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Will Californians Get to Vote for Trump's Electoral College Slate(s)?

by Markham Robinson, published

What Happens when two Political Parties Nominate the Same Candidate for the First Time Since 1940!

Oops, they did it again! The fabled American Independent Party of California nominated Donald Trump, already nominated by the California Republican Party. So what now? Two ballot lines for the same candidate? Thankfully NO. This dual nomination will be indicated on the Trump/Pence Ticket ballot line by “Republican, American Independent” as the nominating parties.

Something similar has happened before. In 1940, the California Republican Party and the Townsend Party got together to nominate Wendell Willkie. He lost. In 1928 the California Republican Party and the California Prohibition Party got together to nominate Herbert Hoover. He won.

You mean that California allows that? Well yes, it does. We in the American Independent Party of California didn’t know it either until fairly recently. We knew how popular Mr. Trump was with our voters and our leadership, so once we knew we could; we began to negotiate with the California Republican Party to dually nominate him. Our idea, which we promoted to the Republicans, was that by the weight of our brand and our influence with our voters, we might make Trump/Pence competitive in California. Note that our motive was political, not the process battle we became entangled in because of the uncooperative and arrogant attitude adopted by the Republican Party establishment here in California.

Below is the enabling statute for a multiple nomination of a Presidential ticket:

DIVISION 13. BALLOTS, SAMPLE BALLOTS, AND VOTER PAMPHLETS, CHAPTER 2. Forms of Ballots: Ballot Order, Section 13105.   (c) If for a general election any candidate for President of the United States or Vice President of the United States has received the nomination of any additional party or parties, the name(s) shall be printed to the right of the name of the candidate’s own party. Party names of a candidate shall be separated by commas. If a candidate has qualified for the ballot by virtue of an independent nomination, the word “Independent” shall be printed instead of the name of a political party in accordance with the above rules. (Amended by Stats. 2012, Ch. 3, Sec. 35. Effective February 10, 2012.) SPECIAL

But why is all this so important? Doesn’t everyone know Trump/Pence will lose in California? First of all not everyone knows that. The Campaign is still young. And, it’s not just because “hope springs eternal in the human breast” (although we hope it does). It’s because the problems exposed in this article MIGHT INVALIDATE THE CALIFORNIA PRESIDENTIAL ELECTION.

What happens if it is invalidated? Several possibilities:

First, if the California Presidential electors are disqualified, this may throw the selection of President and Vice President into the House and Senate, respectively, according to the provisions of Amendment Twelve of the US Constitution.

Second, if there was no valid selection of California Presidential electors, Title 3 US Code Chapter 1 allows the California Legislature to itself appoint said electors. This is an unappetizing prospect, particularly if it reverses the will of the voters which could not be properly expressed due to a fatally defective ballot.

Third, if an invalidly appointed California Electoral College body sends in its votes on President and Vice President to the seat of government of the United States care of the President of the Senate according to Article II Section 1 of the US Constitution and is moreover decisive in the Presidential election, we have yet another illegitimate regime.

History of the Development of the Problem

The Chairmen of the California Republican Party, Jim Brulte, and our Chairman, Mark Seidenberg, were negotiating, amicably it appeared, down even to the detail of a 50 to 5 split of our Presidential electors and theirs, to make up a single slate of Presidential electors to be jointly nominated by our parties. That’s how they did it in 1928 and 1940.

A single slate fits in with the single line upon which our parties appear and the single box to fill in to their right. The California Secretary of State properly advised the County Elections officials to comply with Section 13105 (c) of the California Elections Code. But all was not well it turns out.

We, the American Independent Party of California, patiently waited on the California Republican Party to respond to our proposal. We got to our Convention on August 13, 2016, held in Sacramento California, and nominated the Trump/Pence ticket by an overwhelming majority.

Still no response, so we began to talk to old Republican contacts back from our days as Republican activists and new friends we had made along the way and discovered two things: 1. Some of these folks who were automatically to be ex officio nominees as Presidential electors for the Republicans were determined to be what’s known in the trade as “faithless electors,” who would not honor their pledge to vote for their party’s nominees, Trump/Pence, when the California Electoral College meets in December 19, 2016—provided of course that the Trump/Pence ticket prevailed.  2. Some of these folks, who were lawyers and elections code lawyers at that, were very pleased to be jointly nominated by the California Republican Party and the American Independent Party of California.

Then we got an angry call from the Executive Director of the California Republican Party accusing us of interfering in internal party affairs, using scare tactics and spreading untruths. When we mildly enquired what those untruths might be, we were informed that the California Republican Party Chairman had no authority to make a deal with us because the Presidential elector appointments which he had in his discretion had to be Republicans. We were unable to verify this “fact” although we scoured the California Republican Party’s Bylaws and the California Elections Code. Certainly the California Republican Party Chairman had a higher opinion of his authority at the onset of our negotiations.

As for “interference,” that’s pretty much in the eye and ear of the beholder/auditor. Scare tactics? Not at all. Just the truth about the difficulties that present themselves if we do not nominate a common slate as had been done before in 1928 and 1940. Those difficulties and their adverse consequences are in fact the subject of the rest of this article.

We had begun to realize several difficulties that would ensue if a joint slate was not nominated. We had intended, you see, that the two parties nominate a single slate of electors on a single signed document to the Secretary of State on or before October 1, 2016. A single document was prudent so we could both be sure of what the other was doing. This avoids all the problems particular to a dual nomination, but not those endemic to the California Elections Code of which there are many.

But apparently an arrangement with the California Republican Party is not to be, so what to do? Well, the Chairman of the American Independent Party of California and I decided to ask the County Registrars of voters a number of questions to see if they could resolve the problems we foresaw. We asked. Only two responded, belatedly and unhelpfully. However we believe that our questions did prompt serval Counties to ask the California Secretary of State for clarification about what to do. The California Secretary of State’s response was issued in an advisory opinion to the County Registrars of Voters as CC/ROV #16270 of August 26, 2016. In that memorandum, in answer to the question “How will Presidential and Vice Presidential electors be selected when more than one political party nominates the same candidate?” the response below was given:

“The [California] Elections Code does not address the manner in which electors for President and Vice President of the United States are selected in situations where more than one party nominates the same candidate. We will address this issue if/when appropriate.”

Since the Honorable Secretary of State Alejandro Padilla (Democrat) says that the California Elections Code does not address the aforesaid matter, he is asserting that in this regard the California Legislature has exercised its Constitutionally imposed duty to appoint electors in a defective manner. (And we agree!) Moreover he defers a resolution of this matter under the illusion, it appears, that a difficulty arises only if the Trump/Pence ticket prevails. He further must imagine that this is such a long-shot that he can ignore the issue until that event. Not so!

The Description of the Problem

Since so many folks seem to have the hardest time comprehending the difficulties or seeing their significance, our Chairman called upon Markham Robinson, a mathematician and primary author of this article (with substantial input from Mark Seidenberg, our Chairman), to provide what amounts to a mathematical explanation and informal proof of said difficulties as well as a more accessible common sense explanation.

The Nub of the Matter

If there are two non-identical slates for the two “qualified political parties,” then there is no provision in the California Elections Code for a choice of which slate of 55 Presidential electors (equal in number to the sum of the number of California Senators and Congressmen) a voter might prefer. With a dual nomination, there are two slates, the “Republican” and the “American Independent.” The California Secretary of State correctly asserted this fact in his CC/ROV #16270 of August 26, 2016, without offering a solution.

For all the rest of the Presidential tickets, there is no problem. If a voter checks a box beside a Presidential ticket other than Trump/Pence, they thereby vote for a slate of Presidential electors nominated by the political party that nominated the ticket and pledged to their Presidential ticket nominees.

However, if the box beside the Trump/Pence Presidential ticket nominated by two parties is checked by the voter, which of those parties’ slates did they choose thereby, both, one or the other, or none? And, WHY OFFER THE CHOICE AT ALL TO THE CALIFORNIA VOTER IF IT IS INEFFECTIVE? This is a signal dereliction of duty for which the California Secretary of State and all the California County Registrars of Votes should and must be held accountable.

The bottom line is that, the slate vote is UNDEFINED in California law in the instance of multiple nominations of a single Presidential ticket, UNLESS, there is a single slate for the two parties.

After my explanation and proof of the difficulties, I will explore further difficulties and solutions. To enable the numerically challenged or aversive to skip over the math parts, I indent those passages in what is presented below. This is a first cut at what may be offered by an expert witness in a court of law.

A Real Life Problem in Foundations and Logic, Arising in the Context of a Defective Presidential Ballot in California and its Effect on the State’s Electoral College Representation

Consider a set A, containing n integers, where n > 0. Each such set contains exactly one highest integer.

Below are two informal definitions of the highest in A, where A is usually a finite non-empty set of integers.

Definition. 1. A member k of A which is greater than all the other members of A.

Definition. 2. A member k of A such that no member of A is greater than k.

The first definition needs at least two members which are integers to work. In the real life example, there are significantly more than two contenders in the 2016 Presidential Election in California. The second definition works even when there is exactly one integer member of the set. Moreover, these two definitions are equivalent for all finite sets of integers with two or more members.

The motive for presenting these two definitions is that they are not equivalent in a set containing a mixture of integers and non-integer members. The attempt to do so hopefully provides the interesting part of this problem for mathematicians.

But why the focus on the concept of highest? Well, California Elections Code Section 15505 says the highest vote getters of the Presidential elector nominees are elected. Some folks call that a plurality or a simple majority, but the California Elections code doesn’t, so I avoid those terms like the plague in this discussion. Remember that the aforesaid electors all got their votes via votes for a slate and were not voted upon individually. Read the actual code section below to understand why this is THE ISSUE.

ELECTIONS CODE -DIVISION 15. SEMIFINAL OFFICIAL CANVASS, OFFICIAL CANVASS, RECOUNT, AND TIE VOTE PROCEDURES CHAPTER 7. Duties of the Secretary of State Section 15505 No later than the 32nd day following the election, the Secretary of State shall analyze the votes given for presidential electors, and certify to the [California] Governor [Jerry Brown, Democrat] the names of the proper number of persons having the highest number of votes. [Emphasis added] The Secretary of State shall thereupon issue and transmit to each presidential elector a certificate of election. The certificate shall be accompanied by a notice of the time and place of the meeting of the presidential electors and a statement that each presidential elector will be entitled to a per diem allowance and mileage in the amounts specified. (Amended by Stats. 2009, Ch. 149, Sec. 4. Effective January 1, 2010.)

The provocative idea presented both mathematically and in everyday thought is that the idea of highest can even be applied to sets containing non numeric elements. Why even try to do that? Well, in elections the goal is to produce a winner or winners. This is important enough in the case of a Presidential election to motivate an attempt at a rational determination of winner even with a defective ballot and defective vote tallies, when some of said tallies are intrinsically and irremediably uncertain.

Some possible outcomes of these deliberations are that there is no winner, there are multiple winners, or, as is usually the case, one winner.

The problem arises in a defective election for which no vote tally—even a zero one—can be determined for some of the contenders. The question of who the contenders really are is also a tricky one. We assume in this discussion that the contenders are slates of Presidential electors produced by various means. That’s what Elections Code Section 13205 (b) says the ballot is supposed to tell the voters, so of course we have no option but to assume it’s true! The prevailing slate’s members become what is called in common parlance the State’s Electoral College members.

In the real life example presented, the integers in set A are vote tallies for some competing Presidential elector slates, which range from a handful of votes to millions and others for which there is simply no vote tally. The absence of a vote tally must not be confused with a zero vote. This messy real life situation produces a messy mathematical one too, which we will exhibit for you shortly.

The California Elections Code defines the winner finally in terms of the individual Presidential Electors—not candidates, party slates, or parties (Section 15505). However, the mechanism of the vote is entirely for slates of such electors (Section 13205 (b)) produced mostly by “qualified political parties” despite the fact that on the masthead over the Presidential choices it clearly states “Vote for one party .” (Section 13210 (b))

Back to the math problem suggested by the unusual situation of two parties nominating the same Presidential candidate with two distinct slates of electors.

A Real Life Problem - Continued

Let’s consider the case where set A has members which are integers (vote tallies in the example) and others which are not numbers of any sort, but rather, so to speak, undefined vote tallies.

Back to the real life situation. How in the world did a vote tally get to be undefined?!

Well, the legend (masthead) over what voters fondly (in the sense of foolishly) think to be their choice of Presidential ticket, says “Vote for one party. (Sec. 13210 (b))” Seeing this you can well imagine the voter slapping themselves on the forehead and saying to themselves, “Wow, all along I thought I was voting for a Presidential ticket!” A currently unused (disregarded) section (13205 (b)) of the California Elections Code also commands Elections Officials to place in the “masthead” the words shown below:

“To vote for all of the electors of a party, stamp a cross (+) in the square opposite the names of the presidential and vice presidential candidates of that party. A cross (+) stamped in the square opposite the name of a party and its presidential and vice presidential candidate, is a vote for all of the electors of that party, but for no other candidates.”

Now that goes long way towards clearing up what is really happening and is so adroitly concealed from voters.

But who are these masked “electors?” Well, they are the gang of Presidential electors behind the curtain who have in almost all instances been provided for your voting pleasure by “qualified political parties.” You, the hapless voter, may request to see the actual party-nominated (or otherwise) slates of Presidential electors.

No cancel that. You may demand to see them. You are not required to buy a pig in the poke, so to speak! Not that in general you will be any wiser after you see it. These masked electors have not campaigned and they are generally not advertised.

Back to the math problem suggested by the unusual situation of two parties nominating the same Presidential candidate with distinct slates of electors.

A Real Life Problem - Continued

Consider a set A, having one or more integral members and one or more members with no numeric values. Using Definition 1 of “highest”, with such a mixed set of numeric and nonnumeric elements, there is no highest member of A.

But, using Definition 2 on set A, there are at least two members which qualify as “highest.” These “highest” members include the highest of all the integer members of A and all of the nonnumeric members.

Definition 1 requires that any highest member of A must be higher than all other members of A. The largest subset of A whose members are all integers does of course have a highest member. But when you ask whether that highest of the integers is greater any non-numeric members of A, you must answer either no or that the question has no answer because it is meaningless. In either event, you can’t say that your candidate for the honor of “highest” is greater than any non-numeric member of A and is surely then not greater than all as is required. So using Definition 1 there is no highest member of A. Using the real life example, that means there is no winner of the Presidential election in California.

Note on invalid comparisons: When you make a comparison of a number to a nonnumeric entity, you can take either of two attitudes, first that the comparison is meaningless, hence the whole enterprise of determining the “highest” is futile or second, you may take the attitude that since such comparison is impossible, its truth value is false. In particular in the paragraph above, since there is no element of A greater than all other members, one cannot assert the truth of a statement of the form, k > u, where k is an integer member of A and u is a non-numeric member of A. “No element” is different than “no.” A formal analysis using quantifier logic could easily demonstrate how to cope with meaningless statements in a rigorous fashion.

When we use Definition 2 on A however we come up with a non-empty “victor set” by which we mean the set of all members of A which are the highest in A.

Multiple victors sounds for all the world like what is called a tie. However we will say “set of victors” rather than “tied contenders,” because we are not comfortable using the terminology “tied” where numeric equality cannot be asserted.

To refresh our memory, Definition 2 for highest member of set A is “A member k of A such that no member of A is greater than k.”

Assume we believe we have found a member of A which is highest in A. Then our definition asserts that “no member of A is greater than it.” As candidates for this examination, we propose the highest integer in the subset of A of all its integral members and all the non-numeric members of A.

First, consider the highest integer in A, call it k. Clearly none of the other integers in A are higher than k. Now all we must establish is that none of the rest of A, its non-numeric members, are higher than k. But since you can’t even make such a comparison with non-numeric entities, you can’t put them in the set of those members of A greater than it. So the set of higher members than k is empty, which means the highest integer in A is a highest member in A. We say “highest” member because for a mixed set of numeric and non-numeric members, there is no unique highest member, which assertion we will proceed to prove by considering the non-numeric members of A.

So now let us consider any non-numeric member of A, nothing special about it, so any conclusions we reach about it will apply to all non-numeric members of A, which is a folksy way of saying, we will apply a logical principle call Universal Generalization.

Consider any non-numeric member of A, is it true that “no member of A is greater than it?” Well, thanks for asking! Since you can’t make a numeric comparison to the non-numeric, the answer is no. So that means such a non-numeric member of A fits the definition of highest. Which means any non-numeric member of A is “highest.” And hence all non-numeric members of A are “highest.”

Let’s review what we have established. First, the highest integer of the integers in A is a highest member of A. Second, all non-numeric members of A are highest members of A. Together such highest members of A, we assert, are clearly all highest members of A.

So for Definition 2 the “set of victors” in A are multiple and using Definition 1, void.

Implication for the real world example? A victor is a winner. What we’ve proved is that using two perfectly reasonable definitions of highest, that there will either be no winners in the California Presidential election or multiple winners, neither of which is an acceptable situation. Therefore the proposed California Presidential Election on November 8, 2016, is invalid if a suitable arrangement for a single slate of electors cannot be achieved.

Back to ordinary English. The conclusions of the foregoing as applied to the non-selection of Presidential electors due to a non-vote for either the “Republican” or “American Independent” slates of such electors are the following:

The required certification of “highest votes” by the California Secretary of State cannot be made, since no vote for Presidential electors or their slates occurred for the slates pledged to the Trump/Pence ticket. If the Secretary of State retreats to alleging a zero vote for these slates rather than a non-vote, he will be perjuring himself. That is why Richard Winger, the Editor of Ballot Access News—the go to source for all your US-wide election and ballot access news—called the California Secretary of State “reckless” for not resolving this question.

The proper consequence of this failure of judgment and resolve to provide voters a chance to make an effective choice is the invocation of the provisions of Title 3 US Code Chapter 1 for the California Legislature to appoint the State’s Presidential electors.

Title 3 US Code Chapter 1 Section 2 Paragraph 2—Failure to make choice on prescribed day Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law [November 8, 2016], the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct. (June 25, 1948, ch. 644, 62 Stat. 672.)

Of course this statute says “the electors may [Emphasis added] be appointed on a subsequent day.” So the California State Legislature may pass on their responsibility to appoint Presidential electors and in their usual lawless way certify and accommodate the meeting of an unqualified body of electors to vote for President and Vice President.

What to do then? Well, the American Independent Party of California will submit to the US Archivist a report on the invalidity of these proceedings and convene its Presidential electors, a member of the “victor set” in the above mathematical reasoning, to forward a competing set of votes for President and Vice President to the Joint Session of Congress, which will be convened to count such votes. This way responsible, Constitutionally oath bound individuals such as our party leadership and our slate of electors, can offer at least an opportunity for Congress to be equally faithful to the US Constitution and to basic electoral fairness.

But well before that sad conclusion, the American Independent Party of California will pursue both political and legal remedies to prevent this disaster. Until October 1, 2016, for instance, the California Republican Party can avert this looming electoral disaster by agreeing to a single, common slate of Presidential electors with our party.

The other political solution after the October 1, 2016, deadline for Presidential elector slate submission by qualified political parties in California is a Concurrent Resolution of the California Legislature asserting its US Constitutionally imposed/granted duty/power to direct the manner of the appointment of Presidential electors. The American Independent Party of California will attempt to get said legislature to pass a resolution designed to solve the problem posed by the intransigence of the California Republican Party by mandating a supplemental ballot to offer California voters a choice between the American Independent Party of California’s slate and the slate of the California Republican Party.

Failing that effort at getting a Concurrent Resolution and after the conduct of a fatally flawed Presidential election in California, we will publicly urge the California State Legislature to appoint Presidential electors, echoing the evident will of the California voters in picking Presidential tickets, without any chance of voting for the Presidential electors of two of the six qualified political parties in California.

Moreover, if California was decisive in electing a Presidential ticket with unqualified votes in the Electoral College, we will challenge in court the results certified by the Joint Session of Congress.


© 2016 by the American Independent Party of California. All rights reserved. Published with permission from the author and the American Independent Party of California.

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