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I realize I'm coming a bit late to the party with this question, but I wonder how Derek would edit the brief further if he had the opportunity, or if he is happy with the arguments and policy suggestions as is.
For me, while I agreed with virtually all of his arguments, I found his arguments for reform rather unpersuasive and some of his policy suggestions downright off-putting. DJ remixing as the lead argument? Ignoring copyright trolling? Even some of his strong arguments are weakly proffered. His proposal to create disincentives for renewing copyright was wildly convoluted and would've been a lightening rod for copyright holders to attack.
Sure. First off, know that the SCOTUS has specifically ruled the Electoral College skew between states is constitutional, but has also ruled that state elections must be one person one vote. This is important because of the mechanics of the Interstate Compact.
The Compact says that member states will allocate their EC vote based on the national popular vote. Non-member states would continue to allocate however they choose (most by winner-take-all statewide popular vote.) So what happens is that member state votes are counted X times (where X = number of member states) while non-member state votes are counted X+1 times. That's an unconstitutional because the state elections for electors (per Bush v Gore) are counted unequally.
Think of a Democratic CA voter in 2000-like scenario (reversed so that the D wins the EC and the R wins the popular vote) having their 55 EC votes flipped to the Republican which also flips the EC result. Their argument will be essentially, "My state should've gone Y but flipped to Z because it unconstitutionally counted non-member states' votes more often."
And that's part of the problem with the Compact, the supporters don't see how badly it could backfire (much like the R's who were knee jerking for all those allocation changes since the 2012 election.) A popular, effective incumbent verses a horrible, elitist challenger eeked out only a 4 point win. When the R's get another plurality, these solidly-D states that have passed the Compact so far will be glad it never got traction.
(Note: also not a lawyer, but I have read extensively on this issue.)
It is a rare Presidential election where the winner doesn't get both the electoral and popular vote. It has happened four times.
And of those four times, you can't really consider 1824 or 1876 because not every state had a popular vote to determine their EC vote. In addition, there was significant voter intimidation, disenfranchisement, and controversy in 1876.
Actually there is a backdoor way to have it occur without a constitutional amendment- agreement by the states. http://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact
It's about halfway there.
Not only is it a backdoor way, it'll also open up a can of Constitutional worms that will make Bush v. Gore look like small claims.
The assumption is that all small states vote the same way...
Indeed. In fact, if you look at the 10 smallest states/districts, it's usually a 5R-5D to 6R-4D split.
I understand it, I just fundamentally disagree with it because he's right; it's an outdated, inefficient way of governing that leaves room for disgusting levels of abuse via gerrymandering, which is why a majority of people in Pennsylvania voted Democrat, yet only 5 of their 18 representatives are actually Democrat.
And why a third of the people in Maryland voted Republican, yet only 1 of their 8 representatives is actually Republican. That's why I like Iowa's redistricting, a non-partisan computer draws the lines and the legislature has to vote it up or down.
Never ascribe to malice, that which can be explained by stupidity... Doubling, tripling; sounds to me like it could be explained by an untrained operator not receiving feedback that an operation has been completed, and so clicking again on the button which initiates the operation.
Other things being equal, a simpler explanation is better than a more complex one. It's a Cartesian select. The real question is why only certain precincts are affected.
The clearest way into the Universe is through a forest wilderness. -- John Muir