Election Issues and Immigration #13: My Hopes for the Election

INTRODUCTION: MY HOPES FOR THE ELECTION

With the 2016 election fast approaching, it is time to wrap up my series of blog posts on immigration issues and the election [see directory]. I have discussed important issues in this series such as the future of DAPA and the DACA expansion [see blog and blog], the immigration platforms of the major party [see blog] and minor party [see blog] candidates, and the debate over the disposition of those who are present in the United States without legal authorization [see blog]. To cap off the series, I will offer my proverbial endorsements for the President, Senate, and U.S. House while highlighting a few key races of national importance. After the election, I will finish the series with a post on the results and what they mean in the immigration context going forward.

1. DONALD TRUMP FOR PRESIDENT

As I explained in the fourth post in this series, the 2016 Presidential Election is a proverbial porta-potty fire [see blog]. Both of the major party candidates — Hillary Clinton for the Democrats and Donald Trump for the Republicans — seem quite unlikely to be the next Thomas Jefferson, Abraham Lincoln, or Ronald Reagan. The choices are so unpopular with the American people that it appears that candidates other than the Democrat and Republican will take up a greater share of the vote in 2016 than they have in any election since at least 1996.

During the Republican Primary, my party had ample opportunity to pick from the deepest field of Presidential hopefuls in recent memory. As I wrote at the time, I believe that candidates such as Jeb Bush [see blog] and Senators Marco Rubio [see blog] and Ted Cruz [see blog] would have been exceptional Presidential nominees and ultimately successful Presidents. Unfortunately, a plurality of Republican voters delivered the nomination to Donald Trump instead, and the choice we are now left with is that between Trump and Clinton.

I have been harshly critical of Trump on this blog for his overall platform and character [see blog], his flip-flopping on immigration policy [see blog], and his inability to articulate coherent positions on the national stage [see blog]. Nevertheless, the choice is between Trump and Clinton, not Trump and the superior candidates from the Republican Primary. For all of his flaws, Trump offers the hope of something better than the previous for years. For whatever his pledge is worth, Trump promised to choose from a list of exceptional conservative jurists and legal minds for his Supreme Court pick a decision of incredible importance for both immigration law and American law in general. While his immigration utterances are still incoherent, it is indisputable but he sounds closer to the mark now than he did in the primary or when he was more liberal before his Presidential run. Finally, as President, Trump would have access to the best conservative policy advisors and intellectuals available. While there is no promise that he would avail himself to the best counsel, I am optimistic that a President Trump would, wanting to be a “winner” in the White House, be open to the advice of the “best people” available to him.

While Trump is awful, I have also written extensively about why Hillary Clinton would make a terrible President [see article]. Clinton has little interest in immigration reform aside from granting amnesty to as many persons as possible; ensuring that the mistakes of previous immigration reform efforts would be repeated again. While Trump's promises regarding appointing good judges may be dubious, Clinton is nearly assured of appointing Judges who would endanger key provisions of the First, Second, and Tenth Amendments to the U.S. Constitution. Furthermore, while we should all be concerned about Trump's severe character flaws and personal indiscretions, Clinton willfully mishandled classified information as Secretary of State, and there are additionally serious concerns about the intersection of her family's charitable foundation and the official business of the U.S. Government.

While many may be tempted to stay home or vote for a third party candidate, the reality of the situation is that either Donald Trump or Hillary Clinton will be the 45th President of the United States. The polls have tightened over the final week of the race, meaning that both Trump and Clinton appear to have a legitimate chance to win the election. With great reservations, I chose to vote for the potential for something better over four more years of the failed policies of the Obama Administration. I held my nose and voted for Donald Trump, and I encourage my readers to do the same.

2. REPUBLICANS FOR U.S. SENATE

The United States Senate currently has 54 Republicans, 44 Democrats, and 2 independents who caucus with the Democrats, making the Senate configuration effectively 54-46. However, because the Republicans won a significant number of seats in the 2010 midterm election, they are defending 24 seats while the Democrats are only defending 10. The Republicans seem to be assured of losing the seat of Senator Mark Kirk in Illinois, meaning that the Democrats will need to pick up three additional seats if Clinton is the next President (because then-Vice President Tim Kaine would hold the tie-breaking vote) or four additional seats if Donald Trump is the next President (although extremely unlikely, please see my blog on the peculiar scenario in which someone else could become President [see blog]). Due to the number of close races, it is unclear which party will control the Senate come next January.

Due to the serious flaws of both of our likely potential Presidents, Congress will serve as an important check on their ambitions and worst tendencies. If Clinton is the next President, than the only thing stopping her from having confirmed activist Supreme Court Justices or passing a disastrous immigration reform bill would be a strong Congress. If Trump is the next President, Congress would be required to serve as a check on his worst tendencies and to pass effective legislation for his signature. For these reasons, I endorse the Republican candidates for Senate across the board. Fortunately, while voters are left with terrible candidates for President, the Republicans are offering strong Senate candidates in many key races across the country who deserve our support. I would like to highlight a few of the completive races and candidates who deserve special mention.

The U.S. Senate race in Florida is the one that I have been following most closely. There, Senator Marco Rubio, who I supported for President after the South Carolina primary, is facing a difficult reelection campaign against Congressman Patrick Murphy. As of November 4, 2016, RealClear Politics indicates that Rubio is holding onto a 3.2 point lead in the polling average) [link]. During the Republican primaries, I blogged extensively about why Senator Rubio was a terrific candidate [e.g., see blog], and how he seems to have learned the lessons from his previous foray into immigration reform to propose new and effective solutions to the current challenges. My opinion of Senator Rubio has not changed in the interim, and he should be punished for making the difficult decision to back a candidate who he personally disagrees with on many issues. I hope to see Rubio run for President again someday, but first, he will need our support to stay in the Senate.

In Pennsylvania, incumbent Republican Senator Pat Toomey is running for reelection against the Democratic candidate, Katie McGinty. RealClear Politics has McGinty ahead by 3.0 in the polling average as of November 4, 2016 [link]. Toomey has been an effective Senator for his one term, and is one of the Republican caucus's foremost experts on economic policy. Toomey's victory is not only essential for maintaining a Republican majority in the Senate, but also for keeping a talented public servant in office. I wholeheartedly encourage any readers in Pennsylvania to vote to give Toomey a second term. Another first term Republican Senator, Ron Johnson of Wisconsin, also deserves our support for similar reasons in a difficult reelection battle against former Democratic Senator Russ Feingold. RealClear Politics has Feingold ahead by 2.7 in the November 4 polling average, and a victory by Johnson would help ensure a Republican majority in the next Senate.

The final race I will single out for special mention is the lone Republican pickup opportunity, the Senate race in Nevada. With the current Democratic Senate leader Harry Reid rendering his greatest public service in his 30-year career in the Senate by retiring, Republican Congressman Joe Heck is seeking to flip the seat into the Republican column. Heck has been an effective legislator in the U.S. House, with strong positions on foreign affairs, immigration, and many other issues. Heck also offers an impressive personal story, having served three tours in active duty status in the U.S. Army Medical Corps and reaching the rank of Brigadier General [link]. RealClear Politics has Congressman Heck leading his Democratic opponent, Catherine Cortez Masto, by 1.4 in the November 4 polling average [link]. A victory for Heck would be especially significant because as a Republican pickup, it would mean that the Democrats would need to win either five or six currently Republican seats instead of four or five to take control of the Senate.

3. REPUBLICANS FOR U.S. HOUSE

The Republicans currently command a sizable 247-188 majority in the U.S. House of Representatives. Nearly all projections have the Republicans maintaining their majority in the House with mild to moderate losses. A strong Republican-controlled House will serve as a check on a President with a dubious commitment to conservative principles and executive restraint, whether that next President is Hillary Clinton or Donald Trump. Furthermore, if Trump is elected, we will have to rely on the House to pass legislation and provide a clear agenda for a Republican President who has not seemed to think too deeply about many of the key issues facing America today. For this reason, I hope to see the Republicans retain a significant majority in the U.S. House.

Because of the sheer number of races, I will not highlight specific races like I did with the Senate. However, for those who think that the House is a foregone conclusion, the size of the Republican majority will be significant. A narrow Republican majority could mean that Speaker Paul Ryan would have a difficult time securing a second term as Speaker. Furthermore, smaller Republican majorities will reduce the margin for error for passing potentially beneficial legislation.

CONCLUSION

The results of the upcoming election will have dramatic effects on the future course of American policy. This of course includes immigration policy, which is the primary focus of my blog here on site. It is important for voters to remember that there are many crucial races beyond the Presidential election, and that the composition of the next Congress will likely be just as important as the next occupant of the White House.

I look forward to finishing this series of blog posts after the election with a recap and a discussion about what we can expect with regard to immigration policy starting in January.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Attorney General Vacates 2008 AG Decision in Silva-Trevino I (Article From 2015)

INTRODUCTION (UPDATED WITH SILVA-TREVINO III DECISION)

The Board of Immigration Appeals (BIA) issued an important precedent decision in the Matter of Silva-Trevino (“Silva-Trevino III”), 26 I&N Dec. 826 (BIA 2016) [PDF version] regarding the analytical framework for determining of a conviction under a federal or state statute is for a CIMT. This is in fact the third time the Attorney General/BIA has addressed the issue. The issue was originally addressed in a published Attorney General decision from 2008 titled the Matter of Silva-Trevino, 26 I&N Dec. 687 (AG 2008) [PDF version]. The 2008 decision was subsequently vacated in a second Attorney General precedent decision on the matter in the Matter of Silva-Trevino (“Silva-Trevino II”), 26 I&N Dec. 550 (AG 2015) [PDF version]. The following is a revised version of the blog post I wrote about Silva-Trevino II when the decision was published, wherein I explained why the Attorney General's decision to vacate Silva-Trevino I - a decision I believe to have been erroneous — was a very positive development in immigration law.

To learn more about the history of the Silva-Trevino litigation prior to Silva-Trevino III, please see our full article [see article]. To learn about the Silva-Trevino III decision itself, please see our full article [see article].

OVERVIEW

The Attorney General's (AG's) decision in Silva-Trevino I, substantially expanded the ability of an immigration judge to look beyond the record of a conviction and take into account other considerations in order to determine if a noncitizen had committed a CIMT offense and was, as a result, removable. Because these other considerations were often irrelevant and/or prejudicial, this inquiry often made people who had committed relatively minor criminal offenses carry the disproportional burden of proof in removal proceedings. For years - since November of 2008 when the decision was introduced - immigration advocates have been trying to convince the AG to retract the decision. Finally, in Silva-Trevino II, the Attorney General retracted the decision in Silva-Trevino I.

SIGNIFICANCE OF SILVA-TREVINO I

In Silva-Trevino I, which had been the law of the land for almost seven years, the AG held that an immigration judge had to engage in a multi-step inquiry into whether a crime committed by the respondent was one that involved moral turpitude (CIMT). Since a CIMT, no matter how minor, often carries heavy immigration consequences, the manner in which a determination is made that a conviction was/was not for a CIMT is critical when viewed from the perspective of the respondent.

The AG in Matter of Silva-Trevino directed the Board of Immigration Appeals (BIA) and through it, the immigration judges nationwide, to look first to whether the criminal statute carried a “realistic probability”-under the categorical inquiry approach held applicable in Gonzales v. Duenas-Alvarez, 549 US 183, 2007 [PDF version] — that “the State or Federal criminal statute pursuant to which the alien was convicted it “would be applied to reach conduct that does not involve moral turpitude If the inquiry unambiguously determined that the crime was CIMT, that ended the inquiry. If not, the second step was to be taken in this analysis.

Under the second step analysis, the judge was allowed to engage in what was called a “modified categorical inquiry,” which allowed for examination of the “record of conviction,” including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript. Step two thus allowed adjudicators to consider evidence regarding the perpetrator's proven conduct that led to the conviction to determine if the person had been convicted of a CIMT.

The third and most disturbing step allowed by the AG's analysis in Silva-Trevino I was to take place when it was still inconclusive following the application steps one and two, whether the perpetrator had been convicted of a CIMT. Under this step, the judge was allowed to “consider any additional evidence deemed necessary or appropriate to resolve accurately the moral turpitude question.” Under such inquiry, the judge was allowed to look at virtually anything having to do with the conviction, thus making it very hard for the respondent to prepare to prove, much less to prove, that he had not been convicted of a CIMT.

THE SILVA-TREVINO I STANDARD AND RETURNING TO THE PRE-SILVA-TREVINO I RULES

As explained above, the first step in the AG's approach in Silva-Trevino I involved a traditional analysis of the CIMT conviction under the well-established categorical approach, which involved analyzing the elements of the statute to determine whether there, was a probability that the statute would be applied to reach conduct that does not involve moral turpitude. However, the AG added the requirement that such a realistic probability existed only if, at the time of the criminal proceeding in question, any actual (not hypothetical) cases existed where the statute was applied to cover conduct not involving moral turpitude. If the statute was found both to only proscribe CIMTs in its language and to have not been applied to cover non-CIMTs, an adjudicator would have to find that the statute was a categorical CIMT, and would not have to continue the inquiry.

• If the question could not be resolved in the first step, the AG instructed adjudicators to use the modified categorical approach. Under this step, adjudicators would look at the record of conviction, including the indictment, judgment of conviction, jury instructions, and a signed guilty plea or plea transcript. Step two would allow adjudicators to consider evidence regarding the proven conduct that led to the conviction to determine if the person had been convicted of a CIMT. This step would only be necessary of the language of the statute and its application was inconclusive with respect to the CIMT question.
• If step two were to not yield a conclusive result, the AG instructed adjudicators to consider “any additional evidence deemed necessary or appropriate” in order to determine if the conviction was a CIMT.

The pre-Silva-Trevino I analysis would had employed the probability inquiry instead of the reasonable probability and, when further analysis was warranted, would have stopped at the second prong of the analysis - the modified categorical approach, thus limiting the inquiry to the record of conviction.

Fortunately, the Attorney General's decision in Silva-Trevino II to vacate the questionable decision in Silva-Trevino I has restored the much healthier system of analysis that predated Silva-Trevino I. Under the now current law, adjudicators may only use the categorical approach or modified categorical approach, depending on the structure of the statute. Regardless, adjudicators will no longer be permitted to venture beyond the record of conviction determine whether the conviction is for a CIMT.

Originally Published on April 17, 2015;

Published With Revisions on October 19, 2016.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

What is Public Charge

What is Public Charge

Under section 212(a)(4)(A) of the Immigration and Nationality Act (INA), an alien who is considered “likely to become a public charge” is inadmissible to the United States.  A public charge determination may be made at the time of an application for a visa or at the time of adjustment of status.  A finding that an alien is likely to become a public charge will lead to the denial of his or her visa application.  Furthermore, INA 237(a)(5) renders deportable an alien who becomes a public charge within five years of his or her date of entry.

In general, a determination that an alien is a “public charge” means that the alien would be likely to require means-tested public benefits in order to sustain him or herself as an immigrant.

Public charge most often arises in cases where a person is seeking permanent residency on the basis of a family-sponsored petition or on the basis of an employment-based petition where a family member has a strong interest in the employer.  In such cases, the petitioner will be required to sign an “affidavit of support” of the alien and satisfy certain requirements in order for the petition to be approvable.

Applicable Benefits

The Foreign Affairs Manual (FAM) explains that the public charge ground of inadmissibility is applied to those who are likely to become dependent on the government for sustenance.  “Government” in the public charge context applies broadly to both federal and state benefits.  However, it is important to note that not every government benefit implicates public charge.  

On April 29, 2011, the United States Citizenship and Immigration Services (USCIS) released a public charge fact sheet (“Public Charge Fact Sheet,” uscis.com, (Apr. 29, 2011)).  The Fact Sheet explains that benefits that provide case assistance for income maintenance implicate public charge.  Such benefits include, but are not limited to:  Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program, and state or local cash assistance program for income maintenance.  Furthermore, public assistance to support aliens who reside in an institution for long-term care, including Medicaid, may be considered as an adverse factor in a public charge determination.  The USCIS notes that receiving such benefits does not, in and of itself, render one inadmissible or deportable on public charge grounds.  Rather, each determination will be made on a case-by-case basis in light of all of the available evidence.

Additionally, the USCIS listed common public benefits that are not considered in making a public charge inadmissibility/deportability determination:  Medicaid and other health insurance and health services assistance (other than support for long-term care); Children’s Health Insurance Program (CHIP); Nutrition programs; Housing benefits; Child care services; Energy assistance; Emergency disaster relief; Foster care and adoption assistance; Educational assistance; Job training programs; Non-cash benefits under TANF; Community-based programs or services; Cash payments that have been earned; and Unemployment compensation.

Factors to Consider

Under INA 212(a)(4)(B), the Attorney General must consider, at a minimum, an alien’sage, health; family status, assets, resources, and financial status, and education and skills in determining whether he or she is likely to become a public charge.  

The statute also permits the consideration of an “affidavit of support” submitted by the alien’s sponsor for immigrant status.  To learn about the affidavit of support, please see the next section.

Under 22 C.F.R. 40.41(e), a visa applicant may submit proof of prearranged employment if he or she is relying on such employment to rebut the presumption of public charge.

Affidavit of Support

An affidavit of support is not only evidence against the presumption of public charge, but it is also required in many immigrant visa applications.  Nearly all family-sponsored immigrant visa applicants will require an affidavit of support submitted by the sponsor, and in certain cases someone assuming joint and several liability with the sponsor, to be submitted on his or her behalf.  Depending on the specific case, the affidavit of support commits the sponsor to supporting the immigrant visa applicant at either 125% or 100% of the Federal Poverty Line for a given period of time.  The affidavit of support is required for all family-sponsored immigrant visa applicants except for the following, listed in INA 212(a)(4)(C)(i):  the applicant obtained status as the spouse or child of a U.S. citizen under INA 204(a)(1)(ii), (iii), or (iv); the applicant is classified under INA 204(a)(1)(B)(ii) or (iii);  or the applicant is classified or has status as a Violence Against Women Act (VAWA) self-petitioner.  Although an affidavit of support is almost never required in employment-based cases, it is required where a family member of the immigrant visa applicant has a significant ownership stake in the petitioner.

Regarding the affidavit of support, it is important for petitioners and beneficiaries to consult with an experienced immigration attorney in order to understand whether the requirements for filing an affidavit of support are met.  Furthermore, those seeking to sponsor a family member should become familiar with the duties and obligations entailed in the signing of an affidavit of support.

Other Cases Exempt from Public Charge Consideration

The USCIS website lists various cases in which the public charge ground of inadmissibility is inapplicable (see “Public Charge,” uscis.com, (Sep. 3, 2009)).  The list refers generally to INA 212(a)(5):

1. Refugees
2. Asylum applicants
3. Refugees and asylees applying for adjustment of status
4. Amerasian immigrants applying for initial admission
5. Individuals granted relief under the Cuban Adjustment Act
6. Individuals granted relief under NACARA
7. Individuals granted relief under the Hattian Refugee Immigrant Fairness Act
8. Applicants for T visas
9. T visa-holders applying for adjustment of status
10. Applicants for U visas
11. U visa-holders applying for adjustment of status
12. Applicants for temporary protected status (TPS)
13. Certain applicants under LIFE Act provisions

Conclusion

The public charge ground of inadmissibility and deportability exists to ensure that the United States does not admit aliens who will need to rely upon public benefits for their maintenance.  In general, it is primarily an issue for family-sponsored immigrant visa applicants, although the public charge ground of inadmissibility and deportability sweeps more broadly.  When applying for a visa, it is wise to consult with an experienced immigration attorney for a full case evaluation, including an assessment of whether public charge concerns may arise.  In family-sponsored cases and limited employment-based cases, an attorney will be able to assist the sponsor in executing an affidavit of support so as to make the visa application approvable.

For persons already in the United States, it is important to remember that, with the exception of limited cases, a public charge determination can lead to removal.  It is well-advised for aliens to consult with an experienced immigration attorney before accepting certain public benefits for a thorough analysis of how accepting such benefits may affect immigration status.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Resources and materials:

Alexander J Segal - "Public Charge", "Overcoming Presumption of Public Charge", "Affidavit of Support"

Lawyer website: http://myattorneyusa.com

Minor Party Candidates Part One: Scenarios Involving Minor Party Candidates

INTRODUCTION: VOTING FOR MINOR PARTIES — PART ONE

With the immense unpopularity of both Hillary Clinton and Donald Trump [see blog], many citizens are considering different voting options. For some this may mean writing someone in or staying home entirely. For others, this may mean voting for a third-party candidate who is on their ballot or who gained official write-in recognition in their state. In this article, I will provide a brief overview of the effect that voting third party may have in this election, and how certain minor party candidates have fared in the past. In my companion article, which is part of my series of blog posts on election issues and immigration [see blog], I will examine the immigration positions of the four minor party candidates with the most ballot access for the November election [see blog]. To jump to my section on a particular candidate, please see the following list:

• Gary Johnson (Libertarian Party) [see section]
• Jill Stein (Green Party) [see section]
• Darrell Castle (Constitution Party) [see section]
• Evan McMullin (No Affilation) [see section]

CAN ANY OF THESE CANDIDATES WIN?

The answer to this question, in reality, is no. But for the sake of examining some interesting points about how the Presidential election works, let us examine the scenarios in which it could happen.

RULES UNDER THE ARTICLE II AND THE TWELFTH AMENDMENT

There is only one scenario in which a minor party candidate could realistically (loosely speaking) win. Under the Twelfth Amendment to the U.S. Constitution, the election will be sent to the House of Representatives in the event that no candidate obtains a majority of the electoral vote. Before continuing, let us examine the pertinent passages of the Twelfth Amendment of the U.S. Constitution, which rectified deficiencies in the election process in Section I of Article II of the U.S. Constitution (these flaws were evident in the tumultuous election of 1800, where my favorite President, Thomas Jefferson, won in the U.S. House against his running-mate, Aaron Burr):

“The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

It is important to note that this occurs if neither candidate wins a majority of the electors, not a majority of the popular vote. In such an event, the U.S. House of Representatives would consider the top three electoral vote-getters for President while the Senate would choose between the top-two for Vice President. Since the ratification of the Twelfth Amendment, only the election of 1824 was resolved by the U.S. House. The House would decide the Presidential election based on House delegations, not based on a straight up or down vote of all House members. This means that the vote of Wyoming's one representative would be worth one state delegation, while a vote of 19-8 among the members of the New York delegation would also be worth one vote for the candidate with the majority. If a majority of House delegations could not agree on a candidate, the Vice Presidential nominee (under the Twelfth Amendment, only the top two electoral college vote-getters for Vice President are eligible in the House) who won the vote of House delegations would become President.

Following these rules, in order for someone other than Clinton or Trump to win (granting no one else has a path to 270 electoral votes), a minor party candidate would have to win at least one elector and both Clinton and Trump would have to fail to reach 270 electoral votes for the matter to be resolved by the House. Additionally, with the House being constituted of only Democrats and Republicans, it would seem to be unlikely for a person who is not a member of either party to carry the requisite number of House delegations. If anyone were to emerge as President other than Clinton or Trump in such an unlikely scenario, it would more likely be Tim Kaine or Mike Pence in the capacity of “Acting President,” which is provided for in the Twentieth Amendment to the U.S. Constitution, than it would be Evan McMullin, Gary Johnson, or another third-place finisher in the Presidential race.

HISTORY OF MINOR CANDIDATES CARRYING STATES

There are two ways in which someone other than Clinton or Trump could win at least one electoral vote. First, someone else could actually win a state's popular vote. However, it is very uncommon for a candidate who is not a Democrat or Republican to carry a state. Since the dawn of the twentieth century, candidates other than Democrats and Republicans have won states only in the following four elections:

• 1912 — Theodore Roosevelt (Progressive): 6 States (second-place finish) [Wiki link]
• 1924 — Robert LaFollette (Progressive): 1 State [Wiki link]
• 1948 — Strom Thurmond (Dixiecrat): 4 States [Wiki link]
• 1968 — George Wallace (American Independent): 5 States [Wiki link]

The 1960 election [Wiki link] between then Senator John Kennedy and then Vice President Richard Nixon provides an interesting case study. In that election, no third candidate carried a state. However, voters in several southern states elected Presidential electors directly rather than voting for the candidates. In Mississippi and Alabama, a majority of the electors chosen were Democrats who were not pledged to Kennedy, and who ultimately voted for Virginia Senator Harry Byrd (this includes the entire slate of Mississippi electors). Because of the closeness of the elections and the presence of a third candidate taking electoral votes, the 1960 and 1968 elections were arguably the two times that we came closest in the last century to having an election resolved by the U.S. House of Representatives. Interestingly, both elections involved Richard Nixon, who would lose to Kennedy in 1960 but defeat Hubert Humphrey and George Wallace in 1968. Ironically, it was Nixon's third election in 1972, where he won by one of the widest margins in U.S. history, where his infamous Watergate Scandal occurred.

1992 is also a noteworthy case. In that election, Ross Perot secured over 19% of the popular vote in a three-way race against then-incumbent George H.W. Bush and Bill Clinton. However, despite having the strongest popular vote performance for a third party candidate since Theodore Roosevelt in 1912, Perot failed to carry a single state. Perot did finish second in three states, however, making him the only third party candidate to finish ahead of a Democrat or Republican in a state race since George Wallace in 1968.

THE SURPRISING STRENGTH OF EVAN MCMULLIN IN UTAH

At this point, independent candidate Evan McMullin is performing remarkably well in Utah, where both Clinton and Trump are even more unpopular than they are in most of the rest of the country. A survey taken by Y2 Analytics in Utah from October 10-11 placed McMullin in third place in Utah with 22%, but within the +/- 4.2% margin of error from both Clinton and Trump polling at 26%.[1] A survey taken by Monmouth from October 10-12 also had McMullin in third place, this time at 20% and behind Clinton at 28% and Trump at 34%.[2]

There would be some irony if McMullin were to make a successful stand in Utah. In 1912, the last election where someone other than the Democratic nominee or the Republican nominee finished in the top two, former President Theodore Roosevelt carried six states to the two states carried by the incumbent President and Republican nominee, William Howard Taft. One of Taft's two states was, in fact, Utah. In 1912, Utah was one of the two states loyal to the Republican, but in 2016, it may well end up being the most surprising defection from the Republican tent.

Furthermore, as I discuss in the companion article, it is worth watching Gary Johnson's performance in New Mexico. However, Johnson appears to be significantly less likely to win any state than McMullin does to win Utah.

FAITHLESS ELECTORS

The second way a non-major party candidate could win electoral votes is by way of what is called a “faithless elector.” It is not known by all that our President and Vice President are not determined by the popular vote, but by the electors of the Electoral College. It was for this reason that George W. Bush carried the 2000 Presidential election despite finishing second in the popular vote to Al Gore. In certain states, electors are allowed to cast their votes for someone other than the person who carried their state. While there have been numerous instances of such “faithless electors,” the last time one cast a vote for someone (other than the Vice President) of one of the major party tickets was in 1972. In 1972, one elector cast his vote for the first ever Libertarian Party candidate for President, John Hospers (that elector, Roger MacBride, would go on to be the Libertarian Party's presidential nominee in 1976) [Wiki link].[3] Despite John Hospers having had fewer than 4,000 votes nationally, he remains the only Libertarian Party candidate to win an electoral vote for President. With Richard Nixon winning the electoral vote over George McGovern 520-17, it can be said that John Hospers did not fare much worse than the Democratic nominee that year, George McGovern., in the Electoral College.

BUT BACK TO REALITY…

While these scenarios are fun to ponder, the reality is that it is beyond exceedingly unlikely than any of them will actualize. Even in a very close election, it is improbable to expect that no candidate procures 270 electoral votes, albeit George W. Bush did only inch over the number with 271 in 2000. Furthermore, the election is looking less and less like a 2000-esque affair, and more and more like a Hillary Clinton romp, with her lead in the polls ballooning since tapes of Donald Trump making lewd comments and a stream of allegations of sexual misconduct have proliferated. While those hoping for chaos may see hope in Evan McMullin's strong performance in Utah, the mere fact that McMullin may win a single state that Republicans often carry by well over twenty points is ultimately a sign of Clinton's strong position rather than a sign that we are headed for a close election.

The political prognostication site, FiveThirtyEight, addressed scenarios involving McMullin and the race going to the U.S. House as we just did. In that article, written on October 13, the site's election model saw a 0.4% chance that Clinton and Trump will end up deadlocked with 269 electoral votes apiece, and a 1.7% chance (or 2.4% depending on which version of the model you use) that Trump wins 269-275 electoral votes with Utah.[4] This scenario would be a prerequisite to McMullin's potential victory in Utah sending the election to the House of Representatives.

CAN A THIRD PARTY CHANGE THE ELECTION WITHOUT WINNING?

In a close race, a third-party candidate may be able to swing an election. It is quite possible that in 2000, where the election came down to a paltry 537-popular vote margin in Florida, the presence of the Green Party candidate, Ralph Nader, may have swung the election to George W. Bush. Nevertheless, 2000 was a once-in-a-lifetime election (let us hope 2016 is as well), and it is unlikely that the presence of minor party candidates will lead to a different person winning the election than if it was only contested between Clinton and Trump.

CONCLUSION

There are many reasons that one may have for choosing to vote for a candidate or to not vote for a candidate in an election. If one is either a fan of Hillary Clinton or Donald Trump, or has as his or her top priority stopping one or the other, a vote for a third-party candidate makes little sense. However, a minor party alternative may provide people who feel that they cannot in good conscience vote for Clinton or Trump a way to vote for someone in the election. In the second part of this post, I examine the four candidates' views on immigration issues to give readers a better idea of what they may be voting for on one very important issue [see blog].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Romboy, Dennis, “Poll: Trump falls into tie with Clinton among Utah voters,” desertnews.com, (Oct. 11, 2016)
2. Monmouth University Polling Institute, “Trump has Narrow Lead But Clinton and McMullin are Hot on His Heels,” monmouth.edu/polling-institute, (Oct. 13, 2016)
3. Saxon, Wolfgang, “Roger MacBride, 65, Libertarian and 'Little House' Heir, Is Dead,” nytimes.com, (Mar. 8, 1995)
4. Morris, Benjamin, “How Evan McMullin Could Win Utah and the Presidency,” fivethirtyeight.com, (Oct. 13, 2016).

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