Tag Archives: electoral college

Lessons From Georgia

If Jews recognized saints, I’d lobby for Stacy Abrams.

Readers of this blog undoubtedly know the impetus for “Fair Fight,” her organization dedicated to combatting vote suppression and increasing registration of previously unregistered/unmotivated citizens. Abrams ran for Governor against Brian Kemp, who was then the Secretary of State administering that same election, a glaring conflict of interest. Kemp threw out some fifty-thousand registrations–most of which were from Black voters–on what observers called thin pretexts, which helped him win that election.

Abrams, formerly minority leader of the Georgia Statehouse, did what far too few of us do in such circumstances. She didn’t retreat to lick her wounds; instead, she created a movement to challenge vote suppression, engage the previously disengaged, and make the system work properly.

As an article in the New York Times yesterday put it, Abrams is currently one of the most influential American politicians not in elected office.

Abrams conceived the strategy and built the political infrastructure its implementation required. As a result, turnout among the state’s Black, Latino and Asian voters increased substantially. Her work was pivotal to Biden’s presidential win in Georgia, and in yesterday’s Senate run-offs.

Of course, yesterday’s stunning results also owed a debt to our insane President, whose illegal, embarrassing and unhinged attacks on the Republicans running Georgia’s election apparatus evidently depressed turnout in areas that were previously heavily pro-Trump. (As one Republican official reportedly noted, the GOP had to overcome the burdens of unappealing candidates and a maniac President..)

So–improbable as it may seem, the very southern State of Georgia will send a Black man and a Jewish man to the U.S. Senate. (File under “Miracles Happen.”)

Aside from the depressing fact that some 70 million Americans cast  ballots for the maniac, and the even more horrifying sight of a mob of goons, thugs and White Supremacists storming the Capitol yesterday in an attempted coup to support that maniac (more about that tomorrow), what lessons can we take from the ways in which this election cycle has played out thus far? 

The most obvious lesson–courtesy of Stacy Abrams–is the importance of grass-roots organizing. Whether a similar effort in Indiana would be effective is debatable, since our state lacks the substantial minority population on which Abrams built. But it certainly seems worth a try.

There is also a less obvious, but equally important lesson, and it is the extreme damage done by the way the electoral college operates today,and gives oxygen to the Trumpian mobs.

The linked op-ed, co-authored by Trevor Potter and Charles Fried, makes that case. Potter is a former chairman of the Federal Election Commission, appointed by George H.W. Bush.  Fried was solicitor general under President Ronald Reagan. (Hint: They aren’t among those “socialists” that Republicans see everywhere.)

Potter and Fried argue that the 2020 presidential election has been a disaster for people who think the Electoral College is still a good idea.

The presidential election is really 51 elections, each conducted and certified by its jurisdiction. Those who support the continued use of the Electoral College system say that the states “speak” to one another through it and so it performs a vital role in promoting national unity and the constitutional system…

But the multiple challenges to the votes of the people this year — expressed through the states and their votes in the Electoral College — teach us that the Electoral College is a fragile institution, with the potential for inflicting great damage on the country when norms are broken. Many of the attempts to subvert the presidential election outcome this year are made possible by the arcane structure and working of the Electoral College process and illustrate the potential for the current Electoral College to promote instability rather than the stability the framers sought.

Actually, I agree with the historians and constitutional scholars like Akhil Reed Amar, who argue “stability” had nothing to do with it–that the Electoral College was the price paid to keep slave states in the newly formed union. But Potter and Fried are certainly correct when they assert that this election cycle has provided a roadmap to politicians of either party who want to change an election’s outcome through postelection manipulation of the Electoral College, and that the mere existence of such a roadmap is destabilizing.

All of this will, and should, propel calls for modernization of the Electoral College. Many will seek its abolition and replacement by a single nationwide poll. But at the very least, the irrational intricacies of the 1887 Electoral Count Act should be replaced by a uniform system guaranteeing that the popular vote in each state controls the ultimate allocation of that state’s electors. The 2020 election has highlighted the destabilizing tendencies in the current system and the need for reform.

Americans have a lot of work to do. In the interim, I plan to light a candle to Stacy Abrams…

 

A Faustian Bargain

There are currently three categories of Republican elected officials: the incredibly stupid (QAnon believers, pandemic and climate change deniers, the “representatives” who make you wonder who in the world voted for them); the not-stupid-but-willing-to-pander; and a very few willing to publicly oppose both. (And when I say “very few,” I mean one or two at most.)

Of course, there are also the “Never Trumpers” who are mostly former lawmakers or former campaign strategists, but for purposes of this analysis, I’m only categorizing those currently holding public office.

Senator Josh Hawley falls into the second category. He is someone willing to pursue goals by taking positions that he knows to be ridiculous and unlikely to succeed in order to ingratiate himself with the rabid, uneducated GOP base.

Of course, he isn’t the only one. The execrable Ted Cruz and ten other Senate Republicans–including Indiana’s dim, embarrassing Senator Mike Braun– also plan to protest the non-existent “voter fraud” that led to Trump’s loss. Like Hawley, Cruz clearly knows better. The two of them are already competing for the 2024 GOP nomination, which will largely be delivered by the party’s ignorant Trumpian base.

It’s the very definition of a Faustian bargain– an action or agreement in which a person sells his soul, abandoning his spiritual values, moral principles and presumed afterlife in heaven, in order to reap a benefit in the here and now.  Another way to put it is to make a deal with the devil.

Peter Wehner called Hawley out in a New Year’s Eve article in The Atlantic. Wehner suggests that Hawley’s planned objection to the Electoral College vote is evidence of what he calls “the enduring power of Trumpian unreality.”

Hawley knows this effort will fail, just as every other effort to undo the results of the lawful presidential election will fail. (A brief reminder for those with faulty short-term memories: Joe Biden defeated Trump by more than 7 million popular votes and 74 Electoral College votes.) Every single attempt to prove that the election was marked by fraud or that President-elect Biden’s win is illegitimate—an effort that now includes about 60 lawsuits—has flopped. In fact, what we’ve discovered since the November 3 election is that it was “the most secure in American history,” as election experts in Trump’s own administration have declared. But this immutable, eminently provable fact doesn’t deter Trump and many of his allies from trying to overturn the election; perversely, it seems to embolden them.

One such Trump ally is Tommy Tuberville, the newly elected senator from Alabama, who has suggested that he might challenge the Electoral College count. And there are others. But what makes Hawley’s declaration ominously noteworthy is that unlike Tuberville—a former college football coach who owes his political career in a deep-red state to Trump’s endorsement in the GOP primary against Jeff Sessions—Hawley is a man who clearly knows better. According to his Senate biography, he is “recognized as one of the nation’s leading constitutional lawyers.” A former state attorney general, Hawley has litigated before the Supreme Court. He graduated from Stanford University in 2002 and Yale Law School in 2006. He has clerked for Chief Justice John Roberts; he taught at one of London’s elite private schools, St. Paul’s; and he served as an appellate litigator at one of the world’s biggest law firms.

Wehner accurately calls Hawley’s planned action unpatriotic “civic vandalism.”

He quotes an acquaintance of Senator Hawley for confirmation of his assertion that Hawley is perfectly aware that the election wasn’t “rigged” or otherwise illegitimate, and that the legal arguments he his parroting are ridiculous. Nevertheless, he has calculated that he will benefit politically from the lie, from the pretense. He has made his deal with the devil and has dispensed with any shred of integrity he may once have had.

As Wehner says,  this is obviously a very bad sign about the direction of the GOP in the coming years.

What is happening in the GOP is that figures such as Hawley, along with many of his Senate and House colleagues, and important Republican players, including the former United Nations Ambassador Nikki Haley, are all trying to position themselves as the heirs of Trump. None of them possesses the same sociopathic qualities as Trump, and their efforts will be less impulsive and presumably less clownish, more calculated and probably less conspiracy-minded. It may be that not all of them support Hawley’s stunt; perhaps some are even embarrassed by it. But these figures are seismographers; they are determined to act in ways that win the approval of the Republican Party’s base. And this goes to the heart of the danger.

Quite right. The current Republican base is racist, ignorant and terrified of modernity. (It is also uncomfortably large.) A willingness to pander to that base isn’t simply a Faustian bargain–it’s an overwhelming threat to America’s future.

 

The Electoral College Versus Democracy

I have posted before–several times–about the anti-democratic elements of the Electoral College. Whatever its origins–whether, as some scholars insist, it was a concession to the slave states, or as defenders contend, it was an effort to give added electoral heft to smaller states–it hasn’t just outlived its initial purpose. It now undermines democracy and national unity.

There is ample evidence that the Electoral College advantages white rural voters–substantially. Research suggests that every rural vote is worth one and a third of every urban vote. Small states already have an advantage by virtue of the fact that every state–no matter how thinly or densely populated–has two Senators.

A recent column from the New York Times emphasizes these disproportions, and points to other, under-appreciated elements of the Electoral College system.These paragraphs outline the crux of the problem

The Electoral College as it functions today is the most glaring reminder of many that our democracy is not fair, not equal and not representative. No other advanced democracy in the world uses anything like it, and for good reason. The election, as Mr. Trump would say — though not for the right reasons — is rigged.

The main problem with the Electoral College today is not, as both its supporters and detractors believe, the disproportionate power it gives smaller states. Those states do get a boost from their two Senate-based electoral votes, but that benefit pales in comparison to the real culprit: statewide winner-take-all laws. Under these laws, which states adopted to gain political advantage in the nation’s early years, even though it was never raised by the framers — states award all their electors to the candidate with the most popular votes in their state. The effect is to erase all the voters in that state who didn’t vote for the top candidate.

Today, 48 states use winner-take-all. As a result, most are considered “safe,” that is, comfortably in hand for one party or the other. No amount of campaigning will change that. The only states that matter to either party are the “battleground” states — especially bigger ones like Florida and Pennsylvania, where a swing of a few thousand or even a few hundred votes can shift the entire pot of electors from one candidate to the other.

Winner-take-all has an even more pernicious effect–it disincentivizes voting by people who are in their state’s political minority. If your state is red and you are blue, or vice-versa, it’s easy to convince yourself your vote is meaningless. (For federal offices, it is.)

The result is that Joe Biden must win the popular vote by a significant margin, or risk losing the Presidency. If Biden wins by five percentage points or more — something that would require winning by more than seven million votes — no problem.

If he wins by 4.5 million more votes than the president? The odds drop to 75%.

Anything less than a 4.5 million vote margin, and Biden’s odds drop “like a rock.” If he wins the popular vote by “only” three million-Hillary Clinton’s margin–we’re looking at a second Trump term.

There is no argument of which I am aware that turns that analysis into a democratically-acceptable result.

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.