Donald Trump, Hillary Clinton, Joe Biden, and a Disrupted Electoral College

High Unfavorable Ratings, Multi-Candidate General Election Ballots, and Pursuing the ‘Art of the Deal’ with Free-Agent Electors in December 2016

Victor Williams[1]

 

Hillary Clinton and Donald Trump could not be more different. Clinton worked hard to become the nation’s quintessential political insider.[2] Hillary Clinton’s latest labors include: U.S. Secretary of State, U.S. Senator, accomplished attorney, and a policy-engaged First Lady of both America and Arkansas.[3] In proposing economic and social reforms, Clinton pragmatically promises “a fair shot” for all Americans.[4] Life experiences have taught the Yale Law graduate to judiciously weigh each public comment and every private action. Even her strongest supporters worry that Hillary Rodham Clinton often appears scripted and too cautious.[5]

In stark contrast, Donald John Trump is the anti-politician, bombastic billionaire who boasts of unspecified plans to “Make America Great Again.”[6] Large crowds cheer Trump’s conflicting retro-Reagan optimism and exceptionally harsh invective. Trump is increasingly more George Wallace than Ronald Reagan;[7] his outbursts against establishment politics and undocumented immigrants have few limits. Trump’s raw message particularly resonates with those Americans who have stomached a decade of economic loss and social displacement. It is an American paradox that billionaire Trump so effectively channels George Wallace’s blue-collar, everyman appeal and message.[8]

It has become clear that Donald Trump’s years of relentless “birther” claims against President Barack Obama played an important part in establishing his present base.[9] Likewise, Trump’s criminal allegations against Mexican and other immigrants resonate with those in his base seeking a scape-goat for their perceived lost decade.[10] Commentator Ben Stein describes Trump as being this generation’s George Wallace – “without George Wallace’s charm.”[11]   Today, it is not a southern racial dog-whistle that Trump uses to reach his base but rather the megaphone of the ratings-hungry cable media that replays his every utterance and retweets each late-night attack.[12] Trump is the ideal candidate for the significant percentage of Republican and Tea Party voters who passionately deny Obama’s Christian faith,[13] deny climate change,[14] and deny that serious economic harm will result from a debt ceiling breach and default.[15] Meanwhile, Trump’s “thin-skinned” fight (never flight) response to any and all criticism[16] is strangely cathartic for his supporters.[17] Even if they disagree with what he says, Trump’s supporters credit the Wharton School of Finance graduate for his entertainment and business successes, and more so for speaking his mind in an age of politician double-speak.[18]

Many Americans, however, are neither impressed with Trump nor his bombastic bad-news gospel. But none of Trump’s main GOP competitors have landed a serious blow against him or his divisive message. It fell to Vice President Joe Biden to first slam Trump for promoting a “sick message” of “xenophobia” and for “appealing to the baser side of human nature.” Even while Biden was undecided about whether to enter the Democratic primary contest, the Vice President expressed an absolutely certain belief that Donald Trump had to be stopped. Biden stated that Trump belonged back in the anti-immigrant “Know-Nothing Party” of the 19th Century.[19] Joe Biden is seen by his supporters as having all the establishment experience of Hillary Clinton,[20] the authentic plain-talking abilities of Donald Trump,[21] and a natural political style akin to Bill Clinton’s gift.[22] Hillary Clinton has begun to more forcefully and directly challenge Trump describing his anti-immigrant message as “appalling.”[23]

Hillary Clinton and Donald Trump do have something in common — exceptionally high unfavorable poll ratings.[24] Their high unfavorabilities are less pronounced when polling their partisans, however, the two candidates’ general-population unfavorable poll ratings remain quite high.[25] Negative approval numbers are most consequential for candidates as they navigate the confusing, antiquated, and malapportioned contours of the Electoral College.[26] Hillary Clinton’s unfavorable ratings contributed to her early decision to abandon a 50-state national campaign effort in favor of a discrete state-by-state Electoral College strategy for the general election.[27] Donald Trump’s unfavorable poll numbers have yet to impact but they will start to matter as the GOP primary field is reduced.[28] All Electoral College freshmen learn quickly how consequential negative ratings can be for planning a November general election strategy. The Huffington Post helpfully provides real-time tracking and favorability averages from numerous national polls administered by many different pollsters.[29]

Indeed, if Trump’s high general-population unfavorables among Hispanics and women do not improve,[30] the risk-prone Trump may still decide to double-down on the biggest of all political gambles — an independent presidential candidacy.[31] Donald Trump’s strategic September decision to “totally pledge” that he presently intended to support the GOP nominee has no legal effect.[32] Donald Trump has repeatedly proven that he is willing to be a disruptive innovator in both business and politics.[33] Trump — and each of the other Republican nomination contenders — retain the option to mount an independent candidacy. For the upcoming 2016 election, all traditional rules and social norms are forgotten as would be pledge.

In an alternative scenario in which Donald Trump takes the GOP nomination, the possibility of an economic conservative or a social conservative running as an independent becomes quite real. William Kristol, conservative commentator and editor of the Weekly Standard stated in mid-September that he could not support Trump if he were to become the Republican nominee. In that event, Kristol will push for a Third Party or independent conservative candidate to challenge Trump.[34] It is a very unusual election but not so much that one that the Club for Growth now running ads against Trump (and other such conservative power players) will just sit out the 2016 contest if Trump is the GOP standard bearer.[35]

Preface: Coming in November 2016, A Robust, Hardball Multi-Candidate Presidential General Election

Our nation is in an unprecedented season of citizen dissatisfaction with the established political order and particularly with professional politicians. It is telling that the first Republican primary candidates to drop out of the 2016 contest, Rick Perry and Scott Walker, were established political insiders; both long-time serving, elected governors of their respective states. Voters want fundamental change and the donor class is dropping weak insiders. Outsiders, independents, non-politician presidential candidates are thus far having record success.[36] Non-politicians Donald Trump, Carly Fiorina, and Ben Carson are in the lead for the Republican nomination. Although Trump is the most bombastic “outsider” candidate, it is Ben Carson who perhaps best examples the unusual “outsider” thinking of the GOP contenders. Ben Carson stated “absolutely” that a Muslim should never be allowed to become President of the United States.[37] His campaign manager explained that such positions are based on the candidate’s “belief system.”[38] Carson subsequently refused to retract his anti-Muslim statements stating instead that future Presidents should be “sworn in on a stack of Bibles, not a Koran.”[39] In his mild, almost-sheepish manner, Ben Carson explained “I do not believe Sharia [Law] is consistent with the Constitution of this country.” The bookish neurosurgeon would be advised to read Article VI of the Constitution — “but no religious test shall ever be required as a qualification to any office or public trust under the United States.”[40] Carson might also review the first two clauses of the Constitution’s First Amendment – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”[41] In turn, perhaps the voters of this nation of many faiths should consider Chapter 7 of the Gospel of Mathew: “Watch out for false prophets. They come to you in sheep’s clothing, but inwardly they are ferocious wolves.”[42]

In the Democratic primary contest,[43] meanwhile, it is independent, self-described socialist Bernie Sanders[44] who draws the largest crowds and most favorable poll numbers. [45] Sanders speaks for himself in all matters: “I see myself as somebody who is taking on the wealthiest people in this country and the largest corporations and fighting for justice for American workers.”[46] Even Lawrence Lessig, as a one-issue (campaign finance corruption) quixotic candidate, raised notable campaign funds and is receiving significant media attention.[47] Other individuals may yet join the fray – insiders and outsiders coming from the left and right.

If there has ever been an election season in which independent candidates and minor party presidential nominees may have genuine opportunity for success, 2016 is that time. The likelihood of a robust, multi-candidate general election is quite high. If Donald Trump fails to secure the Republican nomination, it is difficult to imagine that he would not place himself on the general election ballot. Alternatively, if Trump wins the GOP nomination, the categories of potential independents candidates that would challenge him in November include other self-financed outsiders, establishment economic conservatives, and social conservative ideologues — all with Super PAC backers. Similarly, the minor party (Green, Libertarian, or Conservative Party) nominees should be expected to make a good effort in specific states.

The importance of such multi-candidate state ballots loops back to the relevance of the leading candidates’ unfavorable ratings and the “winner-take-all” tabulation method used in 48 states to select Electors for the Electoral College.[48] A close, three-person general election race would mitigate any candidate’s unfavorable numbers because of the winner-take-all math. In a very tight, three-person (major candidate) race, consider how Donald Trump could be rejected by 66 percent of voters in any given state, but with only a 34 percent plurality victory; still he would take all of that state’s Electors. And in a moderately close four-person general election contest, Hillary Clinton could win all a state’s Electors with less than 29 percent of the vote even while having very high unfavorables.

And again, a strong minor-party candidate, who shaves a point or two from a major party candidate, could decide certain states. Only a unifying candidate who is able to maintain low unfavorables might be able to win a competitive state’s Electors with a majority vote. It would take a candidate with political and leadership experience, but authentic, outsider characteristics and personality. What is certain is that this season of voter discontent will prove particularly ripe for bold, creative, and historic electoral innovation.[49]

Regardless of the number of general election major candidates, the peculiar workings of the Electoral College will certainly dominate this equally peculiar presidential election season.[50] On the November 2012 election night, when Barack Obama won a second term, Donald Trump told the world what he thought about the Electoral College. He called for a national political “revolution.” In a late-night tweet, Trump stated that the Electoral College was “a disaster for a democracy … a total sham and a travesty.”[51] For all of his absurd, crude statements and his disturbing invective, even Trump’s strongest critics have to acknowledge, that sometimes The Donald is just spot on.

Indeed, the true “reality show” of presidential balloting does not premiere until December 14, 2016.[52] No American will actually vote for President on Tuesday, November 8, 2016. The only citizens voting for President will be the 538 independent, free-agent Electors who do so in their respective states, on December 14, 2016. As a self-funded candidate, billionaire Donald Trump is certain to have ample campaign capital held in reserve sufficient to engage in ‘Art-of-the-Deal,’ post-November election negotiations with those free-agent Electors. That is exactly the nature of a “free agent” as the term is frequently used in the field of sports law.[53] Is it possible that at least a few Electors could be persuaded to switch sides and join Team Trump? After all, Donald Trump himself has changed partisan teams at least five times over recent years.[54] Although Trump is on record harshly criticizing the Electoral College in 2012 as a “disaster for democracy” and a “travesty,” [55] it is the law of the law and Trump could assert that he is just following the constitutional law as written. All persons are entitled to use, be protected by, and seek benefit from the law of the land. Trump’s apologetic analogy would be to the businessman who utilizes one of the bankruptcy chapters, tax strategies, or other such laws to his company’s favor. He has repeatedly stated that he would do whatever necessary to “make America great again.” Simply directly asking Electors for their votes seems quite fair.

Perhaps some Electors would not need inducement other than just to be asked.[56] Opposition candidates, Super PACs, and dark-money (non-traceable money) nonprofits would also dig deep to find December cash reserves to counter Trump’s direct Elector engagement—in rough analogy to the working of “restrictive” free agency in sports law. Indeed, there are other outsider candidates and Super PACs (other than Trump) who might also initiate such direct Elector contact. The powerful Koch brothers are famous for pouring hundreds of millions of dollars into heavy-handed, sometimes closed-fist, democratic involvement.

Any such bold and direct engagement of the Electors would be rightly reported as unprecedented, but it would also be unquestionably constitutional. Again, it bears repeating, the 538 Electors are the only Americans who vote for President. Related historic precedent is found when the Electoral College failed to reach a required majority result in 1800 and 1824 and the presidential selection defaulted to Congress. There were many inducements offered, enticements proffered, promises made, and artful deals struck before the House of Representatives selected President Thomas Jefferson in 1800 and President John Quincy Adams in 1824. And in the event that no candidate wins a majority of pledged Electors as a result of the November 8, 2016 state elections, a series of Trump December 2016 side-deals with individual Electors or Elector blocks could save the contest from defaulting to a House selection of the President and Senate choosing of the next Vice President.

In Part I, this Essay explains the operations of our Republic’s arcane and enigmatic Electoral College. The Essay focuses on the Constitution’s grant to state legislatures of absolute control over Elector appointment; on the 48 states’ winner-take-all plurality tabulation method; and on the independent, free-agent constitutional status of all 538 Electors who will vote for President on December 14, 2016. Also referenced is the Constitution’s even lesser-known fallback presidential selection system. In the event that no candidate receives a majority of the Electors’ votes when the Electoral College are announced in January 2017, the newly-convened 115th U.S. House chooses the President, and the U.S. Senate selects the Vice President.

In Part II, the Essay discusses the unique opportunities that this strange outsider-focused election season presents for independent and minor party candidates. The practical timing considerations for an independent to meet differing state ballot access requirements is presented. This part assesses the political fortunes of the leading candidates through the view of the Electoral College, with particular reference to the candidates’ unfavorable ratings. If Donald Trump’s general-population unfavorable poll ratings do not significantly decline, the Essay asserts that he may well consider repudiating the Republican nomination and gamble on an independent candidacy. But if Trump becomes the GOP nominee, at least one conservative independent candidate should be expected. And with three or more viable candidates, the election would become a genuinely national contest with many more light red and pale blue states in play. Only a genuinely nationally-unifying candidate could hope to win the presidency with a simple-majority vote. But for all other candidates, they must play the plurality odds all the way to November election, and then to the ultimate end-game in December 2016.

The Essay’s Part III addresses the elephant in the room; or to borrow from Donald Trump’s more descriptive prose, the Essay addresses the huge, huge elephant in the “one-of-a-kind, unmatched” Trump Tower lobby enjoying trunkfuls of unlimited drinks from “the breath-taking, 60-foot waterfall embellishing the eastern wall of the building.”[57] The elephant in the Trump Tower lobby is the possibility that Donald Trump will take radically direct action to disrupt the Electoral College. Immediately before—or soon after —the November 8, 2016 popular election as conducted in each state, could Donald Trump seek to directly engage opposition-pledged Electors (i.e. Electoral College members)? Could Donald Trump, or another candidate or Super PAC, convince pledged Electors to change their pledged votes before the Electoral College meets on December 14, 2016? Could Trump negotiate with the “free agent” Electors in order to claim the presidency?

And could Donald Trump decide to lobby select state legislatures to take the election away from their state citizens and directly appoint Trump Electors? Could Trump negotiate with state legislators? Super PACs would, of course, directly promise future financial and political support to any state legislature leaders who would lead such an effort. Opposition candidates, other Super PACs, and non-traceable dark money would certainly join-in the direct run-around of the state popular ballot. But are such Electoral College disruption scenarios constitutional? The short answer is: Yes. The Constitution’s 1787 Framers, who crafted the Electoral College, gave state legislatures direct and plenary Elector appointment authority. The Framers meant for each Elector — once selected by whatever state method— to then freely vote their conscience without regard to faction or party. The 538 constitutional Electors are the only Americans who will actually vote for President in 2016.

Part I. A Presidential Election System as Peculiar as the 2016 Campaign: Article II, Section 1 and Its Twelfth Amendment Restatement

Every four years, many Americans are shocked to learn, and more are surprised to be reminded, that on the first Tuesday after the first Monday in November they will not vote for any presidential candidate. On Tuesday, November 8, 2016, state citizens will cast their ballots in state-run elections for a slate of free-agent Electors pledged – but not required — to support a party’s nominee or an independent candidate.[58] The President is not even selected until weeks later on the first Wednesday after the second Monday in December. On December 14, 2016, these 538 Electors will meet in their respective states to vote for President and Vice President. These Electors are the only Americans who actually vote for President.[59] The Electors send their votes to be counted by the newly convened Congress during the first week of January 2017.

The National Archives, which also receives a copy of each state’s Electors’ ballots, defines the Electoral College as being not an institution but rather a process: “the Electoral College process consists of the selection of the Electors, the meeting of the Electors where they vote for President and Vice President, and the counting of the Electoral votes by Congress.”[60]

Our constitutional history shows that the Electoral College was the compromise between those 1787 Philadelphia Framers who wanted direct, popular election of the President and those who wanted one or both houses of Congress to select the newly-established Chief Executive. However, the standard quadrennial tour of the Electoral College usually skips by the uglier past of our presidential selection system. The Electoral College is a direct vestige of slavery.[61]

A. Slave Masters’ Three-Fifths Presidential Proxy Vote for Every Human Being in Bondage

The Electoral College was one of several pro-slavery victories won by southern states when the Framers were drafting the main text of the U.S. Constitution in 1787 — a document that never uses the term “slave” or “slavery.”[62] The Constitutional Convention appeased slave masters by counting each of their slaves as “three-fifths” of a free person for their state’s House of Representatives apportionment.[63] And thus the link to the Electoral College: the Constitution establishes the number of a state’s presidential Electors to be the number of the state’s congressional representation (that is the number of their House members plus the state’s two U.S. Senators). The slaves’ three-fifths of a person status for House membership apportionment, combined with the indirect Electoral College presidential selection method, gave slave masters a functional — if only fractional — proxy vote for their slaves in the selection of presidents.[64] The Fugitive Slave Clause provided that this proxy vote would not be diluted by slaves escaping to free states. It should be no surprise then that five of the first seven Presidents were southerners– indeed all five were slave masters – still owning slaves while serving in the White House. The nation continues to scrub the constitutional stain of our Republic’s ‘peculiar institution;’ the arcane Electoral College is but one example.

B. State Legislatures Determine Elector Selection Method: A Legislature May Still Directly Appoint Elector Slates – Even After an Election

Just as the 1787 Constitution gave state legislatures power to directly choose and appoint U.S. Senators (prior to ratification of the Seventeenth Amendment requiring direct election[65]), Article II, Section 1 gives state legislatures authority to select and appoint the state’s presidential Electors. Indeed, the first Presidents were primarily selected by such directly appointed Electors. In Bush v. Gore, the U.S. Supreme Court in 2001 reaffirmed this constitutional truth:

The individual citizen has no federal constitutional right to vote for Electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College . . . . The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint Electors.[66]

Over time, state legislatures have chosen, through state statute, to dispense to their citizenry the power to select the Electors through popular elections. American citizens in the U.S. Territories are not allowed to participate in the Electoral College. [67] It was not until 1872, however, that all states used a statewide popular vote to choose Electors. Colorado’s legislature was the last holdout to devolving the power to the people. However, each state legislature today retains the federal constitutional authority to return to the direct appointment of presidential Electors. What a state legislature giveth in franchise exercise it can taketh away – even after a November 2016 election result. And there is ample time for such an Elector-appointment mulligan as the Electoral College will not meet in their respective states to cast their vote until December 14, 2016.

C. Forty-Eight States and D.C. Use a “Winner-Take-All” Tabulation Method

In presumptively granting their state’s citizenry a vote in selecting Electors, most states and the District of Columbia have implemented a plurality winner-take-all tabulation method.[68] The candidate that receives the largest plurality percentage of votes is awarded all the Electors. There is no minimum plurality required. In a very close five-person contest, the presidential candidate receiving even a twenty percent plurality victory would be awarded all the state’s Electors. Only Maine and Nebraska use a system for proportional distribution of Electors by congressional district. Nebraska Republicans tried, but failed again, in March 2015, to switch the state to a winner-take-all system.[69] The Electoral system has resulted four times in a disconnect between the total national popular vote and the Electoral winner. In 2000, for example, Al Gore won the popular vote, but lost (after the U.S. Supreme Court’s Florida intervention) the Electoral College tabulation.

D. Free-Agent Electors; Independent Constitutional Actors Who Are “Outsiders”

The 1787 Framers envisioned a system by which the most respected and informed citizens of each State would choose the Chief Executive based on merit and without regard to faction or party. The only restriction in the selection of an Elector is that the person cannot be a member of Congress or a federal official: “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”[70] Thus the Framers can be seen as originating the concept of an “outsider” election. The Elector, one appointed or selected, is an exceptionally-insulated constitutional actor. Not an “officer,” the Elector is not subject to impeachment removal. Thus our contemporary 538 Electors have constitutional freedom to vote their conscience on December 14, 2016 regardless of any prior party or candidate pledge.[71] The only restriction on the validity of an Elector’s vote is that the person who the Elector chooses for President (and for Vice President) must be constitutionally eligible for presidential office – e.g., natural born, no more than two full terms, at least 35 years old, and a recent U.S. resident for 14 years.[72] The Electors are free to vote for any constitutionally qualified individual[73] – regardless of whether the person had campaigned for President.

In this peculiar season of “outsider” candidates and celebrity politics, the Electoral College choice could be any constitutionally qualified sports figure, musician, reality television star, or Hollywood actor. A so-called faithless Elector pledged to vote for Donald Trump, for example, could instead vote for [anti-actor] Billy Bob Thornton, of Sling Blade and Primary Colors fame. He was born in Hot Springs, Arkansas 60 years ago and lives peacefully with spouse and child in California. (But there could be no antique furniture or heavy silverware in a Thornton White House.) Although perhaps awkward for President Thornton to have an ex-spouse as his Vice President, but the star-crossed Electors could select Angelina Jolie, born in Los Angeles, California 40 years ago) for the number two position. (Is Angelina Jolie not an exponentially better Vice Presidential choice than Sarah Palin was?) Thornton’s ex-father-in-law, Jon Voight, would be an obvious choice for an appointment as Ambassador to Israel.[74]

Or “faithless” Electors pledged to vote for Donald Trump could instead vote for Chelsea Clinton (who was born in Little Rock, Arkansas 36 years ago) — but not for Bill Clinton (who is term limited). A faithless (a/k/a free agent) Elector pledged to Hillary Clinton could instead vote for Donald Trump or his children Ivanka Trump or Donald Trump, Jr. – but not for Trump’s loyal first spouse Ivana Zelníčková Trump (foreign-born in the Czech Republic), his present wife Melania Knauss Trump (foreign-born in Slovenia), or his children Eric Trump, Tiffany Trump, or Baron Trump (each under 35 years of age). In the spirit of selecting a former first lady as President, Electors could vote for Laura Bush or Michelle Obama – but not for George W. Bush or Barack H. Obama (like Bill Clinton, both men are term limited). And, although particularly bad form, an Elector could even vote for herself.   Not argumentum ad absurdum but rather the actual operations of our Electoral College.

Twenty-six states have enacted modest penalties for an Elector breaking their party pledge to exercise their constitutional freedom of choice; however, no Elector has ever been prosecuted for failing to vote as pledged.[75] And even if there were significant penalties to pay, such state law violations would not impact the constitutional legitimacy of the free-agent Elector’s vote. On December 14, 2016, the 538 Electors, meeting in each of their respective states, will cast their votes. The votes are then sealed and transmitted to the President of the Senate (the Vice-President)[76] who will wait until the newly-elected, 115th Congress is assembled on January 7, 2017 to open and read the results in a joint congressional session. Thus it was Vice-President Dick Cheney who announced the results of Barack Obama’s selection by the Electoral College in January 2009, and Vice President Al Gore who announced George W. Bush’s selection (first by the five Republican appointees on the Supreme Court and then) by the Electoral College in January 2001. However, Vice President Joe Biden will announce the name of the 45th President on January 7, 2016 only if that person has received at least 270 votes from Electors.[77] In a robust, multi-candidate general election that Elector College majority vote is far less that a certainty.

E. Fallback Selection System: House Chooses a President and Senate Chooses a Vice President

The Constitution requires that the new President receive an absolute majority of the Electoral votes cast. The 538 Elector College members are — in constitutional law and political fact – the only Americans who really vote for President unless they fail to reach a majority result. If no individual obtains a majority, or if there is a tie, the U.S. House of Representatives selects the President from among the top three Electoral vote-getters – with each state allowed to cast only one vote.[78] Assuming all states participate in this grossly malapportioned exercise, it would thus takes 26 states’ votes to be selected. Meanwhile, the U.S. Senate selects the Vice President, but only from the top two candidates. It is thus possible for Congress to select a President and Vice President of different parties or independent affiliations. If the two houses do not do their job on January 20, the Speaker of the House temporarily becomes President.[79] Of course, after a November election result indicates that the selection of pledged Electors would not result in an Electoral majority, state legislatures would still have several weeks to rescind the popular election results and directly appoint other slates of Electors. And, as discussed further below, any candidate or Super PAC would have similar time to directly engage with pledged Electors before they cast their votes on the Wednesday after the second Monday in December.

Part II: Donald Trump, Hillary Clinton, Joe Biden, and Other Candidates Study the Electoral College; So Should Commentators and the Media

As Donald Trump will tell anyone – he is very, very rich because he’s very, very smart. His Wharton School of Finance degree is frequently mentioned. And, few Americans would doubt the off-the-charts quotient resulting from combining Hillary Rodham and Bill Clinton’s exceptional intelligence. Both Hillary and The Donald have always known that they are competing in a state-by-state presidential selection process – based on a winner-take-all formula in forty eight states. And the math of that system is loaded with combinations of variables.

In a multi-candidate general election, it is a plurality pathway through the Electoral College campus that leads to the White House gates. Hillary remembers well that when her spouse ran against both George H.W. Bush and Ross Perot in 1992, Bill Clinton received only 43 percent of the popular vote, yet tallied 370 Electoral votes. In a tight November three-person contest, victory would be possible with only a 34 percent plurality vote in select states. An unintended consequence from a very competitive multi-party race is that the fall 2016 campaign would be much more national in scope. Many additional states would be put in play if red and blue did not pre-decide the contest.[80] In a robust multi-candidate general election race, Hillary Clinton would become competitive in many more purple and red states. In such a race, Trump could helicopter deep into the deeper shades of blue in search of Electoral votes.

Any candidate’s high unfavorable ratings would be substantially mitigated by a multi-candidate race.[81] Even before Donald Trump signed the September “pledge” to support the Republican nominee, GOP leaders publicly discounted the possibility of an independent Trump campaign.[82] His surprise break from the Republican Party would certainly be counter-intuitive if Trump was doing well in early primary states, which is exactly why the move would be seen as such a disruptive innovation. If timed perfectly, Trump would neither be a sore-loser or a sore-winner. The self-financed Donald Trump could simply announce that it was in the best interest of the country that its next President be completely free of all partisan affiliation, Super PAC, dark-money, and special interest entanglements.[83]

Trump, or any candidate contemplating an independent candidacy would need launch the ballot access effort by Spring 2016 at the latest, however. Each state has its own independent candidate filing deadline and petition signature requirements.[84] These dates and signature requirements are subject to revision by state partisans but they are also subject to constitutional inspection. In Anderson v. Celebrezze,[85] the Supreme Court ruled that mid-March of the election year was too early for a state’s presidential filing deadline. With a May 9 filing deadline, Texas is pushing the constitutional limit with the nation’s earliest cut-off date; North Carolina and Nevada have the next most restrictive dates with July deadlines. Yet, 37 states extend their deadlines into August or September.[86] The number of signatures required for an independent to gain ballot access also varies widely – ranging from 275 in Tennessee, to 40, 047 in Oklahoma, to178, 039 in California.[87]

Another option for a potential independent candidate would be to attempt to claim (i.e., through financial incentivizes) the nomination of a sympathetic minor party with pre-existing ballot access — such as the Constitution Party which is on the ballot in 14 states and will pick its nominee by convention in April 2016.[88] The candidate could then secure ballot access in the remaining 37 jurisdictions. As long as an independent candidate carefully meets the strict filing deadlines, he can likely gain independent ballot access through professional signature collection in most, if not all, states.[89]

Taking a page out of George C. Wallace’s 1968 independent-candidacy playbook, the challenge of overcoming the state-by-state hurdles to gain national ballot access might be used by an independent candidate to generate deeper grassroots support. [90] Securing ballot access in the various states will be far less difficult for an independent than forcing the major-party dominated Commission on Presidential Debates to allow fall debates.[91] It is important to again note that an independent candidate would likely become competitive in select states where an established minor-party – such as Libertarian or Green Party — candidate was added to the mix.[92] Irrespective of any legitimate independent campaign, dark-money and Super PAC skullduggery might support select minor party efforts in order to shave a couple of percentage points off a given opponents’ popular vote tally on a state-by-state basis.[93]

Again, Trump, Clinton and all other candidates will certainly be studying the Electoral college in more detail over the next months. It is now incumbent on commentators, traditional media and new digital information sources to engage in a crash course on our Republic’s peculiar presidential selection systems. This dynamic, unusual presidential election season presents a unique opportunity for all media to educate a substantial number of Americans about the workings of the antiquated, malapportioned Electoral College, as well as to introduce them to alternative proposals for its replacement with a national popular election. In a strange way, Trump’s 2012 election night Tweet was spot on – the Electoral College is “a disaster for a democracy … a total sham and a travesty.”[94]

Part III: Historic Disruptive Innovation of the Electoral College: Post-November Election Strategy from Billionaire Trump and Citizens United Spawned Super PACs and Non-Traceable Dark Money.

Donald Trump is already credited by some with having altered American presidential politics.[95] If he either launches an independent campaign or takes the Republican nomination, Trump’s boldest move might come just before– or just after — November 8, 2016. Would Trump dare lobby state legislatures to take the selection of the state’s Electors away from the voters? Would other candidates and various Citizen United[96] spawned Super PACs and dark-money nonprofits follow suit? Again, the U.S. Constitution gives exclusive power to state legislature over Electoral appointment methods. Again, Donald Trump is on record for harsh criticism of the Electoral College. His argument would be that as long as that is the law setting the electoral rules, he is entitled to use and seek benefit from the law of the land.

Any state legislature could preemptively cancel or ex post void the results of the November election and directly appoint their state’s Electors.[97] The Supreme Court in Bush v. Gore was explicit: “The “State[s], of course, after granting the franchise in the special context of Article II, can take back the power to appoint Electors.”[98] A state legislature taking such a bold action could reference the numerous law professors who have been promoting the “National Popular Vote Compact” as an Electoral College workaround; the project is based on the truth that state legislatures retain plenary authority for direct appointment of Electors.[99]

And in a very close Elector contest, it would be bolder still for Trump to directly engage all free-agent Electors in negotiations for their December vote. In his Art of the Deal, Donald Trump explains that he just “likes making deals, preferably big deals.”[100] An Electoral College deal involving negotiations with pledged-Electors would be the biggest political bargain in the constitutional history of the Republic. Any candidate’s direct Elector engagement would be bold, radical, and controversial (especially if financial incentives were disclosed) but it would be absolutely constitutional.[101] There have been over 150 Electors who have broken their pledge and exercised their free agent franchise constitutional right. In one presidential election, 23 Virginia Electors went faithless as a block.[102] Any and all of the 538 Electors may vote their constitutional conscience without regard to party pledge or state law restriction. Again, the Constitution’s Framers main restriction on Electors is that they be “outsiders” with no Senators, Representatives, or other office holders holding the unique constitutional position. The Framers also intended for these “outsider” Elector freedom of conscience to vote for whomever they wanted. However, an effort by Trump, or any other candidate, to entreat or even incentivize Elector switching would likely cause opposition candidates, Super PACs, and dark-money nonprofits to attempt similar friendly persuasion.[103] Perhaps it will take just such fundamental disruptive innovation of the Electoral College to lead to its replacement with a national popular vote. Only then would all American voters be enfranchised to cast a true ballot for our nation’s President.

Conclusion

In direct correlation to the established political order’s past decade of partisan dysfunction and incompetence, the political season of 2016 is proving to be strange and unprecedented as outsiders dominate. Non-politicians Republicans are doing quite well, and independent Senator Bernie Sanders, who has long been outside the established political norm, is also having unexpected success. The November 2016 general election is likely to involve multi-candidate general election state ballots with at least one competitive independent and several relatively strong minor party candidates. If his high unfavorable ratings do not decline, such a multiple-candidate general election is Donald Trump’s most certain way to secure a multi-year lease on the 1600 Pennsylvania Ave real estate in Washington, D.C. that he seeks to redevelop. And a multi-candidate general election race would certainly boost the Democratic nominee’s prospects in select red and purple states. Only a nationally-unifying candidate who is both politically experienced and able to authentically connect with the angry and dispossessed silent majority would have opportunity to win a majority victory in a multi-candidate contest.

Regardless of how many candidates’ names appear on the states’ November ballots and/or what the result is of each state’s popular-vote count, each state legislature will retain the constitutional option to directly appoint their state’s slate of Electors. Whether selected by state popular vote or directly appointed by a state legislature, it is only those 538 Americans, who hold the unique constitutional office of Elector; it is only those Americans who have a real vote to select our 45th President in 2016. Although each such Elector is pledged to a specific candidate or party’s nominee, the unique constitutional officer has the legal authority to vote for any (constitutionally qualified) person that they choose. Will there be historic post-November election negotiations with these Electors? The real presidential election does not take place until December 14, 2016 when the appointed or selected Electors vote in their respective states. In this most peculiar of election seasons, will candidates and their non-coordinating Super PACs seek to directly engage with Electors to ask – and even negotiate with — these 538 individuals for their December vote?

And if the ultimate Electoral College vote fails to give a majority (270 votes) to a candidate, it will be the 115th U.S. House (with each state only having one vote) which will select the President (from the top three electoral vote getters.) Meanwhile, the equally-malapportioned Senate will select the Vice-President (from the top two electoral candidates). The 2016 election year may be the beginning of the end for the antiquated, malapportioned Electoral College –described by Donald Trump November 2012 tweet as “a disaster for a democracy … a total sham and a travesty.”[104]

[1] Assistant Clinical Professor, Catholic University of America’s Columbus School of Law; Founder, www.DisruptiveJustice.org. B.A., Ouachita Baptist University; M.A.T., National College of Education; Ed.M., Harvard University; J.D., University of California-Hastings College of the Law; LL.M., Columbia University School of Law; LL.M. in Law and Economics, George Mason University School of Law. The author expresses sincere thanks to Nicola Eva Sanchez and Isabella Sanchez-Williams for their loyal support during this project.

[2] See Gil Troy, The Nine Lives of Hillary Clinton, Daily Beast (Apr. 4, 2015 6:45 AM), http://www.thedailybeast.com/articles/2015/04/04/the-nine-lives-of-hillary-clinton.html (highlighting Clinton’s political history).

[3] Scott Conroy, In Arkansas, Hillary Clinton’s Legacy Remains Potent, Huffington Post (May 11, 2015 4:11 PM), http://www.huffingtonpost.com/2015/05/11/hillary-clinton-arkansas_n_7258956.html. As a born and bred Arkansan, this Author witnessed Hillary Clinton reform and improve Arkansas’ public education systems during her time as the state’s First Lady.

[4] Eleanor Clift, Square Deal, New Deal, and Now, from Hillary Clinton, a “Fair Shot,Daily Beast (Sept. 19, 2014 5:45 AM), http://www.thedailybeast.com/articles/2014/09/19/square-deal-new-deal-and-now-from-hillary-clinton-a-fair-shot.html.

[5] See generally, Amy Chozick, Hillary Clinton To Show More Humor and Heart, N.Y. Times, Sept. 8, 2015, http://www.nytimes.com/2015/09/08/us/politics/hillary-clinton-to-show-more-humor-and-heart-aides-say.html and Nate Silver, Hillary Clinton is Stuck in a Poll-Deflating Feedback Loop, FiveThirtyEight, Sept. 17, 2015, http://fivethirtyeight.com/features/hillary-clinton-is-in-a-self-reinforcing-funk/. But see, Ryan Bort, Hillary Clinton Mocks Trump, Talks Email on ‘The Tonight Show,’ Newsweek, Sept. 17, 2015, http://www.newsweek.com/hillary-clinton-tonight-show-jimmy-fallon-373266.

[6] Ashley Parker, Trump’s Campaign Hat Becomes an Ironic Summer Accessory, N.Y. Times, (Sept. 11, 2015), http://www.nytimes.com/2015/09/13/fashion/trumps-campaign-hat-becomes-an-ironic-summer-accessorcy (noting slogan appeals to emotional, not policy, preferences); EL Donald: In Europe Donald Trump Would Have his Own Party and Seats in a Parliament, The Economist, July 25, 2015, available at http://www.economist.com/news/united-states/21659724-europe-donald-trump-would-have-his-own-party-and-seats-parliament-el-donald (observing Trump’s anti-politician support).

[7] Any favorable comparison of Trump to Ronald Reagan is rejected by many of the 40th President’s faithful. See e.g., Elizabeth Ralph, Look in the Mirror Fat Boy: Ronald Reagan’s Sons Discuss Donald Trump and the 2016 Election, Politico, Sept. 17, 2015, http://www.politico.com/magazine/story/2015/09/reagan-sons-interview-donald-trump-213149.

[8] See Jody Carlson, George C. Wallace and the Politics of Powerlessness: The Wallace Campaigns for the Presidency 6 (1981) (“Wallace is a master at knowing how to feel out and exploit discontent”).

[9] See David Sherfinski, Graham: Trump Has Consolidated Birthers, Those Who Believe Obama is Muslim, Wash. Times, Sept. 2, 2015, http://www.washingtontimes.com/news/2015/sep/2/lindsey-graham-donald-trump-consolidated-birthers/ and

[10] See generally, Jamelle Bouie, Trump’s Not Done Yet, Slate (July 21, 2015 2:45 PM), http://www.slate.com/articles/news_and_politics/politics/2015/07/donald_trump_doxes_lindsey_graham_insults_john_mccain_why_his_latest_antics.html (discussing Trump’s base).

[11] See Caitlin Cruz, Ben Stein, Ben Stein: Trump Is George Wallace But ‘Without George Wallace’s Charm’, TPM, July 14, 2005, http://talkingpointsmemo.com/livewire/ben-stein-donald-trump-george-wallace. In his later life, however, Wallace recanted and apologized for his racist rhetoric. Still the comparison holds.

[12] Trump’s glass-bottom Id is ratings gold: CNN charged record prices for commercials during the second GOP debate which the network expanded to three hours. See Curt Mills, CNN Charging Forty Times Normal Ad Rates for GOP Debates, Wash. Examiner, Sept. 2, 2015, http://www.washingtonexaminer.com/cnn-charging-40-times-normal-ad-rates-for-gop-debate/article/2571302.

[13] See Chris Moody and Kristen Holmes, Donald Trump’s History of Suggesting Obama is a Muslim, CNN, Sept. 18, 2015, http://www.cnn.com/2015/09/18/politics/trump-obama-muslim-birther/index.html.

[14] Katie Sola, Most Conservative Republicans Still Don’t Think Climate Change Is Happening, Poll Finds, Huffington Post, Apr. 22, 2015, http://www.huffingtonpost.com/2015/04/22/republicans-climate-change_n_7119158.html.

[15] See Victor Williams, Raze the Debt Ceiling: A Test Case for State-Sovereign and Institutional Bondholder Litigation to Void the Debt Limit Statute, 72 Wash. & Lee Law Rev. Online 96 (2015), available at SSRN: http://ssrn.com/abstract=2648302.

[16] See Colin Campbell, “My god, stop being so thin-skinned!: Joe Scarborough Just Had an Incredible Donald Trump Interview, Bus. Insider (July 24, 2015 8:35 AM), http://www.businessinsider.com/joe-scarborough-donald-trump-thin-skinned-2015-7.

[17] Even when Trump goes too far with his invective, such as with his John McCain is “no war hero” reaction to Senator McCain’s referencing Trump supporters as “crazies,” the “thin skinned” response strategy has been successful.

[18] See John Heilemann, What I Learned from Trump’s Supporters, Bloomberg (July 30, 2015 9:02 AM), http://www.bloomberg.com/politics/articles/2015-07-30/what-i-learned-from-donald-trump-s-supporters (discussing impact of Trump’s business success on supporters).

[19] Kevin Liptak, Joe Biden: Trump’s Sick Message is Xenophobic, CNN Politics, Sept. 16, 2015, http://www.cnn.com/2015/09/15/politics/joe-biden-donald-trump-hispanic-voters/index.html and Juliet Eilperin, Speaking to Latinos, Biden Takes on Trump, Wash. Post, Sept. 16, 2015, http://www.washingtonpost.com/news/post-politics/wp/2015/09/16/speaking-to-latinos-biden-takes-on-trump/.

[20] Russell Berman,   Is Joe Biden Running for President?, Atlantic, Mar. 9, 2015, http://www.theatlantic.com/politics/archive/2015/03/is-joe-biden-running-for-president/387115/

[21] See generally, Mike Barnicle, Authentic Biden vs. Mystery Hillary, Daily Beast, Aug. 2, 2015, http://www.thedailybeast.com/articles/2015/08/02/who-would-president-joe-biden-be.html

[22] See Steve Komaki, Joe Biden, The Natural, Observer, August, 2008, http://observer.com/2008/08/joe-biden-the-natural/.

[23] See Peter Nicholas, Hillary Clinton Takes Sharper Tone in Criticizing Donald Trump, Wall St. J., July 14, 2005, http://www.wsj.com/articles/hillary-clinton-takes-sharper-tone-in-criticizing-donald-trump-1436835226 and Adam B. Lerner, Hillary Clinton: Donald Trump’s Racial Rhetoric ‘Not Acceptable,’ Politico, June 19, 2015, http://www.politico.com/story/2015/06/hillary-clinton-donald-trump-racist-speak-119210.

[24] See Nick Gass, Hillary’s Favorability Numbers Have Gone Underwater, Politico, Sept. 2, 2015, http://www.politico.com/story/2015/09/poll-hillary-clinton-2016-favorability-213251 and Chris Cillizza, Hillary Clinton: As Honest and Trustworthy as Donald Trump, Wash. Post (July 30, 2015), http://www.washingtonpost.com/news/the-fix/wp/2015/07/30/voters-want-someone-who-is-honest-and-trustworthy-in-2016-they-dont-think-thats-hillary-clinton/.

[25] See Steven Shepard, Trump Surging in New Hampshire, Iowa: His Unfavorability Ratings Also Remain Very High, Politico (July 26, 2015 9:00 AM), http://www.politico.com/story/2015/07/donald-trump-new-hampshire-iowa-120628.html and Nick Glass, Hillary Clinton Unfavorable Numbers Highest in 14 Years, Politico (last updated June 2, 2015 9:39 AM), http://www.politico.com/story/2015/06/poll-hillary-clinton-unfavorable-numbers-118532.html.

[26] See Victor Williams and Alison MacDonald, Rethinking Article II, Section 1 and Its Twelfth Amendment Restatement: Challenging our Nation’s Malapportioned, Undemocratic Presidential Election Systems, 77 Marq. L. Rev. 201 (1994).

[27] See Jonathan Martin & Maggie Haberman, Hillary Clinton Traces Friendly Path, Troubling Party, N.Y. Times, June 6, 2015, http://www.nytimes.com/2015/06/07/us/politics/hillary-clinton-traces-friendly-path-troubling-party.html?_r=0\ (noting problems Clinton may have appealing only to her base).

[28] Rick Perry who harshly criticized Donald Trump as a “cancer on conservatism” was the first GOP contender to leave the primary race. Jonathan Easley, Perry Drops Out of GOP Race, The Hill, Sept. 11, 2015, http://thehill.com/blogs/ballot-box/presidential-races/253437-perry-suspends-campaign.

[29] Averages of Hillary Clinton’s poll results are available at http://elections.huffingtonpost.com/pollster/hillary-clinton-favorable-rating and Donald Trump’s ratings are available at http://elections.huffingtonpost.com/pollster/donald-trump-favorable-rating. Electoral College graduate Joe Biden’s numbers are available at http://elections.huffingtonpost.com/pollster/joe-biden-favorable-rating.

[30] In a late July 2015 national poll, more than six in ten women viewed Trump unfavorably. John King, Donald Trump’s Achilles Heel, CNN, July 31, 2015, http://www.cnn.com/2015/07/31/politics/donald-trump-voter-numbers/.

[31] See generally, Zachary Warmbrodt, Trump Leaves Door Open to Third Party Run, Politico (Aug. 2, 2015 12:04 PM), http://www.politico.com/story/2015/08/trump-leaves-door-open-to-third-party-run-120908.html; Kevin Cirilli & Bob Cusack, Exclusive: Trump Threatens Third Party Run, The Hill (July 23, 2015 6:00 AM), http://thehill.com/homenews/campaign/248910-exclusive-trump-threatens-third-party-run; and Michael Barbaro, Maggie Haberman, & Jonathan Martin, Can’t Fire Him: Republican Party Frets Over What to Do with Donald Trump, N.Y. Times (July 9, 2015), http://mobile.nytimes.com/2015/07/10/us/politics/donald-trump-republican-party-debate.html?ref=politics&_r=3&referrer.

[32] See Jessica Taylor, Trump: I’m ‘Totally Pledging’ My Allegiance To The Republican Party, NPR, Sept. 3, 2015, http://www.npr.org/sections/itsallpolitics/2015/09/03/437198983/will-donald-trump-really-back-down-from-a-third-party-threat .

[33] See Sarah Caspari, What If Trump Runs as an Independent Candidate?, Christian Sci. Monitor (July 23, 2015), http://www.csmonitor.com/USA/Politics/2015/0723/What-if-Donald-Trump-runs-as-an-independent-candidate.

[34] Mark Hensch, Bill Kristol Would Back Third Party Over Trump, The Hill, Sept. 15, 2015, http://thehill.com/blogs/ballot-box/presidential-races/253675-bill-kristol-would-back-third-party-over-trump

[35] See Jonathan Swan, Club for Growth Launches Campaign Against Trump, The Hill, Sept. 15, 2015, http://thehill.com/blogs/ballot-box/presidential-races/253655-club-for-growth-launches-campaign-against-trump.

[36] See generally, Jane Hampton Cook, How Often Do Americans Elect Political Outsiders To the Presidency, The Hill, Sept. 2, 2015, http://thehill.com/blogs/pundits-blog/presidential-campaign/252557-how-often-do-americans-elect-political-outsiders-to and Ben Kieffer and Katherine Perkins, 2016: The Year of the Outsider?, Iowa Public Radio, Sept. 4, 2015, http://iowapublicradio.org/post/2016-year-outsider.

[37] Neil Epstein, Ben Carson Says a Muslim Shouldn’t Be President, Wall St. J., Sept. 20, 2015, http://blogs.wsj.com/washwire/2015/09/20/ben-carson-says-a-muslim-shouldnt-be-president/.

[38] Nick Gass, Carson Will Not Apologize for Muslim Remark, Politico, Sept. 21, 2015, http://www.politico.com/story/2015/09/ben-carson-muslim-president-no-apology-213871.

[39] Jonathan Easley, Carson Doubles-Down on No Muslims in the White House, The Hill, September 20, 2015, http://thehill.com/blogs/ballot-box/presidential-races/254330-carson-doubles-down-on-no-muslims-in-the-white-house.

[40] U.S. Const. Art. VI.

[41] U.S. Const. Amend. I.

[42] Gospel of Mathew, Ch. 7, Verse 15 (New International Version).

[43] See Phillip Rucker, It’s Not Just Trump: Voter Anger Fuels Outsider Candidates, Wash. Post, Aug. 12, 2015, http://www.washingtonpost.com/politics/its-not-just-trump-voter-anger-fuels-outsider-candidates/2015/08/12/cd3fdb06-40f8-11e5-846d-02792f854297_story.html.

[44] See Jennifer Jacobs, Q and A With Bernie Sanders: What He Means By Socialism, Sept. 20, 2015, http://onpolitics.usatoday.com/2015/07/08/qa-with-bernie-sanders-what-he-means-by-socialism/.

[45] See John Nichols, Bernie Sanders Offers GOP Debaters a Tutorial on Democratic Socialism, The Nation, Sept. 18, 2015, http://www.thenation.com/article/bernie-sanders-offers-gop-debaters-a-tutorial-on-democratic-socialism/.

[46] Gina Chon and Demetri Sevastopulo, Sanders Tries to Broaden Support in White House Bid, Fin. Times, Sept. 20, 2015, http://www.ft.com/cms/s/0/fc9fd43a-5e41-11e5-9846-de406ccb37f2.html#axzz3mKPmaJlA.

[47] Tina Nguyen, Lawrence Lessig Imagines the Worst Possible Outcome of a Trump Presidency, Vanity Fair, Sept. 18, 2015, http://www.vanityfair.com/news/2015/09/lawrence-lessig-donald-trump-super-pac-interview.

[48] See generally, Sanford Levinson, John McGinnis, and Daniel H. Lowenstein, Debate: Should We Dispense with the Electoral College, 156 U. Pa. L. Rev. PENNumbra 10 (2007), http://www.pennlawreview.com/debates/index.php?id=8. (debating necessity of Electoral College in a democracy).

[49] See Dan Balz, No Rest for the Candidates in this Summer of Discontent, Wash. Post. (July 25, 2015), http://www.washingtonpost.com/politics/a-summer-of-political-discontent-has-most-presidential-aspirants-scrambling/2015/07/25/591f6b84-32d8-11e5-8353-1215475949f4_story.html (discussing how voter discontent will remain in the general election).

[50] The term “Electoral College” is not a term or concept found in the Constitution. Yet it has been used consistently since the earliest presidential elections to describe the state-by-state process by which specially appointed constitutional actors—Electors—vote to select the President. Since the Electoral College was first used to select George Washington (twice), and tweaked after the election of 1800 was defaulted into the House, there have been over 700 congressional measures introduced to reform or eliminate the presidential selection systems.

[51] Alicia M. Cohn, Trump Calls for Revolution, Blasts Electoral College, The Hill, Nov. 7, 2012, http://thehill.com/blogs/twitter-room/other-news/266423-trump-calls-for-revolution-blasts-Electoral-college. The Tweet is still available at https://twitter.com/realdonaldtrump/status/266038556504494082 (last visited Sept. 19, 2015).

[52] For a practical descriptive application of Electors’ free agency, see Alexander S. Belenky, Who Will Be the Next President?: A Guide to the U.S. Presidential Election System 78 (2013), available at https://books.google.com (search for book’s title).

[53] See generally, Alfred Dennis Mathewson, A Sports Seminar with a Free Agent Market Exercise, 18 Marq. Sports L. Rev. 337, 339 (2008), available at http://scholarship.law.marquette.edu/sportslaw/vol18/iss2/5 (quoting rules for a free-agency negotiation exercise).

[54] Jessica Chasmar, Donald Trump Changed Political Parties at least Five Times: Report, Wash. Times (June 16, 2015), http://www.washingtontimes.com/news/2015/jun/16/donald-trump-changed-political-parties-at-least-fi/.

[55] Alicia M. Cohn, Trump Calls for Revolution, Blasts Electoral College, The Hill, Nov. 7, 2012, http://thehill.com/blogs/twitter-room/other-news/266423-trump-calls-for-revolution-blasts-Electoral-college. The Tweet is still available at https://twitter.com/realdonaldtrump/status/266038556504494082.

[56] Having grown up in Arkansas under the shadow of political giants like John Little McClellan, J. William Fulbright, Winthrop Rockefeller and Bill Clinton, this author repeatedly learned that a candidate must remember—at any event and at the end of the campaign —“to always ask the folks for their vote.” Under our Electoral College system, the 538 Electors are the only “folks” with true votes.

[57] About Trump Tower New York, available at http://www.trumptowerny.com/about (last visited Sept. 12, 2015).

[58] What is the Electoral College?, National Archives ,available at, http://www.archives.gov/federal-register/Electoral-college/about.html.

[59] Id.

[60] Id.

[61] See Victor Williams Alison MacDonald Rethinking Article II, Section 1 and Its Twelfth Amendment Restatement: Challenging our Nation’s Malapportioned, Undemocratic Presidential Election Systems, 77 Marq. L. Rev. 201 (1994).

[62] Id. The Framers’ most obvious capitulation to the slaveholder special interest was the provision that Congress was prohibited for twenty years (until 1808) from banning the importation of slaves. This guarantee that was chained to a “never amend” provision. Article V, which establishes the amendment process, states: “provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article.” U.S. Const. Art. V. The oblique language correctly hints that a majority of the 1787 Framers were lawyers. And it is well established that almost half of the Framers were slave-masters.

[63]Id. Article I, Section 2 states “Representatives …shall be determined by adding to the whole number of free persons . . . and . . . three fifths of all other Persons.” U.S. Const. Art. I, Sec 2.

[64] Id. See also Slave Holding Presidents, Hauenstein Center, available at http://hauensteincenter.org/slaveholding/

[65] See U.S. Const. Amend. XVII.

[66] Bush v. Gore, 531 U.S. 98, 104 (2000).

[67] See Victor Williams, Recast the Vote: Puerto Rico’s (temporary?) Entrance into the Electoral College, Legal Times, Oct. 2, 2000 at 86.

[68] Devin McCarthy, How the Electoral College Became Winner-Take-All, Fair Vote, Aug. 22, 2012, http://www.fairvote.org/research-and-analysis/blog/how-the-Electoral-college-became-winner-take-all/

[69] Paul Hammel, Winner-Take-All Electoral Vote Bill Fails Again in Nebraska Legislature, Omaha World Herald, Mar. 17, 2015, http://www.omaha.com/news/legislature/winner-take-all-Electoral-vote-bill-fails-again-in-nebraska/article_cbf16214-ccc3-11e4-8a03-8bc57b862824.html

[70] U.S. Const. Art. II, Sec. 2, Cl 5.

[71] See Vasan Kesavan, The Very Faithless Elector, 104 W. Va. L. Rev. 123 (2001), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=607121

[72] See Sarah Helene Duggin and Mary Beth Collins, Natural Born in the U.S.A.: The Striking Unfairness and Dangerous Ambiguity of the Constitution’s Presidential Qualifications Clause and Why We Need to Fix It, 85 B. U. L. REV. 53 (2005), http://scholarship.law.edu/scholar/126/.

[73] As an often overlooked restriction, Electors must vote for at least one candidate (of the President and Vice-President separate ballots, from a state other than their own. This is why presidential nominees choose vice-presidential running mate from a state different that his own.

 

[74] Colon Goreinstein, Like Making “a Peace Deal with Hitler”: Oscar-winner Jon Voight Freaks Out at Obama, Salon, Mar. 16, 2015, http://www.salon.com/2015/03/16/like_making_a_peace_deal_with_hitler_oscar_winner_jon_voight_freaks_out_at_obama/.

[75] Questioning the enforceability of restrictions on Elector choice, Yale Law Professor Akhil Amar has written that “the constitutionality of such laws seems highly dubious if we consult constitutional text, history, and structure.” Akhil Reed Amar, Presidents, Vice Presidents, and Death: Closing the Constitution’s Succession Gap, 48 Ark. L. Rev. 215, 219 (1994).

[76] Copies of the votes are also sent to the secretary of state of the respective state; the Archivist of the United States; and to a local federal district judge. See U.S. Const. Amend. XII.

[77] The Constitution requires “a majority of the whole number of Electors appointed.” U.S. Const. XXII Amend.

[78] See William Josephson, Senate Election of the Vice President and House of Representatives Election of the President, 11 U. Pa. J. Const. L. 597 (2009). Available at: http://scholarship.law.upenn.edu/jcl/vol11/iss3/3.

[79] See Electoral College, FairVote, available at http://www.fairvote.org/reforms/national-popular-vote/the-Electoral-college/

[80] For a representative analysis of the race without an independent candidate, see Larry J. Sabato, Kyle Kondik, and Geoffrey Skelly, The 2016 Results We Can Already Predict, Politico, May 3, 2015, http://www.politico.com/magazine/story/2015/05/2016-predictions-117554.html#.Vbpt9PmduSo.

[81] See Aaron Blake and Scott Clement, Donald Trump’s Severe Unpopularity, Visualized, Wash. Post, July 9, 2015, http://www.washingtonpost.com/news/the-fix/wp/2015/07/09/donald-trump-is-about-as-unpopular-as-vladimir-putin/, and See Steven Shepard, Donald Trump Surges, Jeb Bush Third in New National Poll, Politico, July 30, 2015, http://www.politico.com/story/2015/07/donald-trump-surge-jeb-bush-slump-2016-poll-120795.html?ml=po.

[82] See David Jackson, GOP Chairman Doubts Trump Will Run Third Party, USA Today, July 27, 2015, http://onpolitics.usatoday.com/2015/07/27/gop-chair-doubts-trump-will-run-third-party/.

[83] See generally, Andrew Prokop, The Citizens United Era of Politics and Money Explained, VOX, July 15, 2015, http://www.vox.com/cards/super-pacs-and-dark-money/what-is-the-citizens-united-decision-citizens-united-v-fec.

[84] A list to-date of state presidential filing deadlines and updated signature requirements for the 2016 season is available. See Richard Winger, 2016 Petitioning for President, Ballot Access News, July 30, 2015, http://ballot-access.org/2015/07/30/july-2015-ballot-access-news-print-edition/.

[85] Anderson v. Celebrezze, 460 U.S. 780, 792-97 (1983), https://supreme.justia.com/cases/federal/us/460/780/case.html

[86] See Richard Winger, Texas Has the Most Obviously Unconstitutional Deadline for Independent Presidential Candidates, Ballot Access News, July 17, 2015, http://ballot-access.org/2015/07/17/texas-has-the-most-obviously-unconstitutional-deadline-for-independent-presidential-candidates/.

[87] Id.

[88] Richard Winger, Constitution Party Selects City and Dates for Presidential Convention, Ballot Access News, July 20, 2015, http://ballot-access.org/2015/07/20/constitution-party-selects-city-and-dates-for-presidential-convention/

[89] Richard Winger, 2016 National Presidential Ballot Access Requirements are Lower than in 2012, Ballot Access News, Nov. 13, 2014, http://ballot-access.org/2014/11/13/2016-national-presidential-ballot-access-requirements-are-lower-than-in-2012/; Arkansas’ deadline will face likely challenge as it is at odds with Anderson v. Celebrezze, 460 U.S. 780 (1983), https://supreme.justia.com/cases/federal/us/460/780/case.html

[90] Wallace’s fight to gain ballot access effort also led to the Supreme Court’s progressive ballot access ruling in Williams v. Rhodes, 393 U.S. 23 (1968).

[91] Joseph Lieberman, Frozen Out: Independent Candidates Deserve a Place in the 2016 Presidential Debates, U.S. News, July 20, 2015, http://www.usnews.com/news/the-report/articles/2015/07/20/excluding-independents-from-2016-presidential-debates-is-undemocratic.

[92] See Calvin Woodward and Julie Bykowicz, 5 Things to Consider as Donald Trump Dangles a Third-Party Run for President, Business Insider, July 28, 2014, http://www.businessinsider.com/5-things-to-consider-as-donald-trump-dangles-a-third-party-run-for-president-2015-7.

[93] See generally, Joseph Tanfani, New ‘Super PACs’ help 2016 Mega-Donors Customize their Political Clout, L.A. Times, Aug. 2, 2015, http://www.latimes.com/nation/politics/la-na-personal-super-pacs-20150802-story.html#page=1.

[94] Alicia M. Cohn, Trump Calls for Revolution, Blasts Electoral College, The Hill, Nov. 7, 2012, http://thehill.com/blogs/twitter-room/other-news/266423-trump-calls-for-revolution-blasts-Electoral-college. The Tweet is still available at https://twitter.com/realdonaldtrump/status/266038556504494082.

[95] See Eugene Scott, Mark Cuban: Donald Trump ‘best thing to happen to politics,’ CNN, July 29, 2015, http://www.cnn.com/2015/07/28/politics/mark-cuban-donald-trump/.

[96] Citizens United v. FEC, 558 U.S. 310 (2010).

[97] This author first noodled concern about this scenario during the 2012 presidential election, see Victor Williams, Electoral College Insurance: Will Super PACs Target “Faithless” Electors and Ohio’s Legislature?, Huffington Post, Nov. 5, 2012, http://www.huffingtonpost.com/victor-williams/Electoral-college-insuran_b_2073505.html

[98] Bush v. Gore, 531 U.S. 98, 104 (2000).

[99] See e.g., Vikmar David Amar, The Prospects for Presidential Election Reform as the 2016 Campaign Season Gets Underway, Verdict/Justia, July 31, 2015, https://verdict.justia.com/2015/07/31/the-prospects-for-presidential-election-reform-as-the-2016-campaign-season-gets-underway. These scholars have attempted to construct a statutory way to circumvent/reform our presidential election system. The “National Popular Vote Compact” encourage states to sign a binding compact that would oblige each signatory state’s legislature to directly appoint a slate of Electors who are pledged to cast their vote — not for the candidate who receives the plurality of popular votes in that given state but rather — for the candidate who nationally wins the most popular votes. The Compact would not become effective until sufficient states join the plan (whose Electoral College apportionment collectively totals at least an Electoral College majority of 270 Electoral votes). The Compact, however, fails to solve the issue of faithless Electors. Thus far only 10 states (with a collective 165 Electoral votes) have formally joined the National Popular Vote Compact. See Nate Silver, Why a Plan to Circumvent the Electoral College Is Probably Doomed, FiveThirtyEight, Apr. 17, 2014, http://fivethirtyeight.com/datalab/why-a-plan-to-circumvent-the-Electoral-college-is-probably-doomed/. As to the point of this Essay, the movement is based on the unquestioned power of state legislatures to directly appoint Electors. Trump, his opponents, and various Super PACs could bring massive pressure on select state legislatures to directly appoint Electors.

[100] Donald Trump and Michael Schwartz, The Art of the Deal (1988).

[101] See generally, Robert W. Bennett, The Problem of the Faithless Elector: Trouble Aplenty Brewing Just Below the Surface in Choosing the President, 100 Nw. U. L. Rev. 121 (2006).

[102] See Faithless Electors, Fair Vote, http://www.fairvote.org/reforms/national-popular-vote/the-Electoral-college/problems-with-the-Electoral-college/faithless-Electors/

[103] See Heather K. Gerken, Boden Lecture: The Real Problem With Citizens United: Campaign Finance, Dark Money, and Shadow Parties, 97 Marq. L. Rev. 903 (2014), http://scholarship.law.marquette.edu/mulr/vol97/iss4/3.

[104] Alicia M. Cohn, Trump Calls for Revolution, Blasts Electoral College, The Hill, Nov. 7, 2012, http://thehill.com/blogs/twitter-room/other-news/266423-trump-calls-for-revolution-blasts-Electoral-college; see Donald Trump (@realDonaldTrump), Twitter (Nov. 6, 2012, 8:45pm) https://twitter.com/realdonaldtrump/status/266038556504494082.

 

One Comment  to   Donald Trump, Hillary Clinton, Joe Biden, and a Disrupted Electoral College

  1. 88Sharron says:

    Hello admin !! I read your articles everyday and i must say you have
    hi quality posts here. Your website deserves to go viral.
    You need initial boost only. How to go viral fast?
    Search for; forbesden’s tools

Leave a Reply

Your email address will not be published. Required fields are marked *