[EL] now that Trump supports using the popular vote, he deserves not to suffer faithless electors himself

Mon Nov 14 07:21:21 PST 2016

I am so impressed that Donald Trump reaffirmed support for using the national popular vote (last night on 60 Minutes) if I were a Republican presidential elector, I would vote for Trump in the electoral college.  When George W. Bush was in Trump's position in the period December 12, 2000 through January 20, 2001, Bush certainly didn't make a statement like that.  Trump's statement is very gracious and very important for the future of the national popular vote movement. Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147

      From: "Schultz, David A." <dschultz at hamline.edu>
 To: Douglas Carver <dhmcarver at gmail.com> 
Cc: Election Law <law-election at uci.edu>
 Sent: Sunday, November 13, 2016 7:56 PM
 Subject: Re: [EL] electoral college

Ok, folks, let's have fun and let me throw my two cents into this.  Consider this a thought experiment.

Electoral College Do Your Job: Make Clinton President
http://schultzstake.blogspot.com/2016/11/electoral-college-do-your-job-make.html

On Sun, Nov 13, 2016 at 5:19 PM, Douglas Carver <dhmcarver at gmail.com> wrote:

Mark Rush's defense of the Electoral College is a bit strange since there have been plenty of other forms of democratic governance created since 1789, and somehow they have neither used the EC nor dispensed with bicameral legislatures, in the main. (Plus, of course, Nebraska seems to get along fine with a unicameral legislature.) 
His point does raise the interesting question of the power of the Senate in our system, which is unusual for an upper chamber in a bicameral system.

On Sun, Nov 13, 2016 at 3:57 PM, Thomas J. Cares <Tom at tomcares.com> wrote:

And how solvable are these issues?
On the first, I'm thinking CA puts it in its constitution that the winner of such a national primary will get to choose California's electors on, or shortly after, the mandated date, and that the electors might have to make a binding pledge (though it might be better if they don't, to allow candidates to settle a <270 issue, rather than the house, with the 1 vote per state thing).
The second point concerns me. The legality of a state behaving, in other states, the way Americans Elect behaved in 2012, achieving ballot access.
I'm definitely interested to hear thoughts from this list about that, maybe the state constitutional amendment would have to require the state, perhaps through a new, funded, commission, to try to contract with an NGO. This issue feels like the big question mark for me. 
Then, doesn't my first paragraph address both your first and last paragraph?
Essentially, the way things are now, the results of the 11/9 election decides that CA appoints Clinton electors. Why can't the state change its constitution such that the results of this new national primary determines which electors are appointed (and California not even place the presidency on its general election ballot).
-Tom Cares

On Sunday, November 13, 2016, Mark Scarberry <mark.scarberry at pepperdine.edu > wrote:

 Another problem is that a state cannot appoint electors prior to the congressionally mandated election date.
The California legislature could commit (by nonbinding promise) to appoint electors in accordance with the outcome of such a "primary" but could not be bound 
There is also a problem with the state somehow creating one party for its primary.
Finally, even if such a scheme could otherwise bind the legislature as of an early date, it would not be a manner by which *the state* appoints electors. An action  of a national voting population isn't an appointment by the state, per McPherson.
Mark Scarberry 

 _____________________________
From: Larry Levine <larrylevine at earthlink.net>
Sent: Sunday, November 13, 2016 9:57 AM
Subject: Re: [EL] electoral college
To: Thomas J. Cares <tom at tomcares.com>, Mark Rush <markrush7983 at gmail.com>
Cc: <law-election at uci.edu>

One little flaw in your logic: “They would be in bad shape without California’s votes.” Didn’t the guy who just won this election do it without California’s votes?Larry From: law-election-bounces at departmen t-lists.uci.edu [mailto:law-election-bounces at d epartment-lists.uci.edu] On Behalf Of Thomas J. Cares
Sent: Sunday, November 13, 2016 9:42 AM
To: Mark Rush <markrush7983 at gmail.com>
Cc: law-election at uci.edu
Subject: Re: [EL] electoral college What about the idea I posted on here a few days ago: California amends its constitution by initiative, requiring the state to do something very much like what Americans Elect was doing - create a party and qualify that party to be on the ballot in the general election for president in any state; create an internet 'primary', for all registered voters in the U.S.; use an instant runoff system in this primary.  Alternatively, or additionally, California could create a vote by mail system; and, of course, the interesting thing is now that California is administering a 50-state (+DC) election.  Now, the important part. California pledges to give its (whopping 55) electoral votes to the winner of this primary. We take the presidency off our general election ballot. Our EC votes are already decided.  Now any democrats who want to be president have to win this election. They would be in bad shape without California's votes. The Democratic Party would have to eliminate their presidential primary. Now, I don't see how the Republican primary, whose electorate is such a subset of the national population, could produce candidates who could beat one who wins this primary.  It would become the only election that matters.  Realize, Bloomberg will never be president simply because he didn't want to have to run in a primary and he didn't want to have to run against both a democratic and republican standard bearer. He certainly could have had great chances in this kind of election. That might have set him up to go one on one against Trump. And he probably would have had excellent chances there.  It seems so much easier than the NPV compact (which doesn't even make instant runoff voting possible right away, which is the most important reform here), and so much easier than amending the federal constitution (and ditto). California just needs to pass an initiative. And we'll never have presidential elections this awful ever again. I wish we could imagine what an advanced future would be like and then think of stepping stones to get there. A strong future civilization would not be choosing its leaders the way this last 18 months have gone. Those republican debates are too awful. Someone should really do something.  This email isn't a call to action. This is an election law list serv. Can anyone red team this? -Tom Cares
On Sunday, November 13, 2016, Mark Rush <markrush7983 at gmail.com> wrote:
The EC is a manifestation of the federal system and the role of the states.   True, were one designing a nation, an EC structure might never be incorporated into a new constitution.  BUT, its underlying structures--such a a senate or other institution to ensure that states/provinces are represented in the government and as a buffer against straight popular majority rule--would be.  Hence, if we look at other federal nations or the EU, we see gross disparities in voting power between large and small states/provinces.  Ontario has much less voting power per capita than New Foundland.  Same goes for Madrid and Barcelona v. small provinces such as Oviedo.  Germans are underrepresented when compared to Greeks or Belgians. If we are serious about getting rid of the EC, it would be incongruous and inconsistent not to call for dispensing with the US and all state senates.  On Sun, Nov 13, 2016 at 4:24 AM, RuthAlice Anderson <ruthalice.anderson at comcast.ne t> wrote:
Just for fun, there is a way to have the electoral and the popular vote reflect each other.  http://mentalfloss.com/article /58809/us-map-redrawn-50-state s-equal-population Actually, it probably would not, but would certainly give us a more fair senate    
On Nov 10, 2016, at 8:08 PM, Thomas J. Cares <Tom at TomCares.com> wrote: My biggest problem with the electoral college is that it makes it impossible to use a national instant runoff system to elect the president. How can one defend it though? It's about our system of states and their relationship with the federal government. The state is the constituent, not the individual. The individual is sort of a constituent of the president, *through their state*. I still don't like it. I feel like it's hard to wrestle the power from small states, but I'd be okay with giving voters in small states extra weight on their votes - so small state voters still have the same arithmetic power they do now - to have a national popular vote with instant runoff voting (one election that allows multiple candidates, ideally without respect to party - i.e. 17 republicans on the general election ballot) Best part about that is eliminating the barf-worthy primaries. (Why didn't Americans Elect come back this year? Does anyone know? Are they ever coming back? (I don't know why the chose 2012, a referendum on Obama, to try their model) That question honestly deserves its own email. 

On Wednesday, November 9, 2016, Richard Winger <richardwinger at yahoo.com> wrote:
If the electoral college system is so great, why doesn't any state use it to elect its governor?   No one can imagine that if this system didn't already exist, that any serious person would ever advocate for it. Among the countries in which the voters choose the head of government, no other country provides that the person who wins the most popular votes still doesn't take the office. "One person, one vote" may be a cliche, but it is a cliche that is accepted.  How we can respect the idea that every voter should be treated equally, and simultaneously support our existing system? 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 8:21 AM
Subject: RE: [EL] if national popular vote plan had passed, Hillary would be the winner 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. SmithJosiah H. Blackmore II/Shirley M. Nault   Professor of LawCapital University Law School303 E. Broad St.Columbus, OH 43215614.236.6317http://law.capital.edu/faculty /bios/bsmith.aspxFrom: 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 winnerThere 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. SmithJosiah H. Blackmore II/Shirley M. Nault   Professor of LawCapital University Law School303 E. Broad St.Columbus, OH 43215614.236.6317http://law.capital.edu/faculty /bios/bsmith.aspxFrom: law-election-bounces at departmen t-lists.uci.edu [law-election-bounces at departme nt-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 winnerWith 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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