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

Thu Nov 10 08:24:55 PST 2016

As you say, tt is too early to know the vote totals.  California alone has millions of uncounted ballots.  It takes a long time to count mail ballots that arrive on election day (mostly handed in at polling places) because the signature on the outer envelope must be compared to the signature on the voter registration record.  It takes even longer to count provisional ballots because it must be determined if the voter is qualified.
Typically the Oregon and Washington election night totals are only about two-thirds of the final vote totals from those states.  They are all postal ballot.
6.9% of the vote cast for president in Vermont was a write-in vote.  In DC over 2% of the votes cast were write-ins.  Typically the write-ins can't be known until the final official tabulation, so we have a lot of unknown data.
 Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147

      From: John Shockley <shockley1894 at gmail.com>
 To: Lorraine Minnite <lminnite at gmail.com> 
Cc: law-election at department-lists.uci.edu
 Sent: Thursday, November 10, 2016 8:13 AM
 Subject: Re: [EL] if national popular vote plan had passed, Hillary would be the winner

Am I correct that Donald Trump not only received fewer votes that Hilllary Clinton, but that he received fewer votes that Mitt Romney did in 2012 in losing to President Obama by five million votes?  My best information says that Romney received 60,932,235 votes in 2012.  I believe that Trump has yet to reach 60 million, although there are still votes to count in California and a few other places.  If this is correct, then millions of Americans who voted in 2012 sat out this election (mainly Democrats?)

On Thu, Nov 10, 2016 at 6:52 AM, Lorraine Minnite <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 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@ department-lists.uci.edu [law-election-bounces@ 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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