Tag Archives: electoral college

Fix It–Or Forget It?

Heather Cox Richardson recently brought her historian’s perspective to what she suggested were signs of civil discord–even, potentially, civil war. They included a speech by GOP Representative Madison Cawthorn of North Carolina, in which he insisted that the January 6 rioters are being held as “political hostages.”  Evidently, someone in the audience asked him “When are you going to call us to Washington again?” (I found the “again” rather incriminating…) Cawthorn, a member of the GOP’s growing lunatic caucus, took the bait, saying“We are actively working on that one…. We have a few plans in motion that I can’t make public right now.”

Among other alarming remarks he made was his declaration that “The Second Amendment was written so that we can fight against tyranny.” (Those guns really going to win the day against government tanks and drones, Madison?)

Incredible as it may seem, right wing figures are calling for civil war.

Richardson also quoted one Steve Lynch, a candidate for Northampton County executive, for the following “advice:” “Forget going into these school boards with freaking data. You go into these school boards to remove them. I’m going in with 20 strong men and I’m gonna give them an option—they can leave or they can be removed.”

Also to be filed under “chilling” was a placard held by a man who attended a Santa Monica protest leading up to a vote on a mask mandate; the sign had  the names and home addresses of each Los Angeles City Council member and threatened that protesters would visit the homes of those who voted for the mandate. If it passed, the sign warned, “Civil War is coming! Get your guns!”

A paper recently published by The Brookings Institution actually considered arguments for and against the likelihood of an upcoming civil war–an analysis that would have seemed preposterous not so long ago. (The authors ultimately decided such a war is unlikely–but  in the wake of the January 6th insurrection, it isn’t beyond the realm of possibility.)

In the Washington Post, Greg Sargent considered the “fixes” that need to be made to the Electoral College count in order to avoid a future election being stolen. As he pointed out, the Act’s language, which sets the process for Congress to count presidential electoral votes, is vague and prone to abuse.

The ECA sets a “safe harbor” deadline: If a state certifies its electors six days before the electoral college meets, Congress must count them, but it can technically throw out a particular electoral vote if it decides it was not “regularly given.” This phrase is supposed to indicate serious corruption or illegality but isn’t defined, leaving it open to bad-faith congressional objections to those electors.
 
The ECA is supposed to provide for resolution of resulting disputes in Congress over any state’s slate of electors. If a single senator and House member objects to a slate, each chamber must vote on them. If both chambers agree to invalidate the slate, they don’t get counted.

There are several main ways this can result in stolen elections. One is if a state sends one slate of electors — a valid one reflecting the state’s popular vote — and both chambers decline to count them, based on a bogus claim that they were not “regularly given.”
 

Given that the current iteration of the Republican Party should probably be renamed “Bogus Claim R Us,” this is not a fanciful scenario. As Sargent reminds us, the scenarios he enumerates are exactly the ones Trump pressured GOP state legislatures to adopt– and many Republican members of Congress raised obviously bogus objections to acceptance of the correct slates.

Meanwhile, “audits” in Arizona and elsewhere are dry runs at manufacturing pretexts to raise sufficient doubt about a state’s popular vote to trigger such scenarios.

I know I harp on gerrymandering and the media environment, but before the advent of computers made it possible to micro-target voters and social media made it possible to shut out voices of reason, the parties generally steered clear of nominating the sorts of lunatics who are driving the current political debates.

Most conversations about the Constitution center on the rights protected by the Bill of Rights. But the Constitution also prescribes mechanisms for electing and governing–and if we don’t modernize several of those mechanisms, we’ll end up losing the Bill of Rights.

We need to fix it–or just forget about the American Experiment.

 

 

Stuff I Know You Know…

At noon today, I’m speaking (via Zoom) to a Columbus, Indiana human rights organization. Here are my prepared remarks. (Long one–sorry.)
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Over the past few years, Americans have begun to recognize how endangered our representative democracy has become.

Pundits and political scientists have their pet theories for how this has happened. Some of that analysis has been intriguing, and even illuminating. Until lately, however, none of it had attempted to answer the important question: what should we do to fix our problems, and why should we do it? As the causes of our dysfunctions have become more obvious, however—as it has become very clear that we are caught up in an obsolete system that facilitates the dominance of a clear minority of our voting population– scholars are urging reforms that focus on protecting voting rights, and restructuring America’s antiquated electoral processes.

First, some background.

You know, we humans don’t always appreciate the extent to which cultural or legal institutions—what we might call folkways, our longtime accepted ways of behaving and interacting—shape the way we understand the world around us. We rarely stop to consider things we simply take for granted—the conventions that constitute our daily lives. We drive on this side of the road, not that side; our marriages consist of two adults, not three or four; when our country holds elections we get to participate or abstain. Most of us accept these and multiple other conventions as givens, as “the way things are.” In some cases, however, institutions, systems and expectations that have worked well, or at least adequately, for a number of years simply outlive whatever original utility they may once have had, made obsolete by modern communications and transportation technologies, corrupt usages or cultural and demographic change.

I want to suggest that such obsolescence is a particularly acute element of American political life today. Let me share some of the more important examples that currently work in tandem to disenfranchise literally millions of Americans who are entitled to have their voices heard and their votes counted.

Perhaps the most significant problem of today’s electoral system is partisan gerrymandering. As you know, every ten years, after each census, state governments redraw state and federal district lines to reflect population changes. States—including Indiana– are engaged in that exercise as we speak. Except in the few states that have established nonpartisan redistricting commissions, the party in control of the state legislature when redistricting time rolls around controls the line-drawing process, and Republican or Democrat, they will all draw districts that maximize their own electoral prospects and minimize those of the opposing party.

Partisan redistricting goes all the way back to Elbridge Gerry, who gave Gerrymandering its name—and he signed the Declaration of Independence—but the process became far more sophisticated and precise with the advent of computers, leading to a situation which has been aptly described as legislators choosing their voters, rather than the other way around.

Academic researchers and political reformers alike blame gerrymandering for electoral non-competitiveness and political polarization. A 2008 book co-authored by Norman Orenstein and Thomas Mann argued that the decline in competition fostered by gerrymandering has entrenched partisan behavior and diminished incentives for compromise and bipartisanship.

Mann and Orenstein are political scientists who have written extensively about redistricting, and about “packing” (creating districts with supermajorities of the opposing party) “cracking” (distributing members of the opposing party among several districts to ensure that they don’t have a majority in any of them) and “tacking” (expanding the boundaries of a district to include a desirable group from a neighboring district). They have tied redistricting to the advantages of incumbency, and also point out that the reliance by House candidates upon maps drawn by state-level politicians operates to reinforce “partisan rigidity,” the increasing nationalization of the political parties.

Interestingly, one study they cited investigated whether representatives elected from districts drawn by independent commissions become less partisan. Contrary to their initial expectations, they found that politically independent redistricting did reduce partisanship, and in statistically significant ways.

Perhaps the most pernicious effect of gerrymandering is the proliferation of safe seats. Safe districts breed voter apathy and reduce political participation. After all, why should citizens get involved if the result is foreordained? Why donate to a sure loser? (For that matter, unless you are trying to buy political influence for some reason, why donate to a sure winner?) What is the incentive to volunteer or vote when it obviously doesn’t matter? It isn’t only voters who lack incentives for participation, either: it becomes increasingly difficult for the “sure loser” party to recruit credible candidates. As a result, in many of these races, voters are left with no meaningful choice.  Ironically, the anemic voter turnout that gerrymandering produces leads to handwringing about citizen apathy, usually characterized as a civic or moral deficiency. But voter apathy may instead be a highly rational response to noncompetitive politics. People save their efforts for places where those efforts count, and thanks to the increasing lack of competitiveness in our electoral system, those places often do not include the voting booth.

Worst of all, in safe districts, the only way to oppose an incumbent is in the primary–and that almost always means that the challenge will come from the “flank” or extreme. When the primary is, in effect, the general election, the battle takes place among the party faithful, who also tend to be the most ideological voters. So Republican incumbents will be challenged from the Right and Democratic incumbents will be attacked from the Left. Even where those challenges fail, they create a powerful incentive for incumbents to “toe the line”— to placate the most rigid elements of their respective parties. Instead of the system working as intended, with both parties nominating candidates they think will be most likely to appeal to the broader constituency, the system produces nominees who represent the most extreme voters on each side of the philosophical divide.

The consequence of this ever-more-precise state-level and Congressional district gerrymandering has been a growing philosophical gap between the parties and— especially but not exclusively in the Republican party— an empowered, rigidly ideological base intent on punishing any deviation from orthodoxy and/or any hint of compromise.

After the 2010 census, Republicans dominated state governments in a significant majority of states, and they proceeded to engage in one of the most thorough, most strategic, most competent gerrymanders in history. The 2011 gerrymander did two things: as intended, it gave Republicans control of the House of Representatives; the GOP held 247 seats to the Democrats’ 186, a 61 vote margin– despite the fact that nationally, Democratic House candidates had received over a million more votes than Republican House candidates. But that gerrymander also did something unintended; it destroyed Republican party discipline. It created and empowered the significant number of Republican Representatives who make up what has been called the “lunatic caucus” and made it virtually impossible for the Republicans to govern.

Then, of course, there’s the problem that pretty much everyone now recognizes: The Electoral College. In the 2016 election, Hillary Clinton won the popular vote by approximately 2.85 million votes. Donald Trump won in the Electoral College due to a total vote margin of fewer than 80,000 votes that translated into paper-thin victories in three states. Thanks to “winner take all” election laws, Trump received all of the electoral votes of those three states. “Winner take all” systems, in place in most states, award all of a state’s electoral votes to the winner of the popular vote, no matter how close the result; if a candidate wins a state 50.5% to 49.5% or 70% to 30%, the result is the same; votes cast for the losing candidate simply don’t count.

Problems with the Electoral College are widely recognized. Among them are 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, and the over-representation of rural voters and less populated states—what one scholar has called “extra votes for topsoil.” (Wyoming, for example, our least populous state, has one-sixty-sixth of California’s population, but it has one-eighteenth of California’s electoral votes.) The Electoral College
advantages rural voters over urban ones, and white voters over voters of color. (Of course, it isn’t only the Electoral College that is a mismatch between our professed belief in “one person, one vote”—the fact that each state gets two Senators means that the 40 million people who live in the 22 smallest states get 44 senators to represent their views, while the 40 million people in California get two. We are unlikely to change that particular element of our system, but there’s no reason to add insult to injury by keeping the Electoral College.)

Akil Reed Amar, who teaches Constitutional Law at Yale Law School, criticizes the justifications we often hear for the Electoral College. As he has pointed out, the framers put the Constitution itself to a popular vote of sorts, provided for direct election of House members and favored the direct election of governors. The Electoral College was actually a concession to the demands of Southern slave states. In a direct-election system, the South would have lost every time because a huge proportion of its population — slaves — couldn’t vote. The Electoral college enabled slave states to count their slaves in the electoral college apportionment, albeit at a discount, under the Constitution’s three-fifths clause.

Americans pick mayors and governors by direct election, and there is no obvious reason that a system that works for the nation’s other chief executives can’t also work for President. Amar points out that no other country employs a similar mechanism.

As Representative Jamin Raskin points out, the Electoral College is an incentive to cheat:
“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.”

Gerrymandering and the Electoral College are the “big two,” but there are other changes that would reinvigorate American democracy. The way we administer elections is one of them.

State-level control over the conduct of elections made sense when difficulties in communication and transportation translated into significant isolation of populations; today, state-level control allows for all manner of mischief, including—as we’ve recently seen– significant and effective efforts at vote suppression, and what is especially worrisome, efforts to put partisans in charge of counting the votes. But even without intentional cheating, state-level control allows for wide variations from state to state in the hours polls are open, in provisions for early and absentee voting, and for the placement  and accessibility of polling places. In states that have instituted “Voter ID” laws, documentation that satisfies those laws varies widely. (Voter ID measures are popular with the public, despite the fact that study after study has found in-person voter fraud to be virtually non-existent, and despite clear evidence that the impetus for these laws is a desire to suppress turnout among poor and minority populations likely to vote Democratic.)

State-level control of voting makes it difficult to implement measures that would encourage more citizen participation, like the effort to make election day a national holiday or at least move election day to a weekend. A uniform national system, overseen by a nonpartisan or bipartisan federal agency with the sole mission of administering fair, honest elections, would also facilitate consideration of other improvements proposed by good government organizations.

The entire registration system, for example, was designed when registrars needed weeks to receive registration changes in the mail to produce hard copy voter rolls for elections. We are in a very different time now, and making registration automatic, moving to same day registration and on-line registration systems, adopting no-excuse absentee ballots or universal vote by mail, eliminating caucuses, mandating at least 14 hour election day opening times and one week of early voting would make for a better, more modern and much more user-friendly American election system.

I don’t need to belabor the next one: Campaign Finance/Money in Politics. Common Cause sums it up: “American political campaigns are now financed through a system of legalized bribery.” Other organizations, including the Brennan Center for Justice, the Center for Responsive Politics, and the National Institute for Money in State Politics, among others, have documented the outsized influence of campaign contributions on American public policy, but contributions to parties and candidates aren’t the only ways wealthier citizens influence policy. The ability to hire lobbyists, many of whom are former legislators, gives corporate interests considerable clout. Money doesn’t just give big spenders the chance to express a view or support a candidate; it gives them leverage to reshape the American economy in their favor.

Even worse, a system that privileges the speech of wealthy citizens by allowing them to use their greater resources to amplify their message in ways that average Americans cannot does great damage to notions of fundamental democratic fairness, ethical probity and civic equality.

Until recently, the role played by current use of the filibuster has been less well recognized, but it is no less destructive of genuine democracy.

Whatever the original purpose or former utility of the filibuster, when its use was infrequent and it required a Senator to actually make a lengthy speech on the Senate floor, today, the filibuster operates to require government by super-majority. It has become a weapon employed by extremists to hold the country hostage.
The original idea of a filibuster was that so long as a senator kept talking, the bill in question could not move forward. Once those opposed to the measure felt they had made their case, or at least exhausted their argument, they would leave the floor and allow a vote. In 1917, when filibustering Senators threatened President Wilson’s ability to respond to a perceived military threat, the Senate adopted a mechanism called cloture, allowing a super-majority to vote to end a filibuster.

Then in 1975, the Senate changed several of its rules and made it much easier to filibuster. The new rules effectively allowed “virtual” filibusters, by allowing other business to be conducted during the time a filibuster is theoretically taking place. Senators no longer are required to take to the Senate floor and argue their case. This “virtual” use, which has increased dramatically as partisan polarization has worsened, has effectively abolished the principle of majority rule: in effect, it now takes sixty votes (the number needed for cloture) to pass any legislation. This anti-democratic result isn’t just in direct conflict with the intent of those who crafted our constitutional system, it has brought normal government operation to a standstill, and allowed small numbers of senators to effortlessly place personal political agendas above the common good and suffer no consequence.

My final two targets aren’t part of our governing or electoral systems, but they have played massively important roles in producing America’s current dysfunctions. The first is substandard civic education. This civic deficit was a primary focus of my scholarship for a very long time. Let me just say that when significant segments of the population do not know the history, philosophy or contents of the Constitution or the legal system under which they live, they cannot engage productively in political activities or accurately evaluate the behavior of their elected officials. They cannot be the informed voters the country requires. We see this constitutional ignorance today when people claim that mask or vaccination mandates infringe their liberties. The Bill of Rights has never given Americans the “liberty” to endanger their neighbors.

The final institution that has massively failed us also doesn’t need much editorial comment from me: the current Media—including talk radio, Fox News, social media and the wild west that is the Internet.

Several studies have found that the greatest contributor to political polarization is the growing plurality of news sources and increasing access to cable television. People engage in confirmation bias—they look for viewpoint validation rather than exposure to a common source of verified news.

The Pew Research Center published an extensive investigation into political polarization and media habits in 2014; among their findings, unsurprisingly, was that those categorized as “consistent conservatives” clustered around a single news source: 47% cited Fox News as their main source for news about government and politics, with no other source even close. Among consistent liberals, no outlet was named by more than 15%.

People who routinely consume sharply partisan news coverage are less likely to accept uncongenial facts even when they are accompanied by overwhelming evidence. Fox News and talk radio– with Rush Limbaugh and his imitators– were forerunners of the thousands of Internet sites offering spin, outright propaganda and fake news. Contemporary Americans can choose their preferred “realities” and simply insulate themselves from information that is inconsistent with their worldviews.

Americans is marinating in media, but we’re in danger of losing what used to be called the journalism of verification. The frantic competition for eyeballs and clicks has given us a 24/7 “news hole” that media outlets race to fill, far too often prioritizing speed over accuracy. That same competition has increased media attention to sports, celebrity gossip and opinion, and has greatly reduced coverage of government and policy. The scope and range of watchdog journalism that informs citizens about their government has dramatically declined, especially at the local level. We still have national coverage but with the exception of niche media, we have lost local news. I should also point out that there is a rather obvious relationship between those low levels of civic literacy and the rise of propaganda and fake news.

In order for democracy to function, there must be widespread trust in the integrity of elections and the operation of government. The fundamental democratic idea is a fair fight, a contest between candidates with competing ideas and policy proposals, followed by a winner legitimized and authorized to implement his or her agenda. Increasingly, however, those democratic norms have been replaced by bare-knuckled power plays. The refusal of Mitch McConnell and the Republicans in the Senate to “advise and consent” to a sitting President’s nominee for the Supreme Court was a stunning and unprecedented breach of duty that elevated political advantage over the national interest. The dishonesty of that ploy was underlined by his rush to install an ideologically-acceptable replacement almost immediately after Ruth Bader Ginsberg died. No matter what one’s policy preferences or political party, we should all see such behaviors as shocking and damaging deviations from American norms—and as invitations to Democrats to do likewise when they are in charge.

If that invitation is accepted, we’ve lost the rule of law.

One outcome of these demonstrations of toxic partisanship has been a massive loss of trust in government and other social institutions. Without that trust—without a widespread public belief in an overarching political community to which all citizens belong and in which all citizens are valued—tribalism thrives.  Especially in times of rapid social change, racial resentments grow. The divide between urban and rural Americans widens. Economic insecurity and social dysfunction grow in the absence of an adequate social safety net, adding to resentment of both government and “the Other.” It is a prescription for civic unrest and national decline.

If Americans do not engage civically in far greater numbers than we have previously—If we do not reform outdated institutions, protect the right to vote, improve civic education, and support legitimate journalism—that decline will be irreversible.

The good news is that there is evidence that such engagement is underway. We the People can do this.

Thank you.

 

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.