NPV: Presidential chaos under Koza scheme

May 11th, 2011 by Amy


Summary of Testimony of Professor Robert Hardaway

Colorado Senate Committee

March 25, 2009, 1:30 PM

We are talking about…a whole solar system of government power. If it is proposed to change the balance of power of one of the elements of the solar system (such as the Electoral College), it is necessary to consider the others (such as the U.S. Senate).” John F. Kennedy (1956, speaking in opposition to Republican attempts to undermine federalism by abolishing the Electoral College)

SYNOPSIS: Passage of the Koza Scheme for circumventing the Constitutional Process for Electing the President of the U.S. would:

  • Reduce substantially the possibility of electing a president favored by a majority of the American people.
  • Create massive uncertainty in close presidential elections by requiring recounts in over forty two thousand voting hamlets across the U.S., virtually assuring a constitutional crisis (with no provision under the Koza scheme for a national recount, each state could individually choose whether to conduct such a recount in their state, leading to mass chaos.)
  • Abrogate the constitutional safeguards against election of a candidate, who though enjoying an overwhelming popular vote advantage in one region of the country, is opposed by all the other regions of the county.
  • Roll back the clock on minority rights
  • Undermine federalism and the separation of powers so meticulously provided for in the U.S. Constitution (The framers, in eschewing the proposal to have the congress elect the president on grounds that it would leave the president “beholden” to the legislature”, instead provided for a parallel congress, chosen by the people of the separate states, with the sole duty of electing the president)
  • Violate the Compact Clause of the U.S. Constitution, which strictly forbids states from entering into “any agreement or compact with another state” without the consent of congress.


Consider the election of 1960, and what would have happened had the Koza scheme been the subject of a compact or conspiracy between as few as 11 states:

What actually happened: Despite a popular vote which was so close that the congressional quarterly calculated that Nixon had won the popular vote by a relative handful of votes out of seventy million cast nationwide, Kennedy was declared the clear winner in the Electoral College. Nixon did not demand a recount because of Kennedy’s substantial margin in the Electoral College, and there was an orderly transition of power.

What would have happened under the Koza scheme:

  1. Nov. 8, 1960: Needing as few as a relative handful of popular votes, Kennedy demands a nationwide recount of all seventy million plus popular votes cast in over 42,000 voting districts in the U.S.

  2. America awakens to the startling fact that under the Koza plan, no state (including Colorado) can demand that another state either conduct, or not conduct a recount within their state.

  3. The newspaper and media give tally a narrow popular vote margin to Kennedy; but the Congressional Quarterly declares Nixon the popular vote winner by a margin of a relative handful of popular votes.

  4. Colorado legislature debates whether, in accordance with the Koza compact it had made with 11 other states, it should go ahead and cast its Electoral votes for Nixon based on Nixon’s popular vote lead of a handful of votes as declared by the Congressional Quarterly; Colorado Democrats demand that Colorado withhold its electoral votes until a nationwide recount is conducted.

  5. Republicans in non-Koza states in which Kennedy lost the popular vote, including California, decline to conduct a recount on grounds that no nationwide recount (complete with court cases, and challenges in hundreds of voting districts) could on any account be conducted prior to December 18 (the deadline for casting its Electoral Votes); to wait for a national recount and resolution of over five hundred pending court cases around the country, would risk forfeiting California’s Electoral votes; California Democrats demand that California conduct a recount, sure that at least a handful of popular votes could be discovered, and are willing to risk forfeiture of California’s Electoral votes.

  6. Colorado Democrats demand that California conduct a recount; Colorado republicans demand that California do no such thing.

  7. California refuses to conduct a recount, claiming that Colorado has no constitutional right to demand that California doanything.

  8. Mississippi, in which Kennedy won by a 60 to 40 % margin, refuses to conduct a recount on grounds that there is no reason to spend millions of dollars on a recount when the voting margin in that state was clearly in favor of Kennedy, especially since it never signed on to the Koza conspiracy in the first place.

  9. A recount is conducted in California, and 23 votes are found for Kennedy.

  10. Maine conducts a recount and finds 47 votes for Nixon.

  11. 23 non-Koza states, already incensed that they have been cut out of the Electoral process by 11 Koza states, refuse to conduct any recounts.

  12. The December 18 deadline passes; eight states forfeit their electoral votes while debating how to case their electoral votes at a time when the popular vote recounts are still uncertain and unlikely to ever be resolved.

  13. Democrats in two Koza states, under the gun, in danger of forfeiting their Electoral votes, and convinced that there has been massive voting fraud in Mississippi, cast their Electoral votes for Kennedy, despite having promised to vote for the popular vote winner (declared to be Nixon on the morning after the election by the Congressional Quarterly, despite a media tally of a popular vote margin in favor of Kennedy)

  14. Colorado threatens to sue Mississippi for failing to comply with their obligations under the Koza Compact.

  15. Mississippi replies that the Koza Compact is unconstitutional, and that in any case, Colorado has no standing to sue Mississippi

  16. Congress refuses to count Mississippi’s Electoral votes on grounds that they missed the deadline.

  17. Five hundred and seventeen court cases and challenges are being held around the country.

  18. Inauguration day passes, with no decision.

  19. Speaker of the House assumes presidential responsibilities. After several months, partial national recounts are conducted, and each time, with over seventy million votes to recount, there is a different result. Court cases and challenges continue unabated.

17-847: Only one’s imagination can limit the possibilities.

Best Possible ending to the Koza Nightmare:

After several years of ongoing court battles, endless recounts and challenges, the Supreme Court finally ends the Koza nightmare by declaring the Koza scheme and conspiracy unconstitutional under the Compact Clause. Although a president is never chosen, at least normaclcy prevails in the next election.

Worst possible scenario to the Koza Nightmare:

The country devolves into irretrievable chaos.

A few questions to Ask of all states participating in the Koza Scheme:

  1. If a non-Koza state declines to conduct a recount (on grounds both of expense and also, that, given the lop-sided popular vote in their state, their state law does not provide for a recount), how can it be forced to conduct a recount against its will?

  2. If a Koza state opts to cast its electoral vote in favor of a candidate who lost the popular vote nationally, but is demanding a recount which he is considered likely to win, how will the other Koza states enforce the Compact against the non-complying state?

  3. If a state decides to withdraw from the Koza Conspiracy prior to the election, can it be prevented from doing so? By what judicial mechanism?

  4. How would a national recount be conducted if some states (presumably non-Koza states) refuse to do so?

  5. What if the national recount (if able to be conducted at all) shows a different very close result, but for the other candidate? Could another recount be demanded?

  6. How many recounts could be conducted, assuming each recount shows a different result? Five? Ten? One hundred?