Category Archives: Electoral College

Electoral College Anachronism

By tmess2 | Published November 5, 2024

As the final day of this election dawns, we are looking at the real probability that Democrats will win the popular vote for the eighth time in the last nine elections.  There is also a significant chance that, once again, the Republicans are going to win the electoral college vote despite losing the popular vote.  Since the end of Reconstruction, this only happened one time before the election of 2000.

When discussions of how the electoral college is flawed comes up, the defenders of the status quo like to spout about how the current system is what was designed by the Framers to avoid the big states having too much power.  The problem is that argument is wrong in three basic ways.  First, the original concept behind the electoral college and the belief about how elections would operate ended up being wrong.  Which is why the Framers had to amend the Constitution after 1800 to fix the electoral college.  Second, there were multiple other reasons for having an electoral college and for the final structure of the electoral college beyond helping the small states counteract the big states.  Third, most of those reasons are no longer valid which leaves the question about why should what was ultimately a compromise rather than the core reason for the electoral college still justify keeping what for most of its history has been like the tonsils, wisdom teeth, or appendix of our electoral system.

Let’s turn back to how things were in 1787 when the Constitutional Convention met.  There was no television, no radio, no internet, no telephones, no telegraph, no railroad, no cars, no planes.  The continent had been organized at the colony level with little or no connections between the colonies before the First Continental Congress.  After the Declaration of Independence, the colonies became states, but states were still the basic organizing unit of government.  Newspapers were more like your small town local paper is today with nothing like USA Today, the Wall Street Journal, the New York Times, or the Washington Post.  The primary form of transportation was horseback, and it could take several days to travel across a state.  It could take weeks for a letter to get from New York to Charleston.  In short, politics were local and or state-based.  There was no national politics, and it was difficult for the average voter to get information about what was happening in other states. Continue Reading...

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Ballot Access 2024

By tmess2 | Published April 21, 2024

In a completely shocking turn of events, some states (primarily those with a Republican Secretary of State) seem to be about to deny the Democratic ticket its place on the ballot.  The issue is that every state has a deadline for established parties to certify their presidential ticket to the state election authority.  Ohio is the earliest with a deadline ninety days before the election.  (Depending on the year, that deadline falls between August 4 and August 10.)  By contrast, Alaska’s deadline is forty-eight days before the election (with the deadline falling between September 15 and September 21).

The early deadlines are problematic because they ignore the informal traditions about the scheduling of the conventions and the real world.  The big real world issue which impacts the scheduling of the conventions is the Summer Olympics.  Barring cancellation or postponement (like happened in 2020), the Summer Olympics are always in the Summer of the presidential election year.  Simply put, the political parties want their convention to dominate the news and for all eyeballs to be glued to their convention.  (Of course, as the current nomination system has drained conventions of almost all of the drama, getting people to watch the convention is harder, but the parties do not want to compete with the Summer Olympics for viewers.)  And, over the years, the Olympics have expanded.  This year, the Paris Olympics runs from Wednesday, July 24 through Sunday August 11.  In practical terms, that means that the last potential week for a July convention is the week of July 15.  And, if you want some news coverage during the week leading into the convention, the first potential week for an August convention is the week of August 19.  Going back to 1992, the dates of the Summer Olympics has been:  1992 Olympics — July 25-August 9; 1996 Olympics — July 19-August 4; 2000 Olympics (held in Southern Hemisphere) — September 15-October 1; 2004 Olympics — August 13-29; 2008 — August 8-24; 2012 — July 27-August 12; 2016 — August 5-21; 2020 Olympics (original scheduled dates) — July 24 through August 9.   The other big world impact is that most states now use primaries to award delegates with the last primaries taking place in early June.  That makes it almost impossible for a major party to move its convention before July.

Turning to the informal traditions, the party out of power normally goes first.  The last time that the party in power went first was 1932.  (Prior to World War 2, the Republicans normally went first, but in 1956 (the first time that Republicans were in power after World War 2), the Republicans opted to go after the Democrats, and the tradition of flipping sequence based on which party held the White House has been followed ever since.  The dates for the party out of power since 1992 have been:  1992 — July 13-16 (Democrats/ending before Summer Olympics); 1996 — August 12-15 (Republicans/ starting 8 days after Summer Olympics); 2000 — July 31-August 3 (Republican/Summer Olympics not an issue); 2004 — July 26-29 (Democrats/ending before Summer Olympics); 2008 — August 25-28 (Democrats/starting 1 day after Summer Olympics); 2012 — August 27-30 (Republicans/starting 15 days after the Summer Olympics); 2016 — July 18-21 (Republicans/ending before Summer Olympics); 2020 — July 13-16 (originally scheduled)/August 17-20 (actual dates) (Democrats/ original schedule before Summer Olympics).  In other words, in the previous eight election cycles, the party out of power has held their convention “too late” to comply with the Ohio statute four times out of eight (three times if you use the original date).  The dates for the party in power since 1992 have been: 1992 — August 17-20 (Republicans/starting 8 days after Summer Olympics); 1996 — August 26-29 (Democrats/2 weeks after Republicans); 2000 — August 14-17 (Democrats/2 weeks after Republicans/Summer Olympics not an issue); 2004 — August 30-September 2 (Republicans/1 day after Summer Olympics); 2008 — September 1-4 (Republicans/week after Democrats); 2012 — September 4-6 (Democrats/week after Republicans); 2016 — July 25-28/week after Republicans/before Summer Olympics); 2020 — August 24-27 (Republicans/originally 15 days after Summer Olympics).  In short, the only time in the past 32 years in which the party in power held their convention before Ohio’s deadline was 2016 when the Olympics did not start until August. Continue Reading...

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Candidate Trump — Felon Ballot Access Restrictions and the Fourteenth Amendment

By tmess2 | Published August 27, 2023

We are heading into uncharted waters.  A major political party has become a cult in thrall to a person who may not be eligible to run for president (or at least barred from the ballot in several states) who insists that he should be the nominee in 2024.  Add to that a martyr complex by the true believers who have taken over many state parties, and we are heading into potential chaos for the Fall of 2024.

Of course, one of the complexities is that the national election for president is when the electoral college meets and votes and sends those votes to Congress to be counted.  Up until that Wednesday in December, we have fifty-one elections for presidential electors and more elections for delegates to the nominating convention.  Each of the jurisdictions (states and territories) involved in these elections have different rules and procedures.

Having said that, there are several general things that are consistent from state to state.  First, for the general elections, the parties certify the name of their presidential and vice-presidential candidate in late August or early September.   Second, there is a state election authority which receives and processes the candidate paperwork for state and federal candidates.  For the most part, these officials rarely refuse candidate filings, but they are tasked with determining whether the filing to be on the ballot is complete and shows that the candidate is eligible to run under state law.  Third, decisions on whether a candidate qualifies to be on the ballot is subject to some form of judicial review.  But, assuming that the election authority finds that a candidate is eligible to run, the different states have different rules on who can challenge that determination.  In all, or almost every state, the opposing candidates have the right to bring such a case, but the rules as to who else has that right differs from state to state.  Fourth, if, for some reason, a party’s nominee has to be replaced on the ballot, it generally falls on the state party to name a replacement.  Fifth, for the presidential election, there is actually a ticket composed of the candidates for president, the vice-president, and the presidential electors.  It is the last two or three where the potential for chaos emerges. Continue Reading...

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The Independent State Legislature Theory, Election Law, and the Trump Crimes

By tmess2 | Published August 13, 2023

Recently, a federal grand jury in the District of Columbia returned an indictment charging the Orange Menance with crimes related to his attempted coup after the 2020 election.  It is expected that within a week or two a state grand jury in Fulton County, Georgia will add state charges related to the efforts of dictator-wannabe Donald Trump to convince Georgia election authorities to alter the results of the election in that state.

Much of the crimes committed by Donald Trump and his band of incompetent coconspirators were based on a flawed version of the independent state legislature theory and a misunderstanding of election mechanics.

First, the independent state legislature theory.  The independent state legislature theory is based on two clauses in the U.S. Constitution.  One of the clauses is found in Article I and applies to the election of members of Congress.  The other clauses is found in Article II and deals with the selection of presidential electors. Continue Reading...

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The Count

By tmess2 | Published January 3, 2021

To quote the Grateful Dead, “what a long, strange trip it’s been.”  Our hopes for a decisive enough result that the winner would be clear on November 3 failed to come to fruition.  And since then, Trump and his allies have thrown everything but the kitchen sink into denying reality.  Even as late as this week, Trump’s allies have been filing meritless cases to try to have judges cancel the votes in various states.  And almost all of the case have been rejected by the courts.  To date, the Supreme Court has not accepted any cases, and have left most cases proceed on the normal schedule (which means no decisions on taking any of them prior to January 8 when the Supreme Court next meets).

That leaves us down to one last abuse of the legal process — the joint Congressional session to count the electoral votes sent by the states.  The current process dates back to the aftermath of the election of 1876.  In that election, you had a handful of states with conflicting results certified by different entities.  As such, you had multiple states sending votes from individuals that had been recognized by some part of state government as the official electors.  Ultimately, a commission was established to resolve those disputes.  While it took around a decade to get legislation through Congress, the Electoral Count Act of 1887 set forth the key provisions that are still in place today.   The current language in Title 3 sets forth a multi-stage process.

First, prior to election day, each state legislature shall set forth the rules governing the selection of electors.  These rules besides designating who makes the selection also dictate the procedures to be followed during that selection, the role to be played by various state agencies (legislatures, state election authorities, and local election authorities) in running the selection process, and who has the power to resolve disputes that might arise during the selection process (courts, state election authorities, local election authorities, and legislatures).  While the Constitution does not mandate the use of the popular vote to select electors (and, in the early days, some states had the legislature pick the electors), every state has now opted for using some variation of the popular vote to pick electors.  And every state has adopted procedures in which the initial resolution of election disputes are made by local election authorities and state election authorities with the potential for judicial review of those decisions. Continue Reading...

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Electoral College

By tmess2 | Published December 13, 2020

One of the often misunderstood aspects of U.S. elections is how the popular vote relates to the election of the President.  While, in the majority of the states, the ballot simply lists the candidates for President (along with the Vice-Presidential running mate), voters are effectively voting for a slate of electors.  The winning slate in each state then assembles on the first Monday after the second Wednesday in December at the location and time designated by that state.  After assembling, the electors for the state cast a vote for President and a vote for Vice-President.  The votes are then counted, and the electors complete six certificates of vote recording the votes of the electors for that state.  Each certificate of vote is paired with one of the previously completed certificates of ascertainment.  Federal law then directs what happens with the six certificates of vote with one going to the President of the Senate (in practice, the clerk of the Senate), two to the national archives, two to the secretary of state of the individual state, and one to the federal district court for that state.

Normally, the meeting of the electoral college is a big ceremonial event.  With Covid-19 and the potential for protests to get out of control, it appears that most of the states are planning on holding scaled-down events.

The fringe element of Trump supporters (and President Putin) are hoping for some last minute drama for Monday, but that is practically impossible for several reasons.  First, earlier this year, the U.S. Supreme Court upheld state laws requiring electors to vote for the presidential candidate to whom they are pledged.  While states have different laws on so-called faithless electors,  the net effect of those laws is that sixty-nine Biden electors are from states that replace an elector and cancel the electors vote if the elector fails to follow through on their pledge, sixty are from states that fine the elector, seventy-one are from states with pledges but no enforcement provision, and one hundred six are from states with no law on this issue.  That means that, at most, there are 237 Biden electors who could defect. Continue Reading...

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Safe Harbor Day — UPDATED

By tmess2 | Published December 6, 2020

Whether it is just the weirdness of 2020 or the narcissism of the Orange Menace, this post-election period has been about key dates and events.  Over the past four weeks or so, one by one, despite unsuccessful attempts to have courts intervene to block them, states have certified the results of the presidential election, and the remaining states are set to do so on Monday or Tuesday.   Once the appropriate authority within the state has certified the results of the presidential election, the governor is to complete and mail to the National Archives a “certificate of ascertainment.”  As of today’s date, the National Archives has received just under half of these certificates.

Now normally, this process is routine.  It happens, and only political geeks pay attention.  But because Trump and his “lawyers” refuse to face reality, we are now facing an event that has only really mattered once before in U.S. history — the safe harbor date.   If a state has concluded any dispute related to electors by six days before the electors meet, the determination by the state is “conclusive.”  In 2000, the U.S. Supreme Court used this language to find that Florida wanted all election contests to end by the safe harbor date.  The 2000 election is the only time that we have faced the safe harbor date having any meaning.

But we are back in that boat again.  And this year, the safe harbor date is Tuesday, December 8.    Despite Trump’s attempt to cast this election as a repeat of 2000 with the Supreme Court intervening to decide the election if necessary, what is happening in the courts does not support that alternate reality. Continue Reading...

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What Comes Next?

By tmess2 | Published November 11, 2020

We are entering uncharted territory in the U.S. Presidential election.  Moscow Mitch is technically correct that the President has the right to avail himself of all legal remedies related to challenging the election results.  But that’s not saying much.  Technically, I have the right to file an election contest in my state challenging the results of several issues that were on the ballot last Tuesday.   But I have no valid legal claims (or at least no evidence supporting any of those claim), and I would be facing sanctions for filing a frivolous case if I tried.  Apparently, the president of the United States is exempt from the rules requiring a good faith basis for filing a case.

The closest that we have been to this type of obstruction was 2000 in Florida.  Of course, in 2000, the election came down to one state, and that state was close enough to trigger an automatic recount.  And where things went off the rails was that the parties could not agree on the proper way to conduct that recount.  As a result, it is debatable whether there ever was a proper recount in Florida.

At least until Trump surrenders, there are two different lines by which things will progress.  The first involves the Presidential Transition Act.  Under the provisions of that act, there is a transition process which includes office space, the ability to employ staff, and access to government materials for the president-elect and vice-president elect.  The key part of the act for the current situation is the triggering language which relies upon the determination of the Administrator of the General Services Administration.  Under that language, those rights trigger upon the determination of the Administrator of the “apparent successful candidate” in the election.  The big problem with the act is that it does not define how the Administrator determines who is the “apparent successful candidate.”  And, in the past, this provision has not been an issue.  In the first fourteen elections held under the Act, the identity of the apparent successful candidate has been clear within forty-eight hours of the election in thirteen elections.   The only exception, as noted above, was 2000 in which it was clear that there was no apparent winner until Florida could complete its recount.  If, as appears to be the case, President Trump has made clear that the Administrator of the GSA should not recognize apparent President-elect Biden as the apparent President-elect, then this dispute may require a petition for writ of mandamus.  (A writ of mandamus compels an official to comply with a ministerial duty.)  The big issue in such a case would be the proper standard for the exercise of the duty and whether that standard is clear enough to give rise to a ministerial duty in this case.  Of course, the risk is that a court might decline to issue the writ because the law lacks any precise standard.   The Biden Transition Team will have to balance off the risk of a bad result in a case against the reality that President Trump and the Administrator of the GSA seem intent on ignoring both the language and the spirit of the Presidential Transition Act. Continue Reading...

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The Electoral College and Election Law

By tmess2 | Published September 27, 2020

In recent weeks, there has been a proliferation of articles on how President Trump could effectively change the rules after the election if it appears that he is likely to lose.  For now, I am putting to the side the possibility of an actual coup in which he prevents the new Congress from meeting and certifying a Biden-Harris win or prevents Joe Biden from taking the oath of office after being certified as the winner.  I just don’t see the circumstances in which members of the military or the Secret Service or the D.C. police force would participate in such an extreme stance.  So I will limit myself to an attempt to change the legal winner of the election.

For federal offices, including the president, there are three main sources of law governing the election of such officials– the Constitution, federal statutes, and state laws (which can be the state constitution, state statutes, or state regulations).

Most of the arguments for legal manipulation are based on past history and a misreading of the Constitution.  There are two key provisions in Article II of the Constitution.  First, the electors are chosen “in the manner that the Legislature shall direct.”  The key thing about this provision is that it says that the Legislature directs the manner of choosing the electors.  It does not say that the state legislatures get to choose the electors.  While, in the early days of the country, some legislatures opted to have the legislature actually choose the electors.  that was because the legislature opted for that mechanism.  Today, every state has opted to choose the electors through a popular vote.  While the legislatures could theoretically change the manner of choosing electors, I will get back below to why this will not happen. Continue Reading...

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Supreme Court and the Electoral College

By tmess2 | Published January 17, 2020

It’s been almost twenty years since the last time that the Supreme Court has taken a case involving the electoral college. In fact, you can on one or two hands the number of times that the U.S. Supreme Court has taken a case in which the sole issue was the process of electing the President.  (I can count three in the past forty years — one involving the right of the national parties to set the rules for nominating their presidential candidate and the two from 2000 involving the recount in Florida.)

This afternoon, the United States Supreme Court took two cases — Chiafolo vs. Washington from the Washington Supreme Court and Colorado Department of State vs. Baca from the United States Court of Appeals for the Tenth Circuit.  Both cases involve the state laws governing so-called “faithless electors.”

Now faithless electors are not usually a significant problem.  While the laws differ from state-to-state,  the general concept is that in every state, there is a slate of candidates for electors associated with each ticket.  In the majority of states, the ballot only lists the individuals running for President and Vice-President, but the actual candidates being elected if that ticket wins that state (or in the case of Nebraska and Maine, the individual congressional districts) are the candidates for elector.  Each state has a process by which the respective parties nominate the slate of electors — typically either a state party convention or a state party committee.  (Obviously, for new parties and independent candidates, the elector candidates are chosen by the people handling the petition to get that party/candidate on the ballot.)   The process of filling the slate normally guarantees that the electors are loyal to the state party. Continue Reading...

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