U.S. District Court in Washington Refuses to Enjoin Possible Penalty of $1,000 for Presidential Electors Who Vote for Someone Other than Party Nominee

Posted on by December 18, 2016
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On December 14, U.S. District Court Judge James Robart, a Bush Jr. appointee, refused to enjoin Washington state’s penalty of up to $1,000 for presidential electors who vote in the electoral college for someone other than their party’s nominee. Chiafalo v Inslee, 2:16cv-1886. The seven-page decision says that unlike Colorado, Washington state does not threaten that such electors will be removed from their position if they vote unexpectedly. The decision says on page six, “Washington has no law precluding Plaintiffs from voting as they choose — and having those votes counted.”

As to the $1,000 fine, the decision says that the fine could perhaps be less, because the law just says the penalty shall be no greater than $1,000. The decision also suggests that the state might not levy any fine.

The two plaintiff presidential electors filed an appeal with the Ninth Circuit, 16-36034, but the Ninth Circuit refused to disturb the U.S. District Court decision. The Ninth Circuit simply said “We do not find that appellants have shown a likelihood of success or serious questions going to the merits, or that appellants have shown a likelihood of irreparable harm.” The Ninth Circuit judges were Edward Leavy, a Reagan appointee; and two Clinton appointees, Sidney Thomas and Barry Silverman.

Tenth Circuit Denies Injunctive Relief to Colorado Presidential Electors, but Suggests that Secretary of State Cannot “Fire” them for Voting for Someone Unexpected

Posted on by December 17, 2016
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On December 16, the Tenth Circuit issued a 15-page opinion in Baca v Hickenlooper, 16-1482. The appeal had been filed by two of the electors who had said they planned to vote for someone other than Hillary Clinton. The U.S. District Court had denied them any relief.

Although the Tenth Circuit also denied relief, it made several statements that suggest that if the electors do indeed “disobey”, they cannot be removed as presidential electors. Page 12 says, “Whether the statute also affords that the State with authority to remove an elector after voting has begun is not a question that has been posed by plaintiffs to either the district court or this court.” Then footnote four, appended to this sentence, says, “And we deem such an attempt by the State unlikely in light of the text of the Twelfth Amendment.”

Also page thirteen says, “While we question whether that subsection provides the Secretary of State any such authority after voting has commenced, that precise question is not before us.”

Finally, 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”. It then quotes a 1952 U.S. Supreme Court opinion which says that elector freedom to vote for anyone who meets the constitutional qualifications is “implicit in the text” of the Constitution.

The decision is unsigned. The three judges who issued the order are Mary Beck Briscoe, a Clinton appointee from Kansas; Carolyn McHugh, an Obama appointee from Utah; and Nancy Moritz, an Obama appointee from Kansas.

Lawsuit Filed to Disqualify Ohio Presidential Elector

Posted on by December 17, 2016
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On December 16, some Ohio voters filed a lawsuit in state court, arguing that Republican presidential elector Christina Hagan should not be permitted to serve as an elector, because she is an Ohio state legislator. The Ohio State Constitution forbids members of the legislature from holding any other public office, whether federal or state. The case is Cain v Hagan, Court of Common Pleas, Stark County. Here is an article about the lawsuit, which has a link to the complaint. Thanks to the Election Law Blog for the link.

North Carolina Converts State Supreme Court Elections from Non-Partisan to Partisan

Posted on by December 17, 2016
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On December 14, the North Carolina legislature convened in a special election, and passed SB 4. Here is the text. It converts elections for State Supreme Court Justice from non-partisan to partisan. North Carolina had always had partisan elections for that office until 2003, when it switched them to non-partisan elections.

In the 2016 election, a Democrat defeated a Republican in the non-partisan election. The legislature has a Republican majority. The Republicans seem to believe that if the 2016 election had been partisan, the Republican would have won. Generally academics and good government advocates oppose partisan elections for judicial elections.

SB 4 also ends the old system in which the party that held the Governorship was able to hold a majority on the State Election Board and county election boards. The new system says the two parties with the most registered voters will have an equal number of seats on all the boards. In both the old system and the new system, it was impossible for anyone to ever serve on an election board unless that person was a registered Democrat or registered Republican. However, at least the new system makes it impossible for one party to have unrestricted power over decisions made by the boards. Some opponents of SB 4 believe that the special session was improper, and there will probably be court challenges.

SB 4 was signed into law on December 16, only two days after the special session had convened. The special session is now adjourned and the 2017 session will open on January 11.

One-Sixth of All Californians Who Cast a Ballot Last Month Cast a Blank Ballot for U.S. Senate

Posted on by December 16, 2016
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The California Statement of Votes for November 2016 is here. On page three, one sees that 14,610,509 ballots were cast. A few pages later, one sees the returns for U.S. Senate. Only 12,244,170 votes were cast for that office. This means that 2,366,339 voters cast a ballot, but did not vote for U.S. Senate. They represent 16.2% of all ballots.

There is always some drop-off between votes cast for President and votes cast for U.S. Senate, but 16.2% is very large and probably unprecedented in California. U.S. Senate is immediately below President on the ballot. The cause of this drop-off is surely that only two Democrats were on the ballot for U.S. Senate, with no write-in space.

The last time California had a U.S. Senate election and a presidential election in the same year, in which the top-two system did not exist, was 2004. In 2004, the drop-off was only 4.3%. In 2004 the number of ballots was 12,589,683, and the number of votes for U.S. Senate was 12,053,293. In 2004 voters had a choice of five candidates, and write-in space.