Tag Archives: electoral college

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.

 

Speaking of White Privilege….

In the wake of the election, there has been a renewed call to get rid of the Electoral College–or at least modify its operation via the National Popular Vote Project to require electors to vote for the candidate who wins the popular vote.

The Electoral College was originally a concession to the slave states, allowing them to “count” their slaves (albeit at a discount). Today, it has all sorts of pernicious and undemocratic effects. Not long ago, Jamin Raskin, who teaches Constitutional law at George Washington University, summed up a number of those effects in a post to the American Constitution Society’s blog. Raskin noted that,

in the absence of the Electoral College, it would no longer make strategic sense to “turn off the lights and fly over 40 states – from California to New York, Texas to Vermont, Georgia to Mississippi, Hawaii to Alaska, South Dakota to Montana, and so on.” And he disputed the argument that the rest of the electorate “should be content to be long-distance spectators because the voters of Virginia or Arizona or Florida are just like us and are effectively acting as proxies for our interests and our values.”

This was precisely the argument that was rejected in the American Revolution.

The British tried to convince the American colonists that they didn’t need their own elections and representatives in Parliament because they were “virtually represented” by members back home representing Englishmen of similar views. The colonists rebelled against this insulting doctrine of “virtual representation,” which they treated as an assault on political liberty and authentic democracy rooted in the politics of place. Roughly 140 years later, we similarly rejected claims that women didn’t need the vote because they were adequately represented by men.

Every citizen’s vote should count equally in presidential elections, as in elections for governor or mayor. But the current regime makes votes in swing states hugely valuable while rendering votes in non-competitive states virtually meaningless. This weird lottery, as we have seen, dramatically increases incentives for strategic partisan mischief and electoral corruption in states like Florida and Ohio. You can swing a whole election by suppressing, deterring, rejecting and disqualifying just a few thousand votes.

My own biggest “gripe” is, as I have previously written, the extra weight the system gives to votes from rural areas. In effect, urban votes count less and rural preferences count more–an anti-democratic result. But an analysis by Vox has confirmed that it isn’t only voters from more thinly populated areas who are privileged by the system. The Electoral College also privileges the votes of white Americans.

The probability of one person’s vote being decisive, we found, ranged from roughly one in a million for a resident of New Hampshire — a swing state with a relatively small population — to less than one in one billion in states that are reliably “red” or “blue,” such as New York, California, Kansas, and Oklahoma.

We can use a similar approach to show how the Electoral College increases not just the weight of voters in swing states but the weight of voters of certain ethnicities — based on their distribution across the states. We find that, based on the current distribution of voters of different ethnicities across states, and particularly within swing states, the Electoral College amplifies the power of white voters by a substantial amount….

After running the numbers, we estimate that, per voter, whites have 16 percent more power than blacks once the Electoral College is taken into consideration, 28 percent more power than Latinos, and 57 percent more power than those who fall into the other category.

I’m sure that analysis warms the cockles of Bill O’Reilly’s heart. (I assume he does have one. Somewhere.) It doesn’t do much for mine.

The Election Was, Actually, Rigged

Among the many ironies of the 2016 election was Trump’s insistence that if he were to lose (and evidently only then), it would be evidence that the election was rigged.

The truth, as numerous election officials pointed out, is that tampering with the vote at polling sites–the only sort of “rigging” Trump would understand– is virtually impossible. Vote suppression is far more common.

That said, the actual “rigging” of American elections is quite legal; in fact, it’s baked into the system. I’ve written extensively about some of the more egregious examples, especially gerrymandering. But partisan redistricting isn’t the only structural element frustrating expression of the popular will.

Almost lost in the coverage of the election’s stunning result was the fact that Hillary Clinton won the popular vote. She lost in the Electoral College, a structural throwback to a different time that has increasingly distorted national elections and failed to reflect the will of the voters as expressed at the ballot box. This is the second time in 16 years that a candidate has won the popular vote only to lose the Electoral College and the Presidency.

Many of the problems with the Electoral College are widely recognized: the outsized influence it gives swing states, the lack of an incentive to vote if you favor the minority party in a winner-take-all state dominated by the other party, and the over-representation of rural and less populated states.

Whatever the original merits of the Electoral College, it operates today to disadvantage urban voters in favor of rural ones. Hillary Clinton’s voters were women, minorities, and educated Whites, and they were disproportionately urban; Trump supporters were primarily less-educated White Christian males, and they were overwhelmingly rural.

In today’s America, cities are growing and rural areas declining. That decline undoubtedly feeds much of the anger and white nationalism displayed by Trump voters. One can be sympathetic to rural concerns without, however, giving the votes of rural inhabitants (already favored by gerrymandering) greater weight than the votes of urban Americans.

In Baker v. Carr, the Supreme Court famously upheld the principle of “one person, one vote.” The operation of the Electoral College violates that fundamental democratic tenet.

The cost of living is higher in cities, and most of us who choose urban life are willing to pay a premium in return for the benefits offered by more cosmopolitan environments. But a reduction in the value of our vote shouldn’t be one of the added costs we incur.

It is time to get rid of the Electoral College.

Short-Term, Long-Term

A post-election article from the Houston Chronicle begins with a provocative projection that will comfort people depressed about the midterms:

Few things are as dangerous to a long term strategy as a short-term victory. Republicans this week scored the kind of win that sets one up for spectacular, catastrophic failure and no one is talking about it.

What emerges from the numbers is the continuation of a trend that has been in place for almost two decades. Once again, Republicans are disappearing from the competitive landscape at the national level across the most heavily populated sections of the country while intensifying their hold on a declining electoral bloc of aging, white, rural voters. The 2014 election not only continued that doomed pattern, it doubled down on it. As a result, it became apparent from the numbers last week that no Republican candidate has a credible shot at the White House in 2016, and the chance of the GOP holding the Senate for longer than two years is precisely zero.(emphasis mine)

The article follows this declaration with a matter-of-fact rundown of the electoral college votes–where they are and what a winner will need. His bottom line:

The next Presidential election, and all subsequent ones until a future party realignment, will be decided in the Democratic primary. Only by sweeping all nine of the states that remain in contention AND also flipping one impossibly Democratic state can a Republican candidate win the White House. What are the odds that a Republican candidate capable of passing muster with 2016 GOP primary voters can accomplish that feat? You do the math.

The key to understanding that paragraph (not to mention our toxic political environment),  is “What are the odds that a Republican candidate capable of passing muster with GOP primary voters”….

As the article convincingly demonstrates, the crazies who appeal to the GOP’s current base  are winning in bright red, frequently gerrymandered, mostly rural districts. The problem is, those crazies have now become the (embarrassing) face of the Republican party nationally–making it impossible for the party to win national elections.

We ought not take too much comfort from that.

I have said it before and I’ll say it again–this country needs two adult, sane political parties. Right now, the GOP is controlled by a base that is neither adult nor sane. Unless the remaining Republican grown-ups (whose ranks are thinning) can reassert control, there will be no rational “loyal opposition” to keep Democrats focused and honest, no healthy competition to ensure that all ideas get thoroughly vetted, and no place to go–no alternative to vote for– for the disaffected.

America needs a rational GOP. We had one once, and I miss it.