© 2010 jbjd
Two (2) years ago, even before the DNC Services Corporation held their August 2008 Presidential Nominating Convention, I began posting this warning throughout the blogosphere for the benefit of my fellow citizens who were raising concerns as to whether Barack Obama, Presidential Nominee wannabe of the Democratic Party, was Constitutionally qualified for the job:
The only way to prevent any candidate Constitutionally unqualified for office from presiding over our Constitutional Republic is to keep his name off the general election ballot.
True, as I explained in NEVER LESS THAN a TREASON (1 of 2) and (2 of 2), technically, this made no sense. First of all, while citizens in most states have designed their ballots so that the only names to appear for the top jobs are the Presidential and Vice Presidential nominees of the political party, in fact, we only elect Presidential Electors in the general election. (That’s why sometimes you will see me refer to that contest as the general (Electors) election.) And the Constitution permits these Electors to vote for anyone they want, even someone who lost the party nomination. (This only makes sense since the Constitution is silent as to political parties.) (Sure, some states enacted laws saying, the Electors must vote for the nominee of the party but, as I pointed out previously, no ‘faithless’ Elector has ever been disciplined for breaking the law; and no vote of Electors has ever failed to receive Congressional Certification just because a state Elector violated an oath to vote for the nominee of the party.) Nevertheless, I assured you, enacting and enforcing state election laws to keep Constitutionally ineligible candidates off November’s Presidential (Electors) ballot would prevent Electors from exercising their discretion to elect a Constitutionally unqualified candidate in December because as long as people mistakenly think they vote for President in the general election, Electors would never dare to vote for someone whose name had not appeared on that state’s ballot.
Scratch that. Because now, they might have to. That is, if John R. Koza’s National Popular Vote Initiative (“NPVI”) is adopted by the requisite number of states. And proponents of the NPV are poised to pull off passage by enough states, before 2012. Because most Americans remain clueless as to exactly how we elected our President in 2008. Especially when it comes to the role of our Presidential Electors. If this means you, do those of us who are concerned about maintaining the Constitutional integrity of our Republic a favor, and re-visit http://www.archives.gov/federal-register/electoral-college/faq.html or, review these 3 (three) short videos that will illuminate the role of the Electors as likely envisioned by the Drafters of the U.S. Constitution.) (Please keep in mind, none of these videos is a .gov production.)
(When you think you have the hang of Electors, see if you can wade through this great discussion on “The Green Papers” web site. Specifically, this exchange reaffirms the seminal role of the Congress in validating any process prescribed by the several state legislatures with respect to Electors, inasmuch as Congress may or may not Certify the votes of all of the Electors based on a rejection of the vote of the Electors in any one state. http://www.thegreenpapers.com/Vox/?20031114-0)
All right, so what is the NPVI, anyway?
The National Popular Vote initiative is a lobbying campaign funded by John Koza, an engineering professor at Stanford University, that aims to make the Electoral College irrelevant without going through the arduous process of amending the Constitution.
States are asked to enact laws pledging their electoral votes to the winner of the national popular vote, no matter who wins the state. The pledge takes effect only when states holding at least 270 electoral votes — a decisive margin in the Electoral College — agree to participate. That would ensure that the winner of the popular vote would take the election.
Like I said, in order to understand how the changes to the function of the Electors proposed by the NPVI will adversely affect the integrity of the Presidential election, you first need to understand the role of Electors in that election.
Okay, so the NPVI proposes some sort of legal compact among several states which will govern the conduct of their Electors in relation to the national popular vote. Here is the text of that compact, posted on the website of National Popular Vote.com.
The literature is already filled with well crafted opposition. For example, there’s the practical problem of recounts.
David Lublin, a professor of government at American University, raises yet another concern: Chaotic recounts. Precise vote tallies don’t matter much with the Electoral College; winning a state with 51% is as good as winning with 80%. But in a national popular vote, losing candidates might be tempted to go to the mat in state after state, demanding recounts or challenging how voting was run.
Here’s a short clip entitled, “5 Reasons to Keep the Electoral College,” featuring UCLA Law Professor Daniel Lowenstein, in which he characterizes retaining Electors is valuable in that it “orients elections around the states” and reminds Americans “states are the component parts of our federal system.”
(Note: This is part of a much longer exchange at the Commonwealth Club which I highly recommend watching for a great synopsis of all of the issues involved except for the ones I raise below). There is an easy to access table of contents which divides the debate into shorter clips. Panelists include Professor Lowenstein (against); Professor Koza, Stanford Engineering, Father of NPVI; and Professor Clyde Spillenger, UCLA Law, who speaks about the origins of the system of Electors.) http://fora.tv/2008/10/24/The_Electoral_College_and_National_Popular_Vote
I have several objections to implementing the changes proposed by this NPV compact. Not surprisingly, most of these objections directly relate to the ongoing efforts on this blog to ‘out’ and redress the fraud that tainted the 2008 general election cycle; and to prevent this fraud from ever happening again. See whether you share my objections.
(Note: While you read, please keep in mind, this article was not intended to provide an exhaustive legal analysis of the pros and cons of the NPVI. Rather, I wanted to register my opposition to this legislation and to present reasoned arguments that support this opposition with the hope not only that you would agree with my opinions but also that, agreeing with my opinions, you would take the steps necessary to impede or, in some cases, to reverse the passage of this legislation in your state.) (Plus, I want to get on the record the one objection that hasn’t appeared (yet) in the literature I have thus far reviewed.)
Here are some of the reasons I oppose the NPVI.
1. We are a union of individual states, and not of individuals. Therefore, I object to the NPVI’s implicit use of this pretense that we are a Democracy and not a Constitutional Republic in its advocacy campaign.
The genius inherent in the system of Electors as it was originally conceived is that it provides a means by which individual states, notwithstanding their geographic size or population, achieve relatively equal per unit weight to each other, in choosing the head of the Executive branch of the federal government. Sure, dividing the population of a less populous state versus a more populous state so as to determine how many people it takes to equal one Elector, shows that less citizens are required per Elector in those smaller states; but on the other hand, larger states have more Electors!
2. Compelling states to adopt the vote tallies that resulted from the use of voting systems they have previously rejected violates the principles of the full faith and credit clause of the Constitution. http://topics.law.cornell.edu/constitution/articleiv Therefore, I object to any law that could compel any one state to adopt the flawed voting apparatus of another state.
For example, suppose states enter into this NPV compact. Then, after extensive and expensive investigation, these states become convinced that electronic voting machines produce inaccurate results and, endeavoring to protect the integrity of the votes of their citizens, adopt a 100% paper ballot vote. Other more populous states in the compact vote using these rejected machines. Under the ‘opt out’ clause* in the compact, states would be compelled to defer to the voting protocol they had previously rejected. Effectively, this imposes national standards on the traditional state function of carrying out elections.
*Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term. Id.
3. Compelling states to adopt the vote tallies for a particular candidate whose name was omitted from their ballots for failure to establish qualification for office according to the laws enacted in those states; violates the principles of the full faith and credit clause of the Constitution. Id. Therefore, I object to any law that could compel any one state to adopt the eligibility neutral ballots of another state.
CA and NY have no ballot eligibility requirement. AL, GA, HI, MD, MO, SC, and VA do. Assuming these 2 (two) large states vote overwhelmingly for one candidate cut from the ballots of those other 7 (seven) states, at least theoretically, Electors in those 7 (seven) states could be compelled to vote for a President who election officials in those states found unqualified to appear on the ballot. Again, this sounds more like a national election, imposing national standards on the state function of carrying out elections. (This same result could occur where states have similar ballot eligibility laws but different levels of enforcement.) (Note: The opt out clause necessarily quashes those existing laws which entitle citizens in certain states to challenge the ballot eligibility of the nominee of the party, chosen at a summer nominating convention that is within the 6-month bar to state withdrawal from the compact.) Id.
BUT MY MAIN OBJECTION TO ADOPTING THE NPVI IS THIS: IT WILL BLOCK STATES FROM ENACTING LAWS THAT WOULD REQUIRE ELECTORS TO CAST THEIR VOTES FOR PRESIDENT ONLY FOR THOSE CANDIDATES THEY HAVE ASCERTAINED ARE CONSTITUTIONALLY QUALIFIED FOR OFFICE, AND THE VIOLATION OF WHICH LAWS WILL BE MET WITH STEEP CRIMINAL SANCTIONS. As we here at “jbjd” have learned from experience, such laws respecting the conduct of Electors are necessary to prevent a repeat of events of the 2008 election in which Electors for the Democratic State Parties elected as President a man no documentary evidence available in the public record had established was even a citizen, let alone natural born.
Right now, no state has enacted a law requiring Electors to vote only for a President who is Constitutionally qualified for the job. But look at how many states enacted laws before the 2008 election, requiring Electors in those states – remember, Electors are party faithfuls including big money contributors chosen by the party – to vote for the party nominee as a matter of law. http://www.thegreenpapers.com/G00/Electors.html Ha, even states like AL, HI, and MD, which require candidate eligibility to get on the ballot, throw Presidential eligibility to the wind when it comes to the fealty of their Electors to the political party! Id. (Recall that none of these states requiring ballot eligibility has a corresponding law requiring any public official to check.) Even in SC, where the ballot eligibility law requires specific eligibility language to accompany the candidate’s ballot registration; when it comes to the law of Electors, they only have to promise to vote for the party. And what if an Elector violates that oath? Criminal prosecution! Id.
So who is John Koza and why is he determined to fundamentally alter the Constitutional role of Presidential Electors without bothering to amend the Constitution? (In a 2006 NYT article entitled “Innovator Devises Way Around Electoral College,” Rick Lyman described Mr. Koza’s efforts as “an end run on the Constitution.” Mr. Koza replied, “When people complain that it’s an end run, I just tell them, ‘Hey, an end run is a legal play in football.’ ’’)
John R. Koza received his Ph.D. in Computer Science from the University of Michigan in 1972. He was co-founder, Chairman, and CEO of Scientific Games Inc. from 1973 through 1987. He is the holder of 25 patents in fields ranging from genetic programming to video games, and a venture capitalist. http://money.cnn.com/magazines/fortune/fortune_archive/2008/07/21/105711245/?postversion=2008072111 He founded NPVI in 2005. Id.
He is also a long-time fairy godfather to both the DNC Services Corporation and various committees organized under the D Corporation banner, as well as individual Democratic candidates and their PAC’s (Political Action Committees). Spend a minute or two perusing FEC records for the hundreds of thousands of dollars he has bestowed to the D’s over the years. (Click on this link and in the name search field, fill in (Last) Koza (First) John R. http://www.fec.gov/finance/disclosure/norindsea.shtml Mr. Koza also served as a Democratic Elector in CA in 1992 and 2000. http://articles.sfgate.com/2006-07-24/news/17301996_1_electoral-college-electoral-votes-popular-vote
And where did Dr. Koza get all of this money to fund his pet projects? Well, as the head of Scientific Games, he co-invented the rub-off instant lottery ticket used by state lotteries. http://www.stanford.edu/class/ee380/Abstracts/041124.html That’s right; he invented the scratch ticket. And as the NYT article points out, “Working with state lotteries as chief executive of Scientific Games in Atlanta, he had learned how interstate compacts work. Multistate lotteries like Powerball are based on such compacts.” Id.
In sum, for the past 2 (two) years, we here at “jbjd,” operating on a ‘wing and a prayer,’ have been meticulously de-constructing and documenting the fraud that tainted the 2008 election cycle throughout the states in order that having identified and published this fraud, citizens could work with state and federal officials not only to redress that fraud but also to shore up legislation and enforcement mechanisms, efforts which could effectively prevent such fraud from occurring again. On the other hand, since 2006, John Koza, using the windfall he received from inventing the lottery scratch ticket, has been selling his pet project, NPVI, to state legislatures throughout the country, promoting this system that not only fails to address these past problems with the electoral process which we have identified but also effectively ensures, these problems likely will never be exposed or remedied, again.
(Thankfully, Professor Lowenstein has identified what I agree is a fatal Constitutional flaw in the NPV plan, which certainly would forestall implementation of such a plan at least until after the 2012 elections. Phew! Id.)
With all this in mind, here is my new mantra about maintaining the President’s Constitutional qualifications for office throughout the electoral process:
If the requisite number of states pass the National Popular Vote law before the 2012 Presidential election; even keeping the name of an unqualified candidate off the ballot no longer guarantees he will not get the job, unless the courts forestall implementation.