Former Senators Argue that the Senate Must Stand in Defense of Democracy

In an op-ed in the Washington Post, a bipartisan group of former senators “urge current and future senators to be steadfast and zealous guardians of our democracy by ensuring that partisanship or self-interest not replace national interest” in this difficult time in our history.

Maybe Not

From conservative economist John Cochrane, comes this:

“Democracy, and US democracy in particular, serves one great purpose—to guard against tyranny. That's what the US colonists were upset about, not the fine points of tariff treaties. US and UK Democracy, when paired with the complex web of checks and balances and rule of law protections and constitutions and so forth, has been pretty good at throwing the bums out before they get too big for their britches. At least it has done so better than any other system.”

But maybe not when every vote does not count: in the not-yet-reformed American system of choosing the president, the candidates do not need or bother to campaign for every vote, and under these circumstances a passionate minority of voters can keep someone in office even when the majority would rather have someone else.

Not Good, Part 2

Out of the total eligible voting population in 2016, 40.9% did not vote. That amounted to 93.9 million people. They did not have better things to do. They realized that the current presidential selection system either makes their votes irrelevant or makes other people's votes much more significant. The nearly 100 million no-shows were not dumb or lazy or unworthy of voting. They realized that the campaigns made little or no effort to get their vote.

Making Media Matter

Commenting about direct election of the president in 1974, political scientist Charles Press wrote that "a most important effect of a straight out popular vote system will be an increased influence of the national media." 

If the national media is composed of the news-related cable channels and network television, they have little influence on the presidential elections of this century. Newspapers have even less.

If the national popular vote count determined the president, then more advertising would go to these outlets. In this sense national TV would have increased influence. Currently the networks get almost no presidential campaign ad money. It goes almost entirely to local broadcasters in a few swing states.

A national vote that mattered would cause local newspapers to make more money, potentially a lot more.

But would Fox News and MSNBC have bigger audiences? I doubt it. Would their commentators be more influential? Nope. Would they have editorials? Not likely.

Campaigns would use social media to reach every voter in the country. They would not spend money on broadcast or cable ads in big cities; too expensive. They would pump up ads on local broadcast in all states, local newspapers and radio too.

NYT, WaPo, and WSJ would have to spend more money figuring out what moved voters in every state. They probably would get more subscribers. Local newspapers would surely sell more copies. Interest in local elections would go up. But social media would provide the primary avenue to voters everywhere. 

National Election Good for Increasing Optionality in Candidates

In 1974, Charles Press argued in 68 American Political Science Review 1756-58 that choosing the president by total national popular vote would "encourage a further nationalizing of American politics."  What he meant was that big city bosses and state leaders would lose influence over the nomination, and "Under [this] reform, you will be able to recruit your presidential candidates from South Dakota and Arizona without apology."  

Presumably he meant that each of the two parties owed the country a big "sorry" for the Goldwater and McGovern nominations but that a national vote might lead to candidates being chosen from small states.

Looking back at his point these many years later, it seems that "nationalizing" actually means that nominees would be less likely to come from a big state where they have a robust financial donor base. That seems good.

Primary Voting

In the post-Watergate reforms of the 1970s both parties adopted nominating systems that allocate delegates according to population in large part but not exclusively. Famously or notoriously they also created super-delegates, composed mostly of elected officials, who are thought to be likely to choose the candidate who seems ideal at the end of the long primary season. Presumably early voters or poorly informed voters in some states might have erred in the process. 

This anti-democratic measure is under attack. Primary voters in both parties want to choose directly the nominee.

It follows that the same voters, by far the most likely to vote in the general, also support the notion that the popular vote should directly choose the president in the general election.

If the nominee needed to win the national popular vote to win the general election, it seems likely that the nominating process would become more democratic, and the number of super-delegates would diminish. It would make sense for any national party to use the nominating process as a test run to determine vote getting capability in every state. More than that, the vote getting would try out themes, policy positions, and arguments in advance of the general election. In short, the whole process from soup to nuts would probably become more democratic with a little "d." 

The History of America is the History of Race

The principal reason animating southern state opposition to direct election of the president at the time of the Constitutional Convention was slavery. To protect slavery, the southern state representatives had obtained the compromise that allocated them House seats according to population with slaves counted as three-fifths of a person.

If direct popular vote picked the president, the Three-Fifths gimmick would not have given southern states inequitable advantages in choosing the president.

Slaves of course could not vote, and the northern states had more eligible voters.

Founders from the slave states feared the outcome could be presidents unsympathetic to their "peculiar institution."

So they insisted on the electoral college system. By giving states two electors plus the number equaling the House members, the scheme extended the Three-Fifths Compromise to the process of choosing the president. It wasn't until 1860 that the unsympathetic president at last was elected. 

A Good Idea for Any Politician

In his book "Why the Electoral College is Bad for America," George Edwards reports that six times in American history a switch of less than 10,000 votes would have made the popular vote runner-up the president, in addition to the other occasions where that did happen.

As Alexander Keyssar, the preeminent historian of the vote in American, put it in a review of the book, the most "unpopular political institution" in America is the electoral college.

Any politician supporting reform of the presidential selection system to make it more directly based on the national popular vote will be pushing something popular. 

A Dream

 I dreamed last night that some residents of a state – any one of the 40 to 44 where the result is taken for granted in the general election for president – filed a class-action lawsuit against the legislature of their state. They claimed that under the equal protection clause of the 14th Amendment of the Constitution they should be given just as much attention as the people in a swing state of which there are only about six in any election. The lawsuit explained that if the legislature allocated even a few of the taken-for-granted state’s electors to the winner of the national popular vote then the presidential campaigns would have to seek the favor of the voters in every state, including those in the plaintiff class. 

 A unique and intriguing insight from dreamland, heh?

 The sleeptime conjecture did not convince me that I should have been a class action plaintiffs’ lawyer. There might be some problems (immunity, justiciability, etc.) with the theory. But in the woke world, where good dreams convince everyone, the claim has indisputable merit. 

How Big Turnout Could Be

If every voter in every state mattered, and if it followed that at least voter turnout in non-battleground states in 2016 matched turn-out in battleground states, then the non-battleground state turnout would rise by at least 16.3%. That could be close to 20 million more votes in 2020. 

But in fact if both campaigns competed to win every vote from every eligible voter in the country, they would use digital marketing, TV advertising, reinvigorated local party structures, appeals on nationally broadcast shows, newspaper ads, door knocking, and phone calls (1) to increase registration, (2) increase participation, (3) encourage people to think of joining with like-minded members of the same church, cause-related group, fellow high school graduates, family and friends -- regardless of domicile -- and voting together for the candidate of their choice. Voting would be a sport of many teams. Participation could approach registration levels, adding perhaps 50 to 70 million more voters to the process of picking the president. Everyone would have to acknowledge that the president really represented the people's choice.

When Every Vote Does Matter

In state-level congressional elections, and in the elections of the U.S. Senate and House of Representatives — in almost every election in America — every single vote counts and has the potential to be the one that's decisive.

Just see what happened this year in Kentucky:

Why should the way we elect the president be any different?

60% Don't Matter

If you add up all the runner-up votes and all the surplus votes cast for president, then the total is about 60%. Let's repeat that: about 60% of all votes cast for president under the current system do not matter at all. They are "systematically discarded," in the good phrase of lawsuits catalyzed by the brilliant Larry Lessig of Harvard Law School. It's a wonder as many people vote as do vote given how many votes the system ignores.

Why Votes May Not Matter

There are two reasons why many votes for president do not matter. First, in all states except Maine and Nebraska, the state appoints as electors only the slate chosen by the party of the candidate that gets a bare plurality. This is the "unit" or "winner-take-all" rule. It is NOT in the Constitution. It has the effect of subjugating the minority in any state to the will of the majority. For example, it has the effect of causing Republican members of the Church of Latter-day Saints in California, Oregon and Washington to send no electors of their preference to the Electoral College. In short, the "unit" rule causes all votes for the runner-up candidate to be thrown away before they are ever tallied in a national count or before the Electoral College convenes to choose a president.

So voters who know they aren't going to be able to compose a plurality, like Republicans in California since 1992, have no good reason to vote for president. It's amazing so many do vote anyhow. 

Second, a bare plurality of voters in a state triggers the "unit" or "winner-take-all" rule. Every extra vote beyond the one that makes a plurality need never be cast. These extra or surplus votes might as well never be voted. So why should a hard-working person take time off to add unnecessarily to a pile of votes for president? Clinton won California by more than 4 million votes. Maybe another million didn't bother to vote because the surplus didn't matter.

If Republicans and Democrats in California did not vote because runner-up votes and surplus votes don't matter, then do we know what the vote in California would look like if the national popular vote chose the president -- if every vote counted?