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Three Little Words: I Was Right

My wife and I joke that the three most beautiful words in the English language are either “you were right,” or maybe, “I was wrong.”

Either way, here’s a link to the New York Times story on the latest court ruling relating to the current photo I.D. law in Texas. Here’s the gist: After a remand from the Fifth Circuit, the district court handling Veasey v. Perry has again struck down Texas’ 2011 photo i.d. law as intentionally racially discriminatory. Rick Hasen has more.

So … The Plaintiffs Won the Texas Redistricting Lawsuit, Right? Right?

I. TL;DR Q&A

(1) Ugh! This blog post looks like it’s really long.

So, just tell me: Did the plaintiffs in the 2011 Texas redistricting case win or not?

ANSWER: On March 10, 2017, the federal redistricting panel reviewing contested matters relating to the 2011 redistricting of Texas congressional districts issued an opinion finding that with respect to the following congressional districts …

(2) No! Too much! I mean seriously. Just tell me yes or no. Did the plaintiffs win or not? Yes or no? That’s all I want.

ANSWER: Yes. The plaintiffs won.

(3) Great! So that means (if, for example, you live in Austin) I’m back in Lloyd Doggett’s district, right? I mean, you live in Austin, too, right? — you know what I’m talking about. So anyway, I’m not in Lamar Smith’s district anymore, right?

ANSWER: Um.

The boundaries haven’t actually been changed yet (except that the boundaries were changed by a remedial 2012 legislative redistricting plan that replaced the 2011 plan that is the original subject of this suit).

However, I should point out that the boundary lines for Representative Smith’s district (Congressional District 21) were not directly in dispute, and would only be changed as a result of changes that might be implemented for the affected districts (CD-23, CD-26, CD-27, and CD-35) that were found to be unconstitutional racial gerrymanders.

I should also point out that the court’s order relates to the 2011 legislative redistricting plan, and not to the remedial 2012 redistricting plan that was put in place temporarily in advance of the 2012 elections; the plaintiffs allege that the 2012 plan is also flawed, and that determination is still pending.

(4) What?

ANSWER: The decision issued by the redistricting panel did not change any existing U.S. House of Representatives boundary lines. That work is left for the Texas Legislature, or for the court. Other work is still pending as well, including an expected determination as to whether the contested state legislative districts were also unconstitutional racial gerrymanders, and whether the State will be subject to preclearance in response to intentional racial discrimination per Section 2 of the Voting Rights Act. But if it’s any comfort to you, the panel did find that Lloyd Doggett’s district (CD-35) was invalidly drawn.

(5) But … what about the 2018 elections? I mean the U.S. House of Representatives elections?

ANSWER: Presumably, we’ll either have new congressional boundaries in place in time for the 2018 election cycle, or we won’t.

(6) Augh! That’s no answer! You know, its just this sort of fiddly, picky, pedantry that makes people hate lawyers, right?

ANSWER: Yes.

II. TS;DU (“Too Short; Didn’t Understand”): here’s some more context.

Here’s some background for those of you who might be curious about what’s happening with political redistricting in Texas.

  • Back in 2011, a number of affected candidates and voters filed suit challenging aspects of the decennial legislative redistricting plan adopted by the Texas Legislature. A core group of plaintiffs focused their concerns on how U.S. Congressional seats were apportioned, and while the suit also concerned state legislative district boundaries, most of the national public media interest in the Texas redistricting suit has been on those key seats in the U.S. House of Representatives.
  • The case has followed a convoluted path, in part because of various appeals and procedural challenges over the years. To get some sense of just how convoluted this path is, check out the summary of the case offered by the Brennan Center for Justice, and the Moritz College of Law’s archive of the court filings made by the parties since 2011.
  • Currently the matter is before the Federal District Court for the Western District of Texas, San Antonio Division, and more specifically is in the hands of a panel of three judges who were assigned to the case for the purpose of resolving the redistricting disputes.
  • On January 2, 2017, some of the plaintiffs filed a motion for an entry of a judgment by no later than January 18, 2017; this motion was rejected. The unpublished response from the court on January 5, 2017, was that the opinion would be issued “as soon as possible” but not on any specified timeline.
  • Apparently to prove that the court was in fact moving with all possible speed to resolve the matter, the panel released its decision and findings of fact late in the day on Friday, March 10, 2017, instead of waiting until the following Monday.
  • The decision was, needless to say, big news for those of us who are interested in redistricting questions — the majority opinion found that four of the State’s congressional districts had been drawn with racially discriminatory intent.
  • In addition to being big news, the decision was also physically … well … big, reflecting the enormous volume of geographic and voting demographic data that the court had been obligated to review. The opinion is about 200 pages long, with another 443 pages contained in the related findings of fact (the linked article briefly summarizes how “findings of fact” function as the rough equivalent of judge-made “jury findings” in the context of non-jury trials. See also this short continuing legal education .pdf that describes “findings of fact and conclusions of law” in the context of state and federal court decision-making generally)Even the dissenting opinion recognized the monumental effort of the court and its staff in assembling and synthesizing this quantity of legal material.
  • The March 10 opinion has a number of significant and important stylistic features, not the least of which is that the majority drafted a meticulously thoughtful treatment and framework for answering one of the central philosophical problems of modern redistricting — namely, what to do when a claim of partisan advantage is used as a proxy for intentional racial discrimination.
  • The opinion was also drafted with great care to provide satisfactory answers to questions about how to serve the voting interests of what might be regarded as superficially racially homogeneous but politically and geographically distinct communities of interest.
  • Conservatives who are unhappy with the decision will be likely to quote the stinging and strongly partisan dissent, which regards the whole of the redistricting dispute as having been rendered moot by the passing of time, and which characterizes the legal arguments made by the former Obama administration-era Department of Justice attorneys (who had been aligned with the plaintiffs) as an insulting and unprincipled effort to characterize the lawmaking functions of the Texas Legislature as motivated by overt racism.
  • Significantly (and, I would say unfortunately for the plaintiffs), the majority opinion declined to draw new district boundaries to correct the racially discriminatory effects caused by the 2011 redistricting plan. Instead, the court left that task pending for a future examination of the 2012 interim maps that were formally adopted as permanent by the Texas Legislature for elections starting in 2013.
  • Most news coverage of the decision in Perez et al. v. Perry et al. treats this result as a huge and important victory for the plaintiffs, with findings of fact that will support the reimposition of federal oversight and preemptive analysis of future changes in Texas election procedures. The opinion is well-drafted to withstand appellate scrutiny, and is as good a decision as could have been hoped for with respect to eventual Supreme Court review.
  • My deep-seated pessimism (which is partly congenital, and partly informed by the political world we now inhabit) makes it harder for me to feel upbeat about this victory. In the Trump administration, is there any legal institution currently inclined or capable of effectively enforcing the constitutional rights of minority voters? I think the answer is no.

III. So now what? 

So, what can a Texas voter — or any U.S. voter, for that matter — who is interested in fair and actually representative elections do?

  1. Work to elect lawmakers who respect the needs of minority voters in the context of redistricting.
  2. As a corollary to point 1, remove lawmakers from office who engage in discriminatory gerrymandering.
  3. Tell your state legislators that you support bipartisan redistricting reform, and that you judge your lawmakers’ job performance in part based on how well those lawmakers uphold the precepts of the Voting Rights Act.

 

Mini roundup of Texas election law stories

1. Voter Registration — Status of TCRP Suit To Enforce Federal Motor Voter Laws

We’re approaching the one-year anniversary of the Texas Civil Rights Project’s lawsuit against the Texas Department of Public Safety, and just to refresh you, here’s what’s going on:

  • Texas provides a website portal for the online renewal of drivers’ licenses, which should in theory also allow voters to easily update their voter registration.
  • BUT … for voters who have moved from one Texas county to another, online renewal carries pitfalls, including unexpected “gotcha” cancellations of existing voter registration status, and confusing or misleading information about how voter registration renewal works.
  • Thousands of Texas voters have unwittingly had their voter registrations cancelled when they attempted to update their status online.
  • Recently, the State of Texas was sanctioned by a federal district court for unconscionable delays in responding to the plaintiff’s discovery requests.
  • The trial is scheduled to take place this Ssummer.

2. Department of Justice Shifts to the State’s Side on Texas Voter ID Suit

  • In a February 28 interview with the Texas Standard, (link to audio here: http://www.texasstandard.org/stories/justice-department-drops-opposition-to-texas-voter-id-law), election law expert Richard Hasen discussed the decision by the U.S. Department of Justice to end its legal opposition to the Texas Voter I.D. law.
  • With Jeff Sessions in charge at the Department of Justice, and with anticipated conservative justices appointed to the U.S. Supreme Court, the position of the plaintiffs is now more precarious.
  • This follow-up story from Slate covered the most recent trial court hearing; the plaintiffs described the judge as skeptical of the State’s argument.

3. Regional Briefs

  • Voter assistance or improper electioneering in Robstown, Texas? – KRISTV (the NBC affiliate TV station in Corpus Christi) has this interesting story about a candidate who was elected to a local utility district seat in November after assisting voters with their ballots.
    • In response to the argument that the candidate’s presence in the polling place constituted electioneering, the city manager pointed out that voters who are unable to read or mark a ballot are legally permitted to ask for and receive polling place assistance from a candidate.
  • Errors in 2016 election likely the result of voter confusion, not intentional fraud –
    • This story from Mysanantonio.com expresses the position of Bexar County election officials that to the extent voters with photo I.D.s may have completed affidavits alleging a lack of sufficient I.D. prior to voting, the erroneous use of the affidavits was likely a consequence of the confusing shifts in state voter I.D. procedures that were rolled out just prior to the November 2016 election, and not reflective of a pattern of intentional voter fraud.

Divided Against Itself – Bipartisan County Elections Administration

Here’s a simple question with a complicated answer:

Who conducts elections in Texas?

I ask this question in part because I got a call about a week ago from a reporter with the Victoria Advocate, asking about the January 17, 2017, resignation of George Matthews, the county’s first and only elections administrator.

Mr. Matthews had held the non-partisan county position since 1992, and (I say, based on having talked to George and his staff over the years) was highly regarded and well-liked by those he had worked with, including both the Victoria County Democratic Party Chair and the Victoria County Republican Party Chair.

Mr. Matthews’ resignation reminded people of the existence of a “County Elections Commission,” as described by Section 31.032 of the Texas Election Code, which surprised those county residents who had never heard of or knew about the existence of this governing body. That ignorance is understandable; the Victoria County Elections Commission probably last met in 1992 when it created the position of County Elections Administrator.

Do the County Elections Commissions within the counties have any direct responsibility for conducting elections?

The short answer to that question is … no.

County Elections Commissions have one tiny slice of legal responsibility (i.e., hiring or firing county elections administrators). That authority gets exercised once in a blue moon.

County Elections Commissions are consequently invisible and nearly powerless; they certainly don’t pay for the conducting of elections or supervise the conduct of those elections.

I think it’s interesting that county officials in Victoria have responded to this story by urging that the Victoria County Elections Commission will conduct quarterly meetings henceforth, presumably to preserve greater visibility and to ensure that voters won’t once again react with shock and surprise upon discovering that there is such a thing as a county elections commission.

So, who conducts elections?

In matters of voting (as with so much else) the State of Texas has adopted an aggressively decentralized approach. In one sense, the answer to the question is this:

  • Each political entity (whether that entity is a semi-autonomous political subdivision or a division of the State or federal government) conducts its own elections.

That answer has the ring of seeming authenticity. Every county, city, school district, water district, hospital district, community college district, special law district, municipal development district,  et cetera, has the formal legal responsibility for conducting its own elections, starting with the State of Texas and moving on down to the tiniest subdivision of local government.

But that answer doesn’t quite capture reality.

Let’s try again with this answer:

  • Each political entity is empowered to conduct elections, but practically speaking, there’s no way that thousands of tiny government entities (many of which don’t even have employees or permanent offices) can possibly handle the tedious and labor-intensive job of actually running their elections.So the equipment and election workers are provided by the counties. County workers print the ballots, program the voting machines, manage the early voting polling places and the Election Day precincts, count the votes and deliver the results to the tiny government entities.

Okay. So that pretty much answers our question right?

If someone asks, “who runs elections?” we’ll just say, “The counties.” And then we’re done, right?

Well, not quite.

Most people might be satisfied with this answer, but some people still want to know who specifically pays the invoices for the ballot programmers and hires the election workers. They ask,

“Who within the county government actually prepares the budget, leases the equipment, puts gas in the pick-up truck that delivers the voting booths, and keeps the lights on at the courthouse on Election Night?”

So here’s a more nuanced answer:

  • In Texas, elections are traditionally conducted by the County Clerk, while voter registration is administered by the County Tax Assessor/Collector (as a holdover duty of that office from the era of poll taxes). The costs associated with elections are largely paid out of general tax revenues, as budgeted and distributed by the County Commissioners’ Court.

Okay. Weird (what with the retro throwback reference to the collection of poll taxes), but okay.

Except … wait.

If elections are conducted by County Clerks (who are elected county officials) and if voter registration lists are created and maintained by Tax Assessor/Collectors (who are also elected county officials), then where do Election Administrators come into the mix?

  • County governments (i.e., the County Commissioners’ Courts) may choose to exercise statutory authority to create the position of County Elections Administrator. A County Elections Administrator is a paid county employee to whom is delegated the authority inherent in the offices of County Clerk and County Tax Assessor to (1) run elections, and (2) administer voter registrations for county voters. The County Elections Administrator is hired by the County Elections Commission and answerable to that (almost invisible, easily forgotten) government body. Meanwhile, the County Commissioners’ Court determines the budget, staffing, and all other decisions relating to the management of the county elections.

So in those counties with elections administrators, there is an interesting dynamic at work (and by “interesting,” I mean “complicated”).

The Elections Administrator is a special kind of county employee answerable to two separate deliberative bodies.

The Elections Administrator has to keep the County Elections Commission’s members happy in order not to be fired, but at the same time, the Elections Administrator has to keep the County Commissioners happy in order to have an office and a budget.

So … here are the members of those two bodies that a county Elections Administrator answers to:

  1. The County Judge  — the elected chief executive officer of the county, voting member and chair of the County Commissioners’ Court, and chair of the County Elections Commission.
  2. Four elected county commissioners, each representing a geographic portion of the county (Commissioners’ precincts 1–4) as voting members of the County Commissioners’ Court.
  3. The County Clerk — the elected records officer of the county; responsible for the minutes and records of the county court, managing all vital and property records of the county, voting member of the County Elections Commission.
  4. The County Tax Assessor — the elected financial officer of the county; responsible for the assessment and collection of county tax revenue; voting member of the County Elections Commission.
  5. The County Democratic Party Chair — chief executive officer of the county Democratic Party (if one exists); voting member of the County Elections Commission.
  6. The County Republican Party Chair — chief executive officer of the county Republican Party (if one exists); voting member of the County Elections Commission.

So that’s nine people with some measure of influence over the Elections Administrator. And one person in particular looms large. Because the County Judge sits on both bodies, that person has even greater influence over the process of creating the position and hiring the Elections Administrator.

While the Commissioners’ Court can’t directly hire or fire the Elections Administrator, the ability to control the existence of the position and the purse strings is all-important. If the Commissioners threaten to abolish the position or put the Elections Administrator in a broom closet, the message will come across loud and clear.

Why would the State authorize such an odd delegation of election authority by county government? I mean, why split the authority to hire the administrator from the authority to pay the administrator?

On the one hand, election administration is in many ways a complicated, thankless job. Elections are expensive (thanks in part to the many issues of legal compliance with state and federal laws) and emotionally fraught. From the perspective of an elected official like a county clerk, it’s often a relief to be able to delegate the management of dozens of local elections (as well as the high-profile, high-risk county, state, and federal elections) to a bipartisan “Switzerland” of blessed political neutrality.

On the other hand, election administration is very much about mucking about in the gears and levers of the political machine. While nobody wants to actually do the job of running elections, there are plenty of people who would like to preserve leverage over the administration of the election itself.

This Gordian Knot of conflicting county loyalties could be cut at a single stroke if the Legislature simply decreed that all counties would be required to have a non-partisan Elections Administrator, with all funding and administration supervised by the existing framework of county elections commissions.

But that legislative act would strip the county commissioners and county judges of an essential tool of budget control over elections administration. Therefore, it is unlikely that any such reform will be forthcoming.

 

 

Heel Turn—DOJ Files For Continuance In Texas Voter ID Case

As reported on CNN and as analyzed by Rick Hasen’s Election Blog, the U.S. Department of Justice has asked for an extension in trial court briefing deadlines in the Texas voter ID lawsuit due to a change in the federal administration.

The common-sense interpretation of this procedural move (as expressed by Professor Hasen)?:

DOJ will switch sides and join the State of Texas in arguing in favor of more restrictive voting requirements. More to come.

Texas election news: Pasadena, Texas, required to seek preclearance for any changes in voting or election procedure

If you haven’t already read this excellent story from the New York Times about the City of Pasadena, Texas, check it out, as it’s necessary for context. Also, take a look at Professor Rick Hasen’s analysis of the initial court ruling and his comments on the subsequent order regarding enforcement of the initial ruling.

Other useful context: Texas has a long history of discriminatory voting laws.

***

Why this matters: this is the first jurisdiction since the Shelby County v. Holder decision that has had preclearance requirements imposed on it by a federal court.

Briefly, and for those of you who are new to this story, here are the highlights:  In 2013, the U.S. Supreme Court issued the above-mentioned decision that cut the heart out of the Voting Rights Act, effectively eliminating the historical process whereby the U.S. Department of Justice reviewed changes in voting procedures adopted by certain jurisdictions.

Emboldened by this Supreme Court decision, the mayor of the City of Pasadena, Texas, then pushed a new city election strategy, allegedly (per the NYT story above) to limit the power of Hispanic voters in municipal elections.

Pasadena, Texas, has a large Hispanic population (about 62.2% of the roughly 154,000 people who live there), but its city government has been dominated by whites, and the city has historically been racially polarized.

By replacing single-member districts with at-large districts, the new city election plan diluted minority voting strength and reduced the likelihood that Hispanic voters could get proportionate representation on the city council.

The city was sued, and now, three years later, a federal court has ruled that the city-altered method for choosing its city council members was motivated by “racial animus,” the finding that (under Section 3(c) of the Voting Rights Act) justified court-ordered preclearance for local laws affecting elections .

As a consequence of the federal court’s finding that the City of Pasadena’s method for electing city council members was intended to limit the ability of Hispanic voters to influence city policy, the city’s racially motivated redistricting plan has been struck down.

Importantly, the city has been ordered to submit future changes in city redistricting and voting procedures to the Voting Section of the Civil Rights Division at the U.S. Department of Justice for review.

The story is particularly timely and relevant as the future of voting rights enforcement in our country hangs in the balance.

As noted in multiple news stories, Jeff Sessions—the current nominee for the position of U.S. Attorney General—has had what can best be described as a “chequered” (or “checkered,” for us Americans) past with respect to his opposition to civil rights generally, has been openly hostile towards the Voting Rights Act for his entire legal career, and is now poised to helm the U.S. Department of Justice.

In the case of Mr. Sessions’ pending appointment to the position as the highest attorney in the federal government, the clichéd phrase, “fox in the henhouse” doesn’t quite sum up the potential damage to civil rights enforcement.

Jeff Sessions as Attorney General is more, “Tyson Industries announces appointment of ravenous vulpine predator to be responsible for overseeing all domestic chicken production in U.S.”

Electoral College: Thoughts About the December 19 Presidential Election at the Texas Capitol

Monday the next POTUS will be elected

As the nation rumbles at a low boil, I’ve tried to summarize my thoughts about how, as 2016 draws to a close, voters seem to be more aware of (and more alarmed by and anxious about) our weird Electoral College. I mean weird as compared to the systems of other democracies across the planet. 

In those other countries that choose their chief executive officers through a voting process, the highest offices are awarded via popular vote, but in the United States, the two chief executive offices are chosen by the votes cast by state-constituted panels of electors.

These panels are constituted and organized based on the result of statewide popular elections that take place on the first Tuesday after the first Monday in November, and in Texas, as in 47 of the other states, those panels are organized on a principle of “winner take all” based on whoever won a strict plurality of the state popular vote. The panels then meet and cast their ballots on the first Monday after the second Wednesday in December, which is the actual Presidential Election.

High levels of concern

This year, more than in 2000, 2004, 2008, or 2012, advocacy for dramatic reform in the constitutional process of Presidential elections has been loud and persistent.

The public level of concern regarding the Electoral College and the outcome of Monday’s vote has no direct historical parallel. The closest analogous election might be the 1876 presidential election, which in its divisiveness had raised concerns of a second Civil War (about that, see my historical note at the end of this post).

This previously unheard of public discourse—about “Hamiltonian electors” stepping up to exercise independent judgment and discretion to deny the office of presidency to an unfit candidate—is happening right now in a way different from the last 224 years of post-Twelfth Amendment Presidential contests because:

(1) There is a gap between the national popular vote, which favors Hillary Clinton by more than 2 percentage points, and the apportionment of electoral votes, which favors Donald Trump by a projected total of 306 electoral votes to Clinton’s 232.

(2) This is only the fifth time in more than 200 years in which the Electoral College vote has not reflected the popular vote. (The previous four occurrences were in 1824, 1876, 1888, and 2000.)

(3) Trump is perceived by some conservative and most progressive voters to be unfit to serve (particularly as the Russia stories continue to pile up); and

(4) The anger of at least half the voters regarding (among other things) Mr. Trump’s nonexistent electoral mandate arguably exceeds in intensity and furor the amount of public scorn heaped on the winners of the 1824, 1876, 1888, and 2000 Presidencies—which I am shorthanding as “lame duckling Presidencies”—ugly duckling meets lame duck.

Save us, Electors, you’re our only hope!

Our Electoral College system has broken before, but arguably never so badly as it has this year. So now we have public pleas and hopeful invocations addressed to the members of the Electoral College to fix what many are calling our national mistake.

Many are asking the “Hamiltonian electors” to (in effect) mirror (or honor) the national popular vote. (The previous link is to the National Popular Vote initiative, a multistate legislative initiative to enact state laws that would enforce the selection and votes cast by state electors to conform to the national vote.)

To mirror the popular vote this Monday, 37 of the total 306 Republican electors would have to break their oaths to cast their ballots in favor of the candidates who won their state. The breach of tradition would be unprecedented.

Texas electors get a fair amount of attention on Monday because our state has a large population and a correspondingly large number of electors (38) out of the total of 538 electors. (The seeming correspondence between the number of Texas electors—38—and the margin of Mr. Trump’s expected Electoral College victory—37—is purely coincidental; each state’s electoral votes are calculated by counting up the number of Congressional delegates assigned to that state. Texas, with 36 members of the House of Representatives and two members of the Senate, gets 38 electors.)

If the electors in Texas were to vote proportionately in line with the popular vote in this state, 20 of the 38 votes would be for Trump (i.e., 52.23% of 38, rounded up), 16 would be for Hillary Clinton (43.24% of 38, rounded down), 1 would be for Gary Weld (3.16% of 38, rounded down) and the remainder (1 vote) would be for Jill Stein (.8% of 38, rounded up).

So … is that what’s going to happen?

Uh. No. There is simply too much institutional, cultural, and, perhaps, other pressure on the electors to conform to prior tradition.

While electors are typically invisible political party functionaries and fundraisers who never enter the public sphere, two of the Texas electors are in the national public spotlight. One has resigned because of a moral objection to casting his ballot for Trump, and the other has indicated that he will not vote for Trump on Monday.

So I predict that on Monday when the results are announced, the Texas electors will have maybe one dissenting ballot, and the dissenter (a Republican Party loyalist who was chosen for his position as an elector by the Trump campaign team when the campaign office filled out its paperwork for the election late last year) will almost certainly not cast his ballot for Hillary Clinton.

Why are people so angry about all this?

So … let’s go back to our lame duckling President, put in office through a circumstance where the Electoral College vote doesn’t match the popular vote. In this context, which I will term for convenience a “broken election,” the President is installed by the Electoral College, but the disparity between the popular vote and the Electoral College outcome frustrates the will of those whose preferred candidate won the popular vote.

The reason why this election presents such a risk and challenge to our nation is different from (and worse than) than our previous “broken” elections for at least two reasons — the Russian interference (more on that here and here — but also, for balance, see The Nation‘s critique, here) and the growing evidence that the President-elect is so profoundly unsuited to hold office. 

Compare Donald Trump to the four other winners of the Electoral College who were also losers of the popular vote :

  1. George W. Bush — At the time of his Electoral College victory in 2000, Bush was the elected governor of Texas; while he was admittedly a policy lightweight, he had, by his duties of office, engaged in the basic functions of government oversight, such as legislative review, public speaking, policy analysis, staff management, and constituent services.
  2. Benjamin Harrison — At the time of his Electoral College victory in 1888, Harrison had represented the State of Ohio in the United States Senate for roughly one full term; while he had previously made unsuccessful runs for state office in Ohio, he was familiar with parliamentary procedure, bill drafting and analysis, the budget process, public speaking, staff management, and constituent services.
  3. Rutherford B. Hayes — Before he became President in 1876, Hayes was the elected governor of Ohio; while he (like George W. Bush) was a policy lightweight, he had proven himself to be a popular state executive officer with prior experience in government operations.
  4. John Quincy Adams — At the time of his election in 1824, Adams was the Secretary of State; while he had not previously been elected to an executive office, he had a lifetime of international diplomatic and government service under his belt, was supremely well-educated, and was a noted jurist, writer, and public speaker.

Neither Bush, nor Harrison, nor Hayes, nor Adams were as ensnared by financial conflicts of interest as Trump is, nor (arguably) were any of them as inexperienced and disinterested as Trump appears to be in essential principles of foreign policy, domestic administration, and actual governance — not to mention political checks and balances and other basic concepts of American constitutional law.

So there are broken Presidential elections, and then there is 2016. That’s why people are so upset; in his recent editorial in the Atlantic, James Fallows eloquently explains the foundations of despair.

What about the prospects of an electoral college revolt?

I have mentioned in a previous post that Professor Lawrence Lessig has published an idealistic constitutional argument as to why the members of the Electoral College should not cast their ballots for Donald Trump.

In advocating this course of action, Professor Lessig finds himself in the swelling ranks of a number of legal experts and public service professionals who similarly see the 2016 election as the most serious political crisis of our lifetime, and who additionally see a repudiation of Trump in the Electoral College vote as the only way we can save ourselves from disaster.

But people who suggest this revolt face a steep uphill climb, and not just because of tradition. An “exciting” December 19th Presidential Election creates two problems:

(1) Challenges to the Electoral College erode public faith in the process of the smooth and non-violent transition of power from one government to another. The Electoral College may be a stupid and weird procedural step, prone to this kind of brokenness, but it’s what we expect and are used to.

(2) The challenge to the expected Electoral College outcome is almost instantly reframed by supporters of Donald Trump as a petulant bad-faith refusal on the part of Clinton supporters to play the game by the rules as written. 

What the most hard-core Trump supporters need to acknowledge is that a broken election has subtle but important negative consequences for the winner of that election.

By failing to address the valid concerns of voters who favored the candidate who won the popular vote, the winning candidate makes the country more ungovernable.

All the winners of the previous “broken” Presidential elections faced this problem. Neither George W. Bush, nor Benjamin Harrison, nor Rutherford Hayes, nor John Q. Adams had as free a hand with the management of their administration as they would have if they hadn’t been elected with a metaphorical asterisk next to their names, and they had to accommodate this political reality. They all had to reach across the aisle.

And these historical loser-winners of the Presidential prize at least had some capacity (based on their own education, experience or sociopolitical awareness) to achieve this accommodation of their political reality.

In contrast, and heightening our fears for the future, Donald Trump seems emotionally and temperamentally unfit for the office, and we are worried (and I’m including myself in that “we”) that he cannot or does not know how to win—and more importantly, how to govern—with grace and a spirit of compromise.

Realistically, is Donald Trump going to get his 270 electoral votes on Monday? Yeah. I think so.

Whether or not he does, though, the only way we all get out of this intact is if he accepts the idea of a more blended power-sharing government than the one he erroneously believes and says that he has a mandate for.

HISTORICAL FOOTNOTE

Let’s consider the candidates and issues involved in those four previous broken presidential elections, and see how those elections compare to 2016.

1. THE FOUR WAY SCRAPE OF 1824

In the only election determined in the House of Representatives following a failure by any candidate to receive a majority Electoral College vote, John Quincy Adams was elected over his nearest rival (and the winner of the national popular vote), Andrew Jackson.

The election marked the dissolution of the riven and internally fractured single-party system that had existed roughly since the War of 1812, and signaled the reemergence of a two-party system that would win Jackson the presidency in 1828.

There were four strong regional candidates for President, all running on the same party ticket, and all of whom won at least two states. With such a diffuse and fractured election, it wasn’t surprising that none of the candidates won a simple majority of the popular vote or the needed 131 electoral votes; Jackson came closest with 41.4% (and 99 electoral votes), Adams had 30.9% (and 84 electoral votes), Clay had 13% (and 37 electoral votes) and Crawford had 11.2% (and 41 electoral votes). By the terms of the Twelfth Amendment, Jackson, Adams, and Crawford, as the top three electoral vote winners, would be elected by the House of Representatives, with each state delegation getting one vote.

Voters who favored Jackson were not happy that their chosen candidate was “robbed” of office by the House of Representatives; Henry Clay, as Speaker of the House, threw his legislative support to Adams in return for a cabinet position; this “corrupt bargain” gave fuel to Jackson’s supporters to engage in four years of running political warfare with the Adams administration.

In contrast to 2016, all four of the candidates running for President in 1824 possessed reasonably strong political pedigrees, education, and experience for public office.

Adams was Secretary of State, and as the son of President John Adams, he had spent his formative years in overseas diplomatic postings, spoke multiple European languages fluently, negotiated the Treaty of Ghent, was an accomplished scholar and writer, and a witty, thoughtful and erudite expert on international law and relations.

Jackson was a U.S. Senator, the former military governor of Florida, and a nationally famous military strategist and hero following the Battle of New Orleans.

Crawford was the Secretary of the Treasury, former Secretary of War, former U.S. Senator and President Pro Tempore, and former state legislator with a lifetime of public service and legal experience.

Henry Clay was the Speaker of the House, having had a long career and influential career in Congress and previously in state government as a powerful and skilled orator and legislative expert.

As hard as these candidates fought with each other, and as bitter as the 1824 election may have been, none of these four potential Commanders-in-Chief had political or personal baggage that could be compared to Trump’s “negatives.”

To the extent that the election in February 1825 in the House of Representatives was constitutionally fraught, it was because Clay bargained for a cabinet position because he hated Jackson, not because the integrity of the election process was tainted by foreign interference.

2. THE SHAME OF 1876

In the shadow of the Civil War, violence against black voters and rampant corruption in the Ulysses Grant administration came the 1876 contest between Samuel J. Tilden and Rutherford B. Hayes, the most serious post-Civil War constitutional crisis the United States has ever experienced, and one which came dangerously close to reigniting open warfare and rebellion over the unsatisfied grievances of defeated Southern pro-slavery sympathizers.

This was an election so fraught with connivance and error that all we know for sure is that Tilden won the popular vote, probably as the consequence of intense and violent suppression of the black vote in Mississippi, Louisiana, South Carolina, and Florida; of the electoral votes, 20 remain intractably indeterminate (partly because executive control of the state electoral colleges was disputed in a number of states and two sets of electoral returns were submitted by the governments of Oregon, Louisiana, South Carolina, and Florida).

In January of 1877, Congress passed a law creating a bipartisan Electoral Commission to award the missing electoral votes. Armed conflict seemed likely, and military defenses were strengthened around Washington D.C.; ultimately, Hayes was granted the 20 missing electoral votes in return for a compromise where Congress ended military oversight and removed federal troops from former Confederate states.

Hayes as governor of Ohio was the less well-known candidate, and was widely regarded as having a fairly thin resume of government experience. Nevertheless, he had served with distinction in the U.S. Army during the Civil War and was a popular executive officer in his home state.

Tilden, as governor of New York, was much more well known nationally as a “good government” reformer, and as the prosecutor who had cleaned out the corruption in Tammany Hall.

But as weak (in terms of public perception or media attention) as Hayes may have been compared to Tilden, he was an elected public official with experience as a state executive officer, and hardly comparable to a failed real estate mogul without any prior knowledge or understanding of government.

3. THE DIRTY SQUEAKER OF 1888

In the 1888 election, the incumbent Grover Cleveland won 48.6% of the popular vote to Benjamin Harrison’s 47.8%. Harrison nevertheless won the Presidency by a combination of hard campaigning in key states and the help of a corrupt New York political machine. Cleveland in effect lost his home state and the advantage of incumbency by failing to counter Harrison’s machine.

While Harrison was not a particularly strong candidate (in terms of the qualifications of experience) in comparison to a sitting President, he was a member of the U.S. Senate with a long record of public service.

4. FLORIDA, 2000

In the 2000 election, Al Gore won 48.4% of the popular vote to George W. Bush’s 47.9%, but lost by a thin, hanging chad of electoral votes in large part because of a partisan U.S. Supreme Court decision to foreclose further review of the Florida electoral process in the face of an extremely close statewide vote tally.

Given the recentness of the 2000 broken election, and the untidiness and unseemly way in which the 2000 election was resolved, voters who are upset with the 2016 election are making frequent references to the 2000 election, seeking parallels and citing the election for its relevance to the question of constitutional reform of the presidential election process.

In one sense, 2000 wasn’t as messy as 1876; the 2ooo election involved a systemic failure of election procedures in just a couple of states, and there was no credible risk that the Civil War would be reignited. Though violence and intimidation were certainly present in Florida during the abortive recount process, the risk of a nation-wide military conflict was essentially nonexistent.

And in another sense, 2000 wasn’t as messy as 2016; while the winning candidate had a weak résumé in comparison to that of the incumbent Vice President, at the time of his election he held office as the elected chief executive officer of a populous state.