Monday, August 22, 2016

Is the election rigged?

When over 84 percent of U.S. House races are foregone conclusions before voting even begins, and 95 percent of incumbents are reelected, largely due to rigged districts, it is time to take action. 

  Some people think we don't always have free and open elections in this country. They'll be recruiting poll watchers, and squads of hundreds of attorneys and press agents to challenge and spin the outcome this fall, whatever that outcome is, especially if some of their team loses.

After Bush v Gore, whole new cadres of election lawyers have been trained and put in place, ready for such a scenario. Back when I went to law school, we didn't even have a course in election law.
Now there are at least dozens of them in top law schools around the country. Election litigation has grown in pace with a more general litigation explosion in this country. This election will be fought on several fronts. First of course there's the matter of who gets more votes. But Al Gore was only the most recent example of a candidate winning the popular vote and still losing; that's happened several times before. Then comes the commencing of litigation, and the media war for the hearts and minds of the people. It's unlikely any one candidate gets a clear majority; this could be a replay of 1992 when Clinton got into the White house with 38%. 

  The next round takes place at the electoral college. In 2000, I was standing outside a precinct in  Indianapolis, monitoring electioneering violations, when I got into a conversation with a Gore volunteer. He said "It's all going to come down to Florida", and it did. Current polling suggests Clinton has a large lead in the electoral college. I think that will tighten, but hold.

  A highly unlikely but possible scenario is that the election is then thrown into the house, triggering the elusive 12th Amendment playout. There's not much case law on that. Would the public understand what was going on? Or would growing numbers agree that the system is rigged,and something's wrong? I expect that during the next year the word "Rubicon" will trend on Google in a way that it hasn't since 2000.

   Regardless of who wins or loses, the credibility of the system will be called into question, and some people will want small changes, in order to avoid big changes. 

  "Replace the gridlocked FEC with a five-member agency possessing increased investigative and enforcement powers" is the kind of small change I'm talking about. 

  We'll hear a lot about public financing, and others suggesting more disclosure as a "compromise alternative." The reform crowd could get a unique opportunity to push their agendas. FECA and BCRA could be swept away and replaced with something new. More speculatively, I could see either a President Clinton or Trump supporting a constitutional convention to make changes to undo Citizens United and Buckley v Valeo with something they like better. Such a convention would then do what it wants, and not be limited to whatever it was called for. 

 The more people hear that the election is rigged, the more it will possible for some to undo checks and balances that have helped hold the republic together for 200 years which have included a number of different kinds of electoral crises. These will be interesting times for election lawyers.

  By the way, the quote I started off with about congressional elections being rigged isn't from Donald Trump, it's Larry Lessig.

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