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

Thu Nov 10 10:05:10 PST 2016

February 1974, Conservative Party received 226,000 more votes than Labor, but had 4 fewer MPs. Labor wound up forming the government.

Sure, parliamentary systems are different. So is the U.S. system. That’s kind of my point, and I think it’s a tad simplistic and to try to claim the U.S. system is somehow aberrant compared to other democracies because we don’t have direct election of our top executive.

Sean

From: Douglas Carver [mailto:dhmcarver at gmail.com]
Sent: Thursday, November 10, 2016 12:51 PM
To: Sean Parnell <sparnell at philanthropyroundtable.org>
Cc: zacharyr46 at gmail.com; Lorraine Minnite <lminnite at gmail.com>; law-election at department-lists.uci.edu
Subject: Re: [EL] if national popular vote plan had passed, Hillary would be the winner

But I think it is safe to say that the US is unique in that the president/head of state/strongest party/chief executive/whatever you want to call where the true power lies can be selected without a plurality of votes.

On Thu, Nov 10, 2016 at 10:33 AM, Sean Parnell <sparnell at philanthropyroundtable.org<mailto:sparnell at philanthropyroundtable.org>> wrote:
One line from the piece jumped out at me:

“But if the candidate who got fewer votes wins the White House for the second time in five elections, it could put a new spotlight on the peculiar way that America picks its presidents — one not shared by any other democracy.”

This is technically true, but I’m not sure it’s quite as powerful an argument as suggested. In the U.K., for example, the Prime Minister (roughly comparable to our President) isn’t elected directly by the citizens of that nation, instead it’s effectively chosen by members of the largest party in parliament. A parliament filled with members who do not, it is worth noting, have constituency sizes that are equal (or thereabouts) – Isle of Wight has 118,00 or so people vs. 22,000 for Na h-Eileanan an Iar (see: http://www.ons.gov.uk/peoplepopulationandcommunity/elections/electoralregistration/bulletins/electoralstatisticsforuk/2014-05-01). And of course we don’t have a Queen in the U.S. (OK, maybe Queen Bey) to ask an MP to become PM and form a government.

The point is, there are plenty of forms of democratic governance in which the public at large does not directly select the chief executive/head of state. So while it may indeed be “peculiar” to use the electoral college, it’s not at all peculiar to not have direct election of chief executive/head of state.

Sean Parnell
Vice President for Public Policy, The Philanthropy Roundtable
1120 20th Street NW, Suite 550 South
Washington, DC  20036
(202) 600-7883<tel:%28202%29%20600-7883> (direct)
(571) 289-1374<tel:%28571%29%20289-1374> (mobile)
sparnell at philanthropyroundtable.org<mailto:sparnell at philanthropyroundtable.org>

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of zacharyr46 at gmail.com<mailto:zacharyr46 at gmail.com>
Sent: Thursday, November 10, 2016 8:58 AM
To: Lorraine Minnite <lminnite at gmail.com<mailto:lminnite at gmail.com>>
Cc: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>

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

Totally agree with Prof. Minnite. Here's my piece on this for those interested:

http://www.nbcnews.com/politics/elections/electoral-collage-lesson-more-voters-chose-hillary-clinton-trump-will-n681701

Sent from my iPhone

On 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>

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
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
________________________________
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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