Trump Could Win California Popular Vote and Arguably Risk Losing Its Electors
Donald Trump Could Win California Popular Vote and Arguably Risk Losing Its Electors
A potentially unprecedented mess could unfold if the billionaire wins.
By Steven Nelson | Staff Writer Oct. 5, 2016, at 6:21 p.m.
http://www.usnews.com/dims4/USNEWS/d...-editorial.jpgDonald Trump's visits to California have attracted many protests this year, but if he wins he theoretically could still lose. AMANDA EDWARDS/GETTY IMAGES
Whether Donald Trump is entitled to California's 55 Electoral College votes would be called into question if Trump wins the state's popular vote, a Trump-supporting third party and election law experts are warning.
It's an unusual situation and everyone seems to agree there's a potential problem, but they disagree on the severity and likely resolution if Trump defies polls and wins the state.
Officials in California, the biggest prize in the Electoral College, which officially selects U.S. presidents, begin mailing absentee ballots this week, and the California secretary of state's office has not clarified what will happen if Trump does prevail.
The problem arises from the fact that Trump is nominated by both the Republican Party and the state branch of the American Independent Party, and the two parties did not agree on a joint slate of electors, Just two names overlap on lists submitted earlier this week, bringing the total number of Trump electors to 108.
California ballots will list the two nominations together near Trump’s name, with “Republican, American Independent” or some abbreviation – and ballots don't list individual electors. But if on the evening of Nov. 8 it becomes clear he has won the state, the two nominations will net Trump nearly twice the number of electors allowed.
The mess is caused in part by state Republicans rebuffing the minor party’s request for a combined slate, citing bylaws allowing the selection only of Republicans. The major party has indicated a willingness to set aside concern about the bylaw restriction if ordered by a court or instructed by Secretary of State Alex Padilla after the election.
California Republican Party Executive Director Cynthia Bryant tells U.S. News the party wants Trump to win and anticipates a reasonable resolution if he carries the state.
But Derek Muller, a law professor at Pepperdine University, says he could foresee Democrat Hillary Clinton or her supporters asking a court to overturn a Trump win.
"I do think it's a risk. It's a mess, and it leaves a lot of uncertainty hinging on the outcome of Election Day," Muller says. "I think the expectation and hope from most people is that this isn't going to be an issue because Donald Trump won't win the most votes, so this won't be an issue."
If Trump wins, Muller says it's almost certain his supporters would strike a deal, but then, he says, "I could imagine at that point someone like Clinton coming in to try to swoop in and invalidate the election."
Muller doubts that a court actually would overturn the election, but says it's outrageous that Padilla has taken a pass on resolving the dispute, his office saying only in a late Aug. 26 guidance that "[w]e will address this issue if/when appropriate."
"It's a really egregious abdication of his responsibility," Muller says. "If you have some ambiguity or uncertainty in the law, then your job as an official is to figure it out, not wait and hope the problem isn't going to arise."
Richard Winger, the editor of Ballot Access News who warned of the issue in Tuesday blog posts, says he’s never seen or heard of anything like the current California situation.
Winger is known for his expertise in obscure electoral history and regularly is quoted by mainstream news publications. He isn’t known as an alarmist, and more often offers explanations for why chaos will not occur.
Winger’s theory, essentially, is that overvotes are illegal and must be discarded and he cites three sections of state law to back up his claim:
Section 6902 of the California election code says, “At the general election in each leap year, there shall be chosen by the voters of the state as many electors of President and Vice President as the state is then entitled to.” California is entitled to 55 electoral votes.
Section 15505 of the California election code says, “No later than the 32nd day following the election, the Secretary of State shall analyze the votes given for presidential electors, and certify to the Governor the names of the proper number of persons having the highest number of votes. The Secretary of State shall thereupon issue and transmit to each presidential elector a certificate of election.”
Section 14285 says, “The voter shall, by using the provided marking device, place a mark in the voting square, rectangle, or other specific voting space following the names of the candidates for that office for whom the voter intends to vote, not exceeding, however, the number of candidates to be elected.”
Winger writes on his newsletter's website that “[d]ue to the ballot format, California voters who wish to vote for Donald Trump will be forced to cast an overvote. ... Therefore, the votes for Trump will be overvotes and all will be invalid.”
Historically, minor parties in California and elsewhere that co-nominate a major-party candidate either have a shared slate of electors, such as the 1928 co-nomination of Herbert Hoover in California by the Republicans and the Prohibition Party, or appear separately on the ballot.
In one parallel to the current situation, Winger tells U.S. News prominent third-party progressive Robert La Follette nearly won Montana in 1924 and that "it almost was a catastrophe" for him because two small parties submitted their own electors.
"It would have been horribly unfair if La Follette got the most popular votes because his vote was split up," Winger says. In that case, however, the issue was two ballot listings, something racial segregation advocate George Wallace successfully fought in court to prevent happening to him in two states in 1968, Winger adds, though the litigation came well before ballots were printed.
If public polling is accurate, Trump will lose the popular vote in California and therefore will be entitled to zero electors. And that likelihood appears to be why there's no preemptive resolution or official legal opinion on what would happen.
Sam Mahood, a spokesman for the secretary of state’s office, did not directly respond to questions about how the issue might be resolved, but says in an email: “The election results will not be invalidated. Our office must certify the presidential election results of the November 8 General Election, as per the state elections code, by December 10."
Winger says it’s conceivable that a victory for Trump, despite possibly becoming invalid, still would be reflected by elector-selection of his backers by the state legislature, to which the Constitution allows broad discretion in picking electors.
American Independent Party Secretary Markham Robinson bristles at the suggestion that his party's list simply could be delivered to the nearest garbage bin.
"You think the Republican Party is more important intrinsically that the American Independent Party? We don't get no respect, I'll tell you that – however, no one has adopted that [suggestion]," he says.
The party has disavowed its segregationist roots and is the largest third party in California by registration, presumably because voters accidentally register, believing they're instead identifying as political independents.
Robinson offers two potential pre-election solutions. First, he says, the secretary of state’s office can disregard the Republican slate of electors (he claims the party missed a deadline, which the Republican Party says is provably untrue). Or, he says, the state legislature can return to Sacramento on the governor’s order and authorize a special ballot that would allow voters to select between the two Trump slates.
Robinson blames the "arrogant and stupid" state Republican Party for refusing to negotiate on a combined slate and says if the election results are overturned Section 2 of the 14th Amendment might require the ablution of California's congressional delegation – something he's seeking to use to gain officials' attention.
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