[EL] fairness of US elections

Fri Jan 24 14:41:39 PST 2020

Richard,

Just to address your 1st question, “ What other country in the world holds a direct vote for president, and then seats the person who has fewer votes in the final round, instead of seating the person who gets the most votes?”

The answer is none that I know of, including the U.S., which does not hold a direct vote for the presidency. iif we simply ask, as Erwin Chemerinsky likes to do.m, what country allows the second place finisher to “win,” the answer is, basically, every advanced democracy. But Even if we leave aside coalitions in which the second place (or lower) finisher becomes head of government, the UK, Australia, Canada, Israel, and India have all had as heads of government since WWII more than one election in which a candidate claimed the spot outright after finishing 2d in the popular vote.

Brad Smith
Sent from my iPhone

On Jan 24, 2020, at 12:44 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

   ** [ This email originated outside of Capital University ] **
If anyone else responds to this thread please use this (or another, more descriptive) subject line.
Thanks!

From: Richard Winger <richardwinger at yahoo.com>
Reply-To: Richard Winger <richardwinger at yahoo.com>
Date: Friday, January 24, 2020 at 9:41 AM
To: Rick Hasen <rhasen at law.uci.edu>, "Joseph E. La Rue" <joseph.e.larue at gmail.com>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] ELB News and Commentary 1/24/20

It is not a myth that the US has unfair elections.

What other country in the world holds a direct vote for president, and then seats the person who has fewer votes in the final round, instead of seating the person who gets the most votes?

What other country in the world has a legislative chamber in which one-sixth or less of the voters can be represented by a majority of the members of that chamber?

What other country holds general election debates for the top-most office but excludes all but the nominees of the two biggest parties?

What other country has a law that says only members of the two largest parties are eligible to be appointed to a judicial office (Delaware law, which will soon b e reviewed by the US Supreme Court, has this characteristic).

What other country has such difficult ballot access requirements that only the two major parties have been able to run a candidate for the national lower house of the legislative body in 77 years (Georgia law has this characteristic, and it was upheld last year by a US District Court).

Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147

On Friday, January 24, 2020, 9:26:10 AM PST, Joseph E. La Rue <joseph.e.larue at gmail.com> wrote:

I appreciate Rick's take on the possibility of an "Election Meltdown" after the 2020 presidential election.  I am confident everyone on the listserv joins me in hoping that won't happen.   But I want to thank Rick for his honesty in recognizing that both major parties and their candidates could have a meltdown.  Too often that possibility is attributed only to Trump and/or his most ardent supporters.  Thank you, Rick, for a fair assessment.  Now, let's all do our part to dispel the myth that our elections are not fair, and that there is widespread cheating.

Joseph
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On Fri, Jan 24, 2020 at 9:45 AM Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
“The loser of November’s election may not concede. Their voters won’t, either.”<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d109146&c=E,1,txmP-kMgP403dVUcgSV64VQVW2JjDTNNV_U8bEBzOg_ErIB6yvmrztljaxdMS1K2pQPahBJyYAiKzDVHYctCBM7L7Zbdad2oiOArNkh9qmKnvtfmwgeF&typo=1>

Posted on January 24, 2020 8:37 am<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d109146&c=E,1,JIrHPw9l1ytn4km5de0w7fCdIt-LSyZyVXDYaJOKLhzgNtXEz0_NptsavItgQfGJ1sPRht3e8WFggL3ENSGIFi1PMpG-3CIpg5OgjPVfqG78YeLCRYel&typo=1> by Rick Hasen<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fauthor%3d3&c=E,1,8T0HfbSwPBQrD_Z5SA5hKDro3hL7Jzlw0hiaEzG_ScBW6YMhOHXTNBjb-6nU6r9Dy0Yh62dboseCg1CO5BxOPG8f-ByJiL2_-VfxbU5gK_c,&typo=1>

I have written this commentary for the Washington Post Sunday Outlook<https://www.washingtonpost.com/outlook/the-loser-of-novembers-election-may-not-concede-their-voters-wont-either/2020/01/23/4d81be8c-3d6c-11ea-baca-eb7ace0a3455_story.html>, a preview of my book, Election Meltdown<https://www.amazon.com/gp/product/0300248199/ref=as_li_qf_asin_il_tl?ie=UTF8&tag=slatmaga-20&creative=9325&linkCode=as2&creativeASIN=0300248199&linkId=69abbd9d274db52e081b6d392baf38c8>, out Feb. 4. It begins:

When the polls closed on Nov. 5, 2019, the initial count showed the governor of Kentucky, Republican Matt Bevins, losing to his Democratic challenger, Andy Beshear. But rather than concede that he fell short in what should have been an easy reelection, Bevins claimed<https://slate.com/news-and-politics/2019/11/matt-bevin-andy-beshear-trump-stolen-kentucky-election.html> that “irregularities” had muddled the result — producing no evidence to support his accusations. At first, some Kentucky legislative leaders appeared to back him, and some pointed to the legislature’s power to resolve an election dispute and choose the governor regardless of the vote. But Bevins was not popular even within his own party, and eventually, he had to concede when the local GOP did not go along with him.

We could imagine a similar scenario this November: What would happen if President Trump had an early lead that evaporated as votes were counted, and then he refused to concede? The idea isn’t too far-fetched; Trump has raised it himself. Before the 2016 election, he wouldn’t agree<https://www.washingtonpost.com/news/post-politics/wp/2016/10/20/donald-trump-says-he-will-accept-the-results-of-the-election-if-i-win/?tid=lk_inline_manual_2> to accept the results if he lost. After winning in the electoral college but losing the popular count by about 3 million votes, Trump claimed<https://www.washingtonpost.com/news/post-politics/wp/2017/01/23/at-white-house-trump-tells-congressional-leaders-3-5-million-illegal-ballots-cost-him-the-popular-vote/?tid=lk_inline_manual_2> — with no evidence whatsoever — that at least 3 million fraudulent votes had been cast for his opponent, Hillary Clinton. He set up an “election integrity” commission headed by then-Kansas secretary of state Kris Kobach to try to prove that “voter fraud” is a major problem. But after the commission faced attacks from the left and the right for demanding state voter records with an apparent plan to use them to call for stricter registration rules, Trump disbanded it<https://www.washingtonpost.com/politics/trump-abolishes-controversial-commission-studying-voter-fraud/2018/01/03/665b1878-f0e2-11e7-b3bf-ab90a706e175_story.html?tid=lk_inline_manual_2>, with no work accomplished. In 2018, the president criticized elections in Florida<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fperma.cc%2fGT7Q-8MRE&c=E,1,MkJVpap1Z9AZcRtrMmKlmVOtn5D7_4QJKkyIWRAe8w23WV5xIYmcTNqacNHgiwY1qHeviW3GBk0LLzbptz3nIctA1wXoDsx_d8U7RXPUp3U,&typo=1> and California<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fperma.cc%2fS7BK-VWFW&c=E,1,mxvVLiovQ4LxlsEBc58Qh0nox6T5j4JEjG0jdHU8wJ2tQzS8mdPhMUHV5yQoo4se1MexXhetP3aG4jf-98OQIWovBthfejnndAUkfRKlNqs,&typo=1>, where late-counted votes shifted toward Democrats, suggesting without evidence that there was foul play.

It’s not just Trump who might not accept election results. Imagine that he wins in the electoral college, this time thanks to what Democrats believe is voter suppression in Florida. The Florida legislature and governor have already sought to stymie Amendment 4, a 2018 ballot initiative to restore voting rights to formerly incarcerated felons. When the state Supreme Court agreed<https://www.washingtonpost.com/national/florida-high-court-sides-with-governor-on-felon-voter-rights/2020/01/16/848f2d68-3882-11ea-a1ff-c48c1d59a4a1_story.html?tid=lk_inline_manual_3> that felons could not register to vote until paying all their outstanding fines, Gov. Ron DeSantis (R) praised the ruling and called voting a “privilege<https://twitter.com/GovRonDeSantis/status/1217867897906913282?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1217867897906913282&ref_url=http%3A%2F%2Felectionlawblog.org%2F>,” rather than a right. Some Democrats have called<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.thecentersquare.com%2fflorida%2fdemocrats-gillum-say-florida-poll-tax-on-felons-will-fuel%2farticle_dca6e4ac-70fd-11e9-90ab-57f1557e168e.html&c=E,1,GsSEnEgDo1bRtjM2-ayYM-kcOmyNMhm3yD6gelsEvxLqOL6KURynX8N1_dD_3qV_P-Yz_nNwaQSP_VCtcO7CqW0Oi5EIEWTd6UJK4uGTpFHybiFxNDP56iI,&typo=1> the new rules a “poll tax,” and a Florida public TV station concluded<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.wuft.org%2fnews%2f2020%2f01%2f16%2fflorida-supreme-court-sides-with-desantis-in-felon-voter-rights-case%2f&c=E,1,BFO20-jDWBvQDoE1-18HCTmENmgXMl7XjKA9qDk-0xKqgkvvT26D1OXbaeph5bMtZwlva_x5XnU-EUoia2Yn-hYo3d5phZndwNtbS4jL_C2VIi26iBG3&typo=1> that “the implications of the bill passed by a majority-Republican legislature preventing former felons from voting could work to ensure Trump wins the 2020 presidential election.” During Trump’s impeachment trial this past week, Rep. Adam Schiff (D-Calif.) said<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.axios.com%2fschiff-trump-impeachment-election-a5162595-dea0-404d-b099-582ae7e51b78.html&c=E,1,jLIFi6IosnCC-Ca33abcUmU2cHnBhADKDkwJZ6aNsCLHzdef4TCQg-e1Zq2cZyH-fmQhlAo95vKgkIHGpa575Mk2yu_4cbEPGruprvFafGvPyw,,&typo=1> “we cannot be assured that the vote will be fairly won” in November because of the allegations that Trump was trying to “cheat” by pressuring Ukraine to announce an investigation into Joe Biden and his family.

External forces could cause an election meltdown, too. A recent NPR-News Hour-Marist poll<https://www.npr.org/2020/01/21/797101409/npr-poll-majority-of-americans-believe-trump-encourages-election-interference?utm_medium=RSS&utm_campaign=storiesfromnpr> found that “almost 4 in 10 Americans . . . believe it is likely another country will tamper with the votes cast in 2020 in order to change the result.” What if Russians hack into Detroit’s power grid and knock out electricity on Election Day, seriously depressing turnout — and Trump wins the electoral college because he carries Michigan? Most states do not have<https://www.washingtonpost.com/opinions/our-elections-are-wide-open-for-a-constitutional-crisis/2018/10/26/317cb7e0-d86a-11e8-83a2-d1c3da28d6b6_story.html?tid=lk_inline_manual_6> a Plan B to deal with a terrorist attack or natural disaster affecting part of a presidential election.

<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D109146&title=%E2%80%9CThe%20loser%20of%20November%E2%80%99s%20election%20may%20not%20concede.%20Their%20voters%20won%E2%80%99t%2C%20either.%E2%80%9D>
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Posted in Election Meltdown<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fcat%3d127&c=E,1,Q9TfaYXgNstaafmiHUqfuzZ-3PdL43WYprUXBlD-QXtnGZAk5ey7X50SBWFRuet0MepnWwWpOkKH0QiWJVQhPHyboJfkMSTHEUii34C2YAarGZIkYNw8Tg7iTh3h&typo=1>

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