The Past is Not A Perpetual Re-Run

In his 2004 book scrutinizing the electoral college, George Edwards noted that the Founders included those who had concerns about the ability of voters to discern the appropriateness of candidates in light of the size and poor communications platforms of the not-yet-formed United States, and some who understood that to get the deal done they had to create a system that protected the slave states from the risk of an antislavery president.

He pointed out that none of the factors that led to the unusual, unprecedented and flawed system for picking the president is relevant to the current American condition.

Originalists do not argue that we must pretend to be in 1789, or be confined to embrace the common denominator of the beliefs and values of the Founders. To keep our Republic, we are not perpetually replaying, as if in some fantasy land, the Philadelphia debates.

We have to examine texts for what they say and what was meant, but in terms of solving problems we look at the situation that exists today and might come into existence tomorrow.

Nothing in the Constitution bars states from reconsidering how to choose electors in light of what is happening in America today. And as the great Republican, Abraham Lincoln, memorably put it: “As our case is new so we must think and act anew.”



Who is Gary Abernathy and How Did He Get Printed in WaPo?

Washington Post fact-checkers must be up in arms about the howlers in this Gary Abernathy article, October 25, 2018. Or maybe it’s the in-house logicians who are crying into their keyboards.

Item 1: He wrote: “American history resists the notion of a majority fully imposing its will on a minority.” He meant, presumably, that throughout history most Americans repeatedly have been denied the opportunity to have a government reflect their wishes. His statement is the principal reason why the person who wins the most votes in the whole country should always become the president.

Item 2: He claims Democrats would “almost assuredly be defending the [presidential selection] system” if their candidates had lost the popular vote but won the Electoral College. Apparently, he defends the system for the same utterly self-interested reason; namely, his preferred candidates used it to deny the will of the people. This also is an argument for changing to a democratic method of choosing the president.

Item 3: He asserts that the United States is a “collection of individual states.” Abraham Lincoln in his first inaugural address quashed this specious assertion: “The Union is much older than the Constitution. It was formed in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution, was "to form a more perfect Union."

Item 4:  He says the “electoral college exists to protect” the “social and geographic interests” of states. People have “social and geographic interests” and they are best protected when their communities, geographic, demographic, religious, ethnic, familial, or even tribal, can vote with each vote counted equally for the political preferences that their interests lead them to have.

Item 5: “Our nation settled on the electoral college” as part of “protecting and valuing each state.” Actually, the slave state-small state alliance demanded that the anti-democratic, inequitable advantages they obtained in the compromise over the composition of the Senate and House be perpetuated in the method of choosing the president. The slave states did not want a chief executive who would oppose the expansion, or maintenance, of slavery. What was “valued” was, principally, slavery.

Item 6: “States are largely awarded electoral votes commensurate with their population.” So he claims, and then he compares West Virginia to California, noting that California has 20 times as many people and only 11 times as many electors. I do not think “commensurate” means what Abernathy thinks it means.

Item 7:  If the president were the person who won the national popular vote, then a “disproportionate majority of voters from the largest states” would be “imposing their will on the more vulnerable minority in smaller states.” There are many things wrong with this sentence, but I conclude with noting only three: (i) a majority is not “disproportionate” under a popular vote system; it is proportionate to the votes cast; (2) under the existing, anti-democratic system the “vulnerable” minorities in every state are “imposed” upon because their votes for the runner-up are discarded, meaning never counted with like-minded voters in other states possibly to form a majority opinion; (3) no candidate seeking a national win would ignore voters anywhere, because campaigns are not that dumb, whereas in the current system the two major parties do not campaign in about 40 states, with more than 80% of the population.  



No Need To Dismantle

In reviewing George Edwards’ Why the Electoral College is Bad for America  (2004), Jeffrey Cohen of Fordham University concluded: “I do not think the Founders designed the electoral college with egalitarian ends in mind, but that does not mean that, over 200 years after the adoption of the Constitution, we should not promote political equality, even if it means dismantling institutions that undermine political equality.”

Of course the granting of suffrage to former slaves and women and people aged 18 to 21 all promoted “political equality” even if the electoral system denied true equality.

But it’s also worth noting that the Electoral College does not need to be “dismantled.” Any state can choose as electors those from the party slate whose nominee for president has won the most votes cast in the United States. That would make every vote count, or matter, equally.



Things Have Changed

In 1981 Neal Peirce and Lawrence Longley revised The People’s President.

A key quote:

“…we must ask ourselves: to what world does our presidential election system really correspond? Is it adapted to a modern technological society in a politically mature nation, where every American considers the ballot his birthright? Or is more a vestige of the world of two centuries past, when voting was haphazard, the secret ballot scarcely known, the society disjointed and spread of a vast frontier?”

From the vantage point of 2018, the dichotomy seems endearingly quaint, and not nearly dramatic enough to address the real crisis apparent in America – namely, can we have a system of government that most people think is both fair and reasonably well-working.

On the one hand, the presidential selection system causes the candidates to take for granted and hence ignore more than 80% of the population. Instead of every American considering the ballot a birthright, almost everyone is aware of how little the participants care about their preference for president. The angry ones do the choosing and structurally everyone else is marginalized: so it seems.

On the other hand, in the modern era voting is “haphazard.” Social networks and identity politics strip secrecy from everyone’s probably choice. The society seems more “disjointed” than in the lifetime of the longest-living among us. And the virtual world is a disturbingly “vast frontier.”

So neither on the one hand nor the other is there a happy choice. Time for a new method.



Blast From the Past

The great historian C. Vann Woodward (author of The Strange Career of Jim Crow) wrote in the New Republic in 1968 that “Little can be said in defense of an electoral college in which one vote represents 75,389 in Alaska and another 392,930 in California.”

The skew nowadays is worse, and with more than 50% now in only nine states, it is irrefutable that the current presidential system is grossly unfair to most Americans. Indeed, only in Maryland and Oregon can it be noted that the percentage of electors is the same as the percentage of the population relative to the whole country. In two states, the system is fair. In 48 plus the District of Columbia the system gives either too much or too little weight to the preferences of citizens in the choice of the president.

In addition to state-by-state inequity, Woodward also noted, “If the sacred rights of minorities are cited, one should recall that in the 11 elections from 1908 to 1948, 44% of the popular vote cast by minority voters was not represented by a single electoral vote.”

Woodward was reviewing Neal Peirce’s The People’s President: The Electoral College in American History and the Direct Vote, which he called a “useful handbook and history of…maladies of the electoral system.” It’s time for another such book, because the sickness has gotten worse, and threatens the survival of the Republic.

Peirce reported that by 1966 513 resolutions for constitutional amendments reforming the system had been introduced in Congress and only one succeeded: the 12th Amendment ratified in 1804 to fix the screwy Jefferson-Burr result that Alexander Hamilton resolved, to his ultimate death, now perhaps the most well-sung story in American history.

However, at the time of Peirce’s book and Woodward’s review no one seemed aware that states acting alone or together can adopt a different system for choosing electors.



Non-Voters

Despite reports of voter enthusiasm at record highs in anticipation of closely contested midterm elections, the Washington Post reports that many eligible voters will nevertheless decline to vote on November 6th.

Would Americans vote more often in general if their votes for president were guaranteed to matter? Such would be the case if the president were elected by a national popular vote. Research suggests that voting may indeed be “habit forming”, so if more Americans voted in presidential elections, turnout in the midterms would likely follow suit.



Some Like Democracy

According to a survey from 2017, running behind Sweden and the median in Africa as a percentage, almost half the people of the United States regard democracy as “very good.” Has that preference been declining or rising since then?

We can guess that the African view is based on too many decades of suffering under the brutal, violent, miserable experience of alternatives to democracy. As to the Swedes, their system by and large has delivered good results for them.

Would more people in the United States support democracy if both campaigns sought the votes of every American in the presidential election?

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Brennan Center: Voter Roll Purging Remains High in GA, NC, and FL

The Brennan Center for Justice released a report following up on their analysis of the widespread purges of voter rolls throughout the South leading up to the 2016 election. The report finds that in Florida, North Carolina, and Georgia, the exceptionally high rates of purges has not declined. The rates of purging continue to be alarmingly high in these 3 states when compared to those before the 2006 and 2008 presidential election and others.

In recent two year periods, North Carolina has purged 11.7% of its registered voters from its list, Georgia has purged 10.6%, and Florida over 7%. The timing of the increased purges coincides with the Supreme Court’s Shelby ruling which in 2013 that “struck down a part of the Voting Rights Act that required nine states with a history of racial discrimination to obtain federal approval when altering their election laws.

Would state officials have the same perverse incentives to trim their voting rolls of prior eligible voters if the winner-take-all electoral system were not in practice by all three of these states?



Kerry Lost Popular Vote But Nearly Won Electoral College

This post is part of a series of new research released by Making Every Vote Count.

In 2004, John Kerry lost national popular vote but nearly won electoral college…

•Kerry was 3 million behind in popular vote

•Kerry had 251 electoral votes

•Ohio with 20 electors would have given him victory

•If 60,000 votes had switched, he would’ve won Ohio’s 20 electors and won the election while losing the popular vote

•But if Ohio had pledged its electors to the popular vote, Kerry could not have won this way


Earnest Dialogue in Michigan

Michigan recently joined three other states—North Carolina, Ohio, and Pennsylvania— which all have legislation pending in state legislatures in support of a national popular vote initiative.

Michigan State Senator Mike Shirkey (Republican) introduced the bill into the senate, where it has gone into committee as of September 6th. It was co-sponsored by Senate Republican Eric Leutheuser.

The proposed legislation drew bi-partisan support, and both the Michigan House of Representatives and the State Senate have bills pending which support the national popular vote initiative.

The bi-partisan support is especially noteworthy considering that many Democrats and Republicans in the Michigan’s legislature believe that the popular vote would benefit both parties; it is thought that the passage of national popular vote legislation would give Michigan more influence in the presidential election by increasing the number of votes that matter.

The path to changing the presidential selection system is itself a matter of some contention; while Senator Leutheuser acknowledged that there are “some of the issues with the current electoral system in the U.S.,” he said that his decision to co-sponsor the legislation is “not necessarily an endorsement of the NPVIC [National Popular Vote Interstate Compact], but merely an effort to start an earnest dialogue about it.

At a time when hard-line partisanship and political polarization may seem like insurmountable problems, it is heartening to observe the dialogue opening up at the state level.

Change, it would seem, is not impossible.


Electoral College a Relic Conflicting with Constitutional Command: "One Person, One Vote"

From the University of Michigan’s Law Review repository:

In Democratic Principle and Electoral College Reform, University of Michigan scholars Ethan J. Leib & Eli J. Mark argue that the Electoral College is a relic of a bygone age, and in conflict with the Constitution command of the Fourteenth Amendment, which dictates the doctrine of “One person, one vote”.

The authors write:

“Although states have the flexibility and authority under Article II of the

Constitution to award their electoral votes in different ways, under the current

system all but two states award their electoral votes in a “winner-take-all”

fashion, with no votes allocated to the statewide popular vote loser. This

scheme has dominated the electoral vote landscape since the rise of political

parties, and it presently enables presidential candidates to focus their campaigns

on a small percentage of voters from a tiny number of swing states

while disregarding the needs of the rest of the nation.”

Please note that the full text of the article opens as a PDF file which you may read here.