SOURCE ALERT: Rigged, Rigged, Rigged

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University of Miami School of Law Professor Stanley Langbein plays the percentages in the race for president. Langbein teaches courses in banking law and regulations, secured transactions, negotiable instruments, Federal income taxation, and international taxation. He was an attorney/adviser in the Office of International Tax Counsel of the Treasury Department. He is the author of "Federal Income Taxation of Bank and Financial Institutions" and is currently working on a new treatise, "Federal Regulation of Banking Organizations," to be published by Civic Research Institute/Delta Hedge in 2017.

Stanley Langbein

On October 12, I posted a public Facebook message about a McMullin-Kaine Administration. If the independent candidate Evan McMullin carries Utah and the two major party candidates each gets less than 270 votes, the race would go to the U.S. House of Representatives. In compromise – if not disgust – they would elect McMullin, and the Senate (presumably in Democratic hands) would elect Kaine vice president. 

Coincidently, the next day, the website FiveThirtyEight had a piece online to the same effect. They said there was a one in three percent chance that McMullin could be elected President in this way. They said it was the same odds as the Chicago Cubs scoring four runs in the ninth inning to wipe away the Giants' 5-2 lead and win the divisional series.

Now we learn the TV ratings for the World Series are said to be the highest in decades. The explainer is that it involves the Lovable Loser Cubs, who haven't won a championship in over a century. I'm a lifelong Giants fan. I'm not satisfied with three championships in five years, after waiting 56 years without one. Now I wonder. I didn't see that improbable inning or watch any bad calls by the umpire. But the MLB world loves ratings. They knew the Cubs spectacle would sell. It makes you wonder. Dodger fans would agree with me. Dodger fans making league with Giant fans is like Sanders supporters voting for Trump. I guess it may happen. One in three percent of the time.

But the ratings for the presidential election are even juicier. Which brings me to a bit of American history, never mentioned by the "media."  Three questions: How many times has a President taken office when he (not "or she") lost the popular vote? How many of the 43 or 44 Presidents were related by consanguinity (i.e., either sons or grandsons) of guys who had already been President? How many times has a President who was a descendant of a former President won the popular vote the first time he ran?

The answers: 4, 3 and 0.

The four times a President took office (I don't think saying he was "elected" is exactly right) were 1824, 1876, 1888, and 2000. 1824 was the first time there was a popular vote. The second-place finisher (in both popular and electoral votes) was John Quincy Adams. He won in the House of Representatives (the only time that has happened), when the then Speaker, Henry Clay, finished fourth and didn't much care for the first-place finisher, Andrew Jackson, who cried foul and accused Clay and Adams of a dirty deal. Jackson came back four years later and beat Adams soundly.

1876 was unique; it involved the end of Reconstruction, the withdrawal of Union troops from the South, and it included a commission and was pretty obviously rigged. In 1888, Benjamin Harrison pretty openly stole Indiana and New York to beat Grover Cleveland, who came back and beat Harrison in 1892 even though Harrison admitted seven virtually uninhabited states, which together still have more electoral votes than battleground Florida even though they have less in total less than two-thirds Florida's population.

And 2004 we know. Except then, George W. Bush was re-elected when Al Gore didn't run, even though history suggested he would have won easily.

This year we have a nominee of a major party related by affinity (loosely speaking) to a former President. We have what looks like a close election. Maybe it will not be the same with this departure from our longstanding modified premogenitary system. But you never know.

In a lot of creditor-protection laws, like the bankruptcy or the tax laws (yes, Internal Revenue is a creditor), there are rules that treat a transfer of property between a person and certain close relatives (by affinity or consanguinity) as having no effect. President Lyndon Johnson had Congress pass a statute that purports to tell a President that he may not exercise his seemingly absolute constitutional power to make appointments to appoint certain close relatives.

Maybe we should take the cue and amend the Constitution to say that once you're elected President, you lucky dog, you disqualify your close relatives and descendants from ever again attaining the office. That might be easier than abolishing the Electoral College and might achieve the same thing.

 

CONTACT: Catharine Skipp at 305-773-5801 or cskipp@law.miami.edu