolved). I am sure there are more than six good ideas out there, but many more bad ideas, to cure actual and perceived Constitutional problems and limitations.

As we have said here many times, we generally favor the popular election of the President with equal votes for all citizens, yet we oppose the National Popular Vote Compact <our NPV index>. The Compact would make the problems that led to Gore v. Bush worse. Making a risky system more risky. It would not, in fact, make every vote equal.

What is needed is a system that actually requires that every vote be equal, as system that we can trust that is enforceable, and enforced, one that provides uniform enfranchisement, access, security and public verifiability across all states. It would require a Constitutional Amendment that at a minimum would:

Require the direct election of the President by a uniform popular vote
Require uniform requirements for citizens to vote, uniform rules for voter check-in and identification, uniform requirements for early voting and absentee voting.
Repeal the 12th amendment which governs electoral accounting and was a major factor in the legal decisions of 1876 and 2000.
Require that votes and results be publicly verifiable, with effective and uniform election audits and with recounts for close votes, prior to the certification of the winner.
Require an effective method for mandating appropriate procedures, adjudicating issues, and certifying the winner.

For more information on what is wrong we the current system and the Constitutional limitations, we refer to our testimony and the work of Edwin B. Foley of the Moritz School of Law, referenced frequently in pages 2-6 of our testimony.

Reality: Even if somehow states agreed to a national state by state recount, the Supreme Court can be expected to rule as it did in Gore v. Bush that it would be unfair since it would not be uniform:

“Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them …there is no recount procedure in place under the State Supreme Court’s order that comports with minimal constitutional standards. Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.” http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=00-949

Even though the Court claimed the decision was not to be used as a precident, on what basis would they rule differently when faced with a challenge to a far from uniform state by state recount? See Moritz School of Law Profesor Edward B. Foley’s comments on Gore v. Bush and equality: http://moritzlaw.osu.edu/electionlaw/comments/index.php?ID=8099 …

Quoting Professor Edward B. Foley and Nathan L. Colvin, of the Moritz School of Law, in their recent paper, “The Twelfth Amendment: A Constitutional Ticking Time Bomb”:

Although the Supreme Court’s decision in Bush v. Gore averted congressional confrontation over electoral votes pursuant to the deficient framework of the Twelfth Amendment, the episode signals the possibility that a similar dispute might arise again—but this time without the saving intervention of the Supreme Court. Although the events of 2000 produced passing interest in the mechanism established by the Twelfth Amendment, since then there has been no sustained plan to prepare the nation if a dispute over electoral votes goes all the way to Congress. Nevertheless, the history of the Twelfth Amendment and the commentary on it during the nineteenth century show that the nation needs a contingency plan of this sort.…like putting off preparations to defend against a once-a-century category five hurricane, it is easy to postpone considerationof a constitutional amendment designed to protect against another debacle of the kind that occurred in 1876… it is also worth proposing a second-best legislative solution that would modify the Electoral Count Act… either of the two major political parties will want to block any measure it perceives as disadvantageous to its interest …our country has embarked on a meandering journey of ad hoc approaches to resolving electoral disputes. The decision of the Supreme Court in 2000 marked only the most recent stop on this journey but was met with as much dissatisfaction as previous historic stops such as the Electoral Commission and the Twenty-second Joint Rule. Instead of waiting for the next electoral dispute and hoping that the Court or a bipartisan split in Congress might save our country, Congress should address this historic problem with an amendment to the Constitution that clearly addresses the electoral count procedures… The starting issue for an analysis of electoral vote determination under the Constitution is ascertaining where the Constitution vests the power to count and/or determine the validity of votes, and this is where the first ambiguity comes from. There are four possible actors: (1) the Vice President of the United States acting as the President of the Senate, (2) the two houses of Congress acting together, (3) the two houses of Congress acting separately, and (4) the states.13 The text of the Twelfth Amendment is unclear on this subject, and, throughout our history, various theories have prevailed.

They also quote Justice Joseph Story:

In the original plan, as well as in the amendment, no provision is made for the discussion or decision of any questions, which may arise, as to the regularity and authenticity of the returns of the electoral votes . . . . It seems to have been taken for granted, that no question could ever arise on the subject; and that nothing more was necessary, than to open the certificates, which were produced, in the presence of both houses, and to count the names and numbers, as returned.

References:

The Twelfth Amendment: A Constitutional Ticking Time Bomb
http://www.law.miami.edu/studentorg/miami_law_review/issue_archive/pdf/vol64no2/MIA204.pdf

The Founders’ Bush V. Gore: The 1792 Election Dispute and Its Continuing Relevance
http://indylaw.indiana.edu/ilr/pdf/vol44p23.pdf

Fixing the Transcript for DemocracyNow: “Fixing” the Electoral College

In a segment last week DemocracyNow editorialized on, interviewed New Yorkers, and representatives of FairVote, on the occasion of New York joining the National Popular Vote Compact/Agreement: Fixing the Electoral College: New York Joins Pact to Elect President by Popular Vote

Unfortunately, their transcript needs at least as much fixing as our current election system. As CTVotersCount readers know, we oppose the Compact because it would make a risky system, much riskier, without providing the claimed benefits. We understand the attraction to many, like nuclear power, fracking, GMOs, and Touch Screen Voting, the national popular vote would seem to be beneficial, yet like those other ideas it has largely unrecognized and unappreciated consequences. For details and background, refer to our recent testimony to the Connecticut Legislature or review our index of past NPV posts..

As a service to our readers, we here provide some annotations to the DemocracyNow transcript, showing where we disagree with the interviewees, and some of the biased comments of the reporters.

I am a fan of DemocracyNow. Yet, like all media they are not exempt from their own biases and blinders. In a segment last week they editorialized on, interviewed New Yorkers, and representatives of FairVote, on the occasion of New York joining the National Popular Vote Compact/Agreement: Fixing the Electoral College: New York Joins Pact to Elect President by Popular Vote <read>

As a service to our readers, we here provide some annotations to the DemocracyNow transcript, showing where we disagree with the interviewees, and some of the biased comments of the reporters. Our comments are in {maroon, with curly brackets and italics} .

Transcript

This is a rush transcript. Copy may not be in its final form.

JUAN GONZÁLEZ: New York has become the latest state to join an agreement that would transform the way we elect the president of the United States. Under the compact for a national popular vote, states across the country have pledged to award their electoral votes to the presidential candidate who wins the nationwide popular vote. If enough states sign on, it would guarantee the presidency goes to the candidate who wins the most votes across the country.{Not so. Gamesmanship like FL 2000 could easily cause the system to fail. Also there is no official popular vote number to use to determine the winner under the Compact} It would prevent scenarios like what happened in 2000, when Al Gore won the popular vote but still lost the election to George W. Bush. {Al Gore also apparently won FL by the newspaper recount of all votes in the state, demonstrating under a fair count, Gore would have won FL under the Electoral College in 2000}

AMY GOODMAN: The compact will kick in only when enough states have signed on to reach a threshold of 270 electoral votes. This week, New York Governor Andrew Cuomo brought the campaign a step closer, adding New York’s 29 electoral votes to those already pledged by nine other states, including California, Illinois, Massachusetts and by Washington, D.C. In a statement, Governor Cuomo said, quote, “By aligning the Electoral College with the voice of the nation’s voters, we are ensuring the equality of votes {Yes, votes, if counted accurately would be equal, but that is misleading since citizens would not be equal, since there is not an equal national franchise and different levels of ease of voting and suppression across states} and encouraging candidates to appeal to voters in all states, instead of disproportionately focusing on early contests {sorry Gov, the Compact has nothing to do with primaries} and swing [states].” New York State Senator Joseph Griffo, a Republican, sponsored the bill.

STATE SEN. JOSEPH Gur RIFFO: Potential presidential candidates concentrate more than two-thirds of their advertising budget and two-thirds of their campaign stops in just five states. Almost 100 percent of their message is seen in approximately 16 battleground states. New York has 19.5 million people, but we’re routinely ignored by campaigns. I want to empower people. I want to make New York state relevant in a national campaign again. I want democracy that creates excitement in people, not apathy. Joining the National Popular Vote compact creates that opportunity. It leverages the combined power of the states in a compact to say, “No longer can you take us for granted. No longer can you effectively disenfranchise million of Americans by ignoring us {Do your really feel disenfranchised Gov? Did you vote for President last time? Did you tell New Yorkers not to waste their time?}. No longer can you assume that you have our vote.”
{Readers, think for yourselves:

How many votes would have changed if Obama and Romney had visited Connecticut and spoke to a few thousand voters each, giving the same talking points as they did in other states, and you watched them on Local news, in addition to National news?

Do voters want more 30sec ads to help them decide who to vote for?

Have you ever visited a swing state or early primary state? The voters there would tell you they do not want more ads and phone calls to help them choose a candidate.

Ask yourself who benefits by this? Most of the money would go to media moguls, not in your state.}

AMY GOODMAN: To talk more about the campaign for a national popular vote, we’re joined now by Hendrik Hertzberg, staff writer for The New Yorker magazine. He has been writing in support of the national popular vote since 2006, serves on the board of the electoral reform organization FairVote. {Another ”journalist” who shows his bias serving on a board advocating for the NPV.}

Rick, welcome to Democracy Now!Talk about the significance of New York joining on, but also what the national popular vote is.

HENDRIK HERTZBERG: Well, it’s an important step psychologically, because now the threshold, instead of being 50 percent of the way to the threshold, we’re 61 percent of the way. So every little bit—every little bit helps. And, of course, New York is the media capital. Things don’t really happen in the brain of the media until they happen in New York. {Wow quite a statement, for someone advocating for a group that contends that New Yorkers are left out. Maybe that is why so many New York Republicans voted for the bill, considering it is the center of the media businesses which would be the chief beneficiaries, if the Compact’s advocates are correct in their assumptions of how campaigns would change.} So even though California, New Jersey, state of Washington—even though all these other states have already signed on, it’s only now starting to raise to the level of some sort of public attention. And most people don’t even know this is going on, and that includes people who are extremely well informed—don’t even—have never even heard of this, don’t realize that we’re halfway—more than halfway to solving one of the central problems of our Constitution, which is the—this Electoral College setup. {And unfortunately, the public does not understand the unanticipated consequences, with one-sided media coverage in favor of the Compact.} And the problem with the setup is not the Electoral College itself. The problem is the winner-take-all by state. That’s what creates all the anomalies. {Does anyone here see problems with voting rights inequality? Voter suppression? Campaign spending? Citizen’s United? The Media complex? Apparently not today.}

And what the National Popular Vote plan does is, by a whole bunch of states getting together to award their electors to whoever wins in all 50 states, as soon as that happens, well, then it doesn’t matter what state you live in: {Once again there is no equal franchise, state to state}. Your vote is just as much equal to go after, to campaign for. It means that, for instance, in New York, where it’s pointless to do—to do doorbell ringing, to have a coffee collection, invite your neighbors in—what difference does it make? Everybody knows which way New York is going. {Usually so in most states, but their votes count and contribute their fair share in determining the winner} But if every vote, if a vote in New York is worth the same as a vote in Ohio or Pennsylvania, you get a—that really is transformational. Even more than preventing a wrong winner is that you get grassroots politics happening in every corner of the country. {And you then get incentive for suppression and manipulation everywhere too.} And if you’re worried about political corruption, if you’re worried about campaign finance, for example, what this would do is, all those billions raised for campaigns, instead of being funneled into a handful of states, they would have to be spread out across the whole country, so their relative impact would be much less. This is an extraordinary reform. {That is an extraordinary claim, that by providing more opportunity for more money to make more of a difference, you are reducing the influence of that money? How many of the advocates for the Compact agree that Citizens United is bad for Democracy? I suspect the vast majority, yet increased influence of money is twisted to be a benefit when it comes to the Compact.}

JUAN GONZÁLEZ: Well, what allows a group of states to be able to come together and reach a compact like this? Wouldn’t a constitutional amendment be needed for this? Explain the legality of it.

HENDRIK HERTZBERG: Well, this is based on two things in the Constitution. One is what you just mentioned, interstate compacts. There are hundreds of them. The Port Authority of New York and New Jersey, maybe not the best example lately, but that is an example of an interstate compact. It’s in the Constitution. The other part is that the only thing in the Constitution about electing the president is basically a one-liner that says each state shall appoint a number of electors in such manner as the Legislature thereof may determine. That’s all it says. Everything else is left to—is left to the states to figure out. And the winner-take-all notion, that’s a—that’s something that came in 20, 30 years after the Constitution was written. And it’s because a party that controls the state Legislature isn’t going to say, if given the choice between keeping all those electors for themselves or giving, you know, some portion of them to the opposition, of course they’re going to do it this way. {I am not a Constitutional lawyer. I am not a lawyer. Yet, I would agree the Compact is likely Constitutional, yet it may well be challenged to the Supreme Court. And based on the precedents of past elections, and the rules of the Electoral College, it is quite likely that the Supreme Court would be “forced” to choose the President under those challenges. See our testimony for a discussion of the 12th Amendment and the Electoral Count Act and the Compact’s likely effects.}

AMY GOODMAN: This is Democratic New York State Senator Michael Gianaris, who is among those who oppose joining the compact for a national popular vote.

STATE SEN. MICHAEL GIANARIS: The current system allots Electoral College votes based on a state’s population, whereas a system such as the National Popular Vote will do so based on voter turnout in a presidential election, which means states that have a high number of unregistered residents would not be counted as much, or states that have low voter turnout would not be counted as much as they are under the current system. There’s also a myriad of other issues related to those that have wealth being able to saturate a big city media market to affect the outcome more than they currently do, which is already too much, as well as the possibility for some states that are unhappy with the results, potentially between Election Day and the Electoral College vote, changing their state laws to pull back out of a compact like this, which would throw the whole system into chaos. {We generally oppose the Compact for other reasons, the increased risks to the system. We do not reject these arguments out of hand. Unfortunately, the strongest arguments against the Compact are not getting a fair hearing}

AMY GOODMAN: That’s Democratic New York State Senator Michael Gianaris. Now, interesting, he’s Democrat, and the person we played for the national popular vote was a Republican. But can you answer his points? {Interesting because, in our opinion in general, Democrats are for it for the wrong reasons, and Republicans are against it for the wrong reasons. Both think their party would benefit from their positions.}

HENDRIK HERTZBERG: He’s wrong on every single one of them. You cannot withdraw from the state—interstate compact for 90 days before an election. That’s part of the deal. That’s part of the contract that you make.

The notion that—as far as turnout is concerned, right now there’s a sort of a five-to-10-point difference in the turnout between battleground states and spectator states. So when you have a nationwide vote, you’re going to see—yes, you’re going to see turnout increase, but don’t say it like it’s a bad thing.

He mentions that the Electoral College is based on—is not based on how many people vote; it’s based on population. And that’s one of—that’s sort of the original sin of the Electoral College, because the reason it’s based on population is so that the three-fifths of the slaves could be counted to give the slave owners more representation. It imports—the Electoral College mechanism imports that right—which is in the Senate and the House, right into this choice of the presidency. Now, that part of it’s gone now, but that is the original sin. {There are a lot of things in our history which are regrettable, but tying the Electoral College to slavery, is close to playing the Hitler card on other issues. Should opponents bring up disappointing or criminal Senators, Governors, and Mayors that were elected by popular vote?}

And of course it makes more sense for the president to be chosen by voters, one-by-one voters, rather than by states with a fixed number of votes. Even if only three people vote in a state and it’s got 10 electoral votes, they’ll still go to that candidate. All the National Popular Vote plan does, really, is elect the president the way we elect a dog catcher or a governor or a senator or representative. It’s not that complicated. {Unfortunately, it is much more complicated. Study our testimony on the 12^th Amendment and the Electoral Count Act, along with the effect of the Compact.}

JUAN GONZÁLEZ: But my question is, given the fact that you would only need the states who equal a number of 270 votes to join the compact, and they would therefore then be decisive in terms of who would get elected if the—who wins the popular vote, but isn’t it possible just as well for the compact to be broken years down the line? In other words, for new legislatures to come in and decide to leave?

HENDRIK HERTZBERG: Sure, that would be possible, yeah. And actually, that’s one of the advantages to this maybe over a constitutional amendment. We can try it. We can try it, see if—try electing a president democratically, see if we like it. If we like it, we can keep it. If we don’t like it, we don’t have to keep it. That’s actually a plus, not a minus.

AMY GOODMAN: So, so far, now—

HENDRIK HERTZBERG: And I might add, Juan, that it’s not as if the states that are compacting are then going to decide who’s president. No, the only thing that will decide who’s president is the voters in all the states that are compacting and that are not compacting. It won’t make any difference whether you live in one of them or not. {Unless, they are not counted accurately, there was no national post-election audit, no national recount, and no national popular vote number available in time for states to choose their electors. Oooops we have none of those, so we are stuck with the “trust us” non-verification system.}

AMY GOODMAN: So, now signed on: New York, Maryland, New Jersey, Illinois, Hawaii, Massachusetts, Vermont, California, Rhode Island and Washington.

HENDRIK HERTZBERG: Mm-hmm.

AMY GOODMAN: What happens next?

HENDRIK HERTZBERG: Well, right now there’s a focus on Connecticut, where the bill is being considered. It’s kind of a one-by-one thing, state to state. {Yes, we are the next target.} Now, people may have noticed that the states that you mentioned are all blue states. And, of course, because of what happened in 2000, Republicans tend to have a—you know, they kind of—they kind of have a—react to this and think—or, suspiciously, they think maybe this is Al Gore’s revenge. {And Democrats are apparently, in general, blind to the risks, since they have been led to believe that this would have changed the outcome in FL in 2000. Yet with different voters, more voters, with a different counts, and different campaign strategies, who knows if Gore would actually have won under the NPV in 2000. Can we at least all agree that more and different voters would go to the polls under the Compact and that we have no idea what an accurate count would have been in 2000?}, in fact, there are plenty of Republicans who back this. If you believe in democracy, if you believe that the way to have an election is count the votes, see who wins, then it really doesn’t matter if you’re a Republican or a Democrat. Yes, there are these inbred prejudices. Republicans are—maybe they’re more resistant to change. Maybe they think this is somehow an end run around the Constitution, which it is not, which it definitely is not. They have a—they have more skepticism to overcome. But this isn’t like, you know, taxing the rich, where that’s a matter of principle. It’s a matter of principle the other way: If you’re for democracy, you really ought to be for this. {Yup, anyone against this is charged with being undemocratic. And the other side says proponents are against the Founding Fathers. And then back to the opposition favoring slavery…}

AMY GOODMAN: Well, I want to thank you very much for being with us. Hendrik Hertzberg is a staff writer at The New Yorker. He’s been writing in support of the national popular vote since 2006. I think you said in your last piece you had written 51 pieces on this.

HENDRIK HERTZBERG: Fifty-two as of this morning.

AMY GOODMAN: He serves on the board of the electoral reform organization FairVote. When we come back, we’re going to England and to Norway to talk about drones and who’s running the U.S. drone operation. Stay with us.

As we have said many times, we are not in theory opposed to electing the President by national popular vote. But we need a uniform voting system, a uniform national franchise, enforceable, and enforced to avoid increasing the risks inherent in the current system.