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Simpich writes: "Bernie Sanders is the best person running for president in a very, very long time. He deserves our votes. An all-out effort should be made for him to win the Democratic nomination. All out. That's Plan A. But if the forces of Mammon prevail, and Sanders fails to win the Democratic nomination, there is an safe-state strategy that Sanders can choose if he starts in the next few months."

Senator Bernie Sanders. (photo: Getty)
Senator Bernie Sanders. (photo: Getty)


The Best Way for Bernie to Win: An Electoral College Agreement

By Bill Simpich, Reader Supported News

02 September 15

 

e don’t have a parliament in the United States, like they do in Canada.

In a parliament, two or more parties can join the votes of their representatives to elect a leader. That’s what they do in Canada.

We can take a similar path here if Bernie Sanders will consider a “safe-state strategy.” 

Did you know that in 48 states, a candidate can choose electors based on a pledge to vote for the opposing candidate, if the opposing candidate is in a better position than she or he is to win the Electoral College?

Why hasn’t this strategy been adopted in the past by third party candidates?  Good question. I would suggest that the major factor is that only now – thanks to people like Nate Silver – do we have accurate polls that reasonable people can rely on. Nate Silver correctly chose the presidential election winner in every state in the Union in 2012. 

Look at the situation. In the USA, we choose our leader with an electoral college, with electors chosen by the voters in each state. Whoever wins 270 electoral votes becomes President of the United States.

Forty states are generally out of contention, as either the Democrat or Republican is guaranteed to win those states. The entire presidential race is based on winning over the least engaged voters in ten states who can be swayed one way or the other. What kind of election is that?

Bernie Sanders is the best person running for president in a very, very long time. He deserves our votes. An all-out effort should be made for him to win the Democratic nomination. All out. That’s Plan A.

But if the forces of Mammon prevail, and Sanders fails to win the Democratic nomination, there is an safe-state strategy that Sanders can choose if he starts in the next few months. The use of this strategy will increase Bernie’s chances of becoming the president of the United States.

While continuing to run for the Democratic nomination, Bernie can hedge his bets. Here’s Plan B.

Bernie can qualify for the fifty state ballots (and D.C.) as an Independent, and choose a slate of electors for each site. He can choose his electors based on their willingness to pledge to vote for the Democratic candidate if the Democrat is in a better position than he is to win the Electoral College.

This can be done. The World Heritage Encyclopedia offers a great summary:

Twenty-one states do not have laws that compel their electors to vote for a pledged candidate.[2] Twenty-nine states plus the District of Columbia have laws to penalize faithless electors,[3] although these have never been enforced.[4] 

The constitutionality of state pledge laws was confirmed by the Supreme Court in 1952 in Ray v. Blair.[7] The court ruled in favor of the state’s right to require electors to pledge to vote for the candidate to whom they are pledged, as well as to remove electors who refuse to pledge. Once the elector has voted, his or her vote can be changed only in states such as Michigan and Minnesota, where votes other than those pledged are rendered invalid ... 

[In all states], a faithless elector may only be punished after he or she votes. The Supreme Court has ruled that, as electors are chosen via state elections, they act as a function of the state, not the federal government. Therefore states have the right to govern electors. The constitutionality of state laws punishing electors for actually casting a faithless vote – rather than merely refusing to pledge – has never been decided by the Supreme Court.

The analysis is simple and sweet. The electors are free to vote for the candidate of their choice in every state but two. No elector has ever been punished, even though there are over a hundred instances of electors voting for other candidates. To top it off, assume a public and longstanding agreement between the electors and the candidate as to how to vote. The likelihood of punishment is zero. No harm, no foul.

There are three ways Bernie could go. The first and best way would be based on an agreement between Bernie and the Democratic Party. Bernie could ask the Democratic candidate to sign a mutual pledge that if either he or the Dem candidate won the popular vote in that state, the winner would pledge his delegates to whichever candidate had a better chance of obtaining 270 at the electoral college.  The simplest way would be to base it on whoever won more electoral votes.

For the outliers Michigan and Minnesota (I am unaware of any others) that have the ability to render an electoral vote invalid, there could be an agreement by the two candidates to support whichever candidates was leading in the polls for that state a week from Election Day.

Suppose the Democratic candidate refused to enter into this agreement? There is a second path that is almost as promising as the first. Bernie could simply choose delegates who agreed to vote for the Democratic candidate if Bernie was unable to come up with 270 votes by himself. Note that this could mean political horse-trading between Bernie and the Dems right up to the Electoral College vote in early December.

There is even a third way, which Michael Moore unsuccessfully pitched to Ralph Nader in the weeks before the 2000 election. In this scenario, Sanders would pitch his support to the Democratic candidate in the final weeks leading up to the election if it appeared he had no chance of winning the national election. He could even limit this pitch to states remaining “in play.”

All of these three paths provide what is called the “safe-state strategy.” This strategy is not for the purists. Some third party candidates,willing to see a Republican win rather than aid the Democrats, have adopted a “swing-state strategy.” Given the importance of Supreme Court seats and the history of the Nixon, Reagan, and Bush administrations, I think most Americans are not interested in being purists.

This safe-state strategy would provide:

  • The best odds for the Republicans to lose the national election;

  • A path for Bernie to run for President right up to Election Day and maintain a chance of winning;

  • A pumped-up and enthused electorate;

  • A third party candidate without remorse or punishment;

  • A model of civility that is worthy of emulation; and

  • The ability to engage in political horse-trading.

What’s not to like?



Bill Simpich is an Oakland attorney who knows that it doesn't have to be like this. He was part of the legal team chosen by Public Justice as Trial Lawyer of the Year in 2003 for winning a jury verdict of 4.4 million in Judi Bari's lawsuit against the FBI and the Oakland police.

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