[EL] The White House has taken down the We The People petition relating to the votes of Electoral College electors

[Sean Parnell]

One interesting question arises from the Change.org petition, which observes the following:

On December 19, the Electors of the Electoral College will cast their ballots. If they all vote the way their states voted, Donald Trump will win. However, they can vote for Hillary Clinton if they choose. Even in states where that is not allowed, their vote would still be counted, they would simply pay a small fine - which we can be sure Clinton supporters will be glad to pay!

Would this be legal? Technically, an elector is an elected official, and I see a potential problem with allowing private citizens to pay penalties (civil or criminal) for elected officials, particularly those penalties incurred for an official action. Of course the elector is technically a former elector once they vote, so perhaps the concern vanishes once they are no longer an elected official?

This is separate from the question of whether such binding laws are constitutional, of course - I suspect they are not. But that's a different matter.


Sean Parnell
Vice President for Public Policy, The Philanthropy Roundtable
1120 20th Street NW, Suite 550 South
Washington, DC  20036
(202) 600-7883 (direct)
(571) 289-1374 (mobile)
sparnell at philanthropyroundtable.org



From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of J.H. Snider
Sent: Thursday, November 10, 2016 3:32 PM
To: law-election at department-lists.uci.edu
Subject: [EL] The White House has taken down the We The People petition relating to the votes of Electoral College electors

The White House has just taken down the We The People petition<https://petitions.whitehouse.gov/petition/employ-electoral-college-avoid-donald-trump-presidency> relating to the votes of Electoral College electors.  Here is the message<https://petitions.whitehouse.gov/tos-violation> one gets when trying to access/sign the petition:

Petition has been closed
The petition you are trying to access has been removed from the site per our Moderation Policy, because it was in violation of our Terms of Participation.
All other traces of the petition have been deleted.

The White House response doesn't say which part of the Terms of Participation were violated.  My two guesses are:


*        Petitions that expressly urge the support or opposition of candidates for elected office, or

*        Petitions that do not address the actions or policies of the federal government

It seems reasonable to me that the White House took down the petition, but I believe it should have been clearer about exactly what provision in its Terms of Participation<https://petitions.whitehouse.gov/about#terms> the petition violated.  There is also a question of timing.  The White House took down the petition just before (or possibly after) it would have reached the signature threshold required for a response. Not sure what a better response time should have been, but perhaps there should be an analog to the Purcell Principle (admittedly a very imperfect analogy) for We the People petitions.

An additional complexity is that the Terms of Participation limiting political speech might be viewed as ambiguous.  This is the key principle-based passage that would seem to justify taking down the petition: "You agree to only create petitions consistent with the limited purpose of the We the People platform, which is to allow individuals to petition the Administration to take action on a range of issues - to address a problem, support or oppose a proposal, or otherwise change or continue federal government policy or actions."

The corresponding Change.org petition<https://www.change.org/p/electoral-college-electors-electoral-college-make-hillary-clinton-president-on-december-19?recruiter=348365008&utm_source=share_petition&utm_medium=facebook&utm_campaign=autopublish&utm_term=mob-xs-share_petition-reason_msg> currently has close to half a million signatures.  The White House advised potential We The People petitioners: "With We the People, you can easily create a petition online, share it, and collect signatures. If you gather 100,000 signature in 30 days, we'll review your petition, make sure it gets in front of the appropriate policy experts, and issue an official response."

Since the White House launched We The People on Sept. 22, 2011, I have written about a half dozen op-eds concerning its practical implementation.  I imagine it will be shuttered when the Trump administration takes office.  Its obituary would mark a good time to assess it.

J.H. ("Jim") Snider, Ph.D.
President of iSolon.org<http://www.isolon.org/>
Editor of The State Constitutional Convention Clearinghouse<http://concon.info/> and The New York State Constitutional Convention Clearinghouse<http://www.newyorkconcon.info/>
E-Mail: snider at iSolon.org<mailto:snider at iSolon.org>
Phone: (202) 540-0505
Fax: (408) 228-0577

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