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

Thu Nov 10 06:23:51 PST 2016

With an NPV scheme, they would’ve likely also campaigned in the exact same places—major urban areas—so if one of the purposes of NPV is to expose more parts of the country to the campaign (not just the “swing states”), it seems unlikely to do that. After all, there are more Republican voters in CA/NY than MS/OK.

But really the EC/PV disparity can be explained by California alone, where Clinton won by 2.5M. Trump actually won by 2.3M in America. ;-)

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From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rob Richie
Sent: Thursday, November 10, 2016 9:02 AM
To: Election Law
Subject: Re: [EL] if national popular vote plan had passed, Hillary would be the winner

I strongly support a national popular vote for president, as long-timers on this list might know, but want to stress that Brad is correct that the campaign would have been very different if a popular vote system had been in place. Suggesting Clinton would have won the popular vote because she's winning it now is an argument that I'm sure that will be made by frustrated Democrats in the coming days, but there's no way to know.

To underscore the strange way our current system distorts campaigns an that we didn't just experience a popular vote election, here's a stat to consider: the Clinton-Kaine ticket held nearly a quarter (23.8%) of their post-convention campaign events in the single state of Florida alone. The Clinton-Kaine and Trump-Pence tickets collectively held more than half their campaign events in just four states (all won by Trump), and more than 90% in the 11 states projected to be swing states based on the 2012 results. See our candidate tracker here:
https://docs.google.com/spreadsheets/d/14Lxw0vc4YBUwQ8cZouyewZvOGg6PyzS2mArWNe3iJcY/edit#gid=0<https://docs.google.com/spreadsheets/d/14Lxw0vc4YBUwQ8cZouyewZvOGg6PyzS2mArWNe3iJcY/edit#gid=0>

One person who strongly favored a popular vote system after the 2012 election was none other than Donald Trump, who called the current system a "disaster." See
http://theweek.com/speedreads/660906/trump-once-called-electoral-college-disaster-democracy-just-won-white-house-because<http://theweek.com/speedreads/660906/trump-once-called-electoral-college-disaster-democracy-just-won-white-house-because>

Indeed I suspect Trump might have been very frustrated by this year's general election campaign. As our candidate tracker shows, Trump did campaign in far more states than Clinton, and talked about wanting to make an effort in states like California and New York. But of course that's futile in the current rules that make this electorally the "president of the swing states of America" rather than America as a whole.

Rob Richie, FairVote

On Thu, Nov 10, 2016 at 7:52 AM, Lorraine Minnite <lminnite at gmail.com<mailto:lminnite at gmail.com>> wrote:
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<tel:614.236.6317>

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________________________________
From: Richard Winger [richardwinger at yahoo.com<mailto: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<tel:415-922-9779> PO Box 470296, San Francisco Ca 94147

________________________________
From: "Smith, Brad" <BSmith at law.capital.edu><mailto:BSmith at law.capital.edu>
To: Richard Winger <richardwinger at yahoo.com><mailto:richardwinger at yahoo.com>; Election Law Listserv <law-election at uci.edu><mailto: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<tel:614.236.6317>
http://law.capital.edu/faculty/bios/bsmith.aspx<http://law.capital.edu/faculty/bios/bsmith.aspx>
________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Richard Winger [richardwinger at yahoo.com<mailto: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<tel:415-922-9779> PO Box 470296, San Francisco Ca 94147

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