At page 4 of “How Democracies Die” Steven Levitsky and Daniel Ziblatt outline Hugo Chavez’s rise to autocratic power in sad, broken Venezuela. They note that in 2012 he was re-elected in a contest that was “free but not fair.” Yet they fail to acknowledge that the American presidential selection system also is “free” without being “fair.” There is nothing fair about a system that conducts a national vote in which the candidates ignore more than 80% of the population, and the winner does not need a national plurality.
How Democracies Die: Some Comments
Among other things, “How Democracies Die” has one of the best covers of any 2018 book. In the substantive parts of the short, compelling book, Harvard Government Professors Steven Levitsky and Daniel Ziblatt have sketched an important jeremiad against anti-democratic, authoritarian tendencies – risks to the American democracy that they say are all too real. But, as this blog will show, they have committed some real howlers by failing to assess the way the presidential selection system contributes to the risks they warn about.
Small Shifts, Big Facts
In What Happened, at page 406, Hillary Clinton wrote that “if Comey caused just 0.6 percent of Election Day voters to change their votes….only…in the Rust Belt, it would have been enough to shift the Electoral College from me to Trump.”
This deserves unpacking.
She meant that the margins of the Trump plurality in the swing states were so narrow that a shift of six-tenths of one percent in Pennsylvania, Michigan, and Wisconsin would have caused all the 46 electors in these three states to come from the Democratic slates instead of the Republican slates. Trump’s 304 electoral count would have been reduced below the requisite 270. (He actually won states with 306 electors, but two cast protest votes against him.)
However, Donald Trump had a rock-solid plurality in enough states to total 230 electors. In Florida, not in the Rust Belt, he picked up another 29, leaving him only 11 electors short of the requisite 270.
If Minnesota and New Hampshire votes had shifted slightly from Clinton to Trump, he would have won 14 more electors from these two states, and won the Electoral College without getting any electors from the three states identified by Clinton.
If we are talking about shifts, Trump easily could have won by even a bigger margin of electors.
The fact is that Donald Trump had multiple ways to win 270 electors.
Because her base of “blue” electors was smaller, Hillary Clinton was the underdog in the election.
Clinton won the national vote, but it was not contested. Neither candidate ran a national election. Neither pursued a national majority. The system provides no reward for any candidate to appeal to all or even most Americans. This is not the way to obtain the consent of the governed, and to make candidates listen to everyone. That is why states should change the way they choose electors.
Not Quite Right
In What Happened, Hillary Clinton, at page 387, wrote that the Electoral College was an “archaic fluke of our constitutional system….that…gave disproportionate power to less populated states and therefore was profoundly undemocratic. It made a mockery of the principle of ‘One person, one vote.’”
This is the way she and most lawyers and politicians were taught, but it is inaccurate in three ways.
First, the winner-take-all system, and for that matter, even the phrase “Electoral College,” are not in the Constitution. Any state can change the way it chooses electors, and if even a few states allocated even a few electors to the national winner, then both campaigns would seek national pluralities.
Second, if campaigns had to win national pluralities to get to 270 electors, then by definition every vote would count equally. The Constitution does not block this move, or thwart the principle of ‘One person, one vote.’ States can make this the fundamental principle in choosing the president if even one or two of them decided to award electors to the national vote winner.
Third, the “system” is not undemocratic because it empowers “less populated states.” These states in fact are almost without exception taken for granted and ignored by both parties in the general election. What’s undemocratic is the way the residents of virtually all states, and especially small states, have no say on what the major party candidates say, promise, and, when elected, do. The system is undemocratic because the vast majority of voters live in non-swing states and so are taken for granted and ignored in the general election.
Long-Ignored Americans Are Reshaping Politics
“Far from the bluest strongholds, a huge demographic swathe of forgotten Americans is remaking politics, and it is not the one getting most of the press. The new upsurge is not centered in the progressive urban enclaves where most national pundits live; nor is it to be found among the grizzled men in coal country diners where journalists escape to get out of the bubble. Neither of those poles looks much like most of America anyway. “
https://democracyjournal.org/arguments/middle-america-reboots-democracy/
Election Day Blues
In her memoir of the 2016 election, What Happened, Hillary Clinton wrote about the Election Day, on page 378: “After twenty months…it all came down to this. All over the country, 136 million people were going to…make a decision that would shape the future of the country and the world.”
This was not accurate. Far less than one percent of that number—which counted, roughly, all voters—were going to make a decision that mattered. These were the swing voters in the handful of swing states who would constitute the plurality that awarded all electors in these states to one candidate, despite the closeness of the margin in these states.
In all states, all those who voted for the statewide runner-up would see their votes systematically discarded. In all states, all those above the one who established a plurality would see their votes disregarded. More than 60% of all votes would be given no practical weight.
Moreover, in 43 states the plurality was foreordained months before the election. No decisions made near the election day had any consequence in the non-swing states.
Only in the seven swing states—Minnesota, New Hampshire, Pennsylvania, Ohio, Michigan, Wisconsin, and Florida—were Election Day decisions relevant, and even in those states what mattered more were the machinations of turn-out encouragers and discouragers, including Internet bots, leaflet distributors, and disinforming phone calls. Far less than one percent of the actual voters truly made a decision that mattered.
The Majority of Countries are Now Democratic
From the Pew Research Center:
“As of the end of 2016, 97 out of 167 countries (58%) with populations of at least 500,000 were democracies, and only 21 (13%) were autocracies, both post-World War II records . . . Broadly speaking, the share of democracies among the world’s governments has been on an upward trend since the mid-1970s.”
Base vs Base?
In the New York Times, Philip Klein says the incumbent president will “relish” a clash between two bases in the electorates.
The country as a whole does not contain two equally sized blocks of voters that disagree over the policies that divide Klein’s “bases.”
Most Americans do not want the government shut down, do not think we need to recreate the division of East and West Berlin along the border with Mexico, and do want the government to pay attention to the bear market, the risks of missile deployment in North Korea and the threat to security, peace and democracy in war-torn areas of the globe.
Klein’s “bases” happen to be roughly equally numerous in Pennsylvania, Michigan, Wisconsin, and Florida, at least as of the 2016 election. It is only because the presidential selection system makes the pluralities in these states determinative of who wins 270 electors that any incumbent president can “relish” the current fault lines in American politics.
Real Third Parties Should Matter
If a presidential candidate had to win the national vote in order to get 270 electors then a third party with substantial support across the country could make an impact on politics.
In a truly national election Ross Perot in 1992 would have campaigned across the country in pursuit of a minimum of 34% of the vote. At the very least if he got more votes, he would have moved the Republican and Democratic parties to closer alignment with his views.
The Populist, Progressive, and Bull Moose Parties of 19th and 20th centuries too might have become enduring presences if the system required them to build national bases.
But the presidential selection system gives third parties spoiler roles instead of a chance to make a real contribution to ideological debate.
Who knows after all what Nader now stands for? All we know is that he changed the outcome in 2000. But why? To what end? A real third party can shift the course of political thinking. That matters more than flipping a particular election.
A national popular vote for electing the president can lead to healthy evolution of thinking in all political parties.
North Carolina Officials Warned of Election Fraud in January 2017
From the Washington Post:
“North Carolina state election officials told federal prosecutors in January 2017 that they found evidence of efforts to manipulate the absentee ballot vote in rural Bladen County in the 2016 election and warned that such activities ‘will likely continue for future elections’ if not addressed…”
Third Parties—Not Fun
Third parties thrive in parliamentary systems but in the United States they are usually important only if they change the plurality in a swing state in the general presidential election. Any third party can frustrate the will of the majority of the people by slicing off a few percent of the votes as Ralph Nader clearly did in Florida in 2000, thereby giving the presidency to George W. Bush.
I was friendly with the future president in college and I can testify that he never expected Nader to make him president.
I was part of a group that tried to persuade Nader to drop out in 2000. He knew exactly what he was doing. He wanted to help Bush win in order to prove that there was no difference between the two parties. The logic was lost on me.
But as Nader proved, the existing presidential selection system gives great negative power to an American third party. I fully expect that dark money at some point will fabricate third parties out of whole cloth with the specific purpose of repeating the story of Florida 2000 in the half dozen swing states that matter under the current system.
This tactic might be tried in 2020.
Will the Supreme Court Block Attempts to Stop Foreign Election Interference?
“The Court might eventually hold that neither the FEC nor Congress has the power to stop most attempts at foreign interference in American elections.”
What’s up with Kansas
According to this, some Republicans politicians in Kansas are switching to the Democratic Party in the hope of finding a political group that has moderate views. In the long and unusual history of the two-party system in the United States a core truth is that each party has to be centered close to the middle. In order to compete in every state and on a national level each of the two parties must comprise multiple factions. A party that becomes too leftist or too far rightist will shed loyalists to the other party.
Lawyers Should Fight for Voting Rights
From the New York Law Journal:
A Half-Century Ago
When I graduated college 50 years ago next year, a constitutional amendment to replace the electoral system with direct, popular vote nearly passed. President Richard Nixon supported it. So did the Chamber of Commerce and the League of Women Voters among many other groups. It was blocked in 1970 by a filibuster led by southern senators.
They had a lot to lose if black people in the south could cast votes for president that mattered. These votes could be joined with votes of those everywhere in the country who sympathized with the civil rights claims of black people. The white advantage in presidential selection could be lost. As everyone knows, that same grip on power was transferred from the Democratic Party to the Republican Party. The irony is that the Democrats in the south would have been better off with the popular vote method of choosing the president.
Progressive Activists Defeat Democrats' Gerrymandering Proposal
From Slate:
“As Democratic legislators barreled toward a December vote, New Jersey’s progressive community rallied against the proposal. A huge coalition of grassroots activists, union leaders, voting rights advocates, and racial justice proponents objected to the amendment. More than 100 activists and academics—representing a broad range of organizations, including the New Jersey Working Families Alliance and the League of Women Voters—testified against the amendment. They held press conferences and protests to shame Democratic leaders and demand real reform. It worked: On Saturday, Democratic legislators backed away from the amendment, canceling a Monday vote and effectively killing it.
The Disappointment of the Reconstruction Amendments
The 14th Amendment turned the three-fifths compromise into a five-fifths concession. Former slaves were fully counted as citizens for purposes of allocating House seats, and thus electors in the Electoral College. When Reconstruction failed and Jim Crow laws denied black people access to the ballot, the white southerners ended up with increased power in Congress and over the selection of the president.
If black people did succeed in voting, despite all obstacles, then their votes for anyone but the choice of the white majority were discarded under the "unit rule."
The Electoral College system was a tool of repression against former slaves and their descendants in the south through history until even today.
The Growing Crisis of Democracy
From the David Leonhardt in the New York Times:
“In the past, I’ve argued that the country’s two biggest challenges are climate change and the stagnation of living standards for most people. I now think that democracy protection and revitalization belong on that list.”
Legitimacy Comes From Voters
This isn’t totally right: “Questioning Trump’s legitimacy is basically the birtherism of the left,” said Christopher Buskirk, publisher of American Greatness, a conservative website. “Illegitimacy is just where both left and right are going these days when they lose elections. We don’t have a shared consensus on what the institutions of government should do, and that makes it harder for partisans to accept the outcome of elections.”
Legitimacy in every country that holds elections to pick its political leader comes from high participation in voting, with all votes counted equally, and the winner being the one who gets the most votes.
That’s why President Trump is right to favor a national vote to choose the president.
Appeals Court Temporarily Blocks Texas Online Voter Registration
From Rick Hasen’s Election Law Blog: