[EL] if national popular vote plan had passed, Hillary would be the winner

Thu Nov 10 04:52:19 PST 2016

Brad is right that there are different values expressed in the original 
constitutional design of our electoral system and the means by which a 
president is chosen.  But those values always were and continue to be 
contested.  We are all know the many ways in which our system is not 
robustly democratic; for example, the more democratic direct 
representation of the House of Representatives stands in contrast to the 
original indirect election of Senators, and less democratic 
representation in the Senate of the states.  The Electoral College falls 
into the 'less democratic' of our political institutions.

I'd like to go back to the assertion that, "Even in 2000 and 2016, the 
results will be close enough that one can't really know what would 
happen in a system in which each candidate would have very different 
incentives on how and where to campaign."   I think this too easily 
brushes aside the critique of the Electoral College from the standpoint 
of a robust democratic ideal.  Brad suggests campaigning would have been 
different if the national popular vote plan had been in place in 2016, 
and that this might have produced a different outcome, I guess with 
Donald Trump winning a plurality of the votes.  I don't find the 
critique credible.  For example, I find it hard to believe that either 
candidate would simply have concentrated their efforts in the states 
where they knew they had strong support in order to boost their numbers 
(i.e., Clinton spending all of her time in California, New York, and New 
Jersey, or Trump spending all of his time in Mississippi or Oklahoma).

Moreover, the impact on campaign strategy misses the larger point that 
we now again, only 16 years into in the 21st century will have twice 
installed presidents who lost the popular vote.  I find that shocking 
and very disconcerning.

On 11/9/16, 11:21 AM, Smith, Brad wrote:
> This is horrendously wrong.
>
> Actually, there was a tremendous amount of voter suppression in 1876. 
> The troops simply couldn't be everywhere, and were badly undermanned. 
> The situation was so bad that President Grant asked Congress to 
> authorize martial law in the South, in order to protect black voters 
> from the Klan and other violence. Congress refused to pass the measure 
> (it had passed a similar measure in 1871). The Red Shirts and the 
> White League were other major Democratic paramilitary groups. In South 
> Carolina, Ben Tillman, primary sponsor of the Tillman Act, was a 
> member of the Sweetwater Club, which assaulted blacks attempting to 
> vote with regularity.
>
> The election of 1876 was quite probably worse for violence against 
> black voters than the election of 1888, because by 1888 southern 
> whites could largely claim "mission accomplished" when it came to vote 
> suppression.
>
> /Bradley A. Smith/
>
> /Josiah H. Blackmore II/Shirley M. Nault/
>
> /   Professor of Law/
>
> /Capital University Law School/
>
> /303 E. Broad St./
>
> /Columbus, OH 43215/
>
> /614.236.6317/
>
> /http://law.capital.edu/faculty/bios/bsmith.aspx/
>
> ------------------------------------------------------------------------
> *From:* Richard Winger [richardwinger at yahoo.com]
> *Sent:* Wednesday, November 09, 2016 11:05 AM
> *To:* Smith, Brad; Election Law Listserv
> *Subject:* Re: [EL] if national popular vote plan had passed, Hillary 
> would be the winner
>
> There was no suppression of black votes in 1876, because the federal 
> troops were still occupying the south.  That is why Mississippi's 
> legislature sent two black US Senators to Washington, in the 1870's.
> Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147
>
>
> ------------------------------------------------------------------------
> *From:* "Smith, Brad" <BSmith at law.capital.edu>
> *To:* Richard Winger <richardwinger at yahoo.com>; Election Law Listserv 
> <law-election at uci.edu>
> *Sent:* Wednesday, November 9, 2016 5:27 AM
> *Subject:* RE: [EL] if national popular vote plan had passed, Hillary 
> would be the winner
>
> Richard,
>
> There is pretty little reason to include 1824, when not every state 
> even counted popular vote and the campaign was entirely different. In 
> 1876 and 1888 the Republicans would have won the popular vote except 
> for massive suppression of black votes and Republican votes more 
> generally by the Democrats in the deep south. In each of those 
> elections, the electoral college actually helped to make sure that the 
> candidate actually favored by a majority of the populace actually won 
> the election, by isolating the Democratic vote suppression and fraud.
>
> Even in 2000 and 2016, the results will be close enough that one can't 
> really know what would happen in a system in which each candidate 
> would have very different incentives on how and where to campaign.
>
> All of this points up that our electoral structure reflects values 
> other than raw popular vote totals. At the same time, the popular vote 
> usually carries the electoral college, and the system is designed to 
> assure that no one without substantial and widespread popular support 
> can be elected.
>
> /Bradley A. Smith/
> /Josiah H. Blackmore II/Shirley M. Nault/
> /   Professor of Law/
> /Capital University Law School/
> /303 E. Broad St./
> /Columbus, OH 43215/
> /614.236.6317/
> /http://law.capital.edu/faculty/bios/bsmith.aspx/
> ------------------------------------------------------------------------
> *From:* law-election-bounces at department-lists.uci.edu 
> [law-election-bounces at department-lists.uci.edu] on behalf of Richard 
> Winger [richardwinger at yahoo.com]
> *Sent:* Wednesday, November 09, 2016 8:17 AM
> *To:* Election Law Listserv
> *Subject:* [EL] if national popular vote plan had passed, Hillary 
> would be the winner
>
> With the greatest number of uncounted votes in California, Oregon, and 
> Washington, by far, states that are very strong for Clinton, it is 
> clear to me that she will have approximately 1,000,000 more popular 
> votes than Donald Trump.
>
> The Democratic Party has been the victim of the electoral college five 
> times now:  1824, 1876, 1888, 2000, and 2016
>
> Democrats should have been concentrating on passing the national 
> popular vote plan instead of focusing on campaign finance reform.  
> Clinton's side spent far more money than Trump's side.  We should get 
> over the idea that voters always vote for the candidate with the most 
> spending.
>
> Another reform Democrats should have been working for is instant 
> runoff voting.  Yet just a few weeks ago Jerry Brown vetoed the 
> California bill to expand instant runoff voting.
> Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147
>
>
>
>
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