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  • Election 2020: Tortuous Road Through Electoral College to White House

Election 2020: Tortuous Road Through Electoral College to White House

William L. Kovacs

September 2020

Election 2020: Tortuous Road Through Electoral College to White House

Election 2020, a mix of pandemic, reckless musings by presidential campaigns, uncoordinated federal and state election laws, and ballot litigation, promises us a ring-side seat to watch sausage being made. Like Bush v. Gore, the U.S. Supreme Court will be invited to decide a political fight or a few political fights.

Unless one candidate wins by a large margin, 2021-2024 will be a continuous fight over legitimacy, no matter who wins. George W. Bush, Obama, and Trump were considered illegitimate by some portion of the nation. This time, half the nation may believe the next president illegitimate.

Forget Russian interference, there are no algorithms for gaming the outcome of the electoral college process. It was designed by compromise, not logic. The electoral college, like the play Shear Madness, allows for many endings. We need to let the solid judgment of the Founders compromise play out.

A candidate securing 270 electoral votes is the next president.

Disputed elections, however, can have surprise endings. Election disputes usually arise when one candidate has a small vote lead but the other candidate alleges that if certain votes are counted, he/she would win. With surveys estimating 80 million people voting by mail; each state has different deadlines for counting votes, it’s likely deadlines will be missed causing challenges to slates of electors.

The determining factor in 2020 is whether disputes can be resolved in 35 days after the election, i.e. before December 8, 2020. If disputes are resolved within that time period, the selection of electors is “conclusive” and must be accepted by the next Congress, starting January 3, 2021.

Electors from states with unresolved disputes will be resolved by Congress in accordance with federal statutes.  In separate proceedings, each House must decide which set of electors to certify. If the House and Senate agree on a slate of electors, the slate is certified. If the House and Senate cannot agree, the electors certified by the Governor of the state are counted.

After certifying contested elector slates, Congress counts the electoral votes. If one of the candidates receives 270 electoral votes, that person shall be president. If no person has a majority of electoral votes, the House, voting by state, each state having one vote, votes to elect a president. The person receiving votes from a majority of states is president.

Which party benefits from this dispute process? Currently, Democrats control the House however, Republicans in Congress hold majorities in 31 state delegations and 26 governorships. In seven swing states (AZ, FL. IA, MI, MN, PA, WI), Democrat’s hold majorities in 4, Republican’s 2, and PA is tied. Republican governors in swing states hold a 4-3 advantage. Guessing the ending is Shear Madness!

There is no time frame for completing the process, thus the need for the Presidential Succession Act which establishes a line of succession to ensure the nation is never without a president.

Notwithstanding electoral disputes, President Trump’s term ends noon, January 20, 2021.

In electing a president, there is a role for electors, state legislatures, governors, and Congress. There are, however, according to Professor Tokaji, “…no federal laws allowing judicial contest proceedings over disputed federal elections.”

Notwithstanding the established constitutional and statutory process, the U.S. Supreme Court, in Bush v. Gore, usurped Congress’ power to elect the president, when it blocked the Florida Supreme Court’s order authorizing recounts. Florida’s initial vote count gave Bush 1,784 more votes than Gore. The margin of victory was so narrow, state law required an automatic recount. Gore sought a manual recount. The Secretary of Elections, a Republican, denied the recount request. The Florida Supreme Court extended the recount deadline. Bush appealed to the U.S. Supreme Court which vacated the order of the Florida Supreme Court; ruling Florida’s order was standardless, violating the Constitution’s equal protection clause.

Even if Florida missed the safe-harbor deadline, and submitted competing electoral slates to Congress, Bush would have been elected president. Both Houses of Congress were controlled by Republicans. Even if there was a disagreement between the House and Senate, federal law mandates the slate certified by the governor, be counted. Governor, Jeb Bush would have certified George W. Bush electors.

In 2000, the Supreme Court disrupted constitutional and statutory procedures, used by states and Congress, to elect presidents. In 2020 the court again could be asked to set aside the same procedures. Notwithstanding the court’s lofty language, one-half the voters will believe it is manipulating words to hide its true intent – accumulating power as the nation’s super-legislature.

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  • States Seek Permanent Democratic Presidential Rule

States Seek Permanent Democratic Presidential Rule

William L. Kovacs

March 2020

States Seek Permanent Democratic Presidential Rule

This article is not about the 2020 election. It’s about a more serious effort by the Democratic party to permanently control the presidency. The effort has a non-threatening name “The National Popular Vote Interstate Compact,” (“NPV”).

Under NPV, a state, by agreement with other states in the compact, awards all its electoral votes to the presidential candidate who wins the popular national vote, notwithstanding who wins the popular vote in the respective states. The compact goes into effect when the states controlling the majority of electoral votes (270 electoral votes) join the compact.

This effort is a few states shy of ratification and so far, avoids congressional review or approval.

Whether we like it or not, our Constitution is a very malleable document. It can be manipulated by those seeking power over us. Since its ratification, political parties have manipulated it to obtain control over us. The NPV is merely an extension of those efforts.

Political parties are not mentioned in our Constitution. They are groups of individuals who organize to take control of our government by winning elections.

For the first century and a half, political parties had limited powers.  Professor Brian Porto, in “The Constitution and the Ballot Box” explains that while political parties organized a few years after the founding of our country, it was not until the 1912 elections, that the two major parties feared losing control of government to minor political parties. That year, Teddy Roosevelt’s Bull Moose party received more votes than the Republican and the Socialists won several congressional seats and over 1,200 local offices. State legislatures, to protect the two major parties, enacted laws making ballot access difficult for third-party candidates.

By limiting ballot access, the two major parties established a power sharing arrangement in which the two groups, a Republican party or Democratic party, would control, or share control of the governments across the U.S. With such control, the two major parties perpetually determined what laws are enacted, who receives government benefits and how commerce is regulated.

The effectiveness of the arrangement is astonishing. David Nir, in an article in the Daily Kos, estimates there are 519,682 elected officeholders in the United States. From scant party statistics, about 350 of these offices were won by third-party or Independent candidates. All other offices are held by the two major parties. A calculation places the third-party competitors’ share of the political market at 0.0006754%. The two major parties’ control 99.993% of elected offices.

Now comes NPV, that if ratified, and upheld by the courts, will end the two parties’ power sharing arrangement by creating one-party presidential rule.

As of February, 2020, the NPV has been adopted by 15 states and District of Columbia, representing 196 electoral votes. The ratifying states are Democrat strongholds (MD, NJ, Il, HA, WA, MA, DC, VT, CA, RI, NY, CT, CO, DE, NM, OR). Four of these states ratified in 2019.

Seventy-four more electoral votes are needed for ratification, which is possible. The measure is still active in states having 101 electoral votes and controlled by Democrats or could swing Democratic: VA (13), NC (15), WI (10), GA (16), MN (10), NH (4), AZ (11), MI (16), NV (6).

If the Democrats secure ratification, they bind every compact state to cast all votes for the presidential candidate winning the popular vote. The Democrats would no longer need to campaign nationwide, they only need to win NPV states to win the presidency.

Once Democrats gain control of the presidency in this manner, the electoral college is defunct. The NPV changes the electoral structure of the Constitution from a candidate needing to win a majority of the electoral vote, to one needing only the largest percentage of an undifferentiated, nationwide, popular vote.

If Democrats win the White House in 2020, it is likely they pick up the remaining electoral votes needed to ratify NPV.  The constitutionality of the NPV will be up to the Supreme Court. Unfortunately, the Constitution has conflicting provisions.

Article II of the Constitution vests state legislatures with plenary power to appoint the number of electors equal to the number of electoral votes the state can cast. There is no further constitutional or federal statutory clarification on how electors are to vote. In fact, our founding fathers viewed the electoral college as a group of wise-men having a final check on the voters.

Conversely, Article I, section 10, of the Constitution, prohibits states from entering into compacts with other states, without the consent of Congress. While the literal reading of this clause appears to mandate the consent of Congress, the Supreme Court narrowed the need for congressional approvals to situations “tending to the increase of political powers in states, which may encroach upon or interfere with the just supremacy of the United States.”

While it is likely the Supreme Court strikes down the NPV as a fundamental change in our constitutional framework, letting the conflict get that far is a massive risk for the country. The consequences of NPV need to be explored before it is “ratified” and a presidential election is in doubt.

Action: Congress needs to hold hearings on NPV to understand the limits of state power under the Compacts clause, and the scope of power held by presidential electors.

Congress needs also to explore the social, economic, and political impacts of NPV on the union.

If Congress finds NPV violates the Compact clause, it should reject it before ratification.

Organizations supporting federalism, free markets and individual liberty should start educating citizens on this issue.

This article was first published in The Libertarian Republic, March 12, 2020.


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  • Could the House of Representatives Select the Next POTUS?

Could the House of Representatives Select the Next POTUS?

William L. Kovacs

March 2020

Could the House of Representatives Select the Next POTUS?

After the Sanders big primary win in Nevada last week, Democrats are deeply split on a nominee and again, may not be willing to accept the candidate voters select. Billionaires are promising to spend whatever money needed to defeat President Trump. President Trump insists on inflicting political wounds on himself. Millions of people are moving out of blue states, to red states, which changes the composition of voting populations. Quirky Constitutional provisions apply if no candidate secures 270 electoral votes.

We are facing the possibility of the next President being selected by the House of Representatives. This has happened twice before, 1800 and 1824.

How might this happen?

First: another rigged Democratic convention. The Sanders’ campaign and its supporters are still angry over losing the 2016 nomination to Hillary Clinton. In the fight for the 2016 nomination the Clinton campaign literally bought the Democratic National Committee (“DNC”) by paying off the party’s large debt. This gave the Clinton campaign control of the staff and final decisions of the DNC, notwithstanding that the DNC was obligated to remain neutral in the primary. Should Sanders go into the 2020 convention with the largest number of delegates, and again be denied the nomination, a political civil war erupts in the Democratic party.

Second: if Sanders is denied the nomination a second time, he runs on the Green Party ticket or as an Independent.  Sanders, like President Trump, has aggressively loyal followers. To quote an opinion article in the New York Post, “Hell hath no fury like Bernie’s millennials if they are thwarted.”  Like President Trump, Sanders is taking on the establishment as a political outsider. With this loyalty from supporters that constitutes 30% plus of the Democratic base, decades of fighting the establishment, strong credentials with environmental groups, especially on climate change, and a having a great money raising machine, Bernie Sanders can quickly launch a viable third-party movement. This is all possible since the Green Party convention is July 9-12, 2020 while the Democratic Convention is July 13-16, 2020. Sanders will know of his chances for the nomination by then and could quickly switch parties.

Third: Sanders can win several states and secure electoral votes. Sanders won eight states in the 2016 primary that Democrats won in the general election. Of these states, Sanders won NH, VT, ME, RI and WA with over 60% of the vote. These states have 26 electoral votes. Winning a few of these states could, in a close election, deny the Democrats the 270 electoral votes needed to win.

Fourth: California’s population loss could be the Republican’s albatross. California has lost over 691,000 people in 2018. Texas was the destination of choice by 86,164 people followed by Arizona 68,516, Washington, 55,467, Nevada, 50,707. Oregon, Colorado, Florida, New York, Virginia and Idaho were also recipients. These new residents bring their liberal beliefs with them. Arizona is the key state having 11 electoral votes. Trump won Arizona in 2016 by 91,000 votes while Krysten Sinema, a Democrat, won the Senate seat in 2018 by 56,000 votes. These new 68,516 transplants in Arizona could give the electoral college votes to a Democrat. Also Trump won four of the larger states by small margins, i.e. Michigan (0.3%), Wisconsin (1%), Pennsylvania (1.2%), Florida (1.2%). These margins are so small that they can be impacted by the placement of the candidate’s name on the ballot, i.e. being listed first is a 5% advantage.

Fifth: with, at least, 37 uncertain electoral votes, a third-party winning only a few of them, is eligible, to be selected president by the House of Representatives. If none of the candidates receive 270 electoral votes, the House of Representatives elects the next President. The House will choose from the top three candidates receiving electoral votes. In this case, each state delegation in the House of Representatives, has one vote. In the current Congress, 26 state delegations are controlled by Republicans, 23 by Democrats and one state delegation (Pennsylvania) is a 50-50 split. But the current Congress will not decide the matter. The newly elected members to the House of Representatives in November 2020 will make that decision when the 117th Congress starts in January 2021.

Sixth: the variables cannot be controlled.  With an almost even split between state delegations, the migrants from California and other blue states might make a big difference, depending on which congressional districts they move to. Moreover, the Constitution does not bind electors to vote in accordance with the winner of their state’s vote. This freedom is limited in 32 states however, in 18 states the elector is free to vote however, it desires. In several restriction states, there is no penalty for voting against the candidate their state, i.e. FL, OH, WI. Finally, the ballots cast to determine the position of each state’s delegation are secret ballots and none of the members of Congress have any obligation to vote party line.

If none of the candidates secure the 270 electoral votes needed to win the presidency, it will be a very unpredictable process, especially if a third-party candidate receives electoral votes, making the candidate eligible for election by the House. The outcome will be determined by who moves to what congressional districts and which Republicans, Democrats or Independents, like or dislike, the President enough to vote for a for the candidate of another party.

Such a situation would be the epitome of intrigue!

This article was first published in The Libertarian Republic,  February 26, 2020.