If Voting Made Any Difference

“If voting made any difference, they wouldn’t let us do it.”

This quote is attributed to Mark Twain. While I don’t agree, let’s consider that in November’s presidential election. Hillary Clinton received over 2.8 million more votes than Donald Trump, however, Trump won the election.

As we all know, the Constitution provides for election of the president by the Electoral College; see both Article II and the Twelfth Amendment. So while Clinton received a large number of votes more than Trump, though neither candidate received 50% of the popular vote, Trump received significantly more electoral votes than Clinton, 306-232.

The Presidential election marks the fifth time in American history that a presidential candidate won the popular vote but lost the Electoral College vote and therefore the presidency:

1.) 1824: John Quincy Adams was elected President over Andrew Jackson despite losing the popular vote by over 38,000.

2.) 1876: Rutherford B. Hayes was elected President over Samuel J. Tilden despite losing the popular vote by over 250,000.

3.) 1888: Benjamin Harrison was elected President over Grover Cleveland despite losing the popular vote by over 94,000.

The fourth and fifth times the popular vote winner did not become president has been in this century:

4.) 2000: George W. Bush was elected President over Al Gore despite losing the popular vote by over 540,000.

5.) 2016: Donald Trump wins the Electoral College vote over Hillary Clinton despite losing the popular vote by over 2.8 million.

What does this mean? Should the process change? These are questions that should be considered and debated by us all. In fact there is a movement, entitled the National Popular Vote. The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states and the District of Columbia. Eleven jurisdictions, ten states and the District of Columbia have already passed this bill. The National Popular Vote bill supposedly is consistent with the Constitution, so no Constitutional amendment is required. The National Popular Vote website is: http://www.nationalpopularvote.com/

According to this website, the National Popular Vote movement has bipartisan support, including support from President Elect Trump in a 2012 statement, though he recently recanted that statement in the wake of his Electoral College victory.

So, let’s ask ourselves two things:

1.) Is it time to change how our President is elected; and

2.) Is Mark Twain correct?

– Allan Opsitnick


Election 2016

In October, I was asked by Professor Joseph Mistick of the Duquesne University School of Law, to lecture to his Election Law class, something that I have done before. This was a privilege, both since Professor Mistick also invites judges and elected officials to speak and as the law students were an attentive group.

My remarks covered some historical background, from distributing and discussing a Pittsburgh Press headline from a September, 1931 primary election reporting about riots in the Pittsburgh area, claims of voting machine malfunctions and a shooting incident between a constable and a police officer in the Scranton, Pennsylvania area. Additionally we reviewed Presidential Election voter turnout percentages through the years. The high water mark was in 1960 with an 87.9% voter turnout. Nine out of ten registered voters voted! Compare that with 2016 voter turnout of 70%.  While there might be more registered voters on the rolls, clearly fewer people vote, both in a presidential election, as well as local elections.

I discussed current election procedures including absentee and provisional ballots, and potential election day issues, such as voter intimidation, firearms at the polls (which is permitted except in schools or court buildings) and the rights and limitations of poll watchers (observe but not to electioneer or affect the voting.)

Concluding my remarks was my statement that there is no voter fraud in Allegheny County. That is, the people that vote are who they are and that they are properly registered and qualified to vote, where they vote.

Election Day 2016 bore my statement out. I have been the attorney for the Allegheny County Division of Elections and the Allegheny County Board of Elections for almost three decades. My task on Election Day is to represent the County, along with other County attorneys, in “Election Court.” A judge is on duty the entire time that the polls are open. Attorneys field hundreds of phone calls from polling places and political groups. Each party and presidential candidate sends legal representation to Election Court. While there were frequent disputes, some of which required a judge to issue an order of court, none of those disputes were unusual and none of those disputes and complaints were regarding “voter fraud.”

Our system of voting works and is fair and honest. There can be human errors and a precious few technical glitches, but those permitted to vote can vote. Those not permitted to vote, do not vote. Every vote is tabulated, both on election night, when unofficial results are publicized, and upon official tabulation by the County Return Board.

While perhaps I have been part of the election system for too long, I ask that you all consider and accept that the voting system works properly.

– Allan Opsitnick