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Electoral College

Electoral College lawsuit filed

I’m not sure about this.

Saying Texas’ current practice is discriminatory, a group of Hispanic activists and lawyers has sued the state in hopes of blocking it from awarding all of its Electoral College votes to one candidate during presidential elections.

The lawsuit filed in federal court Wednesday calls on Texas to treat voters “in an equal manner” by abolishing that “winner-take-all” approach, which all but two states use. The suit, filed by the League of United Latin American Citizens and a coalition of Texas lawyers, says that approach violates the U.S. Constitution and the 1965 Voting Rights Act. It’s just one of many pending voting rights lawsuits arguing that Texas, which regularly votes Republican, has illegally discriminated against voters of color.

Similar Electoral College lawsuits were also filed Wednesday in Republican-dominated South Carolina and Democratic-leaning Massachusetts and California. The South Carolina suit also alleges a Voting Rights Act violation.

At the suit’s core is the doctrine of “one person, one vote,” rooted in the 14th Amendment. The plaintiffs argue that the winner-take-all system is unconstitutional because Texans who favor losing candidates “effectively had their votes cancelled,” while voters who favor winning candidates see their influence “unconstitutionally [magnified].” The suit also alleges that winner-take-all violates the First Amendment.

[…]

Lawyers have asked the court to declare the winner-take-all approach unconstitutional and set “reasonable deadlines” for state authorities to propose an alternative system.

The winner-take-all method is nearly ubiquitous — only Maine and Nebraska use other systems. If the plaintiffs were to prevail in their cases, the potential impact on presidential elections would be huge. But it’s unclear how far the cases will go.

I mean, if the end goal here is to abolish the Electoral College and install a straight-up popular vote for President, I’m cool with that. There are political efforts underway to achieve this, such as National Popular Vote that I think are both more promising and more broad-based, but it’s been around for awhile and still has a long way to go. If however the goal is to replace the current system with some other kind of proportional Electoral College system, such as the EVs-by-Congressional-district or EVs-as-a-percentage-of-the-state-vote, then count me out. Both of those are too convoluted, and in the Congressional case subject to its own set of shenanigans, and neither to my mind addresses the “one person one vote” complaint in a satisfactory fashion. The problem isn’t that the Electoral College is broken and needs fixing, the problem is that it was a bad and undemocratic idea to begin with. That’s a worthy goal, and one I support.

Our electors can continue to be faithless

So much for that.

The momentum seemed to be there.

After Donald Trump easily defeated Hillary Clinton in Texas, two of the state’s 38 Electoral College members cast ballots for someone other than the Republican nominee — a less-than-flattering moment for a state with a strong GOP tradition. In the days — even hours — after the Electoral College meeting in December, some of the state’s top Republicans rallied around proposals to “bind” presidential electors to the result of the statewide popular vote.

“This charade is over,” tweeted Gov. Greg Abbott shortly after the meeting ended. “A bill is filed to make these commitments binding. I look forward to signing it & ending this circus.”

Yet no such legislation made it to Abbott’s desk over the course of the legislative session that ended in May. Instead, lawmakers are now seeking to study the issue during the interim, an anticlimactic end to a session that began with major-league support for the cause.

“We were kind of stuck,” said Eric Opiela, the former general counsel for the Texas GOP — which ended up opposing the way one of several filed bills dealt with “faithless electors.”

The debate appeared to boil down to whether such electors should be fined after going rogue or be immediately disqualified if they submit a ballot for someone other than the winner of the statewide popular vote.

See here for the whole saga. The rest of the article tells the story of the bills that failed, which is what it is. The Electoral College is a dumb anachronism, but I say we should either honor the original intent and let the electors make their own choices, or get rid of it altogether and go with a popular vote. I don’t see us getting the latter any time soon, so at least we made it through this session without making what we do have worse.

The other “faithless elector” speaks up

Meet Bill Greene, political science professor at South Texas College, and the other Texas member of the Electoral College who did not cast a vote for Dear Leader Trump.

Greene, who has kept a low profile since the vote, explained his decision Monday, telling The Texas Tribune he had wanted to “bring the process back into the classroom” and affirm the founders’ view that the Electoral College should not necessarily be a rubber stamp for the popular vote.

“I take very seriously the oath of office that we had to take and what the framers of the Constitution, what the founders, wanted electors to do … to basically come up with their idea for who would be the best person in the entire United States to be the president,” Greene said in a phone interview. “I take the job very seriously, and I did. I felt Ron Paul was the best person in the United States to be president, and that’s who I voted for.”

[…]

Unlike Suprun — who became a well-known Trump critic weeks before the vote — Greene said he “had no desire for publicity or anything like that in advance.” He immediately went on vacation for a week after the vote then fell ill when he came home. He said Monday he was just catching up on emails and calls — which electors were deluged with in the lead-up to the vote, many begging them to vote against Trump. (For the record, Greene said he was “not swayed by the 80-100,000 emails I received.”)

Greene said the “vast majority” of feedback he has gotten since the vote has been positive. Top Texas Republicans, however, have taken a different view, using the defections by Suprun and Greene to push for legislation that would require electors to vote in accordance with statewide popular vote. That’s currently the rule in 29 other states.

Greene made clear he is not a fan of so-called “elector-binding” laws.

“God forbid they actually do what the Constitution bounds them to do,” Greene sarcastically said of electors. The elector-binding bills, he added, are “completely unconstitutional legislation, and my hope is that it does go into the courts.”

See here for the full saga, and here for the first time we heard Bill Greene’s name. Greene has a long history with Ron Paul, whom he supported in past Presidential campaigns. You just knew that there would be a Ron Paul connection, right? It would have been an upset if there hadn’t been at least one elector going full on for Ron. Beyond that, I agree with him about the unconstitutionality of forcing electors to cast their votes for a specific candidate. Whatever you think about the Electoral College, the intent of the framers is pretty clear, and in the absence of an amendment I don’t see how you get around that. I don’t have any particular point to make, I just wanted to note this for the record. What do you think are the odds that the state GOP does a more thorough job of vetting their electors for the 2020 campaign?

Chris Suprun’s eventful year in voting

How weird is this?

Still the only voter ID anyone should need

The self-described “voting addict” was an apparent casualty of the confusion amid legal wrangling over the state’s 2011 voter ID law.

Now, [Texas Republican elector Chris] Suprun is calling for courts to clarify the rules once and for all.

“Pick a course and run with it,” he urged U.S. District Court Judge Nelva Gonzales Ramos, of Corpus Christi, in a letter dated Dec. 21.

“I write this because after not being able to cast a ballot I was disheartened,” the letter said. “I never missed an election in my life until this one.”

In July, the U.S. 5th Circuit Court of Appeals ruled that Texas’ voter ID law discriminated against voters in minority groups less likely to possess one of seven accepted types of identification. The state has appealed that decision to the U.S. Supreme Court, and Ramos is weighing whether Texas discriminated on purpose.

Ahead of the November election, Ramos ordered a temporary fix: Folks without ID could still vote if they presented an alternate form of ID and signed a form swearing a “reasonable impediment” kept them from obtaining photo ID.

That’s why Suprun believed he could vote when he showed up to an early voting location in Glenn Heights on Oct. 26, even though he did not have photo ID.

Suprun said his driver’s license was inside his wallet, which he had left in a family van that was away for repairs. He said he arrived at the polls carrying his city water bill, cable bill and voter registration card — documents that should have fit Ramos’ softened rules.

But the on-site election judge turned Suprun away, saying he could not cast a ballot — even a provisional one — without photo ID, according to a complaint the elector filed with Texas Secretary of State Carlos Cascos’ office.

Alicia Pierce, a spokeswoman for that office, said she could not confirm that any complaint was being investigated. Nor could Texas Attorney General Ken Paxton’s office, his spokeswoman said.

Could Suprun have legally voted under such circumstances? That’s where it gets tricky. Ramos’ order barred poll workers from asking would-be voters why they did not have photo ID. Election judges were to allow voting as long as the otherwise eligible voter signed a form swearing that they could not “reasonably obtain” photo ID.

But had Suprun signed that form and voted, an investigation (however unlikely one might be) might have found that he had “reasonably” obtained an ID but just hadn’t brought it with him.

Whichever the case, Suprun said his story shows that Texas needs clearer voting requirements for the next election — regardless of whether they involve photo identification.

See here for more about Suprun, and here for the last update on the voter ID case. I can’t understand why Suprun’s situation would not be seen as a “reasonable impediment”, and even if you think it isn’t, I don’t understand why he wasn’t allowed to cast a provisional ballot. At the very least, that seems to be an abject failure of the so-called voter ID education outreach that the state was supposed to do. I of course believe that the law should be thrown out in its entirety, but surely we can agree that Suprun’s call for the rules to be made clear and the state to get its act together is worthy.

Two “faithless electors”

In the end, Donald Trump got thirty-six of Texas’ 38 electoral votes.

All but two of Texas’ 38 electors voted Monday to officially put Donald Trump in the White House, with one elector casting a ballot for Ohio Gov. John Kasich and another casting a ballot for a fellow Texan, former U.S. Rep. Ron Paul.

The votes from Texas were the ones that clinched the presidency of the United States for Trump, pushing the real estate mogul past the 270-vote threshold, according to Politico.

Elector Chris Suprun of Dallas had previously announced he would not support Trump. Another elector, Art Sisneros of Dayton, resigned as an elector, also in protest of Trump.

As electors voted, protesters’ chants picked up outside and could be heard from in the House chamber. They appeared to be saying specific electors’ names, followed by, “Save our democracy!”

The vote was unusually closely watched but largely expected: Both Suprun and Sisneros had shared their plans weeks in advance of the meeting. Suprun, however, did not announce until hours before the vote that he would instead vote for Kasich.

It was not immediately known who voted for Paul, the longtime congressman from Lake Jackson and three-time presidential hopeful. The process is secret ballot, meaning electors’ votes are not public unless they choose to disclose them.

According to the Statesman, the other maverick was a fellow named Bill Greene. As far as I know, he has not said why he did what he did. Art Sisneros was replaced as expected, as were three others who were apparently ineligible to serve.

I didn’t expect anything more exciting to happen, mostly because there was no one else out there joining Chris Suprun in his little exercise of conscience. I admit I harbored a teeny bit of hope that the Electoral College would Do Something about this, but I never really expected that. While I believe that the original intent of the founders was precisely for the Electoral College to prevent a man like Donald Trump from winning this election and that any legislative attempts to coerce them into voting a particular way are thus inherently unconstitutional, I agree that referring to such an intervention as being in any way “democratic” was misguided. The Electoral College is what it is, and we either accept that or we amend the Constitution to get rid of it. The extreme divergence between the popular vote and the electoral vote in this race is as strong an argument as one could want to make a change, but don’t hold your breath waiting for it.

You can’t stop the faithless electors

So says Carolyn Shapiro, associate professor at IIT Chicago-Kent College of Law, where she is co-director of the Institute on the Supreme Court of the United States.

Earlier this week, in a New York Times op-ed, Texas presidential elector Chris Suprun announced that he would not be casting his vote for Donald Trump. Even though Texas voters chose Trump, Suprun—along with a small group of electors from around the country calling themselves “Hamilton Electors”—will vote for a yet-to-be-identified compromise Republican. As Suprun explained in his op-ed, and as I and others have detailed elsewhere, Donald Trump’s conduct since the election has demonstrated that he is dangerously unqualified and unfit to be president.

Can electors legally do this? While the nearly universal expectation is electors’ votes will reflect the popular vote in their states, the Constitution doesn’t require them to. As others have explained, Alexander Hamilton’s justification for the Electoral College in Federalist No. 68 shows that the Framers intended for electors to exercise their own judgment when necessary.

Many states, however, have laws that prohibit these so-called “faithless electors” (perhaps a better term would be “conscientious electors”) from bucking the state popular vote. This week, two electors filed suit in federal court arguing that Colorado’s version is unconstitutional. (Hillary Clinton won Colorado, but the plaintiffs hope that a victory in their lawsuit will effectively invalidate all such laws, allowing electors in Trump states to defect.) In addition to arguments based on the Framers’ intent, there is a strong argument based on constitutional structure and text, and on Supreme Court precedent, that these electors should prevail.

The Constitution gives the states authority over how to choose electors. Article II, Section 1 provides that “[e]ach State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors…” But the Constitution does not authorize states to tell the electors, once selected, how to vote.

The Twelfth Amendment, which was ratified in 1804, spells out the electors’ duties in more detail. And it, too, defines the duties of electors without giving the states or state officials any role in defining or enforcing those duties. “The Electors shall meet in their respective states, and vote by ballot for President and Vice-President …,” it says, and then goes on to explain that the electors should each cast two ballots: one for president and one for vice president. The electors, and only the electors, are directed to count, certify, and seal their votes, and to send the results directly to Washington. This allocation of responsibilities suggests that the Framers wanted to insulate the electors from the states’ influence or interference once they are appointed.

See here for the background, and be sure to read the rest. I kind of doubt Dan Patrick’s effort to bound electors will go anywhere, mostly because I doubt he’ll care enough to spend time and effort on it when he has much bigger fish he wants to fry, but you never know. What I do know is that I welcome the conversation about the role of the Electoral College, both as originally envisioned and in today’s world. Either we own and embrace what it was designed to do, or we should admit that it’s an anti-democratic anachronism and get rid of it.

No faithless electors!

Dan Patrick has had enough of this nonsense.

Lt. Gov. Dan Patrick said Wednesday that a Texas Republican elector’s decision not to vote for Donald Trump may lead state legislators to pass a law requiring electors to support the winner of the statewide popular vote.

Christopher Suprun, an elector from Dallas, announced Monday that he will not cast his ballot for Trump, the president-elect, when Texas’ electors meet Dec. 19 in Austin. In a radio interview, Patrick called Suprun’s decision a “slap across the face” to the voters who helped Trump beat Democratic rival Hillary Clinton by nine points in Texas, handing him the state’s 38 electoral votes.

“This is the type of action by an individual that will probably prompt us in the upcoming session to look at passing a law, as 29 other states have done … that says their electors must follow the will of the people,” said Patrick, who chaired Trump’s campaign in Texas. “We thought that people in Texas here who run for elector would keep their word.”

See here and here for the background. Whatever else one thinks about this, I would just note that Chris Suprun is acting in exactly the manner that the framers of the Constitution, like Alexander Hamilton, envisioned. If one argues for binding the electors to the popular vote of the state, then the Electoral College truly serves no purpose and should be abolished. That of course is not what Patrick is proposing, and in truth his plan is no more ridiculous than what we have now. I just wanted to be clear about that, since we are so often subjected to lectures by the likes of Ted Cruz and Greg Abbott about what the Constitution really means. It means what they say it means, except when they say it means something else.

Another non-Trump elector

I don’t know if this is becoming a thing, but it is interesting.

I am a Republican presidential elector, one of the 538 people asked to choose officially the president of the United States. Since the election, people have asked me to change my vote based on policy disagreements with Donald J. Trump. In some cases, they cite the popular vote difference. I do not think president-elects should be disqualified for policy disagreements. I do not think they should be disqualified because they won the Electoral College instead of the popular vote. However, now I am asked to cast a vote on Dec. 19 for someone who shows daily he is not qualified for the office.

[…]

Mr. Trump urged violence against protesters at his rallies during the campaign. He speaks of retribution against his critics. He has surrounded himself with advisers such as Stephen K. Bannon, who claims to be a Leninist and lauds villains and their thirst for power, including Darth Vader. “Rogue One,” the latest “Star Wars” installment, arrives later this month. I am not taking my children to see it to celebrate evil, but to show them that light can overcome it.

Gen. Michael T. Flynn, Mr. Trump’s pick for national security adviser, has his own checkered past about rules. He installed a secret internet connection in his Pentagon office despite rules to the contrary. Sound familiar?

Finally, Mr. Trump does not understand that the Constitution expressly forbids a president to receive payments or gifts from foreign governments. We have reports that Mr. Trump’s organization has business dealings in Argentina, Bahrain, Taiwan and elsewhere. Mr. Trump could be impeached in his first year given his dismissive responses to financial conflicts of interest. He has played fast and loose with the law for years. He may have violated the Cuban embargo, and there are reports of improprieties involving his foundation and actions he took against minority tenants in New York. Mr. Trump still seems to think that pattern of behavior can continue.

The author of this op-ed is Christopher Suprun, who is from Dallas. He joins Art Sisneros in being unwilling to cast his vote for Trump, though he parts ways with Sisneros by remaining an elector. There are faithless electors from time to time, with two of them this century, but I think it’s fair to say that we may see more of them than usual this year. Whether it becomes more than a footnoted curiosity some day or something more I couldn’t say, but it is interesting. The Trib and Think Progress have more.

Dropping out of Electoral College

I have some respect for this.

A Texas Republican elector is resigning over the election of Donald Trump, saying he cannot “in good conscience” vote for the incoming president.

The elector, Art Sisneros of Dayton, detailed his decision in a blog post Saturday that said he believed voting for Trump “would bring dishonor to God.” The remaining 537 members of the Electoral College will choose Sisneros’ replacement when they convene Dec. 19 in state capitals across the country.

[…]

Sisneros has previously been critical of Trump, raising the prospect that he could turn into a “faithless elector” — one who votes against the winner of the popular vote in his or her state. He ruled out that option in his blog post, writing that it “would be difficult to justify how being faithless could be a righteous act.”

The post in question is here, and it’s rather wordy but worth a read. Basically, Sisneros felt constrained because the Texas GOP requires people who want to become electors to sign a pledge affirming that they will only vote for the candidate who won the vote in the state, which if you want to get all original-constructionist is a perversion of the intent of the Electoral College. He admits he shouldn’t have signed the pledge (and thus not been chosen as an elector), but sign it he did, and thus was faced with voting for a candidate he couldn’t abide, being a “faithless elector” (a term he says he despises), or resigning. His reasoning comes from a place that I don’t share, but given his starting point, I do agree that this was the honorable path for him to take. Not that any of this matters in the grand scheme of things, nor does it address the underlying tension of the huge disparity between the popular vote and the electoral vote, but there you have it.