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

Thu Nov 10 09:02:16 PST 2016

I'm sure much more will be written about this in the months to come, but
I'll refer anyone interested to my quick take on the subject regarding the
facts of 2016 in particular
<http://excessofdemocracy.com/blog/2016/11/hillary-clintons-popular-vote-margin-is-meaningless-in-every-way-except-pithy-tweets>
.

But the post draws upon two larger barriers confronting Electoral College
reform efforts in a piece I had in the Arizona State Law Journal
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2049630> four years
ago.

The first is theoretical in that the Electoral College does continue to
give some rough weight to states on the basis of geography and total
population; an election by popular vote would shift us to a voter-based
system, which would actually, in some respects, *reduce* the influence of
states with significant non-citizen or non-voting populations, including
California. (Recall that "one person, one vote" likely turns on drawing
districts by total population, at least according to the Court in *Evenwel*,
and apportionment of the House turns on total population.)

The second is practical--a truly national election would need to occur,
including candidates who appear in all 50 states or none of them, matching
early voting periods, and so on. Patchwork solutions like the National
Popular Vote (which is probably unconstitutional
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=979537> anyway without
congressional <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2033853>
consent) fail to sufficiently account for these differences. (Indeed,
consider the impact that a decision in Minnesota to exclude Donald Trump's
name from the ballot because he failed to file an alternative slate of
electors might have had on the entire national popular vote totals this
cycle.)

Best,

Derek

Derek T. Muller
Associate Professor of Law
Pepperdine University School of Law
24255 Pacific Coast Hwy
Malibu, CA 90263
+1 310-506-7058 <+13105067058>
SSRN: http://papers.ssrn.com/author=464341
Twitter: http://twitter.com/derektmuller

On Thu, Nov 10, 2016 at 8:45 AM, Douglas Carver <dhmcarver at gmail.com> wrote:

> It is impossible to game what NPV or an election campaign with no
> Electoral College would look like, or what the results would be if we
> directly elected our president, for not only would campaigning patterns be
> different -- Democrats going to Houston, Republicans holding rallies in
> Orange County -- but many people likely don't vote because in their given
> state their vote really won't have an impact on the presidential outcome.
> (I wish they would vote, of course -- democracies without participants soon
> become empty shells.)
>
> I will confess that I am a longstanding opponent of the Electoral College
> as it is, by design, structured to frustrate the popular will -- as were
> many of the original elements of the Constitution, including, of course,
> the appointed Senate and the noxious 3/5ths clause. Perhaps that was
> understandable in the context in which it was crafted (not least, Shay's
> Rebellion and the like), but I think it is hard to argue that in the modern
> age it is defensible at all, particularly as all Federal campaigns (and
> many state and local campaigns) are transnational. In fact, our elections
> have become so distorted (not least through gerrymandering, as well as the
> cap that has been placed on membership) that the supposedly
> most-representative branch, the House, has arguably become the least
> representative.
>
> I find it disheartening that in the 21st century, the Electoral College
> has so many defenders.
>
> (For the record, I also oppose the filibuster, as well as Senate holds and
> the like, as anti-democratic institutions/mechanisms. Elections have
> consequences, people.)
>
>
>
> On Thu, Nov 10, 2016 at 9:13 AM, John Shockley <shockley1894 at gmail.com>
> wrote:
>
>> 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 <614.236.6317>*
>>>
>>> *http://law.capital.edu/faculty/bios/bsmith.aspx
>>> <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> <BSmith at law.capital.edu>
>>> *To:* Richard Winger <richardwinger at yahoo.com> <richardwinger at yahoo.com>;
>>> Election Law Listserv <law-election at uci.edu> <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 <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 [
>>> 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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>>
>>
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>
>
>
> --
> Dilexi iustitiam et odivi iniquitatem, propterea morior in exilio.
>
> (I have loved justice and hated iniquity, therefore I die in exile.)
>
>     -- the last words of Saint Pope Gregory VII (d. 1085)
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