Tag Archives: electoral college

When Should The Majority Rule?

In the wake of Boris Johnson’s victory in the election in the UK, a distinguished scholar of comparative constitutionalism posted a lengthy analysis to a listserv in which I participate. Much of that analysis is technical and of interest mainly to other academics, but I was struck by her opening observation:

Calling the Johnson victory a landslide assumes that the results of nationwide first-past-the-post constituency elections adequately capture public sentiment. Yes, Johnson got an overwhelming majority of seats but he didn’t win even a simple majority of the vote. In fact, it turns out that the Tories were up a mere 1.2% in vote totals over their disastrous 2017 election results – in which they lost their parliamentary majority and had to enter a confidence-and-supply agreement with the DUP. Labour is now being called down and out with the worst election results (measured in seats) since the 1930s because they were 7.8% down from 2017. Compared with the 2015 election, they were only 2% down, hardly the stuff of grand tragedy…

The UK first-past-the-post electoral system is fiendishly sensitive to small vote shifts which can produce seismic effects depending on how they are distributed across constituencies.

Sound like another electoral system with which you’re familiar?

Politicians and pundits will continue their ongoing arguments for and against the Electoral College, and the British are evidently embroiled in similar discussions about the operation of their system, but there is an underlying issue with which we very rarely engage: what sorts of social and legal arrangements ought to be decided by popular majorities, and what sorts ought to be protected from the passions of those same majorities?

Defenders of the Electoral College point to the Founders’ well-documented concerns about those “passions of the majority,” and to their initial reluctance to remit even the choice of Senators to popular vote. Opponents point to evidence that the Electoral College was a concession to Southern states– they would have been severely disadvantaged in a system where the popular vote prevailed, because their slaves wouldn’t count.

Whatever side of that argument you find most persuasive, the question remains: in the 21st Century, which decisions should be made by popular vote, and which should not?

A fair reading of the Founders’ basic approach–buttressed by political philosophers from the Enlightenment to modern times–suggests that they favored some form of majority rule for issues of governance, and protection from the “passions of the majority” for issues of human and/or individual rights.

If we look at the Constitution, we see that laws are to be made by representatives of the people (the reason we call ourselves a representative democracy). Although it is certainly true that those representatives were supposed to vote for legislation based upon their presumed knowledge and personal beliefs, if those votes proved to be inconsistent with the desires of their constituents, the constituents could vote them out. (It’s also worth noting that legislation was supposed to be passed by a simple majority vote of those legislators–something that seems quaint in an era where overuse of the filibuster means we need super-majorities in the Senate to pass pretty much anything.)

If we look at the Bill of Rights, we see a very different standard. Because the Founders believed in “natural rights”–that is, they believed that humans (okay, white male humans) are born with certain “unalienable rights”–they protected the exercise of those rights against the sentiments of popular majorities.

When you think about it, it’s a striking dichotomy.

It is supposed to take a majority of American voters (or states) to choose the people who will run our government. It is supposed to take a majority of lawmakers to pass legislation. But individual citizens are supposed to be protected against the disapproval of those same popular majorities when they are exercising their fundamental rights.

We can–and do–argue about how to define “fundamental rights” and how to ensure that vote totals accurately reflect majority sentiment. But I think it is fair to say that when electoral systems operate to privilege minority parties and candidates over those preferred by majorities, those systems are neither democratically nor constitutionally legitimate.

 

Winner Take All

In Indianapolis, early voting for the upcoming municipal elections just commenced, and my husband and I dutifully cast our ballots in advance of election day.

After all, we could be hit by a bus or otherwise “snuffed out” between now and the actual date of the election. This way, we’re sure our votes for Mayor and City-County Council will count.

Unlike our votes for President.

Each time we participate in the democratic process, I am reminded of all the ways in which that process has become less democratic. Voter suppression, voter I.D. laws, polls closing at 6:00 pm–there are numerous ways that the Republican super-majority in our state has made casting a vote onerous for everyone, but especially for the minority and working-class folks who tend to vote Democratic.

Indiana isn’t alone. There are so many ways that the party that controls a statehouse can erase the votes of citizens in the opposing party–at least, in Presidential contests. The most pernicious–and probably least understood–is “winner take all.”

A recent op-ed from the New York Times explains.

The column began with a discussion of the Electoral College, and the changes in the way it works–especially the manner in which we choose Electors– since it was first conceived by Alexander Hamilton. But as the author noted, today’s Electors aren’t the problem.

What really disregards the will of the people is the winner-take-all rule currently used by every state but Maine and Nebraska. Giving all electors to the winner of the statewide popular vote erases the votes of citizens in the political minority — say, the 4.5 million people who voted for Donald Trump in California, or the 3.9 million who voted for Hillary Clinton in Texas. Nationwide, this was the fate of 55 million people in 2016, or 42 percent of the country’s electorate.

The winner-take-all rule encourages campaigns to focus on closely divided battleground states, where a swing of even a few hundred votes can move a huge bloc of electors — creating presidents out of popular-vote losers, like George W. Bush and Donald Trump. This violates the central democratic (or, if you prefer, republican) premises of political equality and majority rule.

What most people don’t realize is that the winner-take-all rule exists nowhere in the Constitution. It’s a pure creation of the states. They can award their electors by congressional district, as Maine and Nebraska do, or in proportion to the state’s popular vote, as several states have considered.

Or, of course, states could award their electoral votes to whoever wins the national popular vote, which would be the result of enough states signing on to the National Vote Compact.

If the Compact cannot reach its target of signatory states having a total of 270 Electoral Votes, my own preference would be a proportionate allocation. If 60% of the votes are cast for candidate A, candidate A gets 60% of the state’s electoral votes–not 100%. People in the political minority in a state would suddenly have an incentive to vote–an incentive that doesn’t exist now. A presidential vote by a Democrat in Indiana or a Republican in California simply doesn’t count.

Allocating votes by Congressional District risks replicating the major flaw of today’s Electoral College–awarding disproportionate weight to less-populated rural areas. (Thanks to population shifts since the Constitution was ratified, today’s Electoral College effectively makes every rural vote worth one and a third of every urban vote.)

The problem is, to work properly, all states would have to make the change to proportional allocation–and that won’t happen. So we’re stuck.

Until we figure a way to get rid of the Electoral College, we will continue to have Presidents elected by–and answerable to–a minority of the voters. I don’t know what you call that, but it isn’t democracy.

 

Majority Rule And The Electoral College

I recently participated in a really interesting and informative conference at Loyola Law School in Chicago. (I posted my presentation on Sunday.)The conference title was Democracy in America. Although the subtitle was “The Promise and the Perils,” most presentations were pretty tightly focused on the perils.

Identification of those perils centered mostly on the “usual suspects”: gerrymandering, the Electoral College, vote suppression…But thanks to the participation of some really first-class legal scholars, the discussion had some interesting twists.

The law professors and political scientists who discussed the Electoral College were in agreement that a constitutional amendment eliminating it simply won’t happen; they were equally negative on the likelihood of red states ever joining the Popular Vote Pact (and noted that it might not be able to survive a constitutional challenge).

Obviously, the Electoral College as it exists today is dramatically different from the mechanism as it was originally conceived and even as it was later amended.

According to law professor Edward Foley, who has a book coming out on the subject later this year, the changes made to the College by the Twelfth Amendment in 1804 rested on the assumption that the candidate who won a majority of the popular vote would be elected. Those who crafted the Amendment failed to foresee the emergence of third party candidates whose presence on the ballot often means that the winner of a given state doesn’t win a majority, but a plurality of the vote.

Foley favors a rule that would award electoral votes only to candidates who receive a majority of the votes in that state. (He didn’t say how the votes of that state would be apportioned in cases where the winning candidate didn’t meet that standard—but there are a number of possibilities.)

Ranked-choice voting would eliminate the problem.

Even more intriguing, there is evidently a lawsuit pending that challenges “winner take all” allocations of state electoral votes. Winner take all (which is in effect in all but two states) awards all of a state’s electoral votes to whoever wins, by whatever margin. It’s why Democratic votes for President don’t count in Indiana and Republican votes don’t count in New York—even if the margin is incredibly thin, the candidate who comes out on top gets all the electoral votes. If the votes were apportioned instead—if a winner of 51% of the popular vote got 51% of the electoral vote, and the candidate who got 49% got 49%, it wouldn’t just be fairer. It would encourage voters who supported the “other” party in reliably red or blue states to vote, because–suddenly– that vote would count.

Last February, a coalition of law firms led by the League of United Latin American Citizens (LULAC), and David Boies of Boies Schiller Flexner LLP, filed four landmark lawsuits challenging winner-take-all. According to the press release,

By magnifying the impact of some votes and disregarding others, the winner-take-all system is not only undemocratic, but it also violates the Constitutional rights of free association, political expression, and equal protection under the law. These suits aim to restore those rights nationwide.

The suit was filed in four states–two red, two blue. Two have dismissed the complaint (the California dismissal has been appealed to the 9thCircuit), but it is still “alive” in two others.

States have the authority to allocate their electoral votes as they see fit, but if some states allocated and others did not, the results would be even less likely to result in the election of the person who actually won the most votes nationally. This case—if successful—would require all states to allocate their electoral votes.

It would help.

If We Have To Keep The Electoral College…

Discussions of Constitutional originalism tend to illuminate the very different meanings that different people ascribe to that term.

I’m currently reading “We the People” by Erwin Chemerinsky, the Dean of Berkeley’s law school, and I will return to the subject of “original intent” and his (and my) take on it once I’ve finished the book. But today, I want to propose an “originalism” experiment for those of us who are critical of the current, undemocratic operation of the Electoral College.

Democracy, of course, wasn’t the point of the College. But then, neither was its use as a partisan tool advantaging a reactionary political party, which is what it has become.

There’s a pretty robust consensus that a constitutional amendment simply getting rid of the Electoral College is unlikely to succeed, at least for the foreseeable future. And since some of the College’s most ardent defenders are also proponents of “originalism a la Scalia” (a legal approach so flawed that even Scalia couldn’t consistently apply it), I think we should begin a movement to make the College operate as originally intended.

Article II, Section 1, Clause 3 of the Constitution provided the original plan by which the electors voted for president. (Electors did not originally vote for vice president. The President would be the person who received a majority of votes from the electors, and the person receiving the second most votes would become vice president. That changed with the emergence of political parties, a phenomenon necessitating the 12th Amendment.)

Individual electors were supposed to be selected by a vote of citizens on a district-by-district basis, and were supposed to exercise their independent judgment when casting their votes for President. Wikipedia shares the following quote from Alexander Hamilton, describing the Founding Fathers’ “original intent” with respect to the electors:

A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated [tasks].

Over the years, the “original intent” of the Electoral College has been ignored.

Rather than electors who have been chosen by their neighbors to exercise their informed judgment on behalf of the citizens who chose them (and presumably knew who they were, either personally or by reputation), we now have slates of faceless elector candidates pledged to vote for their parties’ respective candidates. Most states also have passed laws prohibiting so-called “faithless electors”–that is, electors who exercise independent judgment and opt to vote for a candidate who did not win that state’s popular vote.

Does anyone believe that a majority of electors possessing “information and discernment” and exercising “independent judgment” would have cast their votes for Donald Trump? (Or for that matter, that such electors would have confirmed Florida’s “hanging chad” results?)

So here’s my proposal: If we must keep the Electoral College, by all means let’s start a movement to assure that it operates in a manner that is consistent with the Founders’ “original intent.”

Are We Headed Toward a Constitutional Crisis?

What, exactly, constitutes a “constitutional crisis”? It is a term we are hearing more frequently, and over at Vox, they made a pretty good stab at defining it.

Dylan Matthews writes that he

decided to ask eight leading experts — six constitutional law professors and two political scientists — for their thoughts. They were unanimous that the situation as it exists now doesn’t count as a constitutional “crisis”; some cast doubt on whether that term, which has no firm definition, is even useful.

As one of the experts noted, the fact that something tends to undermine respect for constitutional institutions–like calling a judge a “so-called” judge, or showing lack of respect for the courts–can be a bad idea, yet not amount to a constitutional crisis. (As I tell my students, the fact that a policy is stupid or even dangerous doesn’t automatically make it unconstitutional.)

Matthews quotes constitutional scholar Keith Whittington for the definition of a genuine crisis.

“Constitutional crises arise out of the failure, or strong risk of failure, of a constitution to perform its central functions,” he wrote. That didn’t happen in the impeachment (which unfolded according to the procedures laid out in Articles 1 and 2) or in the 2000 election (in which decisions of executive branch officials in Florida were challenged through normal legal channels and all actors respected the ultimate decision of the US Supreme Court, whether or not they thought it was rightly decided).

So what would qualify? Whittington divided constitutional crises into two categories. Operational crises occur “when important political disputes cannot be resolved within the existing constitutional framework.” That is, the Constitution itself is failing, and is allowing people engaged in a political conflict to each behave in ways that together can result in calamity. A “crisis of constitutional fidelity,” by contrast, occurs when, “important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions.” That’s when what the Constitution prescribes is clear, but one or more politician or branch of government willfully defies it.

The article is interesting, and (given the chaos that is today’s White House) worth reading, but it didn’t directly address a question that I’ve begun mulling, given the “drip, drip, drip” of new revelations (most recently, the scandal surrounding Sessions): What if it turned out that Russia really did “elect” Trump? In other words, what if investigations turned up evidence that Russia’s tampering really did “rig” the election?

The Constitution has no remedy for an illegitimate election, at least not that I am aware of. Trump’s electoral college victory rested on fewer than 80,000 votes spread among three states, giving him paper-thin margins in those states–and the win. If those votes were suborned or improperly counted, then neither he nor Pence would really have been elected.

What then? Would we follow the constitutional line of succession, and install Ryan–giving the Republicans a “win” they didn’t win?

Let me emphasize that I have absolutely no evidence that this actually happened; my guess is that the Russian efforts to influence the election were just that–efforts at influencing public opinion, rather than actually falsifying results. I raise the question because it is becoming clear that there are aspects of our current political life that neither our national charter nor our governing institutions anticipate or address. I doubt the Founders could have foreseen the nature of today’s democratic distortions caused by the Electoral College, or the way in which gerrymandering has deprived millions of Americans of meaningful votes, or the current iteration of the filibuster that requires Senate super-majorities in order to pass even routine legislation.

If a central function of a Constitution is to prescribe fair and transparent processes by which citizens govern themselves, we may need to do some repair work on ours.