Category Archives: Election Law

How to Fix the Nomination Process


Whether you are a Trump supporter, Cruz supporter, Kasich supporter, Sanders supporter, Hillary supporter, or a disinterested observer fed up with the whole thing like myself, we can all agree that the nomination process is a complete disaster. Not that any of this is new to this particular election; the 2016 campaign has only exposed the flaws in the process that have existed since the earliest days of the leading political parties.

No, neither Trump nor Sanders are having the nomination ‘stolen’ from them, at least not in a sense where actual ‘cheating’ is happening (best I can tell from afar anyway). The fact that Trump doesn’t understand how the process works does not mean Cruz is doing something wrong. And the irony of ironies where some of Sanders’s delegates are being redistributed…well, Hillary Clinton would never cheat right?

If the argument is that the game is rigged at worst or just a little screwy at best then I can certainly agree with that. The rules and process as was set up long before the 2016 campaign is really what is causing confusion leaving many primary voters angry and disillusioned. While it may be too late to cure what ails the nomination process for 2016, I believe I have a few ideas that would vastly improve the process and I would encourage any political party to at least give this a try.

A National Primary Day

This incredibly long drawn out byzantine primary system has outlived its usefulness. There is no reason to have a few states vote early while other vote later. If it’s good enough to have the general election on one day than the primary should be no different. My proposal is to have every state and territory vote on the same day, say 40-60 days before the party’s convention. If the states want to follow roughly the same calendar as the traditional primaries holding town halls, debates, or even non-binding straw polls then by all means, do so. The days of a handful of states determining who emerges should be done away with forever.

Allocation of Delegates

In the 2016 South Carolina Primary Donald Trump “won” the election with a whopping 32.5% of the vote. To put this another way, 67.5% of South Carolina voters voted for someone other than Donald Trump *but* because South Carolina is winner take all, Trump will be awarded all 50 of the state’s delegates! While I’m not one of these people who think that “majority rule” is a good thing in and of itself (actually it’s often terrible), it seems that in a primary or caucus which purports to reflect the “will of the people” should at a minimum, require that the winning candidate actually earned the majority of the vote.

If the goal of the nomination process is to nominate an individual who represents the “will of the people” in the party then the parties are not doing a very good job in achieving that goal. My proposal to improve this aspect of the process is as follows:

Each state/territory is to have one delegate for each congressional district and two at large delegates. Each would-be delegate is bound to a particular candidate and can only become a delegate if his/her candidate wins 50%+1 of the vote in the congressional district or, in the case of the at large would-be delegates, 50%+1 of the entire state, commonwealth, or territory. The candidates would keep every delegate s/he won (i.e. no winner take all states). The 50%+1 threshold would be easily achieved by implementing instant runoff voting (this is key). This way every vote actually would matter and the “spoiler effect” would be minimized if not eliminated.

Rather than explain how instant runoff voting (a.k.a. alternative voting) works for those who are not familiar, here’s a short video:

The Nominating Convention

The convention would operate more or less like it does now. The delegates would then go about choosing the nominee by either multiple rounds of voting or using the instant runoff method as described above. Because all the delegates would be bound to their candidate (at least to start with) in the former method s/he must vote for the candidate in the first round, in the latter s/he must rank the bound candidate #1 and the candidate of his or her choice for #2, #3, and so on. Whichever way the convention decided to go, the important thing is no winner would be selected without a majority recorded vote (i.e. no voice votes where the Chairperson decides which way the vote went based on his/her opinion).

Oh yeah, one other thing: no other candidates could be nominated who was not running on National Primary Day.

Would this process be perfect? Of course not. There is no system I can think of which will prevent a truly terrible person from being nominated or even elected. If there’s a better way, I would certainly would love to hear it. That being said, I believe this process is much superior than the one either party is using now.

All this makes me wonder though: if the parties are having this much trouble determining the will of the majority of their party members (assuming that’s really what they are trying to do), how can they be trusted to solve the more complex problems they want us to believe they can solve?
One Point of Clarification

If you read carefully, you will notice that everything I wrote is just a suggestion about how any political party can improve its nomination process. None of this in any way is meant to advocate that the law should be changed to comply with my opinion. Its free advice and the parties can take it or leave it (and they probably will leave it…who am I to advise them right?).

I’ve come across some individuals who are upset about how some state parties have gone about choosing delegates (which I can sympathize with; I hate how the Colorado Republican Party chooses delegates). What everyone needs to understand though is that regardless of what they think they know about how the system works, the U.S. is not a democracy. It never was and never was intended to be. Some misguided individuals believe that the shenanigans (as they see it anyway) taking place in some of these state conventions is tantamount to treason against the U.S. Constitution.

For those who think this way, I’m about to drop a giant atomic truth bomb so here it goes…

There is no constitutional right for the average citizen to vote in a presidential election (neither in the party primaries nor in the general election). No, really there’s not.

For those who don’t believe me, the part of the U.S. Constitution that addresses how the POTUS is to be elected is located in Article II, Section 1, Paragraphs 2 through 4. I’ll share the most relevant part (paragraph 2):

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

As stated from the excerpt above, each state determines how Electors are picked to vote for POTUS. This means that if the state legislature wants to choose Electors by drawing names out of a hat or by roshambo, the state legislature may do so. As it happens, every state legislature has decided that the people have a right to vote for the Electors provided they are eligible to vote (as determined by that state’s laws).

Did you notice something else? What about all the explaining about the nomination process of delegates of a particular political party?

Read the excerpt again, no actually read Article II in its entirety because I know some people reading this think that I cherry picked one small part from the U.S. Constitution to make my point.

Did you notice that there wasn’t a single word about political parties, much less how they go about choosing a nominee for president?


How The “Top 2 Open Primary” System Limits Voter Choice

Measure 90 in Oregon is on the ballot, which will create a top 2 open primary system where voters pick between all candidates running for an office and the top 2 candidates, regardless of the parties the candidates are or the percentage the winning candidate receives. So theoretically, there could be a general election between two Republicans or two Democrats. This is the system in use in California and Louisiana.

Supporters believe that it will decrease partisanship and increase voter choice. One of the strongest arguments supporters of “top 2” make is that non-affiliated voters are shut out of the process because the major parties close their primary process to non-party members.

However, the “top 2” open primary system limits voter choice because minor party candidates, unless they’re wealthy or well-known, will not have an opportunity to enter the general election. Also, this will essentially make political parties meaningless and empower special interests. Finally, this is essentially an incumbent protection racket because the anti-incumbent vote can be split up and made irrelevant. Finally, if you’re a partisan Democrat and the two general election candidates are Republicans, you’re disenfranchised and have no choice on the ballot.

It would be easier to just have regular party primaries, but require as a condition of state funding of the primary election that they be opened to non-affiliated or independent voters.

Here’s an interview on a YouTube show between supporters and opponents of Measure 90.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The and Rare. You can also find me over at the R Street Institute.

Rant: People Who Don’t Link To Source Material

Earlier today, my new co-contributor Matt wrote about the ridiculous Houston city council subpoena on a group who was against the transgender bathroom-rights law.

Where did the original story come from? Right here at The Washington Times.

It’s a busy article.

It comes complete with a picture from the San Francisco gay pride parade. What does San Francisco have to do with Houston bathrooms? I’m not quite sure.

It has a minute-long vapid video featuring a reading of the first two paragraphs of the article, because apparently 300 words is such a weighty article that it elicits “tl;dr” from typical readers of the Washington Times.

And of course it has a rather superficial 300-word article touching only ever-so-slightly on the merits of the case. The article which doesn’t even summarize the basic legal rationale for the group who is challenging the subpoena. The basic legal rationale that’s so simple that I’ll summarize it for you in two sentences:

The law states that subpoenas may only ask for evidence likely to result in admissable evidence on the merits of the case and doesn’t violate various legal privileges. ADF asserts that the subpoenas are overly-broad and violate the law by asking for such wide-ranging materials (some of which are Constitutionally-protected expression and others that are attorney-client privilege or protections against nonparties to lawsuits) that it cannot possibly be within the law.

You know what the Washington Times article is also lacking? ANY GODDAMN LINK TO THE ACTUAL SOURCE MATERIAL!!

It’s not like it was hard to find. A 10-second Google search led me to the ADF web site. A prominent link on the front page of the site got me to their press release in the first 10 seconds on their site. And ADF, to their credit, linked both the subpoena and their motion to quash in the first paragraph. And it’s not like links are expensive. Hyperlinks are free.

So I read them. I realize, this is ridiculous in the days of blogging when everyone has an opinion on Supreme court decisions despite the fact that none of them ever actually reads the opinions. When I read the subpoena and the motion to quash, it was pretty apparent that the subpoena was overly broad. When you dig into it, though, there are a lot of areas of the subpoena that are quite likely to result in admissible evidence. Hence why in the motion to quash, you’ll see this statement:

The Nonparty Pastors respectfully request that the Court issue an order quashing their subpoenas. Alternatively, the Nonparty Pastors request an order modifying the subpoenas to clarify that they do not include (or a protective order declaring that the Nonparty Pastors need not produce) the requested documents that are not reasonably calculated to lead to the discovery of admissible evidence and the requested documents protected by the First Amendment privilege, the deliberative-process privilege, the attorney-client privilege, and the work-product doctrine.

In a lawsuit alleging that a city council unfairly determined that an insufficient number of petitions were gathered, the portions of the subpoena related to the records of petitioners are certainly likely to result in admissible evidence. The content of sermons discussing the Mayor, on the other hand, are clearly not. So if the city attorneys narrow the scope of their subpoena (as the WSJ–an entity which deserves kudos for actually linking the subpoena and motion!–reports they’re already backing away from), they’ll probably still be able to get the discovery information they need to prepare an adequate defense to the lawsuit.

Of course, IANAL, and it’s entirely possible that I got my legal analysis wrong. But what I do know is that I’ve already given you, the readers of The Liberty Papers, a more cogent (and more entertaining, I hope) analysis of the issues than Valerie Richardson of The Washington Times. And unlike Valerie Richardson, I actually gave you the links to go form you own opinion if you doubt my reporting in any way. Because frankly, my dear readers, you’re worth it!

Publications that give you opinion without linking to original source material are trying to keep you dumb. They either want you to keep coming directly to them for analysis (likely), or don’t want you to read the source material and realize they’ve gotten something terribly wrong. Or maybe they’re just terrified that you’ll click on the link and not come back. Or maybe all of the above. Either way, they treat you like infants.

Don’t let them get away with it. Demand better. This is 2014. I hate to use the term “mainstream media” in such a derisive tone that went out of style in about my third year of blogging–right about the time Sarah Palin started calling it the lamestream media–but even The Washington Times should have figured out how to hyperlink by now.

The Basic Premise Behind Campaign Finance Laws

A great deal of ink (or film, or bits) has been expended this election cycle, primarily on the far left (though some on the right… particularly with the more populist factions), decrying the actions of “independent” political action committees, superPACs, and “issue advocacy groups”; as somehow corrupt, evil, anti-democratic etc..

The rhetoric on the left, is that the “citizens united” decision has basically given “shadowy actors” like say, Karl Rove and the Koch brothers, effectively a blank check to “buy elections”.

Of course, the idea that we need to “get the money out of politics” has been a political meme for approximately as long as politics has existed…

… and to a degree, there is a point there. ACTUAL political corruption, in the sense of directly buying influence or buying votes; is certainly something we need to combat as much as possible.

We’ll never eliminate it of course, humans have an endless capacity for venality, greed, and self interest. That’s just the way it is…

Frankly, the only way to get money out of politics; is to get politics out of money.

By which I mean, that so long as politics has an impact on my business and my life (and it always will); if I have money, I’m going to have a strong incentive to spend it, to make the political process work to my advantage… Or even just to hurt me less.

And that’s the way it SHOULD be… I SHOULD be able to spend my money to reduce the harm that government does to me, or to try to make government come out to my advantage; so long as I am not actually bribing a legislator to vote the way I want, committing fraud etc…

There’s a simple way of combating this; and that’s reducing the power of government to impact the individual, such that they no longer have any incentive (or really, so that their incentive is lower… since you’ll never get that little political interference) to spend their money in that way.

But that’s not what these folks are decrying from the hilltops.

What they are screaming about, is essentially free speech they don’t like.

Make no mistake, money IS speech. If you don’t have money, you can’t buy media air time. If you can’t buy media air time, then you can say whatever you want, but you’ll be speaking to an empty room.

One of the basic principles of free speech, is that you have the right to say whatever you like (short of libel, slander, fraud, or incitement to crime); so long as you are not infringing on others rights by doing so.

Another one of those basic principles is that you have the right to say it… But I don’t have to listen to it, and you don’t have the right to make me.

It’s up to me, to decide who and what I listen to, and to use my own judgement and experience in doing so.

So, you may not like what these people are saying; but so long as media companies are willing to sell them airtime, you have no right to restrict that. By attempting to do so, you are attempting to regulate free speech (conversely, you also have no right to force those media companies to sell time to opposing viewpoints; another leftist canard about “fairness”).

Makes sense right?

Well, it does to me… and to the supreme court; and when it’s causes that leftists agree with they’re perfectly OK with it.

The REAL argument, comes down to this:

“We can’t allow these bad evil people and groups to speak, because although I’m smart enough to know the difference between lies and truth, the general population are too stupid to do so”

So, rather than actually convince the people of their own side of the argument, they seek to prevent the other side from even speaking.

It’s entirely consistent with the historical leftist narrative that the “proletariat is fooled by the comfortable goods of the bourgeoisie and the lies of the ruling class” etc… etc…

Their basic premise here being that if the people could only hear and understand the truth, that the leftists ideas would be universally acclaimed as true and necessary, and immediately put into place (with the leftist elites themselves in charge of course… after all, who better to lead than those who understand the ideas the best).

They can’t accept the idea that maybe people don’t WANT more government, with more power over everyone’s lives and businesses… Because that would go entirely against the ideas they have based their entire lives and identities on; and that simply can’t be possible.

…but that’s another argument entirely.

Oh and I should note that there is a “right wing” authoritarian narrative that is nearly identical in principle, that the people are too stupid, lazy, corrupt etc… To be trusted to make their own MORAL decisions; and that the force of government must be used to make people “do the right thing”. That’s equally as bad; it’s just not what we’re talking about right now.

Now… I hate these ads as much as everyone else… But not because I decry “those fools actually believe these foul lies” (though they may be foul lies, and “the people” may believe them); simply because they’re REALLY IRRITATING.

If the people actually are so stupid that they believe “foul lies”; and the other side isn’t smart enough, or doesn’t have a good enough argument to convince them otherwise…

Well, so be it.

That’s the problem with a democratic representative republic. You have to live with the representatives the electorate choose, and the things they vote for.

It’s also why it’s so critical that we have a strictly limited government of enumerated powers only… Or rather, that we return to that; as we haven’t actually had such a government since 1861.

Our government was intended to provide protection against the tyranny of the majority… Unfortunately from the first day that government was put in place, people with “good ideas” have attempted to (often successfully) use the force of government, to have those ideas implemented, without regard to the legitimate powers of government, the desire of the people, or the rights of those being governed.

The left are perfectly willing to crow about how great democracy is… until the people refuse to vote for what they want; at which point they try to get the courts to make the people do what they want anyway.

Because, as we all know, when it comes to leftist causes, they are all “moral imperatives”…

Or as a very smart man put it once “The ends justify the means”.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Why America’s “Third-Party Airline” Shouldn’t Sponsor The Debates

The Commission on Presidential Debates has been coming under a lot of fire for their exclusion of third parties this year, due largely to the fact that Gary Johnson is polling at 6% nationally and happens to be suing them* at the moment. As Reason points out, they’ve already lost three national sponsors, and are currently at a lower overall sponsor number than any previous debate.

But they still have seven national sponsors, one of which is Southwest Airlines. Southwest Airlines seems like a strange company to participate in an exclusionary political sham**, given their history as a minority carrier in the market, and the fact that they so clearly buck industry trends.

So I’m sending them the below letter. Southwest is, IMHO, opposed to the very sort of exclusionary pull that the CPD is trying to push. I’d recommend that others write, call, etc to let them know how you feel***. If you’d like, feel free to use the below as your own template (although I note that it’s too long for their email submission form, so I’m sending it by US mail).

The CPD is perpetuating a sham, and has lost three national sponsors. Let’s try to make it four.

Dear Southwest Airlines,

I am writing today to express my surprise and dismay to learn that you are a sponsor of the Commission on Presidential Debates. While I understand your goal – to create an informed electorate in American participatory democracy – I don’t believe that the CPD’s practices are beneficial to the national dialogue. Further, I don’t believe that their exclusionary policy towards third-party candidates is consistent with the ethos of Southwest Airlines, the very successful “third-party” airline.

Southwest was a beneficiary of airline deregulation – of ending the system that said that every bit of air travel should be controlled by the Civil Aeronautics Board, including fares and routes of service. Southwest was forced to defend their right to fly even intrastate flights without submission to the CAB in court, an action that rose all the way to the US Supreme Court. Southwest was unable to expand into interstate routes until deregulation occurred and the CAB was dismantled. Of all enterprises, Southwest Airlines should be especially sensitive to the abuses of monopoly/oligopoly powers.

Today, the Commission on Presidential Debates is akin to the CAB. It is a body wholly run by, and for the benefit of, the Republican and Democrat Parties. Its goals are to keep third-party candidates (and by extension, third-party ideas) out of the public eye. It’s no different than the CAB only allowing approved airlines to fly interstate routes, with one exception: it’s a field far more important than air travel – the very decision of who will exert political power over American citizens.

Two minor-party candidates will be on the ballot in enough states to have a mathematical possibility of winning 270 electoral votes; Gary Johnson of the Libertarian Party and Jill Stein of the Green Party. While I certainly think it’s unlikely that either has a credible chance to win, I find it deplorable that Southwest Airlines would support a debate organization that won’t even offer them the chance to stand on stage and offer an alternative to the major parties.
I personally believe that Southwest Airlines continues to exist in the marketplace because you are different; you have more efficient business practices that allow you to streamline operations, offering lower-cost flights while still remaining profitable. Your very existence also forces the major carriers to change their practices to meet your competition. Free competition – the competition that CPD is insulating the major parties from – causes all players in the market to improve.

You offer your customers a choice, yet by your sponsorship of CPD you support a debate organization that hides choice from Americans.

I don’t believe Southwest Airlines would appreciate a monopoly action by American and United determining which airlines were entitled to land US airports. Nor do I think Southwest Airlines should sponsor a debate organizer who determines which voices are entitled to reach the ears of the American voter. As a business traveler, I fly Southwest several times each year. I do so because you offer me a compelling product not available from the major carriers. I humbly ask that you reconsider your sponsorship of an organization that won’t allow a compelling non-major product a platform in America’s most competitive product arena – our very governance.

Brad Warbiany

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