December 14, 2016

"If Mr. Trump had lost the Electoral College while winning the popular vote, an army of Republican lawyers would have descended on the courts and local election officials."

"The best of the Republican establishment would have been filing lawsuits and infusing every public statement with a clear pronouncement that Donald Trump was the real winner. And they would have started on the morning of Nov. 9, using the rhetoric of patriotism and courage."

That's by Dahlia Lithwick and lawprof David S. Cohen in a NYT op-ed, "Buck Up, Democrats, and Fight Like Republicans."

And that gets my things not believed tag.

Lithwick and Cohen offer as proof of their assertion the way the GOP fought in Florida in the 2000 election. But that had absolutely nothing with denying the fundamental constitutional structure that is the Electoral College.

"As Monday’s Electoral College vote approaches, Democrats should be fighting tooth and nail," they say. But what arguments could possibly be made? They say:
Impassioned citizens have been pleading with electors to vote against Mr. Trump; law professors...
Law professors!
... have argued that winner-take-all laws for electoral votes are unconstitutional; a small group, the Hamilton Electors, is attempting to free electors to vote their consciences; and a new theory has arisen that there is legal precedent for courts to give the election to Mrs. Clinton based on Russian interference.
Let's just hear from Chris Wallace:

117 comments:

Mick said...

There is no "right to vote". That's why voting is called a "FRANCHISE", i.e "license to act". The states give its citizens the franchise to vote. They could legally not have a general election and simply appoint Electors (See McPherson v. Blacker 146 US 1 (1892), as quoted by Bush v. Gore). Therefore if there is no "right to vote" then the US is not a "Democracy"-- simple.

"And to the Republic, for which it stands"
"A Republic, if you can keep it." Ben Franklin

Left Bank of the Charles said...

I believe Republicans would never have stopped arguing about it.

Nonapod said...

We on right have been playing the "If the shoe were on the other foot" card for the past 8 years. I guess it's the left's turn for that refrain.

Alexander said...

Florida 2000 was an counter example? But wasn't that a case of the Republicans winning the electoral and not the popular? Wasn't that a case of not fighting to take the presidency, but rather to keep what had been duly won in the electoral college.

These clowns can't even lie competently. Whatever they can throw against the wall in the hope that something sticks.

On the other hand, I'm treating this as a win-win. Democrats refusing to move on to the acceptance stage of grief just means a few extra weeks of extra salty laughs.

Ignorance is Bliss said...

On the Venn diagram, the circle for posts with the Dahlia Lithwick tag should lie entirely within the circle for posts with the things not believed tag.

Henry said...

"Buck Up, Democrats, and Fight Like Republicans Would Have Fought if They Were Us, Doing What We're Doing Anyway"

The Democrats have decided to argue with a hypothetical Pee Wee Herman:

I know you are but what am I?

eric said...

Too funny.

I think it's true that if Trump would have won the popular vote but lost the electoral college, he would be shooting out a million tweets and a thousand lawyers yelling rigged.

However, I don't think Republicans would be doing this. Many would be fine working with Clinton and relieved Trump lost. I'm not convinced Republicans are as Republican as these Democrats think they are.

khesanh0802 said...

Oh, Hillary inserteth thy foot, chew and swallow. I guess she forgot to elucidate her "principles " to her campaign staff. Just this exchange would be enough to turn me iff from the nagging bitch. We are so fortunate to have defeated her. God watches over fools, drunks and Americans!

Paul Zrimsek said...

...and the NYT would have published an op-ed by Dahlia Lithwick and David S. Cohen about how the Republican lawyers should prevail. Right?

Fernandinande said...

"If Mr. Trump had lost the Electoral College while winning the popular vote, an army of Republican lawyers would have descended on the courts and local election officials."

If Trump had lost the Electoral College while winning the popular vote, Trump would've grown back his Hitler mustache and invaded Poland with his private army of illegal aliens.

rhhardin said...

I never write on the area of my expertise, whatever it is.

Amadeus 48 said...

Such brilliant people at the New York Times!
It takes tough folks to issue a tender think-piece like this.
How long can we hope that they will keep plucking that chicken?

khesanh0802 said...

eric, Trump was smart enough to understand our system and ran a campaign that focused on the electoral college. Some historian will figure this out after he has completed his grieving cycle. Trump outsmarted and outworked the Dems - and just to say it again- Clinton was a shitty candidate and a shitty person.

There are a lot of "Republicans" that are trying to figure out how to survive four to eight years in the wilderness. Fortunately for them Trump seems focused on accomplishment rather than revenge.

mikee said...

Let us be clear: In 2000, in Florida, Al Gore tried to steal the election.

Al Gore deserves to go down in history as the foulest of political candidates for his failed attempt to steal the election.

Gahrie said...

Lithwick and Cohen offer as proof of their assertion the way the GOP fought in Florida in the 2000 election.

In 2000 the GOP was fighting to preserve the Constitutional order against an attempted coup by the Democrats.

Bay Area Guy said...

Litwick, or should I say Nitwit, is totally wrong about this. I firmly believe in the Electoral College, and I believe most sane Republicans do.

An honest person on this issue would make this argument before the outcome, not after the fact. If the objective was to win the popular vote, both candidates would have campaigned in California and New York (which they didn't).

In 2020, we'll have to get the Dem candidate to reaffirm her commitment to the EC by, say, Labor Day.

Larry J said...

mikee said...
Let us be clear: In 2000, in Florida, Al Gore tried to steal the election.


Damned straight, just like how Al Franken was elected to the Senate when they kept "finding" boxes of ballots until he was over the top.

Preventing a theft is not a crime.

Rick said...

Lithwick keeps her record alive. Every statement she's ever made contains two elements: (1) it advocates the position most advantageous to Democrats and (2) it has absolutely no connection to reality.

Gahrie said...

Therefore if there is no "right to vote" then the US is not a "Democracy

Yes there is no "right" to vote. Various amendments to the Constitution have made it illegal to discriminate on the basis of race or gender when it comes to the to voting. Other amendments have lowered the voting age and outlawed poll taxes. However there is no "right" to vote.

The U.S. is not a democracy. In fact the Founders included many safeguards against democracy. We are a republic, and we have become less free the more democratic we have become.

Nigel Tufnel said...

"Impassioned citizens have been pleading with electors to vote against Mr. Trump"

Expectations are built into our system. If the public expected electors to have real power to change the results then they would be selected with extreme care and we would all know who they are. But they are just party hacks.

These dimwits dont know what they are calling for. If electors heeded these calls to be the enlightened elite who save the voters from making the wrong choice we would see real revolution. French Revolution heads-on-pikes style.

Jupiter said...

Law Professors study Law the way Bank Robbers study Banks.

Martin said...

Actually, Republicans and conservatives tend to respect the rules even when it hurts them, whereas liberals and Democrats are after results and do not mind bending or breaking rules to get what they want. The 2000 and 2016 recounts, contrasted to the lack of recounts in 1960, are good examples.

I would say that Lithgow and Cohen are projecting their own inclinations onto others. But isn't projection a big part of what liberalism and the Democratic Party is all about?

Bushman of the Kohlrabi said...

It's funny that the big story is always about Republicans wanting to do what Democrats are actually doing.

rehajm said...

The Magical Leftie World Of The Hypothetical And The Counterfactual.

mccullough said...

This is not the way to behave after losing. Lithwick and her law professor friends are under the bell jar.

Neither Trump nor Hillary won a majority of the popular vote so I don't even see why this is a talking point. A majority of voters didn't vote for either of them, just as a majority didn't vote for W or Gore in 2000. In 1876, Tilden won a majority of the popular vote and still lost in the electoral college. No one wept for Tilden.

In four of the last 8 elections, the person elected president didn't receive a majority of the popular vote. Who gives a shit. The Electoral College has been around for almost 230 years and states, for a long time, have been doing winner take all electoral votes, even if the winner only gets the plurality of votes in a state.

Matthew Sablan said...

"I believe Republicans would never have stopped arguing about it."

-- And you'd be wrong. Republicans pretty much gave up arguing about Franken.

I still hear "selected not elected" at least once or twice a month on political blog spaces. Republicans are ill-prepared for election lawfare, and the fear that Trump would have somehow mobilized an elite force to fight in the courts is laughable and shows a complete lack of understanding of how recounts have gone for over a decade.

Larvell said...

Noting that there is a "new theory" that there is "legal precedent" for courts to give the election to Clinton because of "Russian interference," without immediately adding, "which is, of course, nuts," should disqualify one from being considered a serious legal writer.

Chuck said...

I think I agree with Althouse.

But in the event of a Trump electoral loss/"popular" win, we'd be hearing all of the following. Big Time!


~Donald Trump, calling it all "rigged."
~Donald Trump, decrying a ridiculous/crooked/outdated electoral college.
~Sean Hannity, repeating all of the Trump talking points.
~Jeff Lord and Roger Stone, saying even more incendiary things.
~The New York Times, intoning about the wisdom and historic value of the electoral college.
~Much of the conservative media -- significantly including elements who were #NeverTrump -- going off in multiple investigative stories, about election irregularities in Detroit, Milwaukee, Philadelphia, Cleveland, Charlotte and all over Florida. To be used in future election law wars.

Matthew Sablan said...

"In 2020, we'll have to get the Dem candidate to reaffirm her commitment to the EC by, say, Labor Day."

-- Which will work about as well as Clinton's agreeing to abide by the results of the election worked.

Roy Jacobsen said...

With apologies to Mark Twain:
"There are three kinds of lies: Lies, damned lies, and Democrat talking points."

Roy Jacobsen said...

Strike that apology to Twain; it appears that Disraeli actually said that.

Gahrie said...

In 1876, Tilden won a majority of the popular vote and still lost in the electoral college. No one wept for Tilden.

Tilden had a plurality of the electoral votes until the Democratic Party sold him and their voters out by rewarding the contested electoral votes to Hayes in return for the end of Reconstruction and the removal of federal troops from the South, which allowed the Democrats to impose Jim Crow laws and begin discriminating against Black people.

Jim said...

Isn't Lithwick a Canadian? Who gives a flying f what she thinks?

HoodlumDoodlum said...

For some reason the insipid and untrue phrase "they go low, we go high" is rattling around in my mind. Weird.

I guess it's more like "they (theoretically) go low, we (in reality) must go even lower!"

Todd said...

Larry J said...
mikee said...
Let us be clear: In 2000, in Florida, Al Gore tried to steal the election.

Damned straight, just like how Al Franken was elected to the Senate when they kept "finding" boxes of ballots until he was over the top.

Preventing a theft is not a crime.

12/14/16, 10:39 AM


Well you know what they say "The counting an't done until the Democrat has won!"

Don't know how Clinton managed to screw that up but thank you God!

Levi Starks said...

Bring on the revolution.
Trump voters are ready for it, but don't want it.
Democrats want it, and mistakenly think they're ready for it.

JAORE said...

" Impassioned citizens have been pleading with electors to vote against Mr. Trump; law professors...

Law professors!"

Isn't that just shocking?

Oh dear Ms. Ann, sometimes you make me chuckle.....

Sigivald said...

Lithwick is getting desperate, ain't she?

tcrosse said...

1. We really really want Hillary to be President (in spite of everything)
2. ? ? ?
3. Hillary is President !

roesch/voltaire said...

Chuck I think you nailed it on this one, and perhaps folks should work to change, eliminate, the electoral college for future elections?

Static Ping said...

Might as well go down the list:

Impassioned citizens have been pleading with electors to vote against Mr. Trump

This is perfectly reasonable action to take. Given that the plurality of the state's voters did vote for Trump and the electors are pledged to vote for the Republican candidate, this is going to be a tough sell without extenuating circumstances. The "Russians hacked the election!" is an attempt to manufacture one. Beyond Democrat partisans and journalists, but I repeat myself, it is not gaining any traction.

law professors...Law professors! ... have argued that winner-take-all laws for electoral votes are unconstitutional

This, of course, is an indication that said law professors are unqualified and should be fired for incompetence. What part of "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors" do they not understand? When the claim is something that is obviously and clearly in the Constitution is "unconstitutional," it means the person making the claim is simply hostile to the Constitution in general.

a small group, the Hamilton Electors, is attempting to free electors to vote their consciences

And then we file this one under the "duh" file. Electors have always had the right to vote their consciences. That's half the point of the Electoral College, a last chance to to override a bad decision by the states. It has never had act upon such a thing and it is hard to imagine it would ever do so except under an extreme scenario. Lots of states do consider it a crime to vote differently than the state voted, but the electors can still vote how they wish. There are consequences but no prior restraint.

and a new theory has arisen that there is legal precedent for courts to give the election to Mrs. Clinton based on Russian interference.

This "new theory" is typically referred to as a "coup." It would be an act of war. The fact that the authors do not realize this is frightening.

BADuBois said...
This comment has been removed by the author.
tcrosse said...

Chuck I think you nailed it on this one, and perhaps folks should work to change, eliminate, the electoral college for future elections?

And perhaps reinstate it when it suits you.
Good luck getting enough states to ratify the constitutional amendment necessary to get rid of the Electoral College.

Bushman of the Kohlrabi said...

If Mr. Trump had lost the Electoral College blah blah blah

Since we're just spitballing here...

I'd just like to say if I lost the Electoral College but won the popular vote, I'd send an army of mad scientists out to infect every Democrat with a zombie virus. I'd then spend the rest of my life driving metal spikes through their foreheads. Except, of course, for holidays where I would relax and celebrate with chocolate cake made from flour ground from the bones of my enemies.



BADuBois said...

I love this part of their commentary:

"...and a new theory has arisen that there is legal precedent for courts to give the election to Mrs. Clinton based on Russian interference."

Yeah, and I heard of a new theory that the Supreme Galactic Overlord is going to intervene to give the election to Mrs. Clinton.

We'll see which one happens first.

Static Ping said...

@Chuck

~Donald Trump, calling it all "rigged."
~Donald Trump, decrying a ridiculous/crooked/outdated electoral college.


He might. He might not. The man is so unpredictable that it is hard to say. That said Trump was not a fan of the Electoral College before this election so his disapproval thereof would be nothing surprising at all.

~The New York Times, intoning about the wisdom and historic value of the electoral college.

Obviously. Watching the NYT switch editorial positions depending on what best benefits the Democratic Party is more or less a drinking game at this point.

~Much of the conservative media -- significantly including elements who were #NeverTrump -- going off in multiple investigative stories, about election irregularities in Detroit, Milwaukee, Philadelphia, Cleveland, Charlotte and all over Florida. To be used in future election law wars.

Actually, they are doing that NOW. This is a good thing. Journalists are supposed to investigate criminal activity. The fact that a large swath of the media are incurious about such matters until it impacts the Democratic Party negatively is a gross indictment of their bias and incompetence.

Comanche Voter said...

Well Ms. Lithwick you don't release an army until one side or the other declares war. You cite the late Florida unpleasantess (late unpleasantness is one of those phrases that folks with a Southern background have a the back of their minds).

As I recall--and Ms. Lithwick does not, 'twas Al Gore who fired the first shot in that Florida war demanding a recount. So yes a brigade (not an army) of Republican backing lawyers did appear---in response to the rather larger number of lawyers who entered the field on behalf of Gore. And as Ms. Lithwick does not recall, every single recount of the Florida votes (and there were four or five of them) showed that Bush still won Florida--and Gore then, as he is now, remains a loser.

At the time I compared Gore's actions to those of Richard Nixon--who lost the 1960 election to JFK after Joe Kennedy paid legions of dead Chicago Democrats to rise from their graves and cast a vote for JFK. Nixon knew that he had been cheated in Illinois, but he was an American patriot (as well as a lot of other less pleasant things). He would not put the country through the wringer of a challenged election. In the past century and a quarter, that seems to be mostly a Democrat thing---both on the federal and state levels.

Darrell said...

Nah. Trump knows how it works. He would have gotten those Hillary overvotes in Detroit thrown out. All of Hillary's vote fraud.

Big Mike said...

Al Gore deserves to go down in history as the foulest of political candidates for his failed attempt to steal the election.

@mikee, not while the Clinton family still lives! Come to think of it, there is a connection between him and them, isn't there?

MikeR said...

Absolutely delusional.

TWW said...

THE PARTY THAT STOLE THE NOMNATION FROM BERNIE SANDERS ON BEHALF OF HILLARY CLINTON, NOW ASSERTS THAT THE RUSSIANS STOLE THE ELECTION FROM HILLARY CLINTON ON BEHALF OF DONALD TRUMP.
PERSONALLY, I'M MUCH MORE AFRAID OF THE DEMOCRAT PARTY THAN I AM THE RUSSIANS.

n.n said...

Probably not. Overlapping and converging secular interests. Still, hope springs eternal.

Big Mike said...

Obviously. Watching the NYT switch editorial positions depending on what best benefits the Democratic Party is more or less a drinking game at this point.

@Static Ping, in case the Times breaks its shovel I have another one for them on order from Amazon. Keep digging, boys, keep digging. The main thing they're doing is vindicating folks like me who didn't hold our nose to vote for Trump -- folks like me put on a gas mask. The Dems and their allies in the "news" business that we were right to vote for Trump and wrong to have any reservations, and the good folks at the Times keep showing their true colors to any unbiased observers.

Drago said...

"Lifelong republican" Chuck: "I think I agree with Althouse.

But in the event of a Trump electoral loss/"popular" win, we'd be hearing all of the following. Big Time!"

According to Chuck, Trump is now officially guilty of precisely what the dems are doing. And "lifelong republican" Chuck offers this "rational and reasonable" criticism of Trump non-actions while simultaneously refusing to level any actual criticism of the dems.

Unexpectedly....for a "lifelong republican".

Ron Winkleheimer said...

This "new theory" is typically referred to as a "coup." It would be an act of war. The fact that the authors do not realize this is frightening.

They seem to think that the large numbers of people who voted for Trump, many of whom are feeling quite desperate about their circumstances and the state of the nation, are, in the face of such a reversal, simply going to accept such an outcome.

"Oh well, my vote no longer matters. Best toddle over to that field and die as my betters have told me to."

Unknown said...

Lithwick. Friggin Lithwick. Forever astride her drinking water. Then drinking. Supposed to be a Hindu thing, but she's never struck me as spiritual, just bitterly hypocritical. Lithwick. For Pete's sake.

Mick said...

"law professors...Law professors! ... have argued that winner-take-all laws for electoral votes are unconstitutional

This, of course, is an indication that said law professors are unqualified and should be fired for incompetence. What part of "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors" do they not understand? When the claim is something that is obviously and clearly in the Constitution is "unconstitutional," it means the person making the claim is simply hostile to the Constitution in general."


EXACTLY CORRECT

Ron Winkleheimer said...

"It would seem that I simply must accept rule of the coastal elite. After all, I'm simply an anachronism that must quickly die off for the good of all that is right and holy! Oh, and it turns out that all that talk of democracy was a con. Silly me!"

n.n said...

An alliance with the Russians presents the best chance of ending progressive wars, immigration "reform" that has displaced millions, and containing/mediating the aggression of hostile powers. Christianity is a principled alignment between the American and Russian people, so that each can be an honest broker in their sphere of influence with a positive effect (i.e. reconciliation of moral, natural, and personal imperatives).

Mick said...

And the latest plan to un pledge Trump Electors bound by law to vote for trump by their state laws goes down in flames.

http://www.msn.com/en-us/news/politics/judge-orders-colorado-electors-to-vote-for-hillary-clinton/ar-AAlwh6a?li=BBnbfcL

David said...

A competent first year law student in her second week in class could see the distinction Lithwick ignores. Either Dana Lithwick lacks intellectual integrity or intellectual capacity. I lean towards the former but she may just be stupid.

Brando said...

This electoral college plan is going to go about as far as the "have the delegates dump him at the convention" plan. Just another way to keep the Left's hope up rather than face their own electoral wreckage.

Bay Area Guy said...

One solution to the problem -- which Lithwick conveniently ignores -- is moving towards proportional Electoral votes in the states by district. Nebraska and Maine kinda, sorta do this.

Let's do this for California! [Crickets from the Left]

Chuck said...

roesch/voltaire said...
Chuck I think you nailed it on this one, and perhaps folks should work to change, eliminate, the electoral college for future elections?


Oh, no. Never. I'd oppose any change to our electoral system for presidents and vice-presidents as set forth in Article II. I like the quadrennial focus on all of the Big Ten states, and the ignoring of New York and California. I even like winner-take-all formulae for each of the states.

No, don't change anything.

Matthew Sablan said...

I'm fine with going by District. I actually think that's a nice compromise with the popular vote wanters, along with still preserving the good things the EC has.

Take a look at the Detroit areas that over-represented their votes. Say, another 20-30% of their machines were compromised in Clinton strongholds and could produce another 10k votes [right now, it looks like several hundred over votes were counted, so it is not unfeasible.]

In the EC system, this "error" could take MI from Trump; with popular vote, how many city/Dem districts would need to have as much over voting as Detroit to negate Republican small states? Jill Stein's exposing of Detroit's problem is an argument for the EC.

Brando said...

"Oh, no. Never. I'd oppose any change to our electoral system for presidents and vice-presidents as set forth in Article II. I like the quadrennial focus on all of the Big Ten states, and the ignoring of New York and California. I even like winner-take-all formulae for each of the states."

I think I'd want to see how it goes if we do it by districts, or have a system where electoral votes by each state are meted out in approximate percentage based on how well the candidates do in the whole state (e.g., if you get 40% of the vote in NY, you get 40% of the electoral votes of NY). This would encourage campaigning in all the states, and give the minority party in each state something to aim for (as an extra electoral vote or two could make a difference nationwide). It'd also give third parties something to shoot for, but if that became a problem the system could require that you meet a certain threshold.

Not that it'll ever change.

Kevin said...

If Trump had tried to contest the election based on winning the popular vote, the Republican establishment, glad to have dodged him, would be on TV 24/7 saying he needed to stop for the good of the country.

Not so the Democrats when the shoe is on the other foot.

Gahrie said...

I like the quadrennial focus on all of the Big Ten states, and the ignoring of New York and California

Seriously? You have beclowned yourself yet again, and committed a Kinsley gaffe.

1/3 of the Democrats in Congress come from New York and California. The Democrat agenda and SJW culture is dominated by California and New York. The only thing preventing California and New York from completely imposing their will on the rest of the United states is the electoral college.

Seriously Chuckles, whatever the DNC is paying you is too much....

Todd said...

I would elect to not only leave the EC alone but think it is a worthy goal to work to get the 17th Amendment repealed.

I absolutely can NOT believe the states allowed that to happen!

Brando said...

"I absolutely can NOT believe the states allowed that to happen!"

Forget it, Jake, it's the Progressive Era. A lot was allowed to happen that shouldn't have been allowed to happen.

Of course, they never should have opened up the vote to non-net taxpayers either, but here we are, an unsustainable federal budget later.

Ken B said...

Gahrie seems not to understand conditionals. There is indeed no right to vote for a state's presidential electors. The amendments he mentions are about about a conditional, an "if". IF the state holds an election for the electors then ... But there is no requirement that states DO hold any such election.

Ignorance is Bliss said...

Ken B said...

Gahrie seems not to understand conditionals. There is indeed no right to vote for a state's presidential electors.

Or maybe you don't understand the English language. What does Gahrie say that leads you to believe that he thinks there is a right to vote?

hstad said...

Leftists, like these law professors, don't care about facts, common sense, etc. Clinton's loss justification is just post-election sour grapes. Therefore, the latest political narrative by the media is that Clinton's loss has nothing to do with Clinton's persistent dishonesty over her private email server, running a poor campaign, or her establishment candidacy in a change year. The FSM (FakeStreamMedia) says the main culprits for Clinton losing are the Electoral College, Russian hacking, FBI Director James Comey, and fake news....? The best example of this Fake Political Meme is the Electoral College issue. The FSM meme cites that the Electoral College as being totally unfair, even though Clinton employed a strategy to reach the requisite 270 electoral votes and was confident of the “Blue Wall” of states that would ensure her victory.

I'm sorry Professor Althouse, argueing on logic falls on deaf ears with the Left.

Chuck said...

Brando, and Matthew:

We have a group of Republicans here in Michigan that are earnestly pushing for a state constitutional amendment to make us a "district" state for our electoral votes.

https://www.washingtonpost.com/opinions/a-michigan-republicans-partisan-proposal-for-the-electoral-college/2015/03/19/4d1f2ed2-cdb6-11e4-8c54-ffb5ba6f2f69_story.html

It is no doubt a good thing for us Republicans. That is, if everyone does it. If a bunch of reddish Midwestern states do it, and if California, Illinois and New York remain winner-take-all, we get killed.

Sure it is better, if instead of losing all of Michigan's electoral votes to a Dem (as happened for alamost 40 years) in a close race, we instead won 9 of 14 electoral votes from favorably-drawn congressional districts, that would be good.

But what some of us are fearing is that such a result in a presidential race, it would draw more harsh attention to the drawing of district lines, and lead left/Dem critics to push for a state referendum on a "nonpartisan" redistricting commission of the kind that narrowly won Supreme Court approval in the 2015 Arizona redistricting commission case.

I'd like to think that we are looking two chess moves ahead on that one.

gerry said...

Leftists, like these law professors, don't care about facts

They live in a postmodern, subjectively "factual" universe.

wildswan said...

This proliferation of goofy possibilities indicates that no one is running the Democrats and every day the party is getting like less like a political party and more like an Animal House party in its late stages.

But who can blame them? There hasn't been a defeat like this since Braddock marched through western Pennsylvania straight into an ambush by Indians. He died mumbling "Who would have thought they could do this?"

Anthony said...

"Impassioned citizens....."

But conservatives who do something similar* are "angry" and "bigoted" and "unpatriotic".

* Which they never do.

Chuck said...

Gahrie said...
I like the quadrennial focus on all of the Big Ten states, and the ignoring of New York and California
Seriously? You have beclowned yourself yet again, and committed a Kinsley gaffe.
1/3 of the Democrats in Congress come from New York and California. The Democrat agenda and SJW culture is dominated by California and New York. The only thing preventing California and New York from completely imposing their will on the rest of the United states is the electoral college.
Seriously Chuckles, whatever the DNC is paying you is too much....


I don't even understand you.

I like the electoral college. That was the position I staked out. Precisely so that California and New York do NOT dominate politics, overwhelm the nation with their own media attention, and otherwise distort the discussion in their direction. I DON'T want California and New York to impose their will on the rest of the U.S. I much prefer candidates fighting for an extra 100,000 votes in Iowa/Wisconsin/Michigan, rather than one part of one borough of New York City, or one tiny part of Orange County, California.

What the fuck are you even talking about?

gerry said...

We should repeal the 17th amendment and give the states back what progs took from them in 1912.

Brando said...

"But what some of us are fearing is that such a result in a presidential race, it would draw more harsh attention to the drawing of district lines, and lead left/Dem critics to push for a state referendum on a "nonpartisan" redistricting commission of the kind that narrowly won Supreme Court approval in the 2015 Arizona redistricting commission case."

Yeah, that's why maybe instead of doing it by congressional district (which could have the same effect of only making "swing" districts worth campaigning in) I'd prefer trying the "allotted based on total popular vote within the state". I agree it would have to be nationwide to work. But right now presidential campaigning is limited to fewer than half the states, and minority populations (Dems in Texas, GOP in CA) are essentially worthless, and in a way so are their majorities because they're baked in.

Unknown said...

Simple projection. A characteristic of the right is respect for the rule of law and the constitution (not perfect of course, esp. wrt privacy and criminal law). Whereas the current left is about winning at all costs. The left can't imagine that the right would not bend and break the law to win.

JAORE said...

"I like the quadrennial focus on all of the Big Ten states, and the ignoring of New York and California"
"Seriously? You have beclowned yourself yet again, ..."

"I don't even understand you. I like the electoral college."

Much as it pains me to say it, I think you knee jerked your way into hitting Chuck. His comment WAS that the EC is good.

Understandable, I guess, I presume the sun will rise in the east tomorrow.

Brando said...

"Much as it pains me to say it, I think you knee jerked your way into hitting Chuck. His comment WAS that the EC is good."

It's not a true Althouse comment thread without at least some knee jerk assumptions!

All this talk is theoretical of course. No change to the constitution on this matter is possible without buy-in from the very states that would lose their benefit, sort of like convincing Iowa to give up their "first in the nation" status in party primaries (though at least the parties can overrule their Iowa contingents). So the EC is the rules we have to play by, and campaigns will be directed as such.

Bill Peschel said...

Gerry: "We should repeal the 17th amendment and give the states back what progs took from them in 1912."

Take back the 26th as well, until the teens decide to grow up. With an exception for those in the military.

As for Frankin stealing the election, there's absolutely every reason to keep talking about it, and about how the Clintons/DNC tried to screw us over. The media gives us a narrative in hopes that most people will forget what actually happened.

Thus, instead of Bernie Sanders getting screwed over by the DNC and his followers dismissed as wingnuts by Podesta et al, we get the "Russia hacked the election." They want us to ignore that Podesta handed over his emails and Hillary probably did the same with her bathtub server.

Martin Luther King wanted a nation in which all people were recognized for the content of their character, an attitude which today's Democrats would denounce. The longer they impose their narrative without opposition, the longer it will be considered the new normal.

Chuck said...

Brando, that "redistricting commission" case is one of the great sleeper issues in all of election law, and maybe at the top of sleeper constitutional issues.

We really need to reverse that case. I think we could, possibly. But it is such a narrow issue, and the 2015 case is so fresh, it is hard to picture it.

With one 5-4 decision, and with a lot of grassroots work, the Dems could flip the House. It's terrifying.

http://www.scotusblog.com/case-files/cases/arizona-state-legislature-v-arizona-independent-redistricting-commission/

Yancey Ward said...

There is actually almost no chance the Republican Party would have run such a post-election campaign if the tables were flipped 180 degrees. The party certainly wouldn't have countenanced recounts in three states decided on election night by 10,000 plus votes. As for pressuring the electors be faithless- they wouldn't even bother to try because there would be no public pressure that would even be meaningful, and if Democrat electors were getting death threats, the FBI would be hauling the threat makers in for interrogations and charges.

The two parties aren't identical.

Now, if by some miracle the electors deny Trump the office, you are likely to see civil strife on a scale you don't want to imagine.

Brando said...

"With one 5-4 decision, and with a lot of grassroots work, the Dems could flip the House. It's terrifying."

I was under the impression that the GOP advantage had less to do with gerrymandering (which adds some seats, but not as many as the Dems think) and more to do with Republican voters' living patterns being more spread out and distributed. Benefits the GOP more to have district voting rather than say a national parliamentary-style system (where seats are allotted based on national popular vote). The only way I see of the Dems blunting the GOP advantage in the House is to move out of the cities or find a way to appeal more to those out in the country, and I don't see either happening (though things do change--a few decades ago the Dems did quite well in rural areas).

CWJ said...

Regarding the two alternate methods offered, I have some comments.

Popular vote: Any person advocating this without first addressing the need for uniform nationwide registration and voting standards in order to make a national popular vote meaningful should not be taken seriously. I have no doubt that the smart people flogging popular vote totals realize this. That they flog it nonetheless tells me that they are doing it for political reasons only with no principles beyond the immediate moment. They should be ashamed, but they are not. They think themselves clever, but they are not.

By district: Interesting assuming that the two senatorial electorial votes can be allocated consistently (to the top vote getter like now seems appropriate). The downside I see is if we have gerrymandering issues now every ten years, I'd say those battles would become nuclear under a by district system.

fivewheels said...

"Though he lost the election"

Lithwick is a useless, partisan, reality-denying troll. Can't speak to how bad the Cohen guy is, but he let his name go over that too.

tim maguire said...

"If Mr. trump had lost..."

You are very kind in giving this the "things not believed" tag. It should get the "things pulled directly from my ass because I know it can't ever be tested" tag.

tim maguire said...

The FCC should revoke the Democratic Party's name under truth in advertising laws.

Brando said...

"By district: Interesting assuming that the two senatorial electorial votes can be allocated consistently (to the top vote getter like now seems appropriate). The downside I see is if we have gerrymandering issues now every ten years, I'd say those battles would become nuclear under a by district system."

What if instead of "by district" it was "allocated on a percentage basis based on state popular vote totals"? So if say Maryland has 10 EVs, and the breakdown was roughly 60% Dem and 40% GOP, the Dems get 6 EVs and the GOP gets 4. This way, candidates could campaign in Hagerstown and the Shore to bring up the GOP numbers, and Dems would campaign in Baltimore to get up the Dem numbers.

Brando said...

"That they flog it nonetheless tells me that they are doing it for political reasons only with no principles beyond the immediate moment. "

That's a given. Last time any political group favored a voting change that they had reason to believe wouldn't help them was the GOP supporting black voting rights in the '60s, when the black vote had gone majority Dem since the FDR days.

Joe said...

If we're going to go down the path of pure speculation and that Russia did attempt to manipulate the election, why assume it was in favor of Trump? Why not assume they were trying to help Hillary and failed miserably. Or they didn't understand the electoral college and/or thought that the electoral college would defer to the winner of the popular vote?

Hell, why not assume that Hillary is extremely ill and threw the election because she didn't really want to president? Or she threw the election to prevent Bill from banging more women in the White House?

Michael said...

Pure projection, like most Democrat's statements about what Republicans think or would do. They know what they themselves would do and assume that everyone else is like them.

PB said...

the Democrats seem to be trying to create and normalize a new campaign after the general election, by asserting that electors have to make independent judgement and therefore have the right to seek briefings and new information on the candidates. Very creative interpretation of the Constitutional role of the electors, but other creative interpretations have been established before.

CWJ said...

Brando,

Proportional is potentially worse. With say 10 electoral votes where a flip represents 10% of a state's influence, the fights over what would otherwise be rounding error would become epidemic. It would be all recounts all the time. Likewise, by district unless everyone's a safe district, we'd be routinely seeing challenges and recounts nationwide.

Fighting for 50 states is one thing, fighting, and being prepared to fight afterward, for every single vote is another.

MountainMan said...

Prior to the Civil War several methods were used in each election for selecting electors. Many states in the first few elections had them selected by the legislature. Other methods used included having a popular vote for the congressional districts and giving the two senatorial votes to the state winner (as NE and ME do now); having a popular vote for the congressional districts and having the senate electors selected by the legislature; creating actual elector districts, separate from congressional districts, and electing by popular vote on that basis; and the winner-take-all popular vote. In some of the early elections all of these were used. In the very first election in 1788 Washington was elected unanimously by the electoral votes cast but not all were cast, as the NY legislature stalemated and could never agree on how to select their electors. In total there were only about 10,000 popular votes cast.

After the Civil War all the states had moved toward winner-take-all popular vote. The one exception to this was 1876 when CO selected theirs by the legislature since it had only achieved statehood that summer and did not have time to organize an election. Thus, the notorious Hayes-Tilden election was not a complete popular vote election, but the number of votes in CO probably would have been fewer than the difference by which Tilden won over Hayes. How Hayes eventually became president is a fascinating story and what occurred was probably the most difficult and divisive election ever held.

Popular vote has been used since that time but NE and ME are the only ones which currently vary from winner-take-all.

The electoral college was a very wise creation by the men who wrote our Constitution. One of he main advantages that is overlooked is that it ensures a final determination and legitimacy to the election of the president even when the popular vote takes unusual twists. The best example of this is the election of Lincoln in 1860. He did not even appear on ballots in the Southern states that would soon secede and form the Confederacy and got only 39% of the popular vote. But, he won 18 of 35 states in a four-way race and got a clear majority of the electoral vote. Yet there was no doubt he was the legitimately elected President. You can imagine how different our history would have been had there not been the electoral vote.

Bill Clinton got only 43% of the vote in 1992 but took 370 electoral votes.

I am glad that the framers made the Constitution so difficult to amend and that the Electoral College should survive any efforts to repeal it.

The Cracker Emcee said...

The harsh reality is that every Democrat popular vote majority comes, by a wide margin, from welfare voters. From the second the race is called until the next time that they need to be hustled to the polls, these people are effectively nullities, really just the political equivalent of industrial chicken farms, to be fed corn mixed with sawdust until they're needed again. Not PC, not democratic, but true nonetheless. And I would bet that that is exactly how the Democrat Party bosses see them.

Gahrie said...
This comment has been removed by the author.
Gahrie said...

With one 5-4 decision, and with a lot of grassroots work, the Dems could flip the House. It's terrifying.

Every Democratic minority member of Congress comes from a Gerrymandered safe seat. This will change in the next Congress, when Kamala Harris takes her Senate seat.

Every Republican minority member of Congress comes from a majority White district.

It is the Democrats who demand and rely upon Gerrymandering seats.

Any state attempting to redraw electoral lines that resulted (or possibly could result) in the election of fewer minorities would be quickly sued by the Obama Justice Department as de facto discrimination under the Voting Rights Act. It will be interesting to see how Trump's Justice Department might act in such a case.

PackerBronco said...

So let me get this straight: the candidate who gets more votes should win rather than the candidate that gets the most state electors, right Libs? And the president who wins under those conditions, is illegitimate, right Libs?

Therefore ... Obama is illegitimate because he won the 2008 primary over Clinton despite having fewer total votes.

Oops is that part of your brain exploding, Libs?

Greg Hlatky said...

I did an experiment apportioning the Electoral votes of each state, one per congressional district. The candidate with a majority of districts in each state got the two extra EVs and one each in case of an even division.

Since the data aren't available, as a first approximation, districts were apportioned by the party of the representative for that district. Trump's EV goes up to 321 from 305.

MadisonMan said...

I look forward to waking up on Dec 20th with the Electors having fulfilled their duty.

Paul Bird said...

Lithwick and Cohen are not being very honest since they conveniently left out the fact that Gore sent squads of operatives down to Florida to scratch out a win. If the Democrat nominee were that interested in counting all the votes, he wouldn't have settled for recounts in just four counties. It took a US Supreme Court decision to get Gore to concede.

HT said...

If the electors vote against Trump on the basis that the electoral college is-insert whatever negative adjective - then wouldn't the basis of their votes as electors be called into question? IOW, they are there as representatives of the electoral college. This is my question.

Drago said...

HT: "If the electors vote against Trump on the basis that the electoral college is-insert whatever negative adjective - then wouldn't the basis of their votes as electors be called into question? IOW, they are there as representatives of the electoral college. This is my question."

Interesting view.

The electors would be using their roles as electors withing the EC system to overturn the results which were derived from that very system. Further, if the electors claimed to be overturning the result of the election due to a hypothetical assertion that the electoral college itself was no longer valid or appropriate, then yes, the "Irony klaxons" volume would go to "11" as the electors would be saying their very roles in overturning the election is illegitimate!

It's an irony mobius strip!

HT said...

eric said...



I think it's true that if Trump would have won the popular vote but lost the electoral college, he would be shooting out a million tweets and a thousand lawyers yelling rigged.

However, I don't think Republicans would be doing this. Many would be fine working with Clinton and relieved Trump lost. I'm not convinced Republicans are as Republican as these Democrats think they are.


____________

I agree.

Gahrie said...

If the electors vote against Trump on the basis that the electoral college is-insert whatever negative adjective - then wouldn't the basis of their votes as electors be called into question?

You are getting two different arguments conflated.

There is one Democratic argument being made that the Trump presidency is illegitimate because Hillary won the popular vote, and the Electoral College, an outdated and undemocratic relic, is cheating her from her victory.

There is a second Democratic argument being made that acknowledges the role of the Electoral College in preventing a miscarriage of democracy, and indeed argues that this is the case that proves its worth. They argue that Trump electors should switch their vote either because Trump is unfit to be president or because the Russians interfered in our election in favor of Trump.

PackerBronco said...

Blogger Gahrie said...

You are getting two different arguments conflated.


Actually the arguments are:

Hillary should win because you're all a bunch of ...

... racists
... sexists
... homophobes
... nazis
... facists
... warmongers
... planet killers

So, you see, the libs have a lot of arguments!

HT said...

You are getting two different arguments conflated.

No I'm not. My question reflects the argument only that the EC is illegitimate. Not the second part, that Trump should lose due to alleged ties to Russia and that he won't lose ownerhsip of his business interests. That second part was not part of the question I asked.

Brando said...

"Proportional is potentially worse. With say 10 electoral votes where a flip represents 10% of a state's influence, the fights over what would otherwise be rounding error would become epidemic. It would be all recounts all the time. Likewise, by district unless everyone's a safe district, we'd be routinely seeing challenges and recounts nationwide."

I was just reading Ted White's "Making of the President 1968" and he made the same point--that breaking it out to a more proportional (or even national popular vote) method would mean far more recounts in far more places. So that's the downside, at least where it's going to be close. The overall problem I see is that unless you have a blowout (even in our current system) the margin of victory is often smaller than the margin of error in a country this size.

Back then though Humphrey and the Dems at least accepted that Nixon won fair and square (theories about Anna Chenault aside) and now we're going in with the Left not accepting this election to an even greater degree than they did in 2000.

tim in vermont said...

I will remember my whole life Democrats cheering every time they got another overseas military ballot disqualified for some technical violation owing to the fact that the poor sap was serving his country in some remote hell.

Paco Wové said...

Seen elsewhere on the Internets: "I wonder how long it will be till the Congressional Democrats demand that their cafeteria rename Russian dressing to Freedom dressing."

Bruce Hayden said...

Every Democratic minority member of Congress comes from a Gerrymandered safe seat. This will change in the next Congress, when Kamala Harris takes her Senate seat.

Every Republican minority member of Congress comes from a majority White district.

It is the Democrats who demand and rely upon Gerrymandering seats.


Which is why tying electors to Congressional districts would tend to harm Dem Presidential candidates. Every ten years Congressional districts are gerrymandered based on Decennial Census counts. And, the reason for all those Dem minority members being from minority majority districts is that that is the deal that they make with Republicans for power. The Dems end up with fewer total seats in the House in trade for more Dem minority Members of Congress. What the Dems should do, in order to maximize the number of Congressional seats they have, would be to equalize Districts. But they can't, because that would mean trading (more) white Representatives for minority ones. Instead, they continue to overpack minority Dems into minority majority Districts guaranteeing that minoritties, esp Blacks, get their "fair share" of their party's Congressional seats.

But that also means states with larger minority populations would tend to give Republicans an advantage if electors were selected by District, since so many of the Dem Districts in some of these states are majority minority Districts overpacked with Dems in order to guarantee election of minority Dem Representatives. Of course, this isn't a problem with the two very white states in which it already is being utilized.

CWJ said...

Brando,

"So that's the downside, at least where it's going to be close." But that's the point. You've traded one scenario for a close election for multiple scenarios. The whole definition of close changes dramatically, particularly for the largest states, where electors will flip every few percentage points. Even in your Maryland example, Trump would just barely qualify for 4 EVs. A few votes more for Hillary and/or the two also-rans and Hillary would get 6 and Trump 3, with the 10th vote going to who? Chaos ensues. Fractional electoral votes? One may as well go with the popular vote.

That seems to be a lot of downside for what I believe to be an unconvincing upside.

Brando said...

"That seems to be a lot of downside for what I believe to be an unconvincing upside."

It may be, and I don't so much as endorse this plan so much as am curious about it, but as for the "unconvincing" upside I think it would actually be quite an upside for residents of non-swing states. But I agree that may be outweighed by the likelihood of battles over vote count threshholds in each state.