The Electoral College - the Founders' Biggest Mistake?

As posts on this blog noted back in 2016 after the 2016 presidential election, the Founding Fathers were fearful of direct election of the office of the presidency, being fearful that an unfit demagogue who would not put the interests of the nation first might be able to win the popular vote.  In retrospect, its as if they had a premonition of Donald Trump 227 years later. Their solution was the Electoral College that would have electors - individuals of knowledge and discernment - who could ignore the popular vote choose someone unfit.  That is not how things have worked out over American history with the most glaring failure occurring in 2016.  Equally troubling, as noted in a post yesterday, the structural advantage to Republicans under the Electoral College and the design for members of the U.S. Senate, opens the prospect that the loser of the popular vote and states with a smaller percentage of the nation's population will continue to win the presidency and thwart the will and interests of the majority of Americans.  A piece in the New York Times looks at this situation and pending Supreme Court cases which will confirm whether electors are free to act as envisioned by the Founders.  Personally, I deem it time for the Electoral College to be eliminated.  Here are article highlights:

The American people cast their ballots on a Tuesday in early November, but on a national level that vote is legally meaningless. The real election happens about six weeks later, when 538 presidential electors — most of them average citizens chosen by local party leaders — meet in their respective state capitals and cast their ballots.

Nearly always, the electors vote for the candidate who won the most popular votes in their state. But do they have to? That’s the question that the Supreme Court has agreed to answer in two related cases it will hear this spring. The cases — one from Colorado and one from Washington — raise an alarming prospect: Can presidential electors vote for whomever they please, disregarding what the voters of their state said?

More than 160 “faithless electors” have chosen to go this route since the nation’s founding, a tiny fraction of all electoral votes in history. But the issue has become freshly relevant because of a concerted effort to persuade dozens of Republican electors in 2016 to switch their votes to prevent Donald Trump from taking the White House. In the end, 10 electors voted or tried to vote for someone other than their state’s popular-vote winner — the most in a single election in more than a century.

Last May, the Washington State Supreme Court ruled that the state had the power to impose a $1,000 fine on its four faithless electors, on the ground that the Constitution gives the states total authority to decide how to appoint their electors.

Three months later, a federal appeals court in Denver went the opposite way, ruling that the founders clearly intended for electors to act independently and vote according to their consciences, not to the dictates of any political party. Once a state appoints an elector, the court said, its power over that elector ends. They cannot punish someone, or replace him or her, for voting a certain way.

The framers of the Constitution, and the states that ratified it, clearly expected electors to vote as they pleased. In Federalist No. 68, Alexander Hamilton wrote that electors would be men “selected by their fellow-citizens from the general mass” and “most likely to possess the information and discernment requisite to such complicated investigations.”

And yet, the Electoral College has almost never worked that way in practice. Less than a decade after the Constitution was drafted, the framers’ idea of an independent elector was effectively kaput. As soon as national political parties took shape, elections became a partisan competition, and it was only logical that electors would start to take sides. In the election of 1796, electors were already pledging themselves either to John Adams, the sitting vice president and Federalist, or to Thomas Jefferson, the former secretary of state and Democratic-Republican.

Even the term “faithless” is revealing: What faith is an elector who votes his or her conscience breaking? Didn’t the founders intend electors to be faithful above all to the country?

Yes — and yet they are not now and essentially never have been. For this reason, however the Supreme Court resolves the issue, which it will do by early summer, little will change in practice. Political parties and their candidates, who currently choose their own slate of electors in each state, are already careful about selecting people for their partisan loyalty.

And faithless electors are unlikely to affect the outcome even if the Electoral College tally is very close, as it was in 2000, when as few as three Republican electors could have broken their pledges and handed the presidency to the Democratic nominee, Al Gore, who won the most votes nationwide. None did.

Americans would rightly revolt if a handful of people they’d never heard of ignored their votes and decided the election for themselves. It’s almost as if we believe that we, the people, should be voting directly for the president — the only official whose job it is to represent all of us equally, wherever we live. Which raises the question of why we still have an Electoral College at all.

The Tyranny of the Republican Minority

The sad reality is that Donald Trump is a racist misogynist who, as Christianity Today noted in an editorial Thursday, is morally unfit and who needs to be removed from office. Yet his base, especially evangelicals, who comprise a minority of voters,  continue to support him with an almost cult-like fervor.  Despite all the denials and excuses by members of his base, the take away is that members of his base are as depraved as Trump himself and/or outright racists who cannot countenance the demographic changes occur in the country or the reality that the 63 million voters Republicans whine about did NOT and do NOT represent a majority of voters.  Thus, the 2016 vote in no way granted Trump and/or Republicans a mandate.  Indeed, but for the highly flawed and outdated Electoral College, Trump would not and should not have been elected. A column in the New York Times looks at the disingenuous effort by Republicans to depict Trump's impeachment as an effort to overturn majority rule. Here are highlights:

[T]his constant trumpeting of a vote total that is more than two million less than the total received by Trump’s opponent, Hillary Clinton. Trump didn’t just lose the popular vote — he lost it by a greater margin than any successful presidential candidate in American history. The right’s bombastic repetition of Trump’s 63 million could be just a propaganda trick meant to bully America’s anti-Trump majority into seeing itself as marginal, despite the more than 65 million votes Clinton received. But as I watched impeachment unfold, it seemed like something more than that — an assertion of whom Republicans think this country belongs to.

Over the last three years, a political narrative has developed that Republicans in Congress secretly dislike Trump but overlook his personal degeneracy in the interest of enacting their agenda. Wednesday should explode that fiction forever.

The Republican identification with Trump is total. Again and again, histrionic Republican congressmen equated hatred of the president with hatred of themselves and hatred of the sacred 63 million. They spoke of Trump with an awe and a maudlin devotion bordering on religious; Barry Loudermilk, a Georgia Republican, declared that Trump had been given less due process than Jesus Christ himself.

All day, Republican speeches delivered by old white men alternated with Democratic speeches from women, people of color and young people. White men make up 90 percent of the Republican caucus and 38 percent of the Democratic one, and the day dramatized the representational gulf in the starkest visual terms.

We face the horror of Trump because the structure of American democracy gives disproportionate power to a declining demographic group passionately convinced of its right to rule. Trump, with his braying entitlement, his boastful ignorance, his sneering contempt for pluralism, is an avatar of a Republican Party desperate to return to the 1980s, or the 1950s, or maybe the 1910s. He can’t betray America if, to those who fetishize the 63 million, he embodies it.

At the start of this administration, many who are horrified by Trump, me included, thought that at some point the Republican fever might break, leading conservatives in Congress to check a dictator-worshiping buffoon for the sake of the Constitution they claim to revere. I’ve become ashamed of my naïveté in imagining any overlap between my ideas about what is valuable in this country, and theirs.

“There’s been a lot of talk about the 63 million people who voted for Mr. Trump,” the House majority leader, Steny Hoyer, said in his surprisingly moving speech on Wednesday. “Little talk about the 65 million people who voted for Hillary Clinton.” With the House’s impeachment vote, the America outside of Trump’s ruling faction finally mattered.

Democrats didn’t want to impeach, but once they decided to, Trump’s insistence that his Electoral College victory grants him impunity didn’t work. For one night, democracy asserted itself.

In the end, Trump’s impeachment passed with more House votes than Bill Clinton’s. All but one of the Democrats first elected in last year’s blue wave voted for impeachment, some at real political risk, given the conservative lean of their districts.

“Today, especially today, I reflect on the founding documents that have set us apart in the world, leading people across generations and across the world to risk everything because of their belief in our great nation,” said the Virginia Democrat Abigail Spanberger, a Constitution scarf around her neck, her voice charged with emotion.

Women and people of color, of course, were originally outside the protection of those founding documents. But on Wednesday, the most diverse Congress in history declared that even the most powerful white man in the world should be bound by them. When Republicans act as if that’s a sacrilege, they show us what they worship.

The U.S. Senate: Millennials’ Political Nightmare

U.S. Senate chamber.

The U.S. Senate, which Founding Fathers thought was a good check on possible rash actions by a majority of voters, is quickly becoming the vehicle whereby a minority of voters - mainly in red states - can block the will of the majority time and time again.   Ironically, meanwhile, it is the majority and the blue states that provide the taxes that allow federal handouts to red states which are in ways akin to the "welfare queens" their Republican elected officials constantly deride.  They receive far more in federal funding than they pay in  and they despise those in the states that are footing the bill. Something needs to be done to either reform the Senate - something not likely to happen - or to change the funding formula to reduce the amounts freeloading red states receive.  As Millennials become even more engaged in politics, the Senate will loom larger and larger in blocking democracy and allowing a tyranny of a shrinking minority.  A column in the Washington Post looks at a problem that will fester more and more over the coming years.  Here are highlights:

Tuesday’s midterm elections were much more than a national repudiation of President Trump, a reminder that the president is still strong in red states or a return to the divided government that Americans so often favor. They were a sign of the political nightmare that will define a generation of millennial politics.

The Democrats took the House thanks to an anti-Trump surge not just among traditional Democratic groups such as minority voters, but also among college-educated people, particularly women, in America’s sprawling suburbs. Republicans expanded their Senate majority as they ran up the score in red states such as Indiana, Missouri and North Dakota. Democratic incumbents lost big in each of these states.

[T]here is a trend at work bigger than the president. The nation is diversifying. Its cities are growing. Its coasts are increasingly vibrant, diverse and open to the world. These values better fit educated suburbanites than Trump’s xenophobia. These facts suggest that the Democratic coalition is likely to win more votes nationwide, as it has in every presidential election but one since 1992. Virginia, whose northern suburban districts turned the state from red to purple to blue over just a decade, is a harbinger. Given time, as electoral votes and congressional seats shift to these areas, the House and presidential elections are likely to be the Democrats’ to lose. Tuesday’s results are an early indication of this shift.

But the Senate is different. The chamber was never meant to reflect the will of the American majority, and it increasingly will not. . . . Republican tribalists will not suffer a Heidi Heitkamp (N.D.) or a Joe Donnelly (Ind.) representing their states, no matter how centrist their records. Both lost, and by unexpectedly wide margins. The survival of West Virginia Democrat Joe Manchin III and Montana Democrat Jon Tester look like ever-rarer aberrations.

Democrats will eventually pick off Senate seats that Republicans still hold in bluer territories, such as Susan Collins’s seat in Maine. But for electoral purposes, Republican voters are much more efficiently distributed across the country. No matter how many people vote in California, they still get only two senators, the same as tiny Idaho, South Dakota and Wyoming.

The Founders imagined that the Senate would check and cool the impulses of the majority. But the body is poised to serve as a reactionary rural veto on a center-left country, routinely thwarting efforts to address major issues such as immigration, climate change, the national debt, health care, international cooperation and wealth inequality. Staffing the government and the courts could become impossible, as GOP senators refuse to approve Democratic appointees. The judiciary could become more politicized and even more conservative.
 The United States could fail to compete in providing the sort of modern, competent and responsive government that fosters economic prosperity and attracts foreign talent and investment, unless Republicans start electing moderates who will compromise with Democrats. With the increasing geographic and identity-based divisions in the country, it is more likely that Republican voters will prefer candidates who will promise to take nothing over a compromise. My elementary school teachers taught me and my fellow children, succored as we were on multicultural urbanism while growing up in Los Angeles, that we benefited from a symbiotic relationship with the rural Americans who grew our food, watched over our nation’s vast open spaces and defined so much of the American experience for so long. We, by contrast, provided a market for their products, connected them to the rest of the world and provided the economic innovation that underpinned national progress. Neither could exist without the other, and both deserve respect.

Increasingly, the relationship will not be defined by respect, but by resentment. The result will be a toxic stalemate. 

The People v. the U.S. Senate

Anti-majority Senate Republicans.

The structure of Congress was a pragmatic deal struck by the authors of the U.S. Constitution to induce smaller states to ratify the document and create the United States of America.  The principal carrot for small states was the U.S. Senate which would give small states equal power with large states.  Its very structure was anti-democratic, but it was the sweetener needed to achieve ratification.  Fast forward to today and the imbalance of power in control of legislation and important confirmations is now firmly controlled by a minority of the population that has little acceptance for changing demographics, social norms and/or a fast changing economy.  The recent Kavanaugh confirmation underscored the problem.  The result: some are calling for abolition of the Senate or a major restructuring to end small state obstructionism.  Here are highlights from a piece in The Atlantic:  

Brett Kavanaugh was confirmed to the United States Supreme Court by a vote of 50–48, with one senator absent and one abstaining. Only one Democrat, Joe Manchin of West Virginia, voted with the solidly Republican majority, which represented just 44 percent of the country’s population. Indeed, when Americans last voted for their senators (over a period of six years), Democrats won the popular vote by more than 8 percent. It’s that disproportionality—and the reality that a majority of the country’s population is represented by just 18 senators—that is driving concerns about the Senate’s ability to function as a representative body in a changing America.

The Senate is embedded within the Constitution as few other institutions are, with a special clause that some believe makes it immune to the standard amendment process. Adding more diverse states is one solution — Puerto Rico, the District of Columbia, and other U.S. territories would likely send Democrats to Capitol Hill if they gained representation, somewhat balancing the chamber.

And both Puerto Rico and D.C. seem agreeable: Last month, Puerto Rico’s governor, Ricardo Rosselló, stepped up his campaign for statehood, while the district’s congressional delegate, Eleanor Holmes Norton, is a passionate advocate of admitting D.C.

[B]oth those who want abolition and those who want more modest, but nonetheless significant, changes agree: The Senate is increasingly unrepresentative of the American populace.

The Republican Party has an inbuilt advantage in Senate races. Since Democratic voters tend to cluster in cities and their inner suburbs, Republicans are more spread out over large geographic areas. While rural strength in a state like New York or California counts for little in Senate races dominated by large coastal cities, the abundance of sparsely populated, geographically vast states in the West and Midwest is a big help for Republican domination in the chamber. Wyoming, for instance, reliably returns GOP senators despite having about as many people as Albuquerque.

There’s also demography: The states Trump won, which tend to be more Republican in general, are also whiter. In the political world of 2018, that makes them harder to win for Democrats, though the party holds numerous safe seats in heavily white northeastern states in which the GOP is not seriously competitive. The most diverse states are also the largest, and, therefore, the most underrepresented on a per capita basis.

Senate critics also contend that smaller states tend to be more conservative, while larger ones are more likely to back Democrats, though this argument is belied by the nine largest states, which are represented by an even number of Democrats and Republicans. Yet even if partisanship is put aside, those nine account for more than half of the country’s population.

While other countries have disproportionately selected legislatures—Norway intentionally allocates extra voting power to rural areas, for instance, and Canada’s provinces have stark differences in parliamentary representation—the Senate’s extreme imbalance is essentially unique in the global pantheon of representative democracy.

On June 11, 1787, Roger Sherman rose in a Philadelphia room filled with other landowning men and recommended a bicameral legislature for America, with one house apportioned by population and the other apportioned equally among the states. This deal—the Connecticut Compromise, as it would later be known—has organized American legislative governance for nearly two and a half centuries. Sherman’s original proposal was not, of course, designed to boost popular representation.

The Senate would express the interests of the states, conceived of as sovereign entities unto themselves rather than as a wholly cohesive nation. Until the Seventeenth Amendment to the Constitution was ratified in the spring of 1913, senators were elected by the legislature of their respective state.

Those who want to eliminate the Senate wholesale argue that the ship has sailed on states as sovereign entities. The federalism, they contend, fundamentally undermines basic democratic due process and the voting rights of actual people.

Daniel Lazare, a journalist who specializes in American politics and has written three books on constitutional issues, argued in Jacobin in 2014 that the Senate is “one of the most cockeyed systems of minority rule in history, one that allows tiny coteries to hold the entire country ransom until their demands are met.”

Senate abolition, no matter its support among left-wing groups, remains a remote prospect in the near term. Constitutional and political hurdles are massive, and despite gaining traction among many in the left-wing commentariat, popular support would likely be more elusive. However, stopgap measures—subdividing large states, for instance, or adding U.S. territories and the District of Columbia to the union—may be more viable and could address some Senate critics’ most immediate concerns.

But calls for radical reform can be useful in themselves. Issues of voting rights and disproportionality generally gain traction when attention is turned toward issues like the relative representativeness of the Senate. Electoral change—including measures to combat voter suppression and gerrymandering, or even more fundamental changes like instituting a proportional voting system for House elections—may become more palatable to the electorate at large as massive systemic changes like Senate abolition are discussed. “It’s always good to have a John the Baptist out there, painting a picture of what could be, but people change their minds relatively slowly,” Beyer says.

But in the near term, Democrats may not need John the Baptist—what they need may be Puerto Rico, the District of Columbia, and time. To rearrange electoral geography, American history would suggest that time is the most critical.

America: Tyranny of the Minority, and Rogue Nation Status

Watching Donald Trump - in my view, the most morally bankrupt and dangerous narcissist to ever occupy the White House - wreak havoc on the world order, igniting a trade war that will cost American consumers dearly, shredding long standing alliances, and even seeking to over through the current government in the United Kingdom (all of which likely thrills Vladimir Putin) makes it hard to reach any conclusion other than America is a rogue nation.  Disturbingly, many of Trump's tactics both domestically and internationally mirror the conduct of Adolph Hitler in the early 1930's.  Meanwhile, Trump's rural base cheers as the destruction takes place and the eunuchs in the Congressional GOP do nothing to rein in or remove an unfit occupant of the White House.  How did we reach this point where ignorance and racial hate and bigotry are celebrated by the party controlling the federal government?  A piece in The Economist - one of the few things currently stable in the UK - blames a design flaw in the United States Constitution which now allows a tyrannical and toxic minority of rural voters/states to negate the wishes of the majority of citizens. Even with massive Democrat turnout, it will prove difficult to alter the downward spiral of American politics and, I would argue, morality.   Here are article highlights:

EVERY system for converting votes into power has its flaws. Britain suffers from an over-mighty executive; Italy from chronically weak government; Israel from small, domineering factions. America, however, is plagued by the only democratic vice more troubling than the tyranny of the majority: tyranny of the minority.

This has come about because of a growing division between rural and urban voters. The electoral system the Founders devised, and which their successors elaborated, gives rural voters more clout than urban ones. When the parties stood for both city and country that bias affected them both. But the Republican Party has become disproportionately rural and the Democratic Party disproportionately urban. That means a red vote is worth more than a blue one.

The consequences are dramatic. Republicans hold both the houses of Congress and the White House. But in the three elections in 2012-16 their candidates got just 46% of the two-party vote for the Senate, and they won the presidential vote in 2016 with 49%. Our voting model predicts that, for Democrats to have a better than 50% chance of winning control of the House in November’s mid-term elections, they will need to win the popular vote by around seven percentage points. To put that another way, we think the Republicans have a 0.01% chance of winning the popular vote for the House. But we estimate their chance of securing a majority of congressmen is about a third.

This imbalance is partly by design. The greatest and the smallest states each have two senators, in order that Congress should represent territory as well as people. Yet the over-representation of rural America was not supposed to affect the House and the presidency. . . . America has one party built on territory and another built on people.

By having elected politicians appoint federal judges, the American system embeds this rural bias in the courts as well. If Brett Kavanaugh, whom President Donald Trump nominated this week, joins the Supreme Court, a conservative court established by a president and Senate who were elected with less than half the two-party vote may end up litigating the fairness of the voting system.

[T]he built-in bias is obviously bad for Democrats. But in the long run it is bad for America as a whole, including Republicans. When lawmaking is paralysed, important work, such as immigration and entitlement reform, is too hard. The few big laws that are approved, like Barack Obama’s health-care reform or Mr Trump’s corporate-tax cuts, pass on party-line votes. That emboldens the opposition to reverse or neuter them when they take power. Meanwhile, the task of resolving the most divisive political issues often falls to the courts. The battle over Mr Kavanaugh’s confirmation will be a proxy war over issues, like abortion and health insurance, better suited to the legislature.

[R]ancorous political disputes—over guns, abortion and climate change—split so neatly along urban-rural lines that parties and voters increasingly sort themselves into urban-rural tribes. Gerrymandering and party primaries reward extremists, and ensure that, once elected, they seldom need fear for their jobs. The incentives to take extreme positions are very powerful.

Bitter partisanship, ineffective federal government and electoral bias poison politics and are hard to fix. Changing the constitution is hard—and rightly so. Yet the voting system for Congress is easier to reform than most people realise, because the constitution does not stipulate what it should be. Congress last voted to change the rules in 1967.

Voting reform is not the whole answer to partisanship and built-in bias, but it would help. It is hard, but not outlandish. To maintain the trust of all Americans, the world’s oldest constitutional democracy needs to reform itself.

I agree with the piece.  Wyoming with slightly less than 600,000 residents should not have two U.S. Senators. Ditto for other small, least educated, mot reactionary states.   The Electoral College - which utterly failed its purpose in 2016 - likewise needs to go.

Trump and the Tyranny of the Minority

The presidential election of 2016 - and likely the 2018 midterm elections as well - has helped to underscore a systemic flaw in the current constitutional system in America.  Due to demographic changes that have seen surging growth in population in large, generally liberal urban areas and declining populations in rural areas, a minority of the population now controls the federal government. As the population growth disparity continue, the problem will only intensify.  Something similar exists in many of the states.  Here in Virginia it will be hopefully be proven again in November that Republicans can no longer win in statewide races where the population of the so-called urban crescent can out vote the reactionary and backward rural areas of the state.  Yet, despite this, thanks to gerrymandering and arcanely drawn districts, Republicans control the House of Delegates and thwart progressive and science based legislation.  The result is that the will of the majority is thwarted by a minority of voters that are increasingly out of touch with objective reality or who seek to take the nation back to the 1950's. A column in the New York Times looks at the growing problem.  Here are highlights:

Since Donald Trump’s cataclysmic election, the unthinkable has become ordinary. We’ve grown used to naked profiteering off the presidency, an administration that calls for the firing of private citizens for political dissent and nuclear diplomacy conducted via Twitter taunts.

I want to discuss a structural problem that both underlies and transcends our current political nightmare: We have entered a period of minority rule.

I don’t just mean the fact that Trump became president despite his decisive loss in the popular vote, though that shouldn’t be forgotten. Worse, the majority of voters who disapprove of Trump have little power to force Congress to curb him.

A combination of gerrymandering and the tight clustering of Democrats in urban areas means that even if Democrats get significantly more overall votes than Republicans in the midterms — which polls show is probable — they may not take back the House of Representatives.

And because of the quirks of the 2018 Senate map, Democrats are extremely unlikely to reclaim that chamber, even if most voters would prefer Democratic control. Our Constitution has always had a small-state bias, but the effects have become more pronounced as the population discrepancy between the smallest states and the largest states has grown. . . . “Roughly half the country gets 80 percent of the votes in the Senate, and the other half of the country gets 20 percent.” The distortion carries over to the Electoral College, where each state’s number of electors is determined by the size of its congressional delegation. This would matter less if the United States weren’t so geographically polarized. But America is now two countries, eyeing each other across a chasm of distrust and contempt. One is urban, diverse and outward-looking. This is the America that’s growing. The other is white, provincial and culturally revanchist. This is the America that’s in charge. I recently had the chance to ask Gov. Jerry Brown of California what might happen if we have more elections like 2016, where a majority of voters and a supermajority of Californians are thwarted. Polls already show a third of Californians favor secession. Could that fringe movement become mainstream? Brown said it was “not beyond the realm of possibility” that the country could eventually break apart, even if he doesn’t think it’s likely.

Conservatives are often unmoved by complaints that our system is undemocratic, arguing that America was intended not as a democracy but a republic. But if this was true at the founding, it’s probably not how most Americans understand their country today, when “undemocratic” is considered a political epithet.

Certainly, we need checks on the tyranny of the majority. But what we have now is the tyranny of the minority.

There are ways out.  The National Popular Vote Interstate Compact — a plan in which states agree to award all their electoral votes to the national popular vote winner — could circumvent the Electoral College if enough states enacted it.

Don Beyer, a Democratic representative from Virginia, has introduced the Fair Representation Act, which would change the way the House is elected, replacing single-member districts with larger districts represented by several people. They’d be chosen by a system of ranked voting that would allow third parties to compete without becoming spoilers, while giving political minorities a say in the process.

[A]bsent reform, our system could eventually face a legitimacy crisis. Levinson, perhaps the most prominent among progressive critics of the Constitution, argues that the crisis is already here: “At some point we need to discuss the extent to which the entire constitutional system is full of these anti-majoritarian aspects.”

Trump’s election has revealed many dark truths about this country. One of them is: We’re a lot less democratic than we might think.