All votes for Trump in CA will be overvotes, may invalidate the states’ electoral votes
In addition to being the nominee of the Republican Party, in the state of California Donald Trump is also the American Independent Party nominee. AIP has actually been around for a long time, it’s first presidential candidate was the segregationist George Wallace back in 1968. The party has not had it’s own presidential ticket since 1988, choosing to support the nominee of another third party in every election since that time until this year when they decided to back Donald Trump.
The American Independent Party, with ballot access in California, has nominated the Republican candidate, Donald Trump.
Dual nominations are not unheard of, and in some states can result in a candidate being listed on the ballot more than once. In New York, for instance, Trump is listed as the nominee of the GOP and the Conservative Party, Gary Johnson is shown as a Libertarian but also as the Independence Party candidate, and Hillary Clinton is entered three times, for the Democrats, for the Working Families Party, and for the Women’s Equality Party. However, because presidential votes are actually cast to determine who gets to attend the Electoral College, problems can arise when these parties don’t coordinate with each other. As mentioned above, Gary Johnson appears on the ballot twice in New York. However, the Libertarian Party and the Independence Party have different sets of electors. Thus, Johnson is essentially running against himself. Hypothetically he could win 40% in that state with half of those votes for the Libertarian slate of electors and half for the Independence Party slate and still lose to Clinton or Trump who might only have gotten 30% but all of their votes counting for one set of electors.
Fusion tickets are possible in many states and can have a candidate listed once representing multiple parties, or the same candidate may have their name listed more than one time on the ballot.
The problem for Donald Trump in California is even more odd. After the AIP chose to nominate Trump, they proposed a unified slate, with 50 Republicans and 5 AIP members. The California GOP was uncooperative and seemingly didn’t think they had to pay the AIP any heed. So the AIP, unable to get anywhere with the Republicans, submitted their slate. The GOP then turned in their list of electors which, aside from two individuals, did not match the other one. This might be similar to Gary Johnson’s situation in New York and in both cases might well be academic given the slim chance that anyone not named Hillary Clinton has of winning in either California or New York. But unlike New York, no candidate will be listed twice.
Trump has one ballot listing, but two slates of electors.
Back in August California Secretary of State Alex Padilla decreed that Trump’s name will appear once, with his designation as the nominee of both the Republicans and the AIP. So, with 108 electors officially submitted for 55 spots, how would the correct electors be determined? The answer is that there is no way to do that. If Trump wins California there is no way for his electors to legally and properly be determined to participate in the Electoral College, as every vote cast for him will be an overvote for 108 electors. Even if he doesn’t win California, and it’s a virtual certainty that he won’t, this situation is still a problem.
Win or lose, Trump poses a problem for California.
As the nation’s foremost expert on the election process, Richard Winger of Ballot Access News, points out, California law states “The voter shall, by using the provided marking device, place a mark in the voting square, rectangle, or other specific voting space following the names of the candidates for that office for whom the voter intends to vote, not exceeding, however, the number of candidates to be elected.” Every vote for Trump will violate state law and cast an overvote. A separate provision of California law requires the Secretary of State to analyze the the votes certify the results. How can Alex Padilla certify an invalid election? On the one hand, counting the popular votes for Trump means counting legally invalid overvotes. On the other hand, disenfranchising every Trump voter in the state because of the actions of the GOP, AIP, and most especially Secretary Padilla himself will certainly result in lawsuits and recriminations, and most of those folks already feel disenfranchised because California’s top-two primary system has resulted in one Democrat against another for the U.S. Senate. The AIP and GOP would surely be happy to see Clinton lose out on 55 electoral votes, and in fact the AIP has already sued Padilla once this year to prevent an election from being certified.
Even though the state isn’t in play, if legal action invalidates the election or delays certification of the results the national outcome would be dramatically effected.
If Secretary Padilla can’t certify the election results, then Hillary Clinton’s slate of electors can’t vote for her in the Electoral College. The probability that Clinton can get to 270 electoral votes without California is not quite but almost as slim as the chance she could lose the state. We’ve seen disputed electoral votes before, but a failure to render any result is unprecedented. It could mean the decision would fall to the House of Representatives, but the problems in Florida in 2000 were decided by the Supreme Court, which currently has only eight members and could deadlock at four to a side.
It probably won’t come to such a scenario. It’s not like anything unusual has been happening in this election cycle.
