Free and Fair
This post floats a tentative thought, welcoming reaction to it (but isn\'t that in part what blogging is for? :-) Elsewhere, I\'ve addressed the current claims that the election might be rigged through modern-day equivalents of old-fashioned ballot-box stuffing. Here, I want to consider the other current claim being made: that the mainstream media is rigging (or attempting to rig) the election, as Trump, Pence, and other supporters of their ticket are claiming.
Chris Cillizza of the Washington Post\'s Fix observes that the escalation of Trump\'s rhetoric suggests that he\'s unlikely to concede defeat no matter what the results of the election show. I\'ve been thinking about this possibility over the last several days.
In response to Howard\'s request, I hopefully will weigh in more deeply on the constitutional analysis when I get a chance. Meanwhile bottom line: it\'s complicated. There is deep conceptual uncertainty about the nature of the Anderson-Burdick balancing test, on which much of the Supreme Court\'s analysis of election regulations relies.
As I write this on Friday night October 7, there is renewed talk of GOP leadership disavowing Trump. True, Trump will still be on the ballot that we citizens cast. But suppose the GOP leadership publicly announces that it will ask GOP electors, when they meet and vote on 12/19, to cast their presidential vote for Pence. Then some GOP-leaning superPACs spend a lot money before 11/8 informing voters of this plan.
In this post, I want to raise a question that was asked on Friday at the Fordham Law Review symposium where I presented my paper on the need for presidential runoffs. The question, an extremely important one, was essentially (and I\'m paraphrasing), \"What difference does it make to fix presidential elections, if Congress is paralyzed by hyper-polarization and gridlock, especially when one party controls the Senate and another party controls the House?\"
On Friday, I was very fortunate to be able to attend, and present a paper at, Fordham Law Review\'s symposium on presidential elections. Other presenters included Anthony Gaughan, Michael Morley (who is also participating in this month of election law blogging), and (I\'m most proud to say) my superb former student Sean Wright (now at the FEC). I encourage all to you to look at their recommendations for reforming presidential elections, which include eliminating caucuses, adjusting the rules for the party conventions, raising campaign contribution limits, adoption of the National Popular Vote plan, among others.
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