[EL] INSTANT RUNOFF VOTING! (not trump)
Thomas J. Cares
Tom at tomcares.com
Thu Oct 20 15:41:36 PDT 2016
I wrote this on my iPhone, while sleepless in bed at 3am, *about 2 weeks
ago*. And then fell back to sleep before sending it. But here: *you guys
can have it now* (I don't know why I didn't hit send before falling asleep,
the email was quite complete, actually)*:*
[Forgive me for going off-topic, but on a fundamental level, I am very
concerned that the consciousness of the American people is being
monopolized by Donald Trump; and I am also not entirely confident that will
sufficiently dissipate after the election]
I was going to end my email there, actually, but then it occurred to me
that I should consummate my assistance to your non-Trump consciousnesses by
presenting a more-worthy elections topic for us to pivot too (and thus I
will change the subject line above).
INSTANT RUNOFF VOTING.
In light of Jerry Brown vetoing sb1288, which would have allowed general
law localities to adopt ranked choice/instant runoff voting systems, as
charter ones may, I'd like to reintroduce my thoughts about why IRV/RCV is
a critical transformation for out elections process.
You see, instant runoff voting is a way to narrow down candidates, in a way
that is non-corruptive or substantively burdensome.
And this is very important.
Because our representative democracy is overwhelmingly inhibited from
properly reflecting voters' collective interests, because of highly
corrupting factors that narrow down candidates, absent use of instant
runoff voting.
Who here thinks Trump (whom* I propose hereafter be referred to as
Voldemort*, to seriously give our brains a break from thinking the word
"Trump" (really, try it if you can))
Redo: Who here thinks Voldemort would have won this primary if the field
weren't crowded; say in a one on one against Kasich?
The fact is, we'll actually never know.
Who here thinks Clinton would have been guaranteed to beat Bloomberg in a
one on one?
The fact is, we'll never know. He wouldn't risk tipping the election to
Trump. (And Nader cough cough Perot cough cough).
ALL ELECTIONS ARE LIKE THIS
The biggest factor in whether someone chooses to run for office is often
what the field looks like. Not what they think voters want and whether they
think they can deliver that.
Absent instant runoff voting, we also have to defer to political machines
and insiders to push out candidates and narrow our choices for us.
These plurality styles of voting suppress the efficacy and legitimacy of
our republic to a small fraction of what it could be. (Read that again and
again until you appreciate it).
Because of plurality styles of voting, we don't actually have a republic -
a system that renders government to mirror its subjects. We have a messy
fail-safe. Highly-concentrated powers, from endorsers and donors and party
insiders, etc, all the way down to the few low-turnout-primary voters who
support the winner, often only in a crowded-field crapshoot-plurality,
after prior powers intimated others out of the race or choked their
traction and funding early. Then a reasonable percentage turn out for the
general, to choose the lesser of two evils, as a very meager fail safe.
OLIGARCHY WITH A FAIL SAFE
NOT A REPUBLIC
(Read that again and again until you appreciate).
This is a pretty good email for me to wing in bed on my iPhone at 2am, if I
may say so myself. [Bows].
Thanks for reading,
Thomas Jefferson Cares
Now, try, JUST TRY, to stop discussing Voldemort, unless it's of the
context of how Instant Runoff Voting might have prevented this
policy-ignorant clown's nomination (Not to mention, there shouldn't even be
a nomination like this. How about national popular vote and instant runoff
voting, and multiple republicans and democrats and whatever can all be on
the same ballot in one single election, rendering an actual damn republic.
We can put a man on the moon (37 years ago), but we can't - just absolutely
can't - have that (power corrupts; which is why Jerry Brown vetoed sb1288,
as the next governor will probably do too. I don't see signs that Newsom or
Chiang support it. I'm quite sure Newsom opposes it - mind you that bill
just gave some choice to local governments). I think I want to vote for
Voldemort in extreme protest to how we do elections in this country. I
think I'd even do it in a swing state. Let him win, because maybe an
uprising needs be strongly provoked somehow. (The final) Voldemort 2016! (I
digress).
This listserv, I love it, but I swear it's all about rearranging furniture
on the Titanic. And I know this list was theoretically intended for legal
discussion not reform policy collaboration, but to the extent that any of
us care about positive electoral reforms, I IMPLORE YOU to start caring
about INSTANT RUNOFF VOTING. (Shall we try discussing this issue now?)
You know what the sad thing is: I'm completely sober right now (stunning,
right? (I never drink))... But I probably wish I weren't.
HERE ARE SOME EMAILS I WROTE OVER 7 YEARS AGO, ENJOY!:
---------- Forwarded message ----------
From: *Rick Hasen* <hasenr at gmail.com>
Date: Tue, Aug 11, 2009 at 6:13 PM
Subject: Re: policy inquiries
To: "Thomas J. Cares" <Tom at tomcares.com>
I'm sorry. I don't have time to engage in this discussion.
Rick
Thomas J. Cares wrote:
I won't disclose any opinions you reveal to me, to others, as I'd expect
you'd be sensitive about that (so this would just be between you and me);
but I'm wondering what your take is on those policy ideas (I mean, you're
certainly way more experienced that I am, on elections law).
I know they're not totally perfect, as my particular public campaign
finance idea could give excessive influence to PACs, there's also the issue
of when candidates could start receiving the money (I think 21 months
before the general election, would be a good and fair amount of time, for
all offices) - and then, the State, arguably, is dictating the duration of
all political campaigns + legislators who have fewer registered voters in
their districts wouldn't be able to get nearly as much financing, and in
those districts, it could theoretically be advantageous to seek private
contributions (though, one key thing is that while the public campaign
financing might not always be the method by which a candidate could procure
the most money, it would at least ensure strong, viable, challengers
against those who do choose to rely on private financial sources);
And, the "top 3, then IRV" modified closed primary idea, might almost be
silly because it almost makes an expensive primary operation, to be in vain
(though, I feel like we're not ready to totally end partisanship right now,
and would therefore need that); and other things;
But, I do think, especially combined together, they'd create, by far
(setting aside our voter initiative scheme, and holding off on judging its
merits, or lack thereof, right now) the best democratic-republican system
in the history of governments.
I also think any concerns, over the logistics of doing it, are unmerited;
seriously, human beings are incredible in that respect, and I don't think
this would be 1% as difficult to work out, logistically, as programming
Adobe Photoshop, and probably far less than 1%^3 as difficult as our
development of modern computer operating systems.
If you really think about how the policies would all work; it just seems
amazing.
Currently, if you look just at Congressional, State Assembly, and State
Senate Districts in California, where there's a >56:<44 ratio of Democrats
to Republicans, or vice-versa, AND the majority party has held the seat
since the last redistricting (2002 and later), there are over 4 million
registered voters (just in these districts) who are ineligible to vote in
their district's majority party primary (for each the Congress, Assembly,
and Senate), and are therefore, pretty unequivocally, disenfranchised, in
effect (even one thing, particularly sad, is that minor party voters in
these districts, with moot general elections, are *always* disenfranchised;
and, California Law requires minor parties to maintain a 1% holding of
total registration, to exist as official parties - so, supporters of the
Green Party, for example have to choose between disenfranchising themselves
or allowing the extinction of their party). The open primary (wouldn't make
us really have to worry about the extinction of parties like the green
party; it would just effectively terminate them all on its own- without
even the opportunity for worry, but) would certainly reduce the "4+ million
figure", but it's very messy (especially with the large number of
candidates on a plurality ballot, in the Primary), and really does put a
great hardship on parties' fundamental associational rights (the
controversy, I suppose, would be whether that hardship is great enough to
make it unconstitutional - I have a hard time saying 'no', but that's
something on which intelligent minds could surely differ). The "top 3, then
IRV" plan would seem to fully enfranchise every voter to the greatest
extent possible, while also giving parties' associational rights every
modicum of respect that they're due.
Again, I just feel like if we had both, my proposal for public campaign
financing and reforming the closed primaries, it would just be an
incredible upgrade on our democracy that would have an incredible positive
chain effect throughout our society.
I would certainly be interested in receiving your input, opinions, or
criticisms, on this. (I'd also be interested in constitutional concerns to
worry about - I would try to leave out the dangerous stuff like that
millionaire's clause; I don't even care much about limiting what a US
Citizen may contribute to a PAC (I'd find myself writing for far longer
than I could afford if I started giving my full analysis on Citizens
United, but in short, I think George Soros has a first amendment right to
give his entire fortune to a PAC (not a candidate), if he so desires, but
that any elections advocacy funded from a corporate treasury, can be banned
(as well as corporate contributions to candidates and PACs), unless part of
a bona fide scheme to directly make a profit - for example, an op-ed in the
NY Times, advocating people not vote for John McCain, would be protected,
because their distribution of such an article is part of a legitimate
scheme to turn a profit; on the other hand, and this may be a little
extreme, but I would not find it constitutionally protected for General
Motors to publish and distribute a free book, at the corporation's expense,
advocating a vote for Barack Obama (because they might believe his
re-election would be advantageous to their profits - an *indirect *scheme
to turn a profit) - but if their shareholders and executives wanted to get
together and form a pac to which they would give millions, each, from their
personal wealth to fund the production and distribution of such a free
book, I would find that to be protected (GM would have a right to fund the
book from their own treasury, if they were selling it, or exploiting it, in
some way that could have a reasonably possible result of an actual direct
profit); I might be a little worried about districts that have more voters
having better-funded campaigns when their legislator will ultimately have
equal power, but I can't think of a fix for that doesn't bring even greater
concerns; but all in all, if you had input on ensuring the
constitutionality of those two election reform plans, I'd be very
interested).
Thanks again, for reading this.
-Tom
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211(213)736-1466(213)380-3769 -
faxrick.hasen at lls.eduhttp://www.lls.edu/academics/faculty/hasen.htmlhttp://electionlawblog.org
---------- Forwarded message ----------
From: *Rick Hasen* <hasenr at gmail.com>
Date: Sun, Aug 9, 2009 at 6:21 PM
Subject: Re: AD 51 Special Election (I'm a candidate; an (extremely) avid
reader of your blog; and elections reform is my #1 plank)
To: "Thomas J. Cares" <Tom at tomcares.com>
Thank you for your detailed message. As a policy, I do not endorse
candidates for office.
Good luck.
Rick Hasen
Thomas J. Cares wrote:
Professor Hasen,
My name is Thomas Cares, and I'm a Democratic Candidate in the Special
(blanket) Primary Election on September 1st, in AD 51 (which includes LMU -
Inglewood, Hawthorne, Lawndale, Gardena, Westchester, Lennox, West Compton,
West Athens, Ladera Heights, Del Aire, Willowbrook -
http://maps.google.com/maps?q=http://tomcares.com/ad51.kml ). I love
election law and have honestly been addicted to your blog for the last
year; on those days that I haven't been extremely busy, I have found myself
checking it a minimum of 3 times/day (on other days, I just read through
it, every night). I've also been unable to resist scrutinizing through
election law opinions and oral arguments, and if I were to make a career of
being a private attorney, I'd certainly hope to specialize in elections
law. Of course, what excites me a great deal more are my aspirations of
drastically reforming elections to significantly improve government. If I
could accomplish any one thing with my life, reforming elections would be
it - simply, I know that bad elections will invariably poison a government,
and its state, at its roots (then we're left trying to preserve its fruits
(i.e. good public schools), almost with futility (only 2/3 California high
school students graduate on time, if ever)).
I accept, that, objectively, I'm definitely a long-shot, in this election,
but believe it's not impossible to have an upset. I don't want to disclose
all of my campaign tactics and activities, at this time, but I've been
running an unprecedentedly efficient campaign, using strategies not quite
like anything ever done before, and I've been seeing very good results -
I've been moving and persuading hundreds of people/day. (Also, while myself
and the 3 other main candidates in this election all purchased space in the
voter information guide, I was the only candidate who bore the double
expense to print my statement in both English and Spanish
<http://tomcares.com/statement.jpg> (this district is a plurality Hispanic
<http://www.assembly.ca.gov/committee/c7/asmfinal/AD51.HTM>, and there are
no Hispanic candidates in this election, so I believe the translation will
definitely add to my vote count) - I actually achieved this by truthfully
claiming indigence, such to have the $10,000 expense billed to me, after
the election, when I'll be obligated to satisfy a payment plan; while there
is public record of this - which I suspect no one is actually aware of -
I'd ask that you not disclose that fact to others. I cite it merely as an
example of how i've been as efficient as possible with the total funds I'll
be able to spend on my campaign, and might be able to win in spite of Steve
Bradford's enormous fundraising advantage (he's taken a fortune from just
about every 'yucky' special interest group there is, including $3,900 from
Chevron and $27,000 from gambling interests); I did also contribute about
$5,000 to my campaign, which was all the personal money, that I could
scrape up (i'd take an equity-loan on my real estate, if i could, but my
credit is poor, and my property is worth less than the balance of its
current mortgage - though i've still been able to rent it out at a profit
and have already got back more money than I've put into it)).
Examples:
Tom,
I live in District 51. (6164 W. 77th Street)
As a lifetime member of the RNC, a member of Senator John McCain's CA
Finance Committee & Leadership Team, and as a Delegate to the Republican
National Convention I found your message on my answering machine seeking
Republican help to upset Steven Bradford very unique and timely!
I just wanted to let you know that my ballot arrived today and my vote was
for you!
Best of luck with this election, but more importantly with your future
endeavors.
Adam
Adam E. Coffey
President and CEO
Web Service Company, LLC
3690 Redondo Beach Avenue
Redondo Beach, CA 90278
###
Tom,
Going through a week's worth of mail led me to the Official Sample Ballot.
Once I'd read that, particularly your statement, I went to
http://tomcares.com/ .
What a good job you've done. I hope to see you succeed in the primary.
--
Allen Klinger klinger at cs.ucla.edu
Prof., UCLA, 4532-K Boelter, L.A. CA 90095-1596 310 825-7695
http://www.cs.ucla.edu/~klinger 310 794-5057 fax
...
If I do manage to win this thing, I will certainly be a legislator who
champions elections reform and 'good government'. I will also being
contributing my entire $116,208 base salary (after taxes and deductions
beyond my control) to voter initiatives for elections reform (in whichever
fashion would seem most productive - they could be initiatives spearheaded
by other groups, and not necessarily my own) (and covering my personal
living expenses, exclusively with the per diem, and possibly revenue from
investments (like the real estate, I own, in Sacramento that I rent out at
a marginal profit)). As I said, if I could do one and only one thing with
my life, reforming elections would be it.
It seems that we see eye-to-eye on many key things- particularly, reforming
the closed primary process and having elections financed with the cleanest
money possible.
Regarding the open primary amendment, to be on the June 2010 ballot, I
would honestly find the results to be significantly better than that of the
status quo closed primary, but I really seem, thus far, unable to accept it
as being constitutional. Pretty much all of its advantages (and the state's
compelling interests) would be reaped (gratified) without putting any party
label on the ballot. That extra provision would seem to, indeed,
unconstitutionally use the State's electoral machinery to have all the
voters choose the standard-bearers of the political parties. I just haven't
been able to reach an honest conclusion that it doesn't go too far in
violating parties' constitutional rights of association. It also would
effectively tell parties, like the Green Party and Libertarian Party, that
they have no right to exist. I honestly doubt you could find someone who
despises partisanship more than I (it functions to impede objectivity,
which I've always found to be the most important virtue one can have), but
the 06/2010 Proposition just seems too maliciously abusive to rights, of
parties, that do indeed belong to them. I also feel too concerned about the
affects of plurality in these open primaries which I'd expect to frequently
have large numbers of candidates - I think it would be all-too-common to
have the top two vote-getters receiving less than 13% of the vote, each.
And one particular distortion, which I'm not sure would be preventable, is
the possibility of having instances of, say, 7+ democrats and 2 republicans
on an open primary ballot, in a liberal district, and the democratic vote
being split with the result of a general election ballot with two
republicans, and no democrats, in a liberal district (a real example would
be the current CA-10 special *blanket* primary which has 6 Democrats and 2
Republicans - if those Republicans end up as the top-two vote getters, it
wouldn't have this perverse effect in the blanket primary, but it would
certainly prove my point - and even if that's not the case, it could still
happen in 1 out of 3-10 such instances. I don't see how it could be safely
prevented, especially if districts' minority parties strategically aim for
such results - and I don't see why they wouldn't). In essence, I find this
policy to be "careless, easy, and sloppy." I have imagined the thought
process of figures, like Schwarzenegger and Maldonado, behind this, to be
something along the lines of "People are too used to partisanship, so we
have to preserve candidate party labels on ballots. Of course, we don't
like the system of partisans just choosing general election candidates, so
we'll have to let everyone choose parties' standard-bearers. Policy
complete!"
I know it's almost-always impossible to get any policy to be *perfect*, but
I just don't accept that we can't do a lot better than this.
I think a near-perfect solution, that isn't too unrealistic or ahead of its
time (such as, perhaps, no primary and just one general election ballot,
with IRV) would be something along the lines of allowing the top 3
vote-getters, from each parties' primary, to proceed to the general
election ballot, with their party label and percentage and/or number of
votes they received in their primary. Then, yes, using Instant Runoff
Voting in the general election. Keeping the process fair to people of all,
or no, political persuasions, I would want to include easier requirements
for independent candidates to access the general election ballot (maybe a
requirement of signatures, from a number of voters, equaling 0.25% (1/400)
of those who cast votes in the last general election for that office).
I know you've stated that you believe Instant Runoff Voting is a "complete
non-starter in California state elections," but I really believe I'd be
able to use my position as a state legislator to make it happen (I'm
reminded of when Thomas Jefferson fought in the Virginia House of Burgesses
to codify religious freedom, which had never been done before, in the new
world, or probably anywhere. It took about 10 years, but he eventually got
it passed, as the very first statutes establishing this ever-so-important
fundamental right). Hopefully, I could get it done in far fewer than 10
years, but I think the policy would be so extraordinary that it would even
be worth that wait.
As far as my 'action' on this open primary amendment; I would not take any
action to oppose it. I'd probably just offer no position at all. I do
believe it would have 'better results' than the status quo, but I find the
concerns, I've stated above, to be overwhelming (you're welcome to try to
dissuade me from that, especially if you think I've overlooked something,
or have missed a route of insight, or have erred in my conclusion as result
of my far-lesser experience, compared to yours).
*Also, I did find these lines, in Scalia's Washington State Grange dissent
to have prevailing (in my mind) merits:*
*The electorate’s perception of a political party’s beliefs is colored by
its perception of those who support the party; and a party’s defining act
is the selection of a candidate and advocacy of that candidate’s election
by conferring upon him the party’s endorsement. When the state-printed
ballot for the general election causes a party to be associated with
candidates who may not fully (if at all) represent its views, it undermines
both these vital aspects of political association. The views of the
self-identified party supporter color perception of the party’s message,
and that self-identification on the ballot, with no space for party
repudiation or party identification of its own candidate, impairs the
party’s advocacy of its standard bearer.…The State [] need not like, and
need not favor, political parties. It is entirely free to decline running
primaries for the selection of party nominees and to hold nonpartisan
general elections in which party labels have no place on the ballot. See
California Democratic Party v. Jones, 530 U. S. 567, 585–586 (2000) .
Parties would then be left to their own devices in both selecting and
publicizing their candidates. But [the State] has done more than merely
decline to make its electoral machinery available for party building.
Recognizing that parties draw support for their candidates by giving them
the party imprimatur, [the State] seeks to reduce the effectiveness of that
endorsement by allowing any candidate to use the ballot for drawing upon
the goodwill that a party has developed, while preventing the party from
using the ballot to reject the claimed association or to identify the
genuine candidate of its choice. This does not merely place the ballot off
limits for party building; it makes the ballot an instrument by which party
building is impeded, permitting unrebutted associations that the party
itself does not approve.*
Also, just for the record, I do try to be very realistic - I'm not like one
of those *Proportional Representation nutters*, who are, of course,
ultimately, very good people, with hearts in the right place, but are
pretty-undeniably counter-productively quixotic. I truly believe my idea
for the "Top 3, then IRV" *(re-)**modified closed primary*, or other things
that could be better than the open primary, are totally viable, and can be
achieved. I also accept that this idea can be perfected even more (I might
have liked using the 'top 6' instead of top 3, as I see no harm in having
unlimited candidates on IRV ballots, but 3 would seem more politically
acceptable, and might maintain some actual purpose for turning out in
primaries), and would certainly appreciate any such input, you might have,
of that nature (or any nature).
My next largest concern, indeed, lies with campaign financing. To be frank,
I'm stunned with how far California is behind McCain-Feingold (we're
certainly an above-average state (I personally believe we're the greatest
state - and I've been to about 30) and I don't understand how our federal
government, influenced, through a republic, by citizens of all 50 States,
would be so far ahead of us on this (as well as thing like not electing
judges - hopefully *Caperton* shed a little light on this)).
Here's a previously-(roughly-)drafted bit of my insight, dug out of an
archive of my personal notes, on corporate contributions to candidates for
state office, in CA (my main goal is to establish an ideal system of public
campaign financing; if I can't quickly accomplish that, I'd at least like
to ban contributions from corporations and unions, as is the case with
federal candidates):
California allows for-profit corporations to contribute up to $3900 per
election ($7,800 for a primary and general) to legislative candidates. And
the front runners often get many such contributions. I think that's pretty
hard to defend:
For-profit corporations, consistent with their general fiduciary
obligations to shareholders, exist for the sole purpose of maximizing
profits. Therefore, logic dictates that a corporation contributing $3900 or
$7800/year to a particular candidate has calculated that that will likely
increase their profits by more than that amount.
Effectively, there are only two routes by which they could reach such a
calculation/conclusion, and one of them would be totally indefensible -
"this donation will get us access and influence to that
candidate/officeholder, the value of which will exceed that of our
contribution"
; that would be de facto legal bribery.
The other route, which seems logically less likely, is that while they
don't expect any increased access or influence on the decisions of the
officeholder, they believe that office holder, entirely on his own
volition, would do things to their advantage, if elected, and that it would
therefore be worth helping him. Maybe that is the case a lot of the time,
but i feel like not most of the time. It would seem to go with the same
principle of 'voluntary v. mandatory taxes':
For example, If the state wanted to build a freeway, but was short on funds
to do so, and there were a guy whose commute would be halved, if the
freeway were built, allowing him to work more hours and earn $4,000 more
per year, would it make sense for him to voluntarily give the state $2,000
to put towards the freeway, thinking it would be the profitable thing for
him to do?
The answer is 'no'; because the odds of that $2,000 making the difference
of whether the freeway will be built are nil - which is why mandatory taxes
(aside from bonds, which results in taxes, anyway, or other options) would
be required to get the freeway built. The same logic would seem to
generally apply to a $3,900 contribution, from a for-profit corporation, to
a legislative candidate who raises over $500,000/year -
For-profit corporations just make 'business decisions' and it wouldn't be a
good business decision to contribute $3,900 if it were only to boost the
chances of victory for the candidate whose independent ideologies would be
most advantageous to them.
In a race where the total spending exceeds $2,000,000, the odds of $3,900
actually being the deciding factor, are very slim. You would have to
multiply those odds by the total financial advantage to the corporation, of
their preferred candidate winning, and it would have to exceed the amount
of the contribution. In all other cases, and I'd expect it to be most
cases, the contribution would be little more than de facto bribery.
Of course, in cases where it's not de facto bribery, it's de facto
corporations-choosing-legislators - both are bad.
As far as public campaign financing goes, I'm all-too-mindful that Prop 89
was rejected by 74% of voters - that great of opposition is generally
impossible to swing down to 49%, but I believe public campaign financing
proponents *can* come up with something a great deal better than Prop 89,
that, if also presented well, voters would go for. Here's what I would have
in mind:
None of that 'collect *x* $5 contributions, then the *State* will give
hundreds of thousands (or millions) of taxpayer dollars to the candidate
("politician" ... "for them to use on their awful negative campaign ads")'
stuff. Instead, give every a voter an allowance, to spend from public
money. I think good amounts would be $15 for each voter to give their
favorite candidates for State Assembly, Senate, and Governor, and lesser
amounts for the 11 other constitutional offices, which generally require
less per-capita campaign spending (with future adjustments to mitigate
inflation). For candidates to be eligible to receive these allowance
contributions, they would have to agree not to raise or spend more than ten
cents for every registered voter in the district, from any other revenue
sources (private contributions, or personal wealth). I'm indifferent over
how this would get funded - whatever would be most politically appealing -
I thought this article - http://articles.latimes.com/2008/aug/25/opinion/ed-
cleanmoney25 - had good insight on that. If there's concern over the
federal constitution requiring more uniformity among the state's district,
I'm thinking that could be dealt with, with a severance clause that would
change it to something like thirteen cents times the average number of
voters in districts for the respective office. I feel like this in itself
is all we really need, and wouldn't want to risk adding any 'luxuries' that
would make it more vulnerable in the Courts. No extra money for candidates
facing millionaires who spend heaps of their own money. I don't think we
need lower contribution limits on candidates who choose not to participate.
I would probably want to add prohibition of corporate or union
contributions to non-participating candidates, and PACs, but honestly,
would not go for any limit on individuals' contributions to PACs. This
system might not be perfect - for example, PACs might have an increased
ability to influence elections - but I think it would accomplish its most
important goals: increased civic involvement and voter participation;
participating candidates would only be seeking the financial support of
those whom they’re supposed to be having fiduciary responsibilities to;
support would replenish itself (when a candidate attracts the support of
one voter, that voter can offer their vote, as well as $15 of public money
for the candidate’s campaign to spread their message and attract more
supporters); there would be more equality in the influence of voters with
ranging financial resources; and, with almost all financial support coming
from $15 contributions, there would be no fear of candidates owing favors.
I think it might be wise to just start this off with state offices, but I'm
also somewhat extra-disgusted with the idea of 'law enforcement candidates'
seeking private campaign contributions, so it might be nice to adopt this
system for all counties' district attorneys and sheriffs.
I'm really not sure if such a system should be used for judicial elections.
I wouldn't know how to approach reforming judicial elections, because any
form of its continuation feels archaic, as a jurists' duties should
be exclusively to the letter of the law, and not (even) a constituency.
Yet, I accept it might very well be that voters would never be willing to
give up their power of electing judges. Ideally, we should, of course, have
a system where judges are appointed, and may serve for life; maybe if we
wanted to have something not-quite-as-principled as the Federal Government,
we could allow for a Judge's expulsion, without cause, by either a
unanimous vote of the State's Supreme Court, or 95% of each house of the
Legislature, and the Governor (with a normal, easier, impeachment process
in the event of bribery, or other high crimes). Whether we should have a
system that offers clean money in judicial elections, feels like a question
of whether the state should have a ritual of annually decapitating one
random infant, rather than two. It's hard to say "decapitate one, instead
of two" (Judges, and judicial candidates, shouldn't be seeking private
campaign contributions, and, in theory, it *could *be better if they're
seeking contributions from registered voters, to be paid out of an
allowance from a public fund, or maybe something more prop-89 style,but
they also shouldn't be politically campaigning at all).
Time doesn't permit me to include *all *my thoughts on election issues, and
especially, elections law, in this email, but I certainly welcome your
questions (some things I left out: I strongly support automatic voter
registration. I oppose voter ID requirements (though likely not a
fear-worthy controversy in CA). And, I would like to enable voters to
receive and cast a full ballot, with everything they're entitled to vote
for, at any open polling location in the state (it would seem to only
require a nominal investment in a database)). Some early campaign
literature as well as information on my personal background is available at
www.TomCares.com <http://www.tomcares.com/> - as a head's up, I'll inform
you in advance, that I'm 20.9 years old.
Any advice you might have on how to present election reform ideas to
voters, or advocate their importance, as well as any critiques, you have,
regarding my policy ideas (or anything), would be enormously appreciated. I
would also love any advice you might have on recruiting support from
election reform activists.
There is, however, one larger thing, which I know, considering the
objective perception of my viability, among other things, is a lot to ask
for (there are absolutely no hard feelings, if you decline, and I would
still very much appreciate any above-mentioned input/advice/critiques); I
would enormously appreciate your endorsement in this election. Recently, I
believe I've discovered why we have so few policy makers (especially at the
level of the State Legislature), championing objectively-good election
reforms and good government - good government and 'fair elections' groups
(specifically FairVote and Californians for Electoral Reform, among many
others), priding themselves on 'non-partisanship', generally have bi-laws
that prohibit their organization from supporting or endorsing candidates.
The result begs the question - If a particular candidate is the only
candidate in his election who would support and spearhead significant good
government/elections reforms, how do they use that as an asset, if there's
no opportunity for them to have it credibly validated? Then, with that
being the case, how can we get Good Government candidates (or
officeholders), when being a champion for Good Government reforms is not an
asset in bids for political office? (on the other hand, as an example, the
LAPD happily endorses their favorite candidate, so if a candidate thought
it would be advantageous to market himself as tough-on-crime and
police-friendly, it would be easy for him to validate that and use it as an
asset). *Even if* I can't win this election (though, I'm in it to win it),
I believe the better I do, the stronger elections reform movements will.
The reason, why I wrote nothing about myself in my official voter
information guide statement <http://tomcares.com/candstatement.html>, is
because I appreciated that, objectively, I am indeed a long-shot, and
wanted a possible consolation prize of shedding some light on how 'bad
elections' in California, however indirectly, are having real adverse
effects on our everyday lives. Win-or-lose, increasing awareness on these
issues is a very important goal of this campaign.
I'm, of course, going to do everything I can, in this election, no matter
what, but I'm not sure how I can really win this, or do well, without some
validation. I really believe your endorsement could be the key.
Also, your endorsement, theoretically could have a side effect of exposing
people to your work, as I would highlight it roughly along the lines of
this, or *anything *you might prefer:
Richard Hasen, a distinguished professor at Loyola Law School, and
administrator of ElectionLawBlog.org, has been, arguably, the #1 authority
on elections law, in the United States, with a long record of advocating
for non-partisan Good Government reforms. I have been an enormous fan of
his extraordinary insight, for quite some time, and I couldn't be prouder
to have his endorsement, in this election.
If you think you can offer your endorsement, it would be great if you can
let me know ASAP (even some time tonight, would be great; you're welcome to
call me absolutely anytime, 24/7 (I don't sleep much, at all, anymore,
anyway)), as I would even love to include it thousands of pieces of
literature that will be distributed tomorrow.
(also, again whether you can offer your endorsement, or not, I have
attached a list of voters who have the word "loyola" in their address (as
well as zip code 90045). If you know any of them, and would like to
recommend that they vote for me, that would definitely be great. Also,
*don't* hesitate to forward the list to *anyone* (i.e. students) who might
make good use of it, for purposes relating to this campaign. Also, if you
know of any Loyola students who might be interested in working on my
campaign, that would be fantastic.)
Anyway, I've been at this email for some time now, and should be tending to
other things.
At minimum, I appreciate the time you've just given to reading this lengthy
email, and I definitely appreciate your valuable blogging and other
writings.
Sincerely,
Thomas J. Cares
Democratic Candidate for State Assembly, District 51
15424 Hawthorne Blvd, Suite 201
Lawndale, CA 90260
Ph: (888) 758 - 7884
Fax: (866) 787 - 2225
Tom at TomCares.com
www.TomCares.com <http://www.tomcares.com/>
P.S. I've been wanting to contact you for a while, regarding my candidacy,
in this election, but I've honestly been a little nervous about it.
(please excuse any typos, unpolished writing, etc; as I'm very constrained
on time, and this would have been quite a bit to review)
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211(213)736-1466(213)380-3769 -
faxrick.hasen at lls.eduhttp://www.lls.edu/academics/faculty/hasen.htmlhttp://electionlawblog.org
#####
On Saturday, October 8, 2016, Kelner, Robert <rkelner at cov.com> wrote:
Jim, that exaggerates the role of the prior national convention, at least
in this context. Under the RNC's rules, as adopted at the last convention,
until the next convention "the Republican National Committee shall have the
general management of the Republican Party, based upon the rules adopted by
the Republican National Convention."
Nothing in those rules in any way suggests that the RNC lacks the authority
to replace a nominee, and Rule 9 explicitly states that the RNC may fill a
vacancy that arises in any way (the "or otherwise" catch all).
Moreover, apart from the plenary power of the RNC's members to "have the
general management of the Republican Party" until the next convention, Rule
9 itself explicitly states that the RNC "may," but need not, convene a new
convention to address a vacancy, which again highlights the extent of the
RNC's unilateral authority over the process until the next regularly
scheduled convention.
Finally, picking up on the thread earlier today, under Rule 12, a
supermajority of the RNC members may amend the rules, including Rule 9, at
any time, which underscores the wide discretion enjoyed by the members,
wholly independent of the Republican National Convention.
Rob
Sent from my iPhone
On Oct 8, 2016, at 7:37 PM, "JBoppjr at aol.com<mailto:JBoppjr at aol.com>" <
JBoppjr at aol.com<mailto:JBoppjr at aol.com>> wrote:
The other important aspect of this is that the RNC is subordinate to the
National Convention. As a subordinate body, it has no inherent power over
the actions of the superior body. The subordinate body only has the power
given to it by the superior body. Jim Bopp
In a message dated 10/8/2016 7:11:07 P.M. Eastern Daylight Time,
jboppjr at aol.com<mailto:jboppjr at aol.com> writes:
Republican candidates for President are nominated by the delegates at our
national convention, not by the RNC. Thus, the RNC has no inherent power
over the actions of a distinctly different body. The reason the RNC has the
power to fill a vacancy is because the delegates at the National Convention
conferred that power on the RNC by Rule 9. That Rule does not give the RNC
the power to remove the candidate.
And it is completely irrelevant how compelling it would be for the RNC to
exercise a non-existent power, unless you are a fan of Obama's "I have a
phone and a pen" view of the extent of his power. Jim Bopp
Sent via the Samsung Galaxy Note® 4, an AT&T 4G LTE smartphone
-------- Original message --------
From: "Kelner, Robert" <rkelner at cov.com<mailto:rkelner at cov.com>>
Date: 10/8/16 6:48 PM (GMT-05:00)
To: jboppjr <jboppjr at aol.com<mailto:jboppjr at aol.com>>
Cc: Sean Parnell <sean at impactpolicymanagement.com<mailto:sean@
impactpolicymanagement.com>>, lawcourt-l at legal.umass.edu<mailto:
lawcourt-l at legal.umass.edu>, law-election at uci.edu<mailto:la
w-election at uci.edu>, "Levinson, Sanford V" <SLevinson at law.utexas.edu<
mailto:SLevinson at law.utexas.edu>>
Subject: Re: [EL] [Lawcourt-l] Rumors on replacing Trump (redux)
Jim, can you provide a source for your proposition that the power of
removal "cannot be implied but must be explicit"? There is no such
requirement.
Actually, the RNC rules include no prohibition on removal. Rule 9 in turn
acknowledges (quite reasonably) that a vacancy may occur for many reasons.
This is the purpose of the "or otherwise" catch all.
None of this is surprising. If, for example, the party's nominee committed
a serious crime after the convention, is there any real doubt that the
party could remove him or her?
In this case, I expect the advocates of removal to argue that Trump is
manifestly not a viable candidate and has engaged in gross malfeasance as a
candidate. There is nothing in the rules of the party that would require a
higher bar for removal.
Rob
Sent from my iPhone
On Oct 8, 2016, at 6:32 PM, jboppjr <jboppjr at aol.com<mailto:jboppjr at aol.com
><mailto:jboppjr at aol.com>> wrote:
Rob is clearly wrong here. The power to fill a vacancy, which Rule 9
addresses, is completely different from the power to create a vacancy by
removing a nominee. This power cannot be implied but must be explicit.
There is no rule permitting removal. Jim
Sent via the Samsung Galaxy Note® 4, an AT&T 4G LTE smartphone
-------- Original message --------
From: "Kelner, Robert" <rkelner at cov.com<mailto:rkelner at cov.com><mailto:
rkelner at cov.com>>
Date: 10/8/16 5:45 PM (GMT-05:00)
To: Sean Parnell <sean at impactpolicymanagement.com<mailto:sean@
impactpolicymanagement.com><mailto:sean at impactpolicymanagement.com>>
Cc: lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu><mailto:
lawcourt-l at legal.umass.edu>, law-election at uci.edu<mailto:la
w-election at uci.edu><mailto:law-election at uci.edu>, "Levinson, Sanford V" <
SLevinson at law.utexas.edu<mailto:SLevinson at law.utexas.edu><mailto:
SLevinson at law.utexas.edu>>
Subject: Re: [EL] [Lawcourt-l] Rumors on replacing Trump (redux)
Rule 9 does not need to be amended. Rule 9, as currently framed, includes
clear wiggle room. It includes a catch all for a vacancy created
"otherwise" than in a classic death or withdrawal scenario. The RNC rules
are filled with such negotiated weasel words to allow flexibility to deal
with unanticipated scenarios. If a strong majority of RNC members (probably
a super majority would be needed as a practical matter) desired to replace
Trump, they could do so, as a matter of party rules. The tougher issue is
then the revision of state ballots, which would likely be possible in some
but not all states. As many have noted, even without administrative action
or judicial relief (though I think judicial relief is plausible in some
states), once the Republican Party has a new nominee, there are various
avenues to ensure that electors translate ballot votes for the former party
nominee into electoral college votes for the actual nominee. It wouldn't be
easy by any stretch. But suggestions that it is not possible as a matter of
law are simply wrong.
Rob
Sent from my iPhone
On Oct 8, 2016, at 4:44 PM, Sean Parnell <sean at impactpolicymanagement.com
<mailto:sean at impactpolicymanagement.com><mailto:sean@
impactpolicymanagement.com><mailto:sean at impactpolicymanagement.com>> wrote:
Thanks for the clarification, didn't have the rules in front of me and
forgot about the timelines. So that's out, an Electoral College switch is
the last option at this point.
Sean
Sent from my iPhone
On Oct 8, 2016, at 4:32 PM, Pildes, Rick <pildesr at mercury.law.nyu.edu<
mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu
><mailto:pildesr at mercury.law.nyu.edu>> wrote:
To the extent the RNC rules matter to any of this, Rule 12 does permit an
amendment of Rule 9. But look at how cumbersome that process is under Rule
12. The amendment would take effect after the election…
The Republican National Committee may, by three-fourths (3/4) vote of its
entire membership, amend Rule Nos. 1-11 and 13-25. Any such amendment shall
be considered by the Republican National Committee only if it was passed by
a majority vote of the Standing Committee on Rules after having been
submitted in writing at least ten (10) days in advance of its consideration
by the Republican National Committee and shall take effect thirty (30) days
after adoption. No such amendment shall be adopted after September 30, 2018.
Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
From: Sean Parnell [mailto:sean at impactpolicymanagement.com]
Sent: Saturday, October 08, 2016 4:29 PM
To: Jonathan Swan
Cc: Pildes, Rick; lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.
edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu>;
law-election at uci.edu<mailto:law-election at uci.edu><mailto:law
-election at uci.edu><mailto:law-election at uci.edu>; Levinson, Sanford V
Subject: Re: [EL] [Lawcourt-l] Rumors on replacing Trump (redux)
There's one pretty significant qualification to the statement that GOP Rule
9 does not in its current form permit the RNC to dump Trump: Rule 12
permits a super-majority of the RNC to change any rule except what are now
the temporary rules of the 2020 convention. So if the RNC wanted to, they
could amend Rule 9 to give themselves the authority to declare the
nomination vacant.
I do not expect this to happen, but it is incorrect to assume there is no
option left to remove him.
Sean Parnell
Sent from my iPhone
On Oct 8, 2016, at 3:28 PM, Jonathan Swan <jswan at thehill.com<mailto:jswa
n at thehill.com><mailto:jswan at thehill.com><mailto:jswan at thehill.com>> wrote:
FYI -- Here is the story I ended up writing (prompted by this interesting
thread):
http://thehill.com/blogs/ballot-box/presidential-races/
300016-replacing-trump-would-mean-mayhem-for-gop-experts
On Sat, Oct 8, 2016 at 1:16 PM, Pildes, Rick <pildesr at mercury.law.nyu.edu<
mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu
><mailto:pildesr at mercury.law.nyu.edu>> wrote:
If the RNC were to persuade Trump to withdraw, the only plausible
alternative around whom the party could coordinate would be Pence. He
maintains the connection to Trump and Trump voters, while being the only
obvious focal point.
Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
From: Levinson, Sanford V [mailto:SLevinson at law.utexas.edu<mailto:
SLevinson at law.utexas.edu>]
Sent: Saturday, October 08, 2016 1:13 PM
To: Pildes, Rick
Cc: Schultz, David A.; JBoppjr at aol.com<mailto:JBoppjr at aol.com><mailto:
JBoppjr at aol.com><mailto:JBoppjr at aol.com>; lawcourt-l at legal.umass.edu<mailto:
lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:
lawcourt-l at legal.umass.edu>; law-election at uci.edu<mailto:la
w-election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu
>
Subject: Re: [Lawcourt-l] [EL] Rumors on replacing Trump (redux)
It's tricky. Most Republican voters might in fact be happy voting for
Trump. The question is whether the RNC will in effect take control by
identifying would-be "rogue electors" and, more importantly, coordinating
in the preferred alternative.
Sandy
Sent from my iPhone
On Oct 8, 2016, at 11:34 AM, Pildes, Rick <pildesr at mercury.law.nyu.edu<
mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu
><mailto:pildesr at mercury.law.nyu.edu>> wrote:
The problem I see is that voters have to understand themselves to be voting
for some Republican alternative to Trump. That would be hard to
communicate effectively to enough potential voters without the name of that
alternative on the ballot.
Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
From: Levinson, Sanford V [mailto:SLevinson at law.utexas.edu]
Sent: Saturday, October 08, 2016 10:17 AM
To: Schultz, David A.
Cc: Pildes, Rick; JBoppjr at aol.com<mailto:JBoppjr at aol.com><mailto:
JBoppjr at aol.com><mailto:JBoppjr at aol.com>; lawcourt-l at legal.umass.edu<mailto:
lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:
lawcourt-l at legal.umass.edu>; law-election at uci.edu<mailto:la
w-election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu
>
Subject: Re: [Lawcourt-l] [EL] Rumors on replacing Trump (redux)
Forget all these technicalities. Why isn't the easiest thing for a number
of Republican electors to announce that they will cast their votes for a
untainted Republican. The best choice would clearly be John Kasich, who has
conducted himself as a man of honor and is a plausible president. In any
event, if Hillary doesn't get a majority of electoral votes, a few
Republican votes for Kasich (or Romney) sends it to the House, which must
choose among the three top electoral vote getters. This allows the RNC to
renounce Trump without requiring new ballots or risking court fights, since
I'm assuming that some states don't bind electors. For the record, of
course, I would like to see Clinton win in a landslide, but I do wonder why
the "House option" isn't being discussed.
Sandy
Sent from my iPhone
On Oct 8, 2016, at 9:16 AM, Schultz, David A. <dschultz at hamline.edu<mailto:d
schultz at hamline.edu><mailto:dschultz at hamline.edu><mailto:dsc
hultz at hamline.edu>> wrote:
Assume for the sake of argument that Jim Bopp and I are correct that rule 9
does not allow for the RNC to remove Trump from the ticket. What if
nonetheless the RNC uses rule 9 to do so and Trump goes to court to fight
it. Would the courts rule this an internal party matter and therefore
decline jurisdiction or rule in favor of the party, or would they be
willing to take the case and potentially argue that Trump was wrongly
removed by the ticket? I tend to think the courts would see it as an
internal party matter and not want to intervene in a political dispute or
fight about who is the legitimate party nominee (and therefore cause more
voter or ballot confusion). Or do some think the courts would say that
removing Trump at this late date would not be allowed by rule 9 and to do
so would cause more voter and ballot confusion.
Thoughts?
On Sat, Oct 8, 2016 at 6:36 AM, Pildes, Rick <pildesr at mercury.law.nyu.edu<
mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu
><mailto:pildesr at mercury.law.nyu.edu>> wrote:
My recollection is that the DNC rules do contain language that more clearly
permit the DNC to remove a candidate from the ballot than Rule 9 of the
RNC, just for comparison.
Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
From: law-election-bounces at department-lists.uci.edu<mailto:
law-election-bounces at department-lists.uci.edu><mailto:law-election-bounces@
department-lists.uci.edu><mailto:law-election-bounces@
department-lists.uci.edu> [mailto:law-election-bounces@
department-lists.uci.edu<mailto:law-election-bounces@
department-lists.uci.edu>] On Behalf Of JBoppjr at aol.com<mailto:JBoppjr
@aol.com><mailto:JBoppjr at aol.com><mailto:JBoppjr at aol.com>
Sent: Saturday, October 08, 2016 7:25 AM
To: dschultz at hamline.edu<mailto:dschultz at hamline.edu><mailto:dsc
hultz at hamline.edu><mailto:dschultz at hamline.edu>; law-election at uci.edu
<mailto:law-election at uci.edu><mailto:law-election at uci.edu><mailto:law-
election at uci.edu>; lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.
edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu>
Subject: Re: [EL] Rumors on replacing Trump (redux)
I agree with David that Rule 9 clearly does not authorize the RNC to remove
Trump. It only authorizes the RNC to fill a vacancy if it occurs, ie for
instance, if he steps down. The applicable part is:
The Republican National Committee is hereby authorized and empowered to
fill any and all vacancies which may occur by reason of death, declination,
or otherwise of the Republican candidate for President . . .
This sentence only empowers the RNC to fill vacancies, not create them.
The phrase that some are pointing to is "vacancies which may occur by
reason of death, declination, or otherwise". "Otherwise" here refers to how
vacancies may occur, ie "by reason of death, declination, or otherwise".
For instance, a vacancy could occur by disqualification of the candidate by
election officials or a court, because the candidate does not meet the
legal qualifications to be a candidate. There may be other reasons that a
vacancy could occur.
The power to create a vacancy is a separate and independent power from the
power to fill vacancies and that power would have to be conferred on the
RNC by a specific rule, which does not exist.
Jim Bopp
In a message dated 10/7/2016 10:04:20 P.M. Eastern Daylight Time,
dschultz at hamline.edu<mailto:dschultz at hamline.edu><mailto:dsc
hultz at hamline.edu><mailto:dschultz at hamline.edu> writes:
In light of Trump’s recent comments about women and questions about whether
he can be replaced, consider first the rule 9 THE REPUBLICAN NATIONAL
COMMITTEE which is posted below.
The simple answer is no simple answer regarding what happens if Trump were
to be replaced on the ticket. The RNC executive committee has the authority
to replace Trump if he steps down or is otherwise incapacitated. A coup
does not seem possible and it does not appear that he can simply be
replaced by the will of the RNC. But assume Trump is replaced. The
second issue is what to do with the ballots. In some states the law would
allow for a substitution while in others the law is more complicated and we
might a reprise of the Minnesota Wellstone death 11 days before the
election (of which I know way too much about). We also have, as with
Wellstone, the issue of already cast ballots and rights under state and
federal law that may force a right to recast ballots. There are a lot of
complicated practical as well as federal and state statutory and
constitutional issues at play here and there is no one simply answer that
applies to all 50 states.
RULE NO. 9
Filling Vacancies in Nominations
(a) The Republican National Committee is hereby authorized and empowered to
fill any and allvacancies which may occur by reason of death, declination,
or otherwise of the Republican candidate for President of the United States
or the Republican candidate for Vice President of the United States, as
nominated by the national convention, or the Republican National Committee
may reconvene the national convention for the purpose of filling any such
vacancies.
--
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858<tel:651.523.2858> (voice)
651.523.3170<tel:651.523.3170> (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter: @ProfDSchultz
My latest book: Presidential Swing States: Why Only Ten Matter
https://rowman.com/ISBN/9780739195246/Presidential-
Swing-States-Why-Only-Ten-Matter
FacultyRow SuperProfessor, 2012, 2013, 2014
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Law-election mailing list
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http://department-lists.uci.edu/mailman/listinfo/law-election
--
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858<tel:651.523.2858> (voice)
651.523.3170<tel:651.523.3170> (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter: @ProfDSchultz
My latest book: Presidential Swing States: Why Only Ten Matter
https://rowman.com/ISBN/9780739195246/Presidential-
Swing-States-Why-Only-Ten-Matter
FacultyRow SuperProfessor, 2012, 2013, 2014
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National Political Reporter
The Hill
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Jim, can you provide a source for your proposition that the power of
removal "cannot be implied but must be explicit"? There is no such
requirement.
Actually, the RNC rules include no prohibition on removal. Rule 9 in turn
acknowledges (quite reasonably) that a vacancy may occur for many reasons.
This is the purpose of the "or otherwise" catch all.
None of this is surprising. If, for example, the party's nominee committed
a serious crime after the convention, is there any real doubt that the
party could remove him or her?
In this case, I expect the advocates of removal to argue that Trump is
manifestly not a viable candidate and has engaged in gross malfeasance as a
candidate. There is nothing in the rules of the party that would require a
higher bar for removal.
Rob
Sent from my iPhone
On Oct 8, 2016, at 6:32 PM, jboppjr <jboppjr at aol.com<mailto:jboppjr at aol.com
><mailto:jboppjr at aol.com>> wrote:
Rob is clearly wrong here. The power to fill a vacancy, which Rule 9
addresses, is completely different from the power to create a vacancy by
removing a nominee. This power cannot be implied but must be explicit.
There is no rule permitting removal. Jim
Sent via the Samsung Galaxy Note® 4, an AT&T 4G LTE smartphone
-------- Original message --------
From: "Kelner, Robert" <rkelner at cov.com<mailto:rkelner at cov.com><mailto:
rkelner at cov.com>>
Date: 10/8/16 5:45 PM (GMT-05:00)
To: Sean Parnell <sean at impactpolicymanagement.com<mailto:sean@
impactpolicymanagement.com><mailto:sean at impactpolicymanagement.com>>
Cc: lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu><mailto:
lawcourt-l at legal.umass.edu>, law-election at uci.edu<mailto:la
w-election at uci.edu><mailto:law-election at uci.edu>, "Levinson, Sanford V" <
SLevinson at law.utexas.edu<mailto:SLevinson at law.utexas.edu><mailto:
SLevinson at law.utexas.edu>>
Subject: Re: [EL] [Lawcourt-l] Rumors on replacing Trump (redux)
Rule 9 does not need to be amended. Rule 9, as currently framed, includes
clear wiggle room. It includes a catch all for a vacancy created
"otherwise" than in a classic death or withdrawal scenario. The RNC rules
are filled with such negotiated weasel words to allow flexibility to deal
with unanticipated scenarios. If a strong majority of RNC members (probably
a super majority would be needed as a practical matter) desired to replace
Trump, they could do so, as a matter of party rules. The tougher issue is
then the revision of state ballots, which would likely be possible in some
but not all states. As many have noted, even without administrative action
or judicial relief (though I think judicial relief is plausible in some
states), once the Republican Party has a new nominee, there are various
avenues to ensure that electors translate ballot votes for the former party
nominee into electoral college votes for the actual nominee. It wouldn't be
easy by any stretch. But suggestions that it is not possible as a matter of
law are simply wrong.
Rob
Sent from my iPhone
On Oct 8, 2016, at 4:44 PM, Sean Parnell <sean at impactpolicymanagement.com
<mailto:sean at impactpolicymanagement.com><mailto:sean@
impactpolicymanagement.com><mailto:sean at impactpolicymanagement.com>> wrote:
Thanks for the clarification, didn't have the rules in front of me and
forgot about the timelines. So that's out, an Electoral College switch is
the last option at this point.
Sean
Sent from my iPhone
On Oct 8, 2016, at 4:32 PM, Pildes, Rick <pildesr at mercury.law.nyu.edu<
mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu
><mailto:pildesr at mercury.law.nyu.edu>> wrote:
To the extent the RNC rules matter to any of this, Rule 12 does permit an
amendment of Rule 9. But look at how cumbersome that process is under Rule
12. The amendment would take effect after the election…
The Republican National Committee may, by three-fourths (3/4) vote of its
entire membership, amend Rule Nos. 1-11 and 13-25. Any such amendment shall
be considered by the Republican National Committee only if it was passed by
a majority vote of the Standing Committee on Rules after having been
submitted in writing at least ten (10) days in advance of its consideration
by the Republican National Committee and shall take effect thirty (30) days
after adoption. No such amendment shall be adopted after September 30, 2018.
Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
From: Sean Parnell [mailto:sean at impactpolicymanagement.com]
Sent: Saturday, October 08, 2016 4:29 PM
To: Jonathan Swan
Cc: Pildes, Rick; lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.
edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu>;
law-election at uci.edu<mailto:law-election at uci.edu><mailto:law
-election at uci.edu><mailto:law-election at uci.edu>; Levinson, Sanford V
Subject: Re: [EL] [Lawcourt-l] Rumors on replacing Trump (redux)
There's one pretty significant qualification to the statement that GOP Rule
9 does not in its current form permit the RNC to dump Trump: Rule 12
permits a super-majority of the RNC to change any rule except what are now
the temporary rules of the 2020 convention. So if the RNC wanted to, they
could amend Rule 9 to give themselves the authority to declare the
nomination vacant.
I do not expect this to happen, but it is incorrect to assume there is no
option left to remove him.
Sean Parnell
Sent from my iPhone
On Oct 8, 2016, at 3:28 PM, Jonathan Swan <jswan at thehill.com<mailto:jswa
n at thehill.com><mailto:jswan at thehill.com><mailto:jswan at thehill.com>> wrote:
FYI -- Here is the story I ended up writing (prompted by this interesting
thread):
http://thehill.com/blogs/ballot-box/presidential-races/
300016-replacing-trump-would-mean-mayhem-for-gop-experts
On Sat, Oct 8, 2016 at 1:16 PM, Pildes, Rick <pildesr at mercury.law.nyu.edu<
mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu
><mailto:pildesr at mercury.law.nyu.edu>> wrote:
If the RNC were to persuade Trump to withdraw, the only plausible
alternative around whom the party could coordinate would be Pence. He
maintains the connection to Trump and Trump voters, while being the only
obvious focal point.
Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
From: Levinson, Sanford V [mailto:SLevinson at law.utexas.edu<mailto:
SLevinson at law.utexas.edu>]
Sent: Saturday, October 08, 2016 1:13 PM
To: Pildes, Rick
Cc: Schultz, David A.; JBoppjr at aol.com<mailto:JBoppjr at aol.com><mailto:
JBoppjr at aol.com><mailto:JBoppjr at aol.com>; lawcourt-l at legal.umass.edu<mailto:
lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:
lawcourt-l at legal.umass.edu>; law-election at uci.edu<mailto:la
w-election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu
>
Subject: Re: [Lawcourt-l] [EL] Rumors on replacing Trump (redux)
It's tricky. Most Republican voters might in fact be happy voting for
Trump. The question is whether the RNC will in effect take control by
identifying would-be "rogue electors" and, more importantly, coordinating
in the preferred alternative.
Sandy
Sent from my iPhone
On Oct 8, 2016, at 11:34 AM, Pildes, Rick <pildesr at mercury.law.nyu.edu<
mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu
><mailto:pildesr at mercury.law.nyu.edu>> wrote:
The problem I see is that voters have to understand themselves to be voting
for some Republican alternative to Trump. That would be hard to
communicate effectively to enough potential voters without the name of that
alternative on the ballot.
Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
From: Levinson, Sanford V [mailto:SLevinson at law.utexas.edu]
Sent: Saturday, October 08, 2016 10:17 AM
To: Schultz, David A.
Cc: Pildes, Rick; JBoppjr at aol.com<mailto:JBoppjr at aol.com><mailto:
JBoppjr at aol.com><mailto:JBoppjr at aol.com>; lawcourt-l at legal.umass.edu<mailto:
lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:
lawcourt-l at legal.umass.edu>; law-election at uci.edu<mailto:la
w-election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu
>
Subject: Re: [Lawcourt-l] [EL] Rumors on replacing Trump (redux)
Forget all these technicalities. Why isn't the easiest thing for a number
of Republican electors to announce that they will cast their votes for a
untainted Republican. The best choice would clearly be John Kasich, who has
conducted himself as a man of honor and is a plausible president. In any
event, if Hillary doesn't get a majority of electoral votes, a few
Republican votes for Kasich (or Romney) sends it to the House, which must
choose among the three top electoral vote getters. This allows the RNC to
renounce Trump without requiring new ballots or risking court fights, since
I'm assuming that some states don't bind electors. For the record, of
course, I would like to see Clinton win in a landslide, but I do wonder why
the "House option" isn't being discussed.
Sandy
Sent from my iPhone
On Oct 8, 2016, at 9:16 AM, Schultz, David A. <dschultz at hamline.edu<mailto:d
schultz at hamline.edu><mailto:dschultz at hamline.edu><mailto:dsc
hultz at hamline.edu>> wrote:
Assume for the sake of argument that Jim Bopp and I are correct that rule 9
does not allow for the RNC to remove Trump from the ticket. What if
nonetheless the RNC uses rule 9 to do so and Trump goes to court to fight
it. Would the courts rule this an internal party matter and therefore
decline jurisdiction or rule in favor of the party, or would they be
willing to take the case and potentially argue that Trump was wrongly
removed by the ticket? I tend to think the courts would see it as an
internal party matter and not want to intervene in a political dispute or
fight about who is the legitimate party nominee (and therefore cause more
voter or ballot confusion). Or do some think the courts would say that
removing Trump at this late date would not be allowed by rule 9 and to do
so would cause more voter and ballot confusion.
Thoughts?
On Sat, Oct 8, 2016 at 6:36 AM, Pildes, Rick <pildesr at mercury.law.nyu.edu<
mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu
><mailto:pildesr at mercury.law.nyu.edu>> wrote:
My recollection is that the DNC rules do contain language that more clearly
permit the DNC to remove a candidate from the ballot than Rule 9 of the
RNC, just for comparison.
Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
From: law-election-bounces at department-lists.uci.edu<mailto:
law-election-bounces at department-lists.uci.edu><mailto:law-election-bounces@
department-lists.uci.edu><mailto:law-election-bounces@
department-lists.uci.edu> [mailto:law-election-bounces@
department-lists.uci.edu<mailto:law-election-bounces@
department-lists.uci.edu>] On Behalf Of JBoppjr at aol.com<mailto:JBoppjr
@aol.com><mailto:JBoppjr at aol.com><mailto:JBoppjr at aol.com>
Sent: Saturday, October 08, 2016 7:25 AM
To: dschultz at hamline.edu<mailto:dschultz at hamline.edu><mailto:dsc
hultz at hamline.edu><mailto:dschultz at hamline.edu>; law-election at uci.edu
<mailto:law-election at uci.edu><mailto:law-election at uci.edu><mailto:law-
election at uci.edu>; lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.
edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu>
Subject: Re: [EL] Rumors on replacing Trump (redux)
I agree with David that Rule 9 clearly does not authorize the RNC to remove
Trump. It only authorizes the RNC to fill a vacancy if it occurs, ie for
instance, if he steps down. The applicable part is:
The Republican National Committee is hereby authorized and empowered to
fill any and all vacancies which may occur by reason of death, declination,
or otherwise of the Republican candidate for President . . .
This sentence only empowers the RNC to fill vacancies, not create them.
The phrase that some are pointing to is "vacancies which may occur by
reason of death, declination, or otherwise". "Otherwise" here refers to how
vacancies may occur, ie "by reason of death, declination, or otherwise".
For instance, a vacancy could occur by disqualification of the candidate by
election officials or a court, because the candidate does not meet the
legal qualifications to be a candidate. There may be other reasons that a
vacancy could occur.
The power to create a vacancy is a separate and independent power from the
power to fill vacancies and that power would have to be conferred on the
RNC by a specific rule, which does not exist.
Jim Bopp
In a message dated 10/7/2016 10:04:20 P.M. Eastern Daylight Time,
dschultz at hamline.edu<mailto:dschultz at hamline.edu><mailto:dsc
hultz at hamline.edu><mailto:dschultz at hamline.edu> writes:
In light of Trump’s recent comments about women and questions about whether
he can be replaced, consider first the rule 9 THE REPUBLICAN NATIONAL
COMMITTEE which is posted below.
The simple answer is no simple answer regarding what happens if Trump were
to be replaced on the ticket. The RNC executive committee has the authority
to replace Trump if he steps down or is otherwise incapacitated. A coup
does not seem possible and it does not appear that he can simply be
replaced by the will of the RNC. But assume Trump is replaced. The
second issue is what to do with the ballots. In some states the law would
allow for a substitution while in others the law is more complicated and we
might a reprise of the Minnesota Wellstone death 11 days before the
election (of which I know way too much about). We also have, as with
Wellstone, the issue of already cast ballots and rights under state and
federal law that may force a right to recast ballots. There are a lot of
complicated practical as well as federal and state statutory and
constitutional issues at play here and there is no one simply answer that
applies to all 50 states.
RULE NO. 9
Filling Vacancies in Nominations
(a) The Republican National Committee is hereby authorized and empowered to
fill any and allvacancies which may occur by reason of death, declination,
or otherwise of the Republican candidate for President of the United States
or the Republican candidate for Vice President of the United States, as
nominated by the national convention, or the Republican National Committee
may reconvene the national convention for the purpose of filling any such
vacancies.
--
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858<tel:651.523.2858> (voice)
651.523.3170<tel:651.523.3170> (fax)
<http://davidschultz.efoliomn.com/>
--
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858<tel:651.523.2858> (voice)
651.523.3170<tel:651.523.3170> (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/da <http://works.bepress.com/david_schultz/>
--
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