TEN PRESIDENTIAL ELECTORS TRY TO USE INDEPENDENT JUDGMENT; SEVEN SUCCEED

On December 19, the presidential electors met in their state capitols. History was made:

1. Seven people got electoral votes for president, the most since 1796: Donald Trump 304; Hillary Clinton 227; Colin Powell 3; one each for John Kasich, Faith Spotted Eagle, Ron Paul, and Bernie Sanders.

2. Seven people got votes for vice-president, the most since 1872: Michael Pence 305; Tim Kaine 224; Elizabeth Warren 2; one each for Maria Cantwell, Carly Fiorina, Susan Collins, and Winona LaDuke.

3. Seven presidential electors voted for someone who had not won the popular vote in that state. This is the highest number of such electors, for president, in history. The prior number, six, was in 1808.

4. For the first time, there were such electors from both major parties.

5. For the first time ever, some duly-elected electors were removed for voting for someone who had not won the popular vote in that state. This happened in Colorado and Minnesota. Never before had an elector been unseated because of whom he or she voted for. Also, in Maine, after an elector had voted for someone who didn’t win the popular vote in his state, he was threatened with prosecution, but a re-vote was held, and he changed his vote.

6. For the first time ever, lawsuits were filed to determine whether presidential electors have the power to vote for any person who meets the constitutional qualifications to be president. No such lawsuits had ever before been filed, because in the past, there had been no need for them. These cases are now pending in U.S. District Court in California, Colorado, and Washington.

Colorado

Before the college met, four electors had said they might not vote for Hillary Clinton, not because they were opposed to her, but to serve as examples for Republican electors around the country who might be persuaded not to vote for Donald Trump. On December 6, two of the Colorado Democrats, Polly Baca (a former State Senator) and Robert Nemanich, filed a federal lawsuit, asserting that the Secretary of State had threatened them with removal if they didn’t vote for Hillary Clinton. Baca v Hickenlooper, 1:16cv-2986. The law says that electors must vote for the candidate who won the popular vote, but sets out no penalty if they don’t. It also says that electors must take an oath before voting, but doesn’t say what the oath should say.

The Secretary of State then said that the oath he would administer would require electors to vote for the popular vote winner, and that if any elector broke the oath, the elector might be prosecuted for perjury.

On November 12, U.S. District Court Judge Wiley Daniel, a Clinton appointee, ruled from the bench that the plaintiffs were engaging in a "political stunt" and that he would not give them any relief. He did not issue any written opinion.

The plaintiffs appealed to the Tenth Circuit, no. 16-1482. On December 16, it refused injunctive relief. But it suggested that states cannot remove electors just because they vote for someone other than the popular vote winner: "Whether the statute affords the State with authority to remove an elector after voting has begun is not a question that has been posed by plaintiffs…We deem such an attempt by the State unlikely in light of the text of the Twelfth Amendment."

Footnote three says, "This is not to say that there is no language in Article II or the Twelfth Amendment that might ultimately support plaintiffs’ position." The order quotes a 1952 U.S. Supreme Court decision, Ray v Blair, 343 U.S. 214, hat elector freedom to vote for anyone is "implicit in the text" of the Constitution.

The Tenth Circuit judges were Mary Beck Briscoe, a Clinton appointee; and Carolyn McHugh and Nancy Moritz, Obama appointees. The decision does not say which judge wrote it.

On December 19, presidential ballots were handed out to all the electors, pre-printed with a single checkbox, listing Hillary Clinton’s name. Although the two plaintiff electors dutifully voted for Clinton, another elector, Michael Baca, a 24-year-old Denver resident, scratched out Clinton’s name on his ballot and wrote in Bernie Sanders. The Secretary of State then ejected him from the table, and the other electors chose a replacement for him. Baca never had a chance to vote a vice-presidential ballot.

On December 21, the U.S. District Court explained in writing why no injunctive relief had been given. Judge Daniel wrote a harsh order, not mentioning anything the Tenth Circuit had written. Daniel wrote, "For reasons that do not make a lot of sense to me, Plaintiffs do not want to do what they pledged to do…The public interest tilts substantially in favor of the public expecting and requiring the electors to do what they agreed to do."

On December 21, Secretary Williams said he would refer Baca for prosecution for perjury. It is thus clear that the lawsuit will not be deemed moot, although it also seems obvious that the state will win in District Court.

Maine

Democratic elector David Bright voted for Bernie Sanders for president and Tim Kaine for vice-president. His ballot was ruled out of order. Maine law requires electors to vote for the popular vote winner, but has no explicit penalty for those who don’t. However, Bright was told that there is a generic election law that might apply, and that his vote might be a misdemeanor. The group then took a re-vote, and this time Bright voted for Clinton.

Hawaii

Democratic elector David Mulinix had watched the Maine proceedings on television, hours before the Hawaii meeting. After he saw that Maine elector Bright had been pressured to change his vote, Mulinix resolved to vote for Bernie Sanders to compensate for what he felt to be an injustice. Like Maine, Hawaii also has a law telling electors to follow the popular vote but like Maine, Hawaii has no penalty. Mulinix voted for Sanders for president, and Elizabeth Warren for vice-president. His vote was accepted.

Minnesota

Democratic elector Muhammad Abdurrahman voted for Bernie Sanders for president and Tulsi Gabbard for vice-president. Minnesota law says if an elector votes for someone other than the popular vote winner, he or she is deemed to have resigned and be replaced by the other electors. The other electors proceeded to replace him.

Texas

Two Republican electors voted for someone other than Donald Trump. Christopher Suprun had already said that he would not vote as expected. He voted for John Kasich for president and Carly Fiorina for vice-president. Elector Bill Greene had not said anything in advance, but he voted for Ron Paul for president and Mike Pence for vice-president. Texas has no law telling electors how to vote, but legislators say they will pass such a law in 2017.

Washington

Four Democratic electors voted for someone other than the popular vote winner. Robert Satiacum, who had said publicly that he would vote for someone else, voted for Faith Spotted Eagle for president, and Winona LaDuke for vice-president. Both are women active in the Native American and environmental movement. Levi Guerra, a 19-year-old woman, voted for Colin Powell for president and Maria Cantwell for vice-president. Bret Chiafalo voted for Powell for president and Elizabeth Warren for vice-president. Esther John voted for Powell for president and Susan Collins for vice-president.

Washington law says electors who don’t vote for the popular vote winner will be subject to a fine of up to $1,000. The Secretary of State says she will ask for prosecution.

Chiafalo and Guerra had filed a federal lawsuit on December 8, Chiafalo v Inslee, w.d., 2:16cv-1886. They argued that the law telling them they had to vote for the winner, or be fined, is unconstitutional. U.S. District Court Judge James Robart, a Bush Jr. appointee, issued a neutral order on December 14, saying there is no need for injunctive relief because it was just speculation that the electors were going to break the law, and even if they did, it was also just speculation that they would be fined. On December 16 the Ninth Circuit issued a one-paragraph order, agreeing. Now that the Secretary of State plans to administer fines, that will guarantee that this case won’t be considered moot. The Ninth Circuit case number is 16-36034.

California

On December 9, one elector, Vinz Keller, sued to overturn the law requiring electors to vote for the winner. Keller v Brown, n.d., 5:16cv-7069. It is assigned to Judge Edward Davila, an Obama appointee. On December 16, the judge said there is no need for injunctive relief because any harm is speculative. California has no penalty for electors who disobey the law.

New Hampshire: on December 2, the First Circuit upheld the law that makes it illegal for a group to circulate a petition (to put a new party on the ballot) during odd years. Libertarian Party of New Hampshire v Gardner, 15-2068. The decision doesn’t explain what harm it would do to let the petition circulate in odd years. The decision merely says it isn’t difficult for a group to do the petition in even years, even though that means either the petition must circulate in winter weather, or that it must be completed in four months.

Oklahoma: on December 13, U.S. District Court Judge Stephen Friot upheld the number of signatures for an independent presidential candidate. De La Fuente v Ziriax, w.d., 5:16cv-914. The judge said the law has been upheld before. That is true, but when it was upheld in the past, the party petition required more signatures than the independent petition. That is no longer true; the party petition is now 24,745 but the independent petition is 40,047. The decision did not mention precedents that the independent petition can’t be harder than the party petition.

~	Dem.	Repub.	Libertar.	Green	Wk Fam	Constin	other (1)	other(2)	indepndnt
Alabama	622,631	1,223,019	0	0	0	0	0	0	0
Alaska	111,019	155,088	31,770	0	0	0	0	0	9,093
Arizona	1,034,707	1,264,378	0	110,815	0	0	0	0	0
Arkansas	111,347	760,415	196,512	0	0	0	0	0	0
Calif.	8,624,432	4,682,033	0	0	0	0	0	0	107,553
Colorado	1,263,791	1,288,618	143,388	5,641	0	0	0	0	0
Conn.	916,815	558,162	4,957	11,895	73,324	0	9,972	0	0
Del.	233,554	172,301	6,436	8,326	0	0	0	0	0
D.C.	265,178	0	18,713	14,336	0	0	0	0	0
Florida	3,985,050	4,733,630	9,395	0	0	0	0	0	109,166
Georgia	1,373,520	2,071,372	0	0	0	0	0	0	0
Hawaii	316,265	85,626	6,601	0	0	0	0	0	4,381
Idaho	208,992	447,544	0	0	0	25,005	0	0	0
Illinois	2,810,536	2,397,436	0	33,437	0	0	0	0	0
Indiana	1,052,901	1,442,989	162,460	0	0	0	0	0	0
Iowa	673,969	813,153	15,372	0	0	0	0	0	10,866
Kansas	317,635	694,240	74,227	0	0	0	0	0	86,760
Kentucky	516,904	1,248,140	0	0	0	0	0	0	0
Louisiana	564,064	1,198,764	19,945	6,717	0	0	0	0	14,766
Maine	386,627	357,447	276	0	0	0	0	0	0
Maryland	1,636,200	962,088	60,492	44,405	0	0	0	0	0
Mass.	2,344,518	451,121	27,511	0	0	0	0	0	97,395
Michigan	2,193,980	2,243,402	131,155	44,624	0	18,919	18,018	4,088	16,610
Minn.	1,434,590	1,334,686	0	0	0	0	28,869	57,911	0
Miss.	449,896	680,810	20,868	0	0	0	15,085	8,696	6,918
Missouri	1,041,306	1,600,524	96,492	8,136	0	3,605	0	0	0
Montana	205,919	285,358	16,554	0	0	0	0	0	0
Nebraska	221,069	557,557	9,640	0	0	0	0	0	0
Nevada	508,113	498,104	10,206	0	0	32,366	0	0	29,708
N. Hamp.	336,451	316,001	5,507	0	0	0	0	0	57,885
N. Jersey	1,821,620	1,541,631	36,712	4,047	0	5,938	4,254	0	49,109
N. Mex.	436,932	343,123	0	0	0	0	0	0	0
N. York	4,194,478	2,136,607	0	28,189	192,343	0	336,605	179,221	28,683
No. Car.	2,142,661	2,447,326	8,471	0	0	0	0	0	0
No. Dak.	80,377	233,980	23,528	0	0	0	0	0	0
Ohio	2,154,523	2,996,017	0	27,353	0	0	0	0	32,584
Okla.	305,222	781,691	29,687	0	0	0	0	0	16,644
Oregon	1,026,851	730,894	18,784	24,736	0	0	78,154	27,978	0
Penn.	2,625,157	3,096,576	22,245	0	0	0	0	0	0
R.I.	263,642	141,324	0	0	0	0	0	0	25,195
S.Car.	767,627	1,177,365	14,745	12,671	12,504	5,103	19,606	0	0
S.Dak.	132,810	237,163	0	0	0	0	0	0	0
Tenn.	814,181	1,493,740	32,141	0	0	0	0	0	50,993
Texas	3,160,535	4,877,605	360,066	130,254	0	0	0	0	0
Utah	356,290	710,656	16,296	0	0	26,078	0	0	4,850
Vermont	264,414	0	0	0	0	0	29,410	0	0
Virginia	1,859,426	1,843,010	0	0	0	0	12,866	0	23,714
Wash.	1,736,145	1,404,890	0	0	0	0	0	0	0
W.Va.	224,449	445,017	16,883	0	0	0	0	0	0
Wisc.	1,379,996	1,270,448	54,993	16	0	0	0	0	62,639
Wyoming	75,466	156,176	9,033	0	0	10,362	0	0	0
TOTAL	61,584,781	62,589,245	1,712,061	515,598	278,171	127,376	552,839	277,894	845,512

The "other(1)" column for U.S. House is: Ct. & Or., Independent Party; Mi., Working Class; Mn., Independence; Ms., Reform; N.J. & N.Y., Conservative; S.C., American; Vt., Liberty Union; Va., Indp. Green. "Other(2)" is: Mi., Natural Law; Mn., Legal Marijuana Now; Ms., Veterans; N.Y., Independence 92,107, Women’s Equality 45,960, Reform 41,147; Or., Progressive.

~	Democratic	Republican	Libertarn.	Green	Constit.	Wrk Fam	Indepnce	other	indepndnt
Alabama	748,709	1,335,104	0	0	0	0	0	0	0
Alaska	36,200	138,149	90,825	0	0	0	0	0	45,561
Arizona	1,031,245	1,359,267	0	138,634	0	0	0	0	0
Arkansas	400,602	661,984	43,866	0	0	0	0	0	0
California	12,244,170	0	0	0	0	0	0	0	0
Colorado	1,370,710	1,215,318	99,277	36,805	0	0	0	9,336	0
Conn.	920,766	552,621	18,190	16,713	0	87,948	0	0	0
Florida	4,122,088	4,835,191	196,956	0	0	0	0	0	147,425
Georgia	1,599,726	2,135,806	162,260	0	0	0	0	0	0
Hawaii	306,604	92,653	6,809	0	9,103	0	0	1,393	0
Idaho	188,249	449,017	0	0	41,677	0	0	0	0
Illinois	3,012,940	2,184,692	175,988	117,619	0	0	0	0	0
Indiana	1,158,947	1,423,991	149,481	0	0	0	0	0	0
Iowa	549,460	926,007	41,794	0	0	0	0	17,649	4,441
Kansas	379,740	732,376	65,760	0	0	0	0	0	0
Kentucky	813,246	1,090,177	0	0	0	0	0	0	0
Louisiana	695,288	1,185,889	15,437	0	0	0	0	0	37,021
Maryland	1,659,907	972,557	0	89,970	0	0	0	0	0
Missouri	1,300,200	1,378,458	67,738	30,743	25,407	0	0	0	0
Nevada	521,994	495,079	0	0	17,128	0	0	6,888	24,948
N.Hamp.	354,649	353,632	12,597	0	0	0	0	0	17,742
New York	4,775,604	1,720,492	48,036	113,179	0	241,381	150,457	330,264	0
No. Car.	2,128,165	2,395,376	167,592	0	0	0	0	0	0
No. Dak.	58,116	268,788	10,556	0	0	0	0	0	0
Ohio	1,996,908	3,118,567	0	88,246	18,620	0	0	0	170,443
Oklahoma	355,911	980,892	43,421	0	0	0	0	0	0
Oregon	1,105,119	651,106	23,941	48,823	0	61,915	0	59,516	0
Penn.	2,865,012	2,951,702	235,142	0	0	0	0	0	0
So. Car.	704,540	1,241,609	24,830	14,872	12,652	37,610	0	11,923	0
So. Dak.	104,140	265,516	0	0	0	0	0	0	0
Utah	301,860	760,241	0	0	0	0	0	27,340	0
Vermont	192,243	103,637	0	0	0	0	0	3,241	14,379
Wash.	1,913,979	1,329,338	0	0	0	0	0	0	0
Wisc.	1,380,335	1,479,471	87,531	0	0	0	0	0	0
TOTAL	51,297,372	40,784,703	1,788,027	695,604	124,587	428,854	150,457	467,550	461,960

The other column for U.S. Senate is: Co., Unity; Hi., American Shopping; Iowa, New Indp. Party; Nv., Socialist; N.Y., Conservative 264,430, Independence 149,417; Women’s Equality 44,817; Reform 17,680; Or., Independent; S.C., American; Ut., Independent American; Vt., Liberty Union.

~	Democratic	Republican	Libertarian	Green	Constitution	other	independent
Delaware	248,404	166,852	4,577	5,951	0	0	0
Indiana	1,235,503	1,397,396	87,025	0	0	0	0
Missouri	1,277,360	1,433,397	41,154	21,088	0	0	30,019
Montana	255,933	236,115	17,312	0	0	0	0
N.Hamp.	337,589	354,040	31,243	0	0	0	0
No. Car.	2,309,157	2,298,880	102,977	0	0	0	0
No. Dak.	65,855	259,863	13,230	0	0	0	0
Oregon	985,027	845,609	45,191	0	19,400	47,481	0
Utah	323,349	750,850	34,827	0	0	15,912	0
Vermont	139,253	166,817	0	0	0	8,912	0
Wash.	1,760,520	1,476,346	0	0	0	0	0
W. Va.	350,408	301,987	15,354	42,068	4,041	0	0
TOTAL	9,288,358	9,688,152	392,890	69,107	23,441	72,305	30,019

The other column for Governor is: Or., Independent; Ut., Indp. American; Vt., Liberty Union.

~	Clinton	Trump	Johnson	Stein	McMullin	Castle	La Riva	De La Fue.
Alabama	729,547	1,318,255	44,467	9,391	?	?	?	?
Alaska	116,454	163,387	18,725	5,735	?	3,866	?	1,240
Arizona	1,161,167	1,252,401	106,327	34,345	17,449	1,056	?	29
Arkansas	380,494	684,872	29,829	9,473	13,255	4,613	0	0
Calif.	8,753,788	4,483,810	478,500	278,657	39,596	?	66,101	?
Colorado	1,338,870	1,202,484	144,121	38,437	28,917	11,699	531	1,255
Conn.	897,572	673,215	48,676	22,841	2,108	147	41	12
Del.	235,603	185,127	14,757	6,103	706	74	3	3
D.C.	282,830	12,723	4,906	4,258	?	?	?	?
Florida	4,504,975	4,617,886	207,043	64,399	?	16,475	?	9,108
Georgia	1,877,963	2,089,104	125,306	7,674	13,017	1,110	?	?
Hawaii	266,891	128,847	15,954	12,737	0	4,508	0	0
Idaho	189,765	409,055	28,331	8,496	46,476	4,403	?	1,373
Illinois	3,090,729	2,146,015	209,596	76,802	11,655	1,138	?	?
Indiana	1,033,126	1,557,286	133,993	7,841	?	1,937	?	21
Iowa	653,669	800,983	59,186	11,479	12,366	5,335	323	451
Kansas	427,005	671,018	55,406	23,506	6,520	646	7	3
Kentucky	628,854	1,202,971	53,752	13,913	22,780	438	?	1,128
Louisiana	780,154	1,178,638	37,978	14,031	8,547	3,129	446	0
Maine	357,735	335,593	38,105	14,251	1,887	333	?	?
Maryland	1,677,928	943,169	79,605	35,945	9,630	566	48	14
Mass.	1,995,196	1,090,893	138,018	47,661	2,719	?	?	?
Michigan	2,268,839	2,279,543	172,136	51,463	8,177	16,139	?	?
Minn.	1,367,716	1,322,951	112,972	36,985	53,076	9,456	12	1,431
Miss.	485,131	700,714	14,435	3,731	?	3,987	?	644
Missouri	1,071,068	1,594,511	97,359	25,419	7,071	13,092	?	6
Montana	177,709	279,240	28,037	7,970	2,297	296	?	1,570
Nebraska	284,494	495,961	38,946	8,775	?	?	?	?
Nevada	539,260	512,058	37,384	0	0	5,268	0	2,552
N. Hamp.	348,526	345,790	30,777	6,496	1,064	?	?	678
N. Jersey	2,148,278	1,601,933	72,477	37,772	?	6,161	1,682	1,838
N. Mex.	385,234	319,666	74,541	9,879	5,825	1,514	1,184	475
N. York	4,547,562	2,814,589	176,296	107,762	10,367	896	174	35
No. Car.	2,189,316	2,362,631	130,126	12,105	?	?	?	?
No. Dak.	93,758	216,794	21,434	3,780	?	1,833	?	364
Ohio	2,394,164	2,841,005	174,498	46,271	12,574	1,887	?	?
Okla.	420,375	949,136	83,481	0	0	0	0	0
Oregon	1,002,106	782,403	94,231	50,002	?	?	?	?
Penn.	2,926,441	2,970,733	146,715	49,941	6,472	21,572	?	?
R.I.	252,525	180,543	14,746	6,220	?	?	?	671
S.Car.	855,373	1,155,389	49,204	13,034	21,016	5,765	0	0
S.Dak.	117,458	227,721	20,850	0	0	4,064	0	0
Tenn.	870,695	1,522,925	70,397	15,993	11,991	1,584	?	4,075
Texas	3,877,868	4,685,047	283,492	71,558	42,366	4,261	?	?
Utah	310,676	515,231	39,608	9,438	243,690	8,032	?	883
Vermont	178,573	95,369	10,078	6,759	642	63	327	1,063
Virginia	1,981,473	1,769,443	118,274	27,638	54,054	?	?	?
Wash.	1,742,718	1,221,747	160,879	58,417	?	17,623	3,523	?
W.Va.	188,794	489,371	23,004	8,075	1,104	3,807	2	3
Wisc.	1,382,536	1,405,284	106,674	31,072	11,855	12,162	?	1,502
Wyoming	55,973	174,419	13,287	2,515	?	2,042	?	709
TOTAL	65,844,954	62,979,879	4,488,919	1,457,045	731,269	202,977	74,397	33,136

The last issue listed the partisan wins for minor parties in the November 2016 election. Here are the wins in non-partisan races:

Constitution Party: Bruce Johnson, Dakota Co., Minnesota, Soil & Water Board; Adam Toone, Morgan Co., Utah, School Board.

Green Party California wins: Bastiaan Hoeks, Nevada Co. Mystic Mine Community Services Board; Bruce Delgado, Mayor, Marina; James Rhodes, Santa Cruz Co. La Selva Beach Board; Jason Jones, Nevada Co., Union Hill School Board; Abe Powell, Montecito Fire District; Kimberly Petersen, Geyserville School Board; Laura Peters, Placer Co., Irrigation Board; Matthew Clark, San Mateo Community Services Board; Randy Marx, Fair Oaks Water District; Ruscal Cayangyang, Vallejo School Board.

Green Party other wins: Kim O’Connor, Hillsborough Co., Fla. Soil & Water Board; Lena Buggs, Ramsey Co., Mn., Soil & Water Board; Sharon LeMay, same; Steve Laitinen, Anoka Co., Mn., Board.

Libertarian Party: Ruth Bennett, Green Valley School Board, Az.; Jonathan Hall, Tehachapi Water Board, Ca.; Susan Weber, Palm Desert city council, Ca.; Brian Holtz, Los Altos Hills Water Board, Ca.; Wallace Stewart, Vista Fire Board, Ca.; Matthew Bymaster, Palm Beach Co. Soil & Water Board, Fl.; Jared Grifoni, Marco Island city council, Fl., Maynard Meyer, Madison Mayor, Mn.; Cara Schulz, Burnsville city council, Mn.; Ben Backus, Gering city council, Ne.; Larry Bush, Jarrell Mayor, Tx.; Jessica Abbott, Virginia Beach city council, Va.

The Green Party nominee for city council-at-large in Washington, D.C., in November 2016, outpolled the Republican nominee. G. Lee Aikin, the Green, received 29,165 votes; the Republican received 28,823.

In November 2016, Libertarian nominees for statewide state partisan office carried two counties in Georgia, and two counties in Washington. In Georgia, where Libertarian Eric Hoskins was the only opponent to a Republican for Public Service Commissioner, Hoskins carried Clayton and DeKalb Counties and received 1,200,076 votes.

In Washington, Libertarian Joshua Trumbull was the only opponent to the Democratic incumbent Attorney General. Trumbull carried Stevens and Lincoln Counties and received 979,105 votes. Trumbull is the first non-major party member to appear on a Washington general election ballot for statewide partisan office other than President, since the state started using top-two in 2008. Luckily for him, he was one of only two candidates who filed to be on the primary ballot.

On December 4, Austria held a presidential run-off election for the second time this year. A member of the Green Party, and past chair of the party, Alexander Van Der Bellen, won. There were two elections because the first election, which had been extremely close, was set aside because there were voting irregularites.

On December 5, Jim Byrne, a member of the Kankakee County Board, in Illinois, told the press that he had joined the Libertarian Party. He had just been re-elected to a four-year term as a Republican the month before. Illinois voter registration forms do not ask the applicant to choose a party, so party membership in-between primary elections is determined by how an individual defines himself or herself.