Who do they fear?

The Supreme Court embraces distortions of democracy. Normally people endorse an outcome out of fear of the alternative. If the Supreme Court had stood up for democracy and given people a fair representation in the House, what did the five fearful right wingers think would happen?

Obviously they assumed the House would be more likely to be controlled by the Democratic Party if everyone’s votes were fairly districted and of course one unifying theme among the Bush-Trump five is their disdain for Democrats.

Several of them in particular recall their bitter confirmation hearings and most people can remember that the last justice confirmed clashed in an ugly way with Democratic senators (three of whom are now running for president).

The short answer is that the majority on the Supreme Court does have a lot to worry about if the Democratic Party benefits from democracy. They might be subject to ethical standards which would be a shock for them. They might find the court was expanded from nine to a more reasonable number and their majority voting block would be diluted.

The block only exists after all because the loser in the national popular vote became president anyhow and packed the court with anti-Democrat ideologues. (Look at their personal histories if you doubt this. These are partisan warriors.) This block is the epitome of minority rule and anything that supports majority rule is a threat to its hegemony.

The block of five cares immensely about maintaining power. The notion that they respect some abstract set of legal principles, history, or a code of ethics is a juvenile fantasy. Gerrymandering obviously violates the fundamental principle of the United States Constitution which is that power comes from the people. In the actual lived experience of the five people who control the majority of the Supreme Court (and make the law be what they want it to be) power comes from a minority of the people and that’s the way they want to keep things.

I went to law school with two of these justices. I can testify that they always regarded themselves as at odds with the wishes of the majority of Americans. Nothing new here. They have not changed a bit. They’ve become more rigid over time. And dangerously more powerful.

Under these circumstances the only way to restore the Supreme Court to its right role as the defender of liberty and champion of democracy is to get a president chosen by the plurality of the country who then vindicates the wishes of the voters in picking members of the Supreme Court.

If about 23 or 24 states decide that their electors will vote for the national popular vote winner then the candidates will have to compete to win the national vote. Then the elected president will stand up for the people against the current Supreme Court, which is obviously not the friend of the people. Under those circumstances only a switch in time could save the nine and that is the situation the right wing block needs to face. This is all about power and not one bit about a reasonable interpretation of law.


,

Nationally women can win

,

This article starts with the assumption that the American electorate is somehow biased against women candidates. In fact it is the electoral college system that is biased. If the president were elected by the national vote then women candidates would usually be competitive and of course one already would have won.

The American people are not biased against women. The system is. The shame is that feminists regardless of gender are not more vigorously rallying against the electoral college system.

The reason the system is biased against women is that by chance in the swing states a large fraction of women are evangelicals. They do not support much of the agenda that commands the adherence of a large majority of women nationally. So this minority fraction of women frustrates what most women want. This is a failure of democracy.

Now that the Supreme Court has opted out of its historic role of promoting democracy, it is even more important for women at large to change the electoral system. Feminists can’t count on the Supreme Court, and especially not on the five male conservative members, to help them out.


,

Electoral college reform matters more than ever

,

The Supreme Court’s decision to bar the federal judiciary from addressing partisan gerrymandering lets state legislatures deprive blocks of voters from congressional representation — subject only to review by state courts whose members are confirmed by the same legislatures or possibly elected through the same gerrymandering. 

Republicans in Maryland or African Americans in North Carolina are just two examples of the victimized groups. 

This ruling opens the door for states to adopt a district system for choosing electors that would gerrymander picking the president.  

While the Supreme Court continues to make its negative contributions to the survival of the American republic, it is even more important that every American voter counts and counts equally in electing the president of the United States. Then a future president, one who wins the national plurality, might appoint justices who are committed to promoting democracy. 

Politicians, donors, and voters really have to get on board the national popular vote train. The country is in a bad fix. 

It’s a shame that the Democratic legislatures just frustrated reform in Maine and the governor of Nevada vetoed the reform bill. Dems be woke please. 


The Supreme Court Will Not Stop Partisan Gerrymandering, Leaving State Legislatures to Police Themselves

In a much-anticipated ruling, the Supreme Court ruled in a 5-4 decision that “Partisan gerrymandering claims present political questions beyond the reach of the federal courts.”  That means that the courts will not intervene to stop state legislatures from drawing bizarrely shaped and unfair districts designed to dilute many people’s votes in order to gain a political advantage, no matter how egregious. 

Partisan gerrymandering means that through clever drawing of district boundaries, a state legislature can minimize the impact of political opponents’ votes, and can win a majority of seats despite winning fewer votes:

In the case before the Supreme Court, the North Carolina representative in charge of drawing the state’s congressional map proposed an explicitly partisan gerrymander, saying “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”   The plan worked.  In 2016, Republicans won 50.3% of the votes for Congress but won 10 congressional seats.  In 2010, before the hyper-partisan map was in place, Republicans won 54% of congressional votes and six out of 13 seats.  Today’s decision also addressed a congressional map from Maryland designed to benefit Democrats in that state.  

The majority opinion, written by Chief Justice Roberts and joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh, did not deny that partisan gerrymandering could be used to effectively disenfranchise many voters, or even that it was “incompatible with democratic principles.”  Nevertheless, the majority found that the claims were non-justiciable.  In other words, the Court decided that because it could not come up with a standard to determine which gerrymanders went too far, the judiciary would not intervene in these claims at all. 

Instead, the Court left it to the states to police themselves.  The majority stated that one way states are addressing this problem is “by placing power to draw electoral districts in the hands of independent commissions.” 

It is true that in 2018, voters in Colorado, Missouri, and Michigan overwhelmingly voted to approve constitutional amendments creating commissions tasked with drawing fair congressional and state legislative districts.   

However, that does not mean that the people’s desire for fairness will be respected.  In Missouri, the state legislature is doing all it can to thwart the will of the people and keep the power to draw their own districts for themselves. Lawmakers tried to reverse many of the ballot measure’s protections, and vowed to try again next year before the changes go into effect in 2020. 

 There is, of course, every incentive for legislatures to fight to keep the power to draw their own districts in the most favorable way possible in order to maintain their power.  If they do not give it up willingly, today’s decision means that the people cannot turn to federal courts to preserve their rights to vote in fair elections.


, ,

Here's Why Splitting Electoral Votes by Congressional District is Not The Answer

, ,

The problems with the way we choose our president are numerous and severe, including:

  • disproportionate attention to swing states (both during and after elections);

  • effective disenfranchisement of citizens who live in “safe” states for one party but prefer another party, leading to low turnout;

  • threats to our national security due the small number of states a foreign hacker can target to change the outcome of the election;

  • the fact that the winner of the election may not be the person who got the most votes—an outcome that we will see more and more.

Some people, recognizing the seriousness of the problems with our system, have suggested an alternative: allocating electoral votes by congressional districts instead of giving all of a state’s votes to the plurality winner. 

Each state has a number of electors equal to its representation in Congress—two votes for the Senate, and a number that varies based on the state’s population for the House.  Under this proposed system, each state would allocate two votes at large for the overall winner of the state and the rest of the electors would go to the candidate that wins each of the congressional districts.  This is how Maine and Nebraska allocate their electoral votes.

Proponents of this system argue that it would be more fair, and that it would be less likely to result in a candidate winning the national popular vote while losing the Electoral College.  However, this is not true for one simple reason: gerrymandering.

Gerrymandering is a serious problem with our representative system. For example, in 2016 and 2018, Republican congressional candidates in North Carolina won about 50% of the congressional votes in that state, but claimed victory in 10 out of the states 13 districts (the Ninth District will have to vote again following election fraud in 2018).

Under this map, a Democratic candidate could get a plurality of votes in North Carolina (as Obama did in 2008) but still only be awarded only 5 out of the state’s 13 electoral votes (winning in 3 districts plus the 2 at-large votes). 

Because of gerrymandering, allocating electors by congressional district will actually be more likely to result in popular vote losers becoming president than the current system.  If the 2012 election had been decided based on congressional districts, Mitt Romney would have defeated Barack Obama in the Electoral College 274-264, despite losing the popular vote by nearly five million votes.  Donald Trump also would have won under this system in 2016 despite losing the popular vote. The incentive to gerrymander would increase exponentially if congressional districts determined control of the White House as well as control of the House, making the problem even worse than it is now.

As candidates adjusted their strategy to focus on the 16% of districts that are “swing” districts, a split between the popular vote and the electoral college will be even more likely.

The vast majority of voters would live in “safe” districts, meaning that most people still would have little incentive to turn out to vote and their concerns and issues will be ignored as they lose out on federal funding to swing districts. The swing districts will become the new target for election meddlers.

Proponents of district-based electoral allocation recognize that gerrymandering would have to be addressed before the system would be fair. However, the Supreme Court has refused to address partisan gerrymandering, no matter how egregious.

Accordingly, allocation of electors based on congressional districts would only make elections more unfair and would not solve the problems with our current system.


, ,

Elizabeth Warren has a Plan to Make it Easier to Vote—But It Won’t Make Most Votes for President Count

, ,

Senator Elizabeth Warren has released her detailed plan aimed at making voting easier and elections more secure. Her plan includes modern voting machines with paper ballot trails, mandatory automatic and same-day registration, early voting, vote-by-mail, and making Election Day a federal holiday.  All of these ideas would make it easier to vote, but a bigger problem would remain: most people’s votes for president still would not count.

Right now, the candidates make no effort to win the votes of most Americans.  In all but two states, all votes for the runner-up candidate and all excess votes for the winning candidate are systematically disregarded.

Warren’s plan calls for a bonus in federal funding for states that achieve high voter turnout rates.  But she doesn’t mention the reason that voter turnout in many states is so low: people rightly understand that their votes for president do not matter.  It should come as no surprise that voter turnout is generally much higher in states that were contested in recent elections than in safe states.  If the votes in every state mattered as much as they do in swing states, we could expect turnout to increase by tens of millions of votes.

Warren also notes that our current elections pose a national security vulnerability.  However, she doesn’t mention the fact that part of the reason we are so vulnerable to foreign interference is that our elections are decided by just a few states.  This quirk of our electoral system makes it easier and cheaper to target the places that matter.  Under a national election, it would be much harder to skew the results because every vote everywhere would count, not just the votes in a handful of swing states. 

Fortunately, making a national popular vote a reality is not up to presidential candidates.  It is up to the states to decide how to allocate their electoral votes.  If enough states agree to pledge their electoral votes to the winner of the national popular vote, turnout will drastically increase, elections will be more secure, and, most importantly, the vote that every person casts will be counted in the final tally.


,

Electoral college doesn’t like health care

,

The electoral system is the reason why these red states get away with not expanding Medicare. Why? Because candidates in both parties don’t campaign there. The pluralities are foregone conclusions. Those who suffer don’t count because rural poor are outvoted by suburban voters, and they aren’t permitted by the system to vote with similarly affected people in other states.


"A Very Plausible 2020 Scenario"

A split between the Electoral College and the popular vote is very likely to happen again in the next election, with an even popular bigger margin for the candidate who loses the Electoral College.


,

Impossible

,

If the national popular vote chose the president, it would be impossible for a president seeking a second term to block the printing of the following:

Screen Shot 2019-06-17 at 10.08.40 AM.png

Such a move would cost too many votes. 

Under the current system, most of the aggrieved, those who are meant to be recognized by this image commissioned by the Obama Administration, are in states where they are outvoted by a majority of a different race, and so they have no weight in the calculus of winning the general election for president.


,

Think the Electoral College benefits small and rural states? Not so fast.

,

Conventional wisdom says that a national popular vote will harm the interests of small, rural states.  It is true that because a state’s electoral votes equal its representation in the House plus two votes for each Senator, small states do have a slightly higher share of Electoral College votes than they would have if the votes were distributed in accordance to population alone.

But how much does that really matter? The fact that Idaho has four electoral votes instead of two does not mean that candidates try to win any votes in Idaho.  No candidate visited the state in 2016, nor did candidates flood the airwaves with ads, nor did they discuss policy issues of particular concern to Idaho, nor did they set up extensive get-out-the-vote operations.  As a result, only 59.2% of eligible voters in Idaho voted for president in 2016.  Rhode Island, which also has four electoral votes, was similarly ignored completely by candidates and, not surprisingly, had correspondingly low turnout of 59.1%.

On the other hand, New Hampshire, which has the same number of electoral votes as Idaho and Rhode Island, got 21 visits from candidates in 2016, plus countless ads and a serious get-out-the vote effort. Not surprisingly, turnout for the presidential election in New Hampshire was 71.4%—the second highest in the nation. 

The differing treatment of New Hampshire, Rhode Island, and Idaho is explained by the fact that New Hampshire is a swing state while Rhode Island and Idaho are not.

New Hampshire gets attention in spite of the fact that it is small, not because it is small. 

In a piece in Bloomberg, Justin Fox explains that in the 1960s and 1970s, people criticized the Electoral College because it unfairly gave an advantage to big states and big cities, at the expense of small states. That’s because back then, the five biggest states—New York, California, Pennsylvania, Illinois, and Ohio—were all swing states. As Fox notes, any advantages conferred by the system to big states, to Republicans, or to Democrats, are transient:  

It’s easy enough to look back at a presidential election and determine how the Electoral College hurt or helped your side. It’s a little harder, but far from impossible, to come up with reasonable suppositions about which states will play a more or less decisive role in an impending election. Determining who the Electoral College helps or hurts over the long run, though, may be too tough a puzzle for anyone to solve.

... 

The best way to think of the Electoral College may be as a wrench that occasionally gets thrown into the works of American presidential elections, delivering a result that is at odds with the popular vote. I would beware of becoming too confident that said wrench is on your side. 

In other words, the only constant of the Electoral College is that it benefits swing states.  Most small states, like most big states, get ignored. 

And if you don’t live in a swing state, the consequences go far beyond how many ads you are likely to see in an election year. Your industries  get ignored, your funding gets cut, and you are less likely to get disaster relief funding than people who live in the handful of states that decide elections.


Mixed News

On the bright side a very articulate presidential candidate seems to grasp that the electoral college system is extraordinarily harmful to Americans.

On the other hand Mayor Pete is apparently not aware that if he and the other candidates spoke up more often they could build support for the National Popular Vote Interstate Compact to be enacted within the next one to two years. The country cannot wait until the 2030s as he suggests. 


,

A Note on the National Popular Vote from the League of Women Voters

,

After it passed both chambers of the Nevada legislature, Governor Steve Sisolak vetoed the National Popular Vote Interstate Compact. Sondra Cosgrove, on behalf of the League of Women Voters, responded to the governor’s action in a thoughtful and well-supported letter rebutting some of the misunderstandings about the Compact. 

In particular, the letter challenges the notion that the Electoral College gives a benefit to small states like Nevada:

In the modern era, political parties use the Electoral College process to conserve resources by focusing on only a handful of battleground states instead of expending the effort needed to treat every voter equally.

So it’s not small states advantaged in the Electoral College system, it’s swing states. In the 2016 election cycle, Florida received 71 campaign visits, Pennsylvania received 54 and Ohio received 48.

None of these are small states. Idaho, Montana, Wyoming, the Dakotas, and other red states received zero visits.

The National Popular Vote Interstate Compact responds to this problem. If passed, AB186 would not have bypassed the Electoral College; it is written to align with the same constitutional authority used by the states to allow political parties to select slates of electors.

The legislation states that when enough state legislatures join the interstate compact to equal 270 electoral votes, those state legislatures will allocate their electoral votes to the national popular vote winner.

…

Nevada will not always be a swing state, and once we become solidly blue or red, candidates may ignore us during the post-primary election cycle.

Some studies predict this could happen as soon as 2024, but many of those studies also predict that Nevada will remain a bellwether for diversity. And because we have relatively small markets, candidates looking to test messaging will get a bigger bang for their campaign dollar here rather than in larger states.

The nonpartisan League of Women Voters has supported a move to a national popular vote since 1970, long before making votes equal became a partisan issue.


,

Oregon Officially Joins National Popular Vote Interstate Compact

,

Oregon governor Kate Brown has signed the National Popular Vote Interstate Compact into law, making Oregon the 16th jurisdiction to join the agreement that will guarantee that the winner of the popular vote will also win the electoral college.

The Constitution gives each state the power to award its electoral college votes as it sees fit.  Right now, all states give their electoral votes to the plurality winner of that state (except Nebraska and Maine).  However, under the Compact, each member state will give its votes to the winner of the national popular vote. 

The Compact will not go into effect until states with 270 total electoral votes join—the number needed to secure a majority of electoral college votes.  Accordingly, the states will not award their electoral college votes to the winner of the national popular vote until there are enough electoral votes pledged to guarantee the winner of the national popular vote becomes president.

Right now, the Compact has 196 votes committed, including Oregon.  In order to reach 270, there will have to be a massive public education campaign to show voters that this issue is bigger than partisan politics.  The fact that almost every state gives its votes to the plurality winner has serious consequences, including:

The electoral college will sometimes favor Democrats and sometimes Republicans, but in the long run, everyone will be better off if Americans can choose their leader directly, and every person’s vote counts equally.


What to say

When you have a chance to talk to a presidential candidate, please run through these questions:

“Do you believe that the person who gets the most votes should become the president?”

He or she may say, "We need a constitutional amendment to fix the problem."

Then reply, “No, we don't. The states can decide on their own to name electors who vote for the national winner."

The candidate may answer, "Isn't that called the National Popular Vote Interstate Compact?"

Reply this way: "Yes. And when you are president, will you do everything you can to make sure that by 2024 the candidates have to win the national vote to become the nation's chief executive?"


Oregon Passes National Popular Vote Interstate Compact

Oregon’s House has voted to pass National Popular Vote Interstate Compact, joining the state’s Senate.  Chief Sponsor Rep. Tiffiny Mitchell explained that the Compact “is about giving all voters in the United States, regardless of where they live, the ability to be heard in the most important of our elections. Today, we make Oregon a battleground state.”

Oregon’s governor Kate Brown has stated she supports the proposal and she “has always believed that every vote matters.”

The Compact is a way to guarantee that the candidate who wins the national popular vote will also win the electoral college and become president.  The Constitution gives each state the power to award its electoral college votes as it sees fit.  Right now, all states give their electoral votes to the plurality winner of that state (except Nebraska and Maine).  However, under the Compact, each member state will give its votes to the winner of the national popular vote. 

 The Compact will not go into effect until states with 270 total electoral votes join—the number needed to secure a majority of electoral college votes.  Accordingly, the states will not award their electoral college votes to the winner of the national popular vote until there are enough electoral votes pledged to guarantee the winner of the national popular vote becomes president.

Fifteen jurisdictions—Maryland, New Jersey, Illinois, Hawaii, Washington, Massachusetts, Vermont, California, Rhode Island, New York, Connecticut, Colorado, New Mexico, Delaware—have joined the Compact so far.

These states have 189 electoral votes between them—70% of the way to 270.  If Oregon adds its 7 electoral votes to the Compact, there will be 196 votes committed.


,

Why the Electoral College is biased against women

,

This is well known: from David Leonhardt in NYT: 

“As Gallup’s Lydia Saad notes, a large majority of Americans support both ‘protecting abortion rights when pregnancy endangers a woman’s life’ and ‘keeping abortion legal when pregnancy is caused by rape or incest.’”

No president could oppose this majority view and still win the national popular vote. 

But the national vote and views widely held in the nation do not matter in selecting the president. We are not one country when it comes to electing the president. In that activity only a few impassioned factions of voters in a handful of states matter. 

Opposition to abortion even in the direst circumstances is found principally among evangelicals. For stochastic reasons evangelicals compose a large percentage of the population in the four critical swing states that now determine the choice of the president (Florida, Pennsylvania, Michigan, Wisconsin). Evangelicals also have an exceptionally high turnout rate, making them an estimated 20-40% of voters in these key states. They vote overwhelmingly for the candidate who inveighs against abortion. That is the incumbent, as it was George W. Bush, George H. W. Bush and Ronald Reagan. 

The impact is seen in two respects: who gets elected president in close elections like 2000 and 2016 and who gets appointed by Republican presidents to the Supreme Court.  

A major reason Hillary Clinton did not carry the crucial swing states is that she has been a lifelong advocate of choice. (The million words written about her personality as the explanation for her loss of the plurality by narrow margins in these four states are a different example of bias against women.) 

The result is that the view of a large majority of women and men on the issue of abortion have had very little impact on Republican presidents since 1980. 

To be reelected, the current president for purely political reasons feels he must appoint people to the Supreme Court who do not necessarily honor the constitutional right of women to control their bodies even when raped or at risk of dying. 

Because he wants to be reelected, the current president is unlikely to oppose the draconian anti-abortion laws just passed on this issue in a few states. These states are taken for granted in the general election already, but he will be motivated to seek the votes of evangelicals in the swing states. That is the reason he is not likely to have the Solicitor General oppose these laws. That is the reason he will not speak against these laws even though the large majority of Americans oppose them. 

This bias against abortion even in dire situations stems from the electoral system. 


Thanks to Electoral College, Trump is sitting pretty

See the poll below. The incumbent has 230 electors in his pocket. With Florida he picks up 29 more. It’s one jump to 270— Pennsylvania does it; so does Michigan; so does the combination of the swing district in Omaha, Nebraska and Wisconsin in a combo. 

Screen Shot 2019-05-31 at 9.36.40 AM.png

What a system! Trump will surely lose the national popular vote based on current polls, while likely winning the E C. 


Despite Disappointments, the National Popular Vote Interstate Compact has had a Tremendous Year

In the last twelve months, four states—Connecticut, Delaware, Colorado, and New Mexico—have officially joined the National Popular Vote Interstate Compact.  The Compact now has 189 votes—70% of the way to the 270 needed to make the Compact effective.  

Once that happens, all of the states that joined the Compact will pledge their electoral votes to the winner of the national popular vote, guaranteeing that the person who wins the most votes will win the election.  This means that candidates will have to seek the votes of all Americans everywhere, instead of just focusing their efforts on the small number of swing states.  No matter where you live, your vote will count in electing the president.

Yesterday, advocates of making all votes count were disappointed to see that Nevada governor Steve Sisolak vetoed the National Popular Vote Interstate Compact, which had passed in both houses of Nevada’s legislature.  In addition, the Maine House voted against the Compact, which had passed in the Senate.

Despite these setbacks, grassroots activists and supporters of a national popular vote should be very proud of their hard work and all they have accomplished as the movement continues forward.


, ,

Future Elections will be Close. That Means that We’re Going to See More Popular Vote Winners Lose.

, ,

Some defenders of the way we chose our president insist that a “wrong winner” election—when the person who gets the most votes does not become the president—is a “rare divergence” that is unlikely to happen again (despite the fact that it has happened in two out of the last five elections).

But according to our statistical analysis, the winner of the national popular vote will lose the Electoral College 32-40% of the time in close elections.  And as Geoffrey Skelley at FiveThirtyEight has explained, the current trend of very close elections—within single-digits percentage points—is likely to continue.  The closer the election, the more likely a split between the national popular vote and the Electoral College.  In addition, in recent elections, there have been fewer swing states than in the past, and more states where the margin of victory was very large. The result: more and more elections where the winner of the national popular vote will lose the Electoral College.  

Nor does the current system give a long-term advantage to either party.  In modern elections, the Electoral College has appeared to be skewed against Democrats.  But, as Democrats and Republicans agree, this trend won’t last forever.  Swing states stop swinging, and safe states for one party shift to become safe states for the other.  The next “wrong winner” could just as easily be a Democrat who wins the Electoral College and loses the national popular vote.  In addition, as many, including Donald Trump, have rightly noted, no candidate has ever actually campaigned to win the national popular vote.  There is no telling which party would have an advantage if they did.

But one thing remains certain: so long as we stick with our current system, candidates will exclusively campaign in the current crop of swing states.  Most of America will be ignored, and their voices silenced.