Last year, the Independent Party, having reached major party status, notified the Secretary of State that it was opting out of the Presidential election. The IPO is a state based party with no ability to convene a national convention or participate in any other Party’s election. It made no sense to waste taxpayer time or money.
Recently the IPO leadership learned from a County elections officer that the Secretary of State had ordered the Counties to include a write in line for the IPO for President. The IPO sent a letter to the Secretary of State asking her to not to do that, but to either honor it’s legal request to opt out of the Presidential election or if she insisted on including the Presidential race, to list all viable major party candidates, as well as the Green Party candidate and the Libertarian Party candidate. Listing all candidates would benefit the taxpayers sd county elections officers wouldn’t have to hand count all the write in votes. And it would give independent voters – including those non affiliated voters who opted to participate in the IPO’s open primary, a voice for the first time ever. Wouldn’t it have been nice to see how many independent voters supported Sanders, Cruz, Stein, Johnson, Trump, Kasich, or Clinton.
The Secretary of State refused both of the IPO’s requests, and based on an opinion it received from the Oregon Attorney Generals office, the Secretary is now claiming that not only will there be just a write in line for the IPO’s May Presidential preference poll, but that whoever wins the IPO’s nomination through write in vote WILL be the IPO’s nominee on the November ballot. Based on a rebuttal I’ve seen from the IPO’s attorneys, the AG’s opinion seems weak. But, the Secretary seems intent on adopting the analysis, and absent a lawsuit by the IPO, the winner of the IPO’s preference poll will be it’s nominee.
But what about our Electoral College?
The May primary doesn’t elect nominees. It is a preference poll for the Major Parties. Each Party has rules that they must follow, and for the Democratic and Republican Parties, their rules state that the winner of the May primary preference poll is appointed delegates to their national convention at which point, those delegates vote for the winner of the primary preference poll at their conventions. Then, that conventions nominates delegates from each State to represent their Party nominees in the electoral college. In November, the voters of Oregon voter for the slate of electoral college delegates.
So, while Hillary Clinton's name may be on the November ballot as the Democratic nominee, you aren’t voting for her directly, you’re voting for her delegates that the Democratic Party has named. These are her electors who then convene in early December, and cast their votes for President.
Electors are selected by the Party, not the presumptive nominee:
In a year when a President and Vice President of the United States are to be nominated and elected, each political party nominating candidates for those offices shall select a number of candidates for elector of President and Vice President equal to the total number of Senators and Representatives to which this state is entitled in Congress. [Oregon Revised Statutes 248.355]
So, after the May Presidential preference poll, the Secretary of State is stating that the IPO’s write in winner is it’s nominee. By law, the IPO will select the electors for the nominee according to its Party rules. If Ms. Clinton were to win the IPO preference poll, the IPO could select the same electors as the Democratic Party selected to represent her candidacy, but it doesn’t need to. Oregon Law states:
The names of the electors shall not be printed on the general election ballot. A vote for the candidates for President and Vice President shall be a vote for the electors supporting those candidates and selected as provided by law. The general election ballot shall state that electors of President and Vice President are being elected and that a vote for the candidates for President and Vice President shall be a vote for the electors supporting those candidates. [ORS 248.360]S
Since its the electors who are on the November ballot, if Ms. Clinton and the IPO name separate electors the IPO would need a separate line for it’s slate of electors in November.
So, the November ballot may include three options for voters.
Hillary Clinton, Democrat (with list of electors)
Donald Trump, Republican (with list of electors)
Hillary Clinton, Independent (with list of electors)
The votes “for” Ms. Clinton could not be cumulative, because we’re not voting for Ms. Clinton directly, we’re voting for two separate slates of electors.
If Mr. Trump wins the IPO preference poll and the Secretary of State insists that he SHALL be the IPO nominee, he would be the person receiving two ballot lines.
If some Clinton supporters vote for her as a Democrat, and others vote for her because they prefer an Independent Clinton, then Trump electors could win a plurality of Oregon votes, throwing Oregon to Trump.
And, what if Bernie Sanders wins the IPO preference poll? Then he could be on the ballot for the IPO’s nomination in November.
So, what’s going to happen?
If the Republican nominee were the IPO winner he could offer to negotiate with the IPO on the slate of electoral college delegates, naming at least one of the slate of electoral delegates from the Independent Party. In which case, that fusion candidate could have a single slate of electors, wouldn’t split the vote, and would be listed on the Oregon ballot as the nominee of both the Republican and Independent Party on a single line.
If the winner of the Democratic nomination also won the IPO nomination they could decline the nomination of the IPO [ORS 249.180]. And that could be expected from the since this is a safe blue state and there is apparently nothing to gain by running just as a Democrat. However declining is a big risk for the Democrat.
What if the IPO write in winner declines the IPO nomination?
While it may make sense for Clinton to decline the IPO nomination if she were to win the Democratic nomination, thus avoiding either a split for her, that doesn’t necessarily reduce her risk.
Declining creates a vacancy for a major party nomination and by law two things could happen.
The IPO could select a new nominee by party rule. So, the IPO nominating caucus could select a new nominee to be the Independent candidate on the ballot. If this were the case, it could select a nominee that agreed to include at leat one IPO member as an electoral delegate.
The IPO may decline to nominate anyone for President, and decline to name electors. In which case, the Secretary and Attorney Generals Office will again need to determine if they can require that there should be a write in line for not only an IPO Presidential candidate, but also the 7 electors that would represent the IPO at an electoral college vote
What a Waste. And, open to Manipulation
The most likely scenario is that the IPO ends up with no nominee because no major candidate is willing to risk splitting their vote because of the separate slate of electors the IPO would nominate. There is a small chance that if the the Republican nominee won the IPO preference poll, he could negotiate with the IPO on a slate of electors. If so, then this decision by the Secretary of State, based on what the IPO says is a faulty legal analysis, will cost the taxpayers a lot of money, create massive headaches for county election officials, and could end up moving Oregon to the red column.
How did this happen?
The IPO requested meetings with the Secretary of State Office several times to discuss the transition from minor to major party. This was well before the Special session. Legislative fixes and patches to rules and laws could have been presented to the Oregon Legislative Short Session, and emergency clauses could have been appended so that some of these costly issues could have been worked out.
The Secretary of State’s office declined all requests. That has been shown to be unfortunate. And costly to taxpayers.
Perhaps fixing our election laws this election cycle wasn’t as much of an emergency as the coal ban which goes into full effect 14 years from now.