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Tue Mar 1, 2016, 04:54 PM

How Establishment Repubs LOSE popular vote, LOSE electoral college, & STILL WIN THE PRESIDENCY, 2016

Establishment Republicans like Republican officeholders in Washington, DC, are probably the most hated political group in the country, hated even by their own Republican grassroots. It's therefore the year of the Outsider.

But barring something bordering on divine intervention, establishment Republicans in the House of Representatives will choose the next President, because no candidate will be likely to get a majority in the electoral college. Thus, under the 12th amendment this throws the election to the House of Representatives for an immediate vote, with each state's delegation getting one vote.

For the sake of this analysis, I'm going to assume a couple things that are pretty reasonable, but, if they don't turn out to be true, would change my analysis. First, I'm assuming Trump does well tonight in Super Tuesday and is on a near glide path to the Republican Nomination. I am also assuming what has been publicly threatened already also comes true: Establishment Republicans drop Trump "like a hot rock" and submit a third party candidate. Finally, there is one further semi-assumption. The third party candidate would need to win at least one electoral college elector in order to be in the top three vote-getters, because the House is restricted to voting amongst the top 3 vote getters.

There is a way to virtually guarantee that a third party Republican establishment candidate gets at least one or more electoral college votes. Remember McPherson v. Blacker? It was the basis on which the US Supreme Court vacated the Palm Beach canvassing board case in the first of its three major 2000 election rulings related to Bush v. Gore. (the other two being the stay of the recount, and the Bush v. Gore opinion itself). McPherson v. Blacker is an 1800s US Supreme Court case that held in prominent dicta that states have "plenary power" to choose the method of selecting electors for the Presidency. It is the basis upon which Bush v. Gore (in Scalia's opinion) recites that there is no constitutional right to vote FOR PRESIDENT.

NOTE: One should add that this is true only from a perspective well ahead of the election, but once a presidential election is in progress, one can certainly sue for violation of their constitutional right to vote if they are prevented from voting in a presidential election. But beforehand, a legislature could dispense with elections for the presidency entirely, and appoint a list of electors instead. Or do any manner of other things, like provide for proportional representation, or representation by whoever wins congressional districts.

As you can see from the following December 2012 article, Republicans have threatened to use Republican control of state legislatures in states like Michigan, Pennsylvania and other states to change allocation of presidential electors to congressional district. https://web.archive.org/web/20130108131314/http://nationaljournal.com/columns/on-the-trail/the-gop-s-electoral-college-scheme-20121217

And McPherson v. Blacker would back that threat up:

The Constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object.


So if a Republican third party candidate can get one or more electoral votes, and there is no majority winner in the electoral college, the currently Republican House (not currently expected to change) would decide who is the next President on a one state/one vote basis. And the problem is, as the link above points out, that if states like Pennsylvania had been awarded on a congressional district basis, Romney would have won Pennsylvania as well as a majority of the congressional districts in Michigan.

Establishment Republicans don't need to win the popular vote, or even the electoral college, in order to install a President opposed by the vast majority of the American people. All they need is to divide up the electoral college, and have 26 states that, after the coming elections, have a majority of their congressional districts electing republicans. They can let the other 24 be 100% blue, for these purposes, and it won't change anything about the Presidency.

This could even mean that the Dems regain control of the House but STILL CAN'T STOP establishment republicans from installing their favored candidate.


1. Ya think the Republicans will run a third party candidate for President?

2. Ya think the Republicans, with the Supreme Court now also on the line, will STOP TRYING TO CHANGE electoral college rules, given they tried last time?

3. Ya think the Republicans control enough state legislatures to cram through electoral college changes before November to give a Republican third party candidate at least one electoral college vote, and make it difficult or impossible for anyone else to get a clear majority of the electoral college, so the Presidency is decided by the 12th amendment and the House of Representatives?

4. Ya think Republicans would obstruct the presidential process like they've obstructed the Supreme Court process?

5. Ya think Republicans hope that a Supreme Court vacancy will drive up turnout enough to make it unnecessary to pull out the knife and change the electoral college in some states?

Yeah, I think so, too.

Now, let's see if Trump wins tonight. And then we shall see the Constitution pitted against the will of the People by the Republicans. Again.

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Reply How Establishment Repubs LOSE popular vote, LOSE electoral college, & STILL WIN THE PRESIDENCY, 2016 (Original post)
Land Shark Mar 2016 OP
yeoman6987 Mar 2016 #1
Land Shark Mar 2016 #2
yeoman6987 Mar 2016 #4
Land Shark Mar 2016 #7
Warren Stupidity Mar 2016 #3
Land Shark Mar 2016 #5
Warren Stupidity Mar 2016 #6
Land Shark Mar 2016 #9
FSogol Mar 2016 #8
Land Shark Mar 2016 #10
Land Shark Mar 2016 #11
Land Shark Mar 2016 #12
mvymvy Mar 2016 #13
Bucky Mar 2016 #14
Land Shark Mar 2016 #16
malaise Mar 2016 #15
pat_k Mar 2016 #17

Response to Land Shark (Original post)

Tue Mar 1, 2016, 04:57 PM

1. If the electoral is 269-269, it goes to House of Representatives

 

Been that war since 1776. Not sure if it has been used before. Only one way to ensure it doesn't in 2016. Vote for the democratic nominee.

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Response to yeoman6987 (Reply #1)

Tue Mar 1, 2016, 04:59 PM

2. it has gone to House of Reps 2x in nation's history, not just tie but no candidate w/ majority

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Response to Land Shark (Reply #2)

Tue Mar 1, 2016, 05:01 PM

4. Oh wow. Thanks. Hope it won't this year.

 

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Response to yeoman6987 (Reply #4)

Tue Mar 1, 2016, 05:11 PM

7. yes in 1801 House decided Presidency (Jefferson won), and 1825

on edit, and in 1825 it was under the refurbished Constitution via the 12th amendment. 1801 was under the older Article I provision. But in 1825 the majority winner in the electoral college did NOT win (Andrew Jackson). John Quincy Adams did win. https://en.wikipedia.org/wiki/United_States_presidential_election,_1824

It was called the "corrupt bargain" among other choicer terms.

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Response to Land Shark (Original post)

Tue Mar 1, 2016, 05:01 PM

3. Not very likely.

 

Third party candidates rarely if ever win any electoral votes. In this case a second repub candidate would primarily take votes from Trump, handing Clinton an electoral landslide. The analysis ignored that almost all states are winner take all, first past the poll.

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Response to Warren Stupidity (Reply #3)

Tue Mar 1, 2016, 05:08 PM

5. You're ignoring that state legislatures can change winner take all, AT WILL

See McPherson v. Blacker, above

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Response to Land Shark (Reply #5)

Tue Mar 1, 2016, 05:09 PM

6. That would be a yuuuge stretch.

 

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Response to Warren Stupidity (Reply #6)

Tue Mar 1, 2016, 05:16 PM

9. why? it's proportional already in Nebraska and Maine. And they already tried in 2012

the bills in state legislatures in 2012 were shut down, but it did take some aware people. But the republicans in the establishment still had hope via Romney back then. If Trump is the nominee, they feel they are defeated unless they take dramatic action.

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Response to Warren Stupidity (Reply #3)

Tue Mar 1, 2016, 05:15 PM

8. Agreed. Not very likely. n/t

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Response to FSogol (Reply #8)

Tue Mar 1, 2016, 05:17 PM

10. i agree it's not very likely from an overconfident "expect a landslide" perspective. ahem, but


So then we should just let the Republicans change the electoral college rules? Or you don't think they will even try this, despite the fact that they made some preliminary efforts to do that in 2012?

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Response to Land Shark (Reply #10)

Tue Mar 1, 2016, 05:50 PM

11. i'm saying that one has to be aware of all ways the other side may try to win/score

any good coach or strategist needs to know this type of stuff.

In case anyone is wondering: NO I am not saying THIS WILL DEFNITELY HAPPEN. But it could. Happened twice before in US history.

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Response to Land Shark (Original post)

Tue Mar 1, 2016, 06:31 PM

12. LOL. People may not be ready to think general as we wait here for Super Tueesday results. OP is FYI

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Response to Land Shark (Original post)

Tue Mar 1, 2016, 07:54 PM

13. Guarantee the Presidency to Winner of National Popular Vote and Electoral College

The precariousness of the current state-by-state winner-take-all system of awarding electoral votes is highlighted by the fact that a shift of a few thousand voters in one or two states would have elected the second-place candidate in 4 of the 15 presidential elections since World War II. Near misses are now frequently common. There have been 7 consecutive non-landslide presidential elections (1988, 1992, 1996, 2000, 2004, 2008, and 2012). 537 popular votes won Florida and the White House for Bush in 2000 despite Gore's lead of 537,179 (1,000 times more) popular votes nationwide. A shift of 60,000 voters in Ohio in 2004 would have defeated President Bush despite his nationwide lead of over 3 million votes.

After the 2012 election, Nate Silver calculated that "Mitt Romney may have had to win the national popular vote by three percentage points on Tuesday to be assured of winning the Electoral College."

And obvious recent partisan machinations to advantage the Republican party, should add support for the National Popular Vote movement. Now, the party in control in each state, that is not winning in presidential elections, is tempted every 2, 4, or 10 years (post-census) to consider rewriting election laws and redistrict with an eye to the likely politically beneficial effects for their party in the next presidential election.

The National Popular Vote system, in which all voters across the country are guaranteed to be politically relevant and equal, is needed now more than ever.

The National Popular Vote bill would guarantee the presidency to the candidate who receives the most popular votes in the country.

Every vote, everywhere, would be politically relevant and equal in every presidential election. No more distorting and divisive red and blue state maps of pre-determined outcomes. There would no longer be a handful of 'battleground' states (where the two major political parties happen to have similar levels of support among voters) where voters and policies are more important than those of the voters in 38+ states that have just been 'spectators' and ignored after the conventions.

The National Popular Vote bill would take effect when enacted by states with a majority of the electoral votes—270 of 538.
All of the presidential electors from the enacting states will be supporters of the presidential candidate receiving the most popular votes in all 50 states (and DC)—thereby guaranteeing that candidate with an Electoral College majority.

The bill has passed 34 state legislative chambers in 23 rural, small, medium, large, red, blue, and purple states with 261 electoral votes. The bill has been enacted by 11 jurisdictions with 165 electoral votes – 61% of the 270 necessary to go into effect.

http://www.NationalPopularVote.com

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Response to Land Shark (Original post)

Tue Mar 1, 2016, 07:56 PM

14. A plausible scenario. We should focus GOTV efforts on states with just one Rep in the House

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Response to Bucky (Reply #14)

Tue Mar 1, 2016, 09:16 PM

16. yes, thanks. And hopefully insure the Dems have someone one the ballot everywhere

that's more than just a placeholder candidate

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Response to Land Shark (Original post)

Tue Mar 1, 2016, 08:13 PM

15. Trump will continue to fugg 'em up

Watch the press conference

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Response to Land Shark (Original post)

Sat Mar 5, 2016, 05:19 AM

17. Never underestimate the lengths they'll go to

Crap. I think you're right. We can never underestimate the lengths they'll go to.

And especially in light of Romney's statement after Super Tues, I guess we know who the third party candidate would likely be. (If they don't manage to somehow change convention rules and nominate him.)

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