Supreme Court Mischaracterized: They Got FDR and the 19th Amendment Wrong

The Supreme Court was designed to be profoundly anti-democratic. As a result, it inevitably can become an instrument for anti-democratic forces to use in order to create a rule of law that is neither desired nor supported by the majority of Americans.

In “How Democracies Die,” Professors Levitsky and Ziblatt at page 119 condemn Franklin Roosevelt for wanting to change the size of the Court in order to appoint justices less inclined to kill legislation that the vast majority of Americans thought necessary to respond to the Great Depression. Roosevelt was on the side of democracy. The professors wrongly characterize him as contributing to the erosion of norms essential to the working of democracy.

It should also be noted that the Supreme Court ought to have term limits and a strong and public ethics code in order to mitigate its anti-democratic character.

On page 125 they claim the Nineteenth Amendment in 1919 gave women the right to vote, and exemplified “bipartisan cooperation.” This amendment was not ratified by the requisite number of states until Tennessee barely adopted it in 1920 (not 1919). It exemplified, if anything, regional white male hostility to any threat to the hegemony of this demographic. As the map below, from Wikipedia, shows, the red and orange states had no or very limited suffrage for women in elections at every level prior to the Nineteenth Amendment:

In general, regional differences have characterized all efforts to extend the franchise. This is the case with efforts to cause the national vote winner always to become president.

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Chile’s Democracy Died for Other Reasons

Harvard professors Levitsky & Ziblatt assert: “Politics without guardrails killed Chilean democracy.” They then describe Salvador Allende as participating in an erosion of democratic norms, but somehow, they leave out the well-documented American support for the overthrow of this popularly elected figure. They create the impression that the “military seized power” because the political parties had destroyed democratic institutions. Henry Kissinger, former Harvard professor, had a lot to do with this outcome. See pp 115-17 of “How Democracies Die.”

The more general point is that military interventions, secret or otherwise, are self-evidently lethal for democracies. The military is of course not a democratic institution, and should never be involved in domestic politics. It should not be a prop, or a political football.

Another reason to have a national vote always elect the president is that the military composes an appropriate share of the national vote, whereas it may constitute an unnaturally large fraction of the vote in certain states, thus exercising disproportional influence on representation in the Electoral College.

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My Beef with This Book

The argument of “How Democracies Die” is found, among many other places (repetition is the soul of didacticism), at page 102:

“Unwritten rules are everywhere in American politics, [including] the operations of the Senate and the Electoral College…But two norms stand out…mutual toleration and institutional forbearance.”

I am scratching my head, but I think there are no important unwritten rules relating to the Electoral College.

Certainly, the two norms have no bearing on the presidential selection system. Third party spoilers, like Perot or Nader, have never tolerated the system or forborne to frustrate the will of the majority or plurality of the American people. Faithless electors have willy-nilly cast protest votes of no consequence, except insofar as they shown how broken the system is that the southern/small state alliance required as a price for ratifying the Constitution.

My simplest beef with this book is that it assumes the existence of a democracy that is, then, said to be at risk of dying. The problem with American politics is almost exactly the opposite. There is an absence of democracy in key institutions, and if our Republic dies the reason lies in our collective failure to create democracy in form and function, rather than our inability to adhere to unwritten rules or norms. 

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Voters Across the Country Reject Gerrymandering

In 2018, voters in four states—Colorado, Michigan, Missouri and Utah—approved ballot measures limiting partisan redistricting.  But lawmakers from both parties are resisting these efforts for reform:

“Even as voters and courts vigorously rejected the practice this year, politicians in some states are doing their best to remain in control of the redistricting process. Critics argue that amounts to letting politicians pick their own voters.”

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It Ain’t Necessarily So

From NPR:

“The president also faces some significant headwinds for re-election in 2020. Just 30 percent of registered voters said they will definitely vote for Trump in 2020, while 57 percent said they will definitely vote against him.
....
For context, in 2010, when asked about then-President Barack Obama, just 36 percent said they would definitely vote for him, while 48 percent said they would not. Obama went on to win with 51 percent of the vote.”  

President Trump's national polling results, like Obama's in 2010, have little or no significance for two reasons. First, the time between now and November 2020 is far too long for current polling to have predictive value (see Obama situation in 2010, which was a function of the disappointing economic recovery). Second, national popularity does not predict the likely outcome in the handful of states that will determine the presidential election. 

In 2010 President Obama correctly believed that he was in pretty good shape in the swing states. His eventual opponent, Mitt Romney, was surprised to discover that in Pennsylvania, Ohio, Michigan, Wisconsin, Iowa and Minnesota he faced a “blue wall” constructed by the electoral college system.

The incumbent only won the popular vote by 51% vs. 47% for Romney, but Obama got 332 electors to Romney’s 206, which is 62% to 38%.

The effect of the anti-democratic electoral system was to magnify grossly the Obama margin. The professionals in both parties drew wrong lessons from this outcome.  

Republicans failed to grasp in 2012 that the electoral college system hurt their chances to win. When the system flipped in 2016 to give Republicans a big win, they did not realize that the system arbitrarily perverts the will of the people nationally. There’s no telling whether it will help or hurt a major party’s candidate. Their party would be far better off building a big national base and depending on Republicans everywhere to give their candidate a plurality or even a majority of the popular vote.

Democrats concluded from the 2012 election that the Great Lakes states were solidly blue, and so Clinton was a favorite. In fact, the margins in those states, as shown on the map that follows, were narrow:

Accordingly, a Republican who appealed to the particular demographic composition of voters in the Great Lake states could win. Therefore, these states would determine who won in 2016. The Clinton campaign’s policy stances were popular with most people, but not so much in the swing states.   

Both parties, and their camp followers, pay attention to national polls because they are frequent and ubiquitous. They are not only irrelevant; they are also distracting. Nothing matters for an incumbent except governing so as to maintain a base in the swing states. Going into 2020, these are Florida, Pennsylvania, Michigan, Wisconsin, and New Hampshire.

Is the shut-down hurting President Trump or helping President Trump in those five states? That’s the only relevant question in forecasting the 2020 outcome. I bet the White House polling shows he is still the favorite in those states. Hence he is the favorite in the 2020 campaign.    

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Black History Misstated

On pages 89-90 of “How Democracies Die” Levitsky and Ziblatt describe how black turnout was 65% or higher in critical states in the old Confederacy in the 1880 election. They write that “Democrats lost power in North Carolina, Tennessee, and Virginia in the 1880s and 1890s.”  

Jim Crow put an end to the threat posed to white Democrats by the black Republican vote in the south. That much is undeniable.

But the authors fail to note that the presidential selection system effectively rendered black votes in the old Confederacy meaningless after the 1876 election, which led to the end of Reconstruction. As the map below shows, in the 1880 presidential election the south was solidly held by white Democrats:

And for that matter, even in 1876 only three states in the South went Republican:

The problem then and now is that the winner-take-all allocation of electors in a state effectively ignores all votes cast for the runners-up. This is biased against black voters in the south. Under a national vote system, all their votes would matter. Under the current system, because African-Americans are concentrated regionally in the old south, their votes are effectively meaningless in the general election for president.

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States Don’t Have to Wait for Congress to Save Democracy

H.R. 1, the Democrats’ hugely ambitions election reform bill “would go an enormous way toward repairing our badly broken democracy,” Rick Hasen writes:

“Among the provisions affecting voting and voting rights are those requiring online voter registration, automatic voter registration, and same-day registration for voting in federal elections; a requirement to use independent redistricting commissions to draw congressional districts in each state; limitations on voter purges; an end to felon disenfranchisement for federal elections; protection against intimidation and false information surrounding elections; improved access to voting by persons with disabilities; a set of improved cybersecurity standards around voting and voting systems, including a requirement that all voting systems produce a paper trail for auditing and checking results; and a ban on a state’s chief election officer engaging in political activities connected to federal offices.”

However, most everyone agrees that given the Republican-held Senate and presidency, this bill will not pass, at least not any time soon.  But states can go a long way to saving democracy by designating their electoral college votes to the winner of the national popular vote.  If they do, presidential candidates will have to appeal to all voters, not just the select few in closely-contested states.

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Not Quite

“To entrench themselves in power, however, governments must…change the rules of the game,” Levitsky and Ziblatt write on page 87 of “How Democracies Die.” This is not correct as applied to the presidential selection system. No incumbent running for re-election has to change the rules. The rules are anti-democratic. The incumbent simply has to play by the real rules: award favors to voters in swing states, dedicate Twitter messages to the likely pro-incumbent voters in swing states, pay no attention in governing to the voters in more than 40 states. The playbook is clear.

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As the Number of Competitive States Decline, So Does the Number of Votes that Matter

In the 1960 election, there were 32 states where the margin of victory was within 9%. In recent elections, that number has dropped by half or more:

In addition, the margins of victory have gotten wider in most states, leading to the vast majority of Americans—from big and small states, at all points on the political spectrum—being ignored in presidential politics:

Fortunately, there is a solution.  If enough states agree to give their electoral college votes to the winner of the national popular vote, then presidential candidates will have to compete nationwide, not just in the small number of states that are likely to be close.

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2016 Conclusion Misdescribed

The authors of “How Democracies Dies” say, on page 71, that because Republican leaders did not oppose Trump “the election was normalized. The race narrowed. And Trump won.”

The opinions of party leaders did not matter much, if at all. The presidential selection system favored Trump, the Russians obviously helped, and he blithely ignored the preferences, ethics, values and votes of a majority of Americans. He won an election that, like all others in presidential history, gave short shrift to the concept of a national democracy. In that respect only was this election “normal.”

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The Electoral College Makes Hacking Elections Possible

Christian Caryl for the Washington Post writes:

“Given just how narrow Trump’s margin of victory was — less than 80,000 votes in three key swing states — it stands to reason that any help he received from Moscow could have helped him to win.”

In other words, the 2016 election was decided by 0.05% of all votes cast.  When the margin is that small and that localized in key swing states, our system is vulnerable to abuse from outside forces. If the candidates had to compete for every vote across the country, it would be much more difficult if not impossible for outside forces to skew the results. 

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Yes, Elections Matter

“He was elected by the American people as president to carry out border security and build a wall,” Minority Whip Steve Scalise (R-La.) said. “It was part of the national debate. I know some people on your side don’t even want to recognize that that election occurred and the result. But it happened.” 

Not to be picky, but presidents are not really elected by “the American people.” They are elected by a tiny fraction of the American people who by accident happen to live in swing states.  

Presidential candidates ignore more than 80% of the people. These happen to live where the statewide plurality winner in the general election is certain in advance of the vote. 

Donald Trump supports the principle that the winner of the national popular vote should always be president. That is because the consent of all the governed is necessary if the president is going to stand tall on an issue like, in his case, the wall. 

Trump supporters should agree with the president that the national popular vote ought to lead to the election of the president precisely because they should want their president to be empowered by that vote to take stands against a fractured Congress.

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Missing the Explanation

Here two distinguished Harvard professors contend that, as a wanna-be autocrat, Donald Trump has manufactured a useful, ersatz crisis over the Mexican border. 

But they leave out entirely the relevance of the next presidential election. The Wall is a touchstone for the voters he needs in the handful of states that determine the outcome of the 2020 election: Florida and the Great Lakes states. The Mexican-origin population in these states is very low. The Wall, whether or not it exists, is far away and symbolic. The issue stands for one thing: will Trump live up to his promise to the voters in the swing states.

 If there were no swing states, but instead the way to be re-elected were to win the national vote, the president would not have precipitated this crisis.

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Small not beautiful in presidential selection system

Say you live in one of the Dakotas. You're a school teacher, you're a Native American, you run a small business, you work at a grocery store. 

Because of the presidential selection system, your vote is never counted with similar people in other states. So you don't get to exercise the influence over the candidates' policy choices that you would if you could get your vote counted with other teachers, Sioux, businesspersons, retail workers, and so on across the country. The system divides the voters and conquers their preferences.

 Maybe a politician tells you that your vote is worth more because you have more electors per capita than do the people in Texas or California. This is meaningless. Your vote is ignored by the candidates. They take for granted the outcome in the voting, so they pay you no attention, never visit your state, don't even learn your concerns. If you could join up with those in other states and have all your votes counted together you might make a difference but with this system you are ignored.

 You can change this. If and when you have a chance, vote to have the winner of the national vote always be president. Then your vote for president will have meaning. 

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Electoral College Prolongs Shutdown

Does the presidential selection system protect small states from federal government harm? Take a look at this: 

“Axios senior visual journalist Chris Canipe found that of the 10 states with the most affected federal employees per 10,000, six voted for Trump — Alaska, Montana, Wyoming, South Dakota, Idaho and West Virginia. The top 10 states that voted for Hillary Clinton were D.C., Maryland, New Mexico and Virginia.”

All of these except Virginia and Maryland are small states, and those two are only middle sized. The small state electoral college advantage, which is that they have more electors per capita, apparently does nothing to cause the White House or any potential Democratic Party nominee to end the shutdown.

The reason is that the electoral system makes first-term presidents and rivals concerned about the impact of their policies on swing state voters, not on small states. 

This record long shutdown is most harmful to states that both parties take for granted in the general election. The Democratic nominee will not compete in the six states Trump won; Trump will not compete in the four the Democratic nominee is sure to win.

The shutdown hits hardest in the land of the ignored, where the voters are taken for granted, and most of their votes are systematically discarded without being part of a national count based on one person, one vote equality. 

The electoral college system enables the president and his potential opponents in the general election to reject compromise, and disproportionately harms the voters in these ten states.

If every vote mattered in a single national count, then Trump and his potential rivals would be far more willing to compromise and far less willing to harm federal employees, their families, and the many others who rely on federal services. 

The legislatures in the victimized states can change this system by allocating their electors to the national popular vote winner, acting alone or in concert with other states. If they did this on Monday, the shutdown would be ended by compromise by Tuesday. Just saying. 

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2016 Misdescribed

On page 71 of “How Democracies Die”, Levitsky and Ziblatt write that the 2016 election “was essentially a toss-up [because of] partisan polarization…the uneven state of the economy and President Obama’s middling approval ratings.” 

It was not a toss-up. At all times Clinton was highly likely to win a national victory. But that mattered not at all. At all times Trump was likely to win an electoral college victory, because he had the freedom, as a wild card candidate, to craft a message exclusively designed for the swing states.

Also, Obama had good approval ratings.

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Congress Considers Major Electoral Reforms

Nicholas Stephanopoulos for Election Law Blog examines a House bill that addresses partisan gerrymandering:

 “[H.R. 1 marks] the first time that proposals like automatic voter registration, redistricting commissions, and multiple-match public financing have been endorsed by a majority of that body. If Democrats win unified control of Washington in 2020, it’s also likely that some or all of H.R. 1 will become law. If that happens, it would be a development of earthshaking significance, at least as important as the enactment of the Voting Rights Act in 1965 or the Federal Election Campaign Act in 1974.”

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Florida Disaster Relief Contingent on Electoral Votes? Huh?

This from the excellent David Leonhardt of the New York Times:

"The Democrats’ best bet is probably to force Trump to end this mess himself, likely through a legally questionable declaration of emergency. That declaration would be the subject of a legal fight, and it would create some political risks for Trump. He is apparently considering taking money away from disaster relief in Florida and elsewhere, which doesn’t seem like the smartest move given the state’s electoral importance."

So what sense does it make that Florida's disaster relief money should be sacrosanct because of its electoral importance, but California's money for firefighting is at risk because the Republicans have no chance of carrying the state in the general election for president? For that matter, North Dakota would be vulnerable to presidential plundering because its Republican margin is so big that the Democratic nominee won't compete there in the general anyhow. 

 If presidents had to be re-elected by winning the national popular vote, as Donald Trump has said he prefers, then the president could take a little money "away from" everyone, and we all could collectively decide if this were a good or bad idea. Instead, the presidential selection system isolates the citizens of each state, divides the country between the victims and those passed over, and turns presidential politics into a perverse board game where the goal is not to have the token of bad luck land on your state. 

 It would be easy for states to change this system. Their legislatures or, in the case of states that permit ballot measures to change the law, their voters, can appoint electors who will vote for the winner of the national popular vote. Then raiding funds needed to fight fires in California would not be politically appealing for a Republican president, or denying repair money to a southern state hit by a hurricane would not be hypothetically attractive for a Democratic president.

Small states are especially at risk with the current system, because they do not have enough electoral votes to be as important as, say, Florida. They have voters any candidate would like to win, but under the current system they can be ignored when a president decides where to spend FEMA money. 

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Some Votes Count for More than Others

A working democracy depends on the principle of “one person, one vote,” with no person’s vote counting for more than anyone else’s.  But when it comes to the presidential selection system, the votes of Americans who happen to live in small states count for a lot more than votes from large states:

Source: https://modernomegamale.files.wordpress.com/2015/06/state_population_per_electoral_vote.png

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1968 Misunderstood

Levitsky and Ziblatt assert that the political parties usefully blocked George Wallace from mounting a seriously threatening presidential campaign in 1968, page 47. But they neglect to point out that Wallace cost Democratic candidate Hubert Humphrey the chance to carry previously Democratic states in the Deep South and some critical northern states where Wallace captured a large share of blue-collar voters. The election was very close. Wallace arguably cost Humphrey the election. The presidential selection system allowed Wallace to capture all electors from certain states. It always invites spoiler third-party candidates, of which Wallace and Ralph Nader are two notorious examples.

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