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Wednesday, November 30, 2016

Political parties and constitutional mechanisms

Piling on Lisa's post about the next steps in the presidential election (recounts in three states and the Electoral College vote on December 19):

1) Lisa correctly argues that 37 faithless electors are highly unlikely, because electors are party regulars. This shows another way that the not-accounted-for rise of political parties affects constitutional structures. The electors do exercise independent judgment. But the exercise of that judgment is affected by the existence of political parties as the unit around which elections, including the selection of electors, are organized. Electors retain independent judgment, but party affiliation affects how they exercise that judgment. It is the Daryl Levinson/Rick Pildes thesis applied to the election process.

This is why one proposed Electoral College gambit revolved around getting those 37 electors not to vote for Clinton (which partisanship deters them from doing), but to vote for a third, acceptable, competent, compromise Republican (e.g., Kasich or Romney seems to have been seduced by the cuisine of the Dark Side), who could then be chosen by the Republican-controlled House (with support from Democrats) in the contingency election.

2) In early writing on presidential selection and succession, I argued that selection mechanisms could be based on any of three competing structural principles: Political parties and partisanship, democracy, or separation of powers; one or another rising to the top on different issues, principles interact in unexpected ways, and principles change over time. There is no right or wrong answer on any of this; it is a matter of which principles one favors and why.

The current discussions illustrate the point. I argue above that the current operation of the Electoral College represents the triumph of political partisanship. The calls from many that faithless electors should vote for Clinton because she won the national popular vote obviously preference democracy (at the national level).

3) Lisa points out that Clinton needs to flip all of Michigan, Pennsylvania, and Wisconsin to flip the election.

There are arguments that a nationwide popular vote is unworkable in a country the size of the United States and that it makes sense to run things as a series of 51 statewide elections, as we functionally have under the Electoral College (where electors will virtually always vote for the winner of their state election). The undemocratic nature of that system is due, in part, to the inclusion of equal Senate representation in the total for each state. So one way to keep the current system, but to make it slightly more popularly representative, is to base the number of votes from each state solely on population-based House representation. (Note that I am not endorsing this idea, only pointing out the arguments).

Under that system,  there are 436 electoral votes (sorry, Nate Silver, you will have to rename your site), with 219 necessary for a majority.* Trump would have 246 (including MI, PA, and WI) and Clinton 190, with Clinton needing to flip 29 to win. Under this system, she could win by flipping only MI (14 votes) and PA (18), even without WI (8), although WI and one of the other two would not be enough.

[*] Under this system, Al Gore would have won in 2000 even without Florida, 225-211.

4) If any of those threw the election into the House (that is, if life imitated Veep), what would that election look like? Remember that each state caucus casts one vote based on its internal caucus vote. The likely breakdown for the new House will be 33 majority-Republican states (this includes Louisiana, whose results are not in, but which was 5-1 R this Congress and unlikely to change), 17 majority-Democratic states, and one evenly divided state (Maine). (New Jersey will flip from evenly divided to majority-Dem).

Now a lot depends on what structural principle individual House members choose to honor. It could be partisanship (as I expect it would be), in which case the Republican wins handily. It could be democracy, by looking to popular-vote results, although each must consider what level to look at--national, home state, or home district.

Posted by Howard Wasserman on November 30, 2016 at 05:01 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


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