Former Federal Election Commissioner Brad Smith has this essay at the Center for Competitive Politics. He ponders whether the December meeting of the presidential electors is an “election” under federal campaign finance law.
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The Washington Secretary of State has denied qualified status to the Libertarian Party on the grounds that Gary Johnson did not get as much as 5% of the vote, when write-ins for president are included. However, Johnson got 5.01% of the presidential vote if write-ins are not included. The official election returns on the Secretary of State’s web page does not include any write-ins.
Federal law, Title 3, section 6, requires states to tell the national archives the number of popular votes received by each candidates for presidential elector. Here is the Washington state certificate. It does not include any write-in votes. Therefore, by the state’s apparent own admission, there were no valid write-in votes. Washington state, which has a write-in filing procedure, does not require write-in presidential candidates to submit a list of presidential elector candidates, which means that presidential write-ins in the state are not valid.
On December 19, the Constitution, Green and Libertarian Parties filed this reply brief in the Third Circuit. The issue is the constitutionality of a U.S. District Court order that requires their statewide petitions for state office to include a certain number of signatures from each of ten counties. The number is either 100 or 200, depending on which office.
The United States Supreme Court invalidated county distribution requirements for statewide petitions in 1969 in Moore v Ogilvie, and the Pennsylvania county distribution requirement is now the only county distribution requirement for a general election minor party or independent candidate, anywhere in the nation.
On December 16, the state court lawsuit in California by Rocky De La Fuente and the American Independent Party finally was filed. De La Fuente v Padilla, Sacramento Superior Court, 34-2016-002-04821-GDS.
The case had been filed on December 9, but there was a technical glitch with the filing. See here for an explanation of the issues. The lawsuit complains about various violations of the election law relative to De La Fuente (who was denied write-in status in California) and about the presidential ballot.
A “certificate of ascertainment” is a document filed by each jurisdiction that elects presidential electors. Under Title 3, section 6, of the U.S. Code, these documents must be signed by the Governor and filed with the National Archives. Here is California’s certificate, signed by Governor Jerry Brown.
California’s certificate is inaccurate on its face. It claims that the 55 Republican electors each received 4,483,810 popular votes. It also claims that the 55 American Independent Party electors, who are almost entirely different individuals, also received 4,483,810 votes. That means that 108 Trump electors each received 4,483,810 votes, even though California is only entitled to 55 electoral votes.
Two individuals were on both the Republican list and the American Independent Party list.
A more honest certificate of ascertainment would have said that it is impossible to know how many popular votes each of the presidential elector received, because voters who voted for Trump in California were forced to vote for 108 presidential electors, instead of 55. If Trump had received the most popular votes in California, there would be no way to know which of his 108 elector candidates had been elected. The mainstream press in California has ignored this event, even though it is believed that no state has ever before blundered in this way.
The Secretary of State of California first accepted the 55 AIP candidates, and then he also accepted the additional 53 Republican candidates. He should have told the American Independent and Republican Parties that he would not accept their lists unless the two parties agreed on a common slate of 55 Trump electors. If they had then refused, he should have printed two spaces on the ballot for Trump, so that any voter could choose whether to vote for the Republican slate or the AIP slate.