American History

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.

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.

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. 

Founders Smart

James Madison, James Wilson, and Gouverneur Morris, among the Framers, all favored direct, popular election as the means to select the president. Others thought the country then was too large for people to become familiar with different candidates. Today modern media makes this concern all too invalid. To honor the principles that animated the Framers, and to put aside objections no longer pertinent, all who respect the Framers' intent should support any reform that increases the likelihood that the will of the people directly leads to the choice of president. 

Original Intent: Let the States Make Changes in the Election System

It's surprising that opponents of the direct election of the president dwell on the intent of the Framers. These drafters of the Constitution plainly invested the states with the authority to decide how to allocate electors. See Article II.

The question then is: how should states exercise that authority in the best interest of their citizens and all the citizens of the United States? The Framers made some interesting comments about the choice of the president, and they are worth revisiting. But there is no doubt the manner of choosing electors was left to the states. They can change to any method they like, as long as they are not running afoul of some other provision of the Constitution.

No State Benefits

Reviewing Edwards’ 2004 screed against the electoral college, Brian Gaines in 2005 wrote that Edwards “punctures the myth that it was carefully designed according to an explicit theory of federalism.”  Gaines did not have space, or perhaps inclination, to elaborate the point. The fact is that the current system does not empower state governments, much less the citizens of most states. It simply causes a torrent of money to flow into multimedia campaigns aimed at discouraging a few hundred thousand people to vote in a handful of states while stimulating with anger and fear a roughly equal number to troop to the polls.

No state laboratory of democracy gets anything out of this system. Especially in the swing states, the two parties lose influence over their own elections, as mercenaries wearing red and blue uniforms invade, occupy for a few months, and then leave the ravaged land behind to head for the Executive Branch or political purgatory.

The Great Blunder

In his review of Allan Lichtman’s The Embattled Vote in America: From the Founding to the Present (Harvard: 2018), James Morone wrote in the New York Times September 12, 2018, that this “important book emphasizes the Founders’ great blunder: They failed to enshrine a right to vote in the Constitution or the Bill of Rights.” As a result, Morone reports and Lichtman documents, “Each party gropes for advantage by fiddling with the franchise.”

Lichtman lists the “vital reforms” – he includes abolition of the electoral college, automatic voter registration, national election standards, less partisan voting districts. Morone adds limiting the power of the judiciary to strike down laws and proportional representation for congressional elections.

Neither Lichtman nor Morone, as far as I can tell, points out that the single biggest limitation on the right to vote is that neither party seeks the votes of more than 80% of the eligible populace when it comes to the choice of president. Either the Red or the Blue team concedes to the other a victory in at least 40 states. The unit or winner-take-all rule then allocates all electors to the party that won a plurality in a state basically simply by having its nominee appear on the ballot. This system plainly communicates to most people in the country that their vote does not matter in the choice of the most important political figure on the planet.

This message then discourages would-be voters from showing up. That in turn means that less “fiddling” is required to alter the outcomes of down-ballot races. A huge increase in turn-out everywhere in the country would make fairly small-scale shenanigans less impactful and as a result would minimize their occurrence. Certainly at the least, the “fiddling” would more often be drowned out by the clamor of millions more voting for president in every state, if only states would allocate their electors to the winner of the national vote instead of the winner of the state vote.

He Nailed It

In his 2004 book on the Electoral College, George Edwards debunked the reasons for keeping the system as is, noting that (i) small states have little common interests with each other and are not a block that deserves outsized power in choosing the president; (ii) large-state citizens should not be disfavored because big states are not controlled by particular factions that should not be given too much power; and (iii) the selection of the president does not in any way promote federalism.

In other words, three rationales considered in 1787 in creating the electoral system are no longer based in reality, if they ever were.

So advocates against change need new reasons to keep the presidential selection system. To speculate, they might include:

1.      No one thinks there is a way to change the system. So let’s just give up on improving the Republic.

2.      One party or the other typically thinks the system advantages them. Therefore one party always blocks reform. Let's have short-term thinking harm the best interest of all Americans.

3.      Some politicians don’t want to learn a different system. We have to tolerate their limitations, so let's not change a thing.

4.      Some people like the voting rolls as they are, because true democracy might lead to different taxation, spending and law-making. Everything is now for the best in the best of all possible worlds.

5.  Although all states have recount procedures, a national vote count potentially would require all states to use them to do recounts in a very close election, like the 1960 Kennedy-Nixon election. That was a long time ago but it could happen again. And it's too much trouble to have lots of recounts, when only the presidency is at stake. 

Anything else come to mind? They spin, you decide. 

Who is Gary Abernathy and How Did He Get Printed in WaPo?

Washington Post fact-checkers must be up in arms about the howlers in this Gary Abernathy article, October 25, 2018. Or maybe it’s the in-house logicians who are crying into their keyboards.

Item 1: He wrote: “American history resists the notion of a majority fully imposing its will on a minority.” He meant, presumably, that throughout history most Americans repeatedly have been denied the opportunity to have a government reflect their wishes. His statement is the principal reason why the person who wins the most votes in the whole country should always become the president.

Item 2: He claims Democrats would “almost assuredly be defending the [presidential selection] system” if their candidates had lost the popular vote but won the Electoral College. Apparently, he defends the system for the same utterly self-interested reason; namely, his preferred candidates used it to deny the will of the people. This also is an argument for changing to a democratic method of choosing the president.

Item 3: He asserts that the United States is a “collection of individual states.” Abraham Lincoln in his first inaugural address quashed this specious assertion: “The Union is much older than the Constitution. It was formed in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution, was "to form a more perfect Union."

Item 4:  He says the “electoral college exists to protect” the “social and geographic interests” of states. People have “social and geographic interests” and they are best protected when their communities, geographic, demographic, religious, ethnic, familial, or even tribal, can vote with each vote counted equally for the political preferences that their interests lead them to have.

Item 5: “Our nation settled on the electoral college” as part of “protecting and valuing each state.” Actually, the slave state-small state alliance demanded that the anti-democratic, inequitable advantages they obtained in the compromise over the composition of the Senate and House be perpetuated in the method of choosing the president. The slave states did not want a chief executive who would oppose the expansion, or maintenance, of slavery. What was “valued” was, principally, slavery.

Item 6: “States are largely awarded electoral votes commensurate with their population.” So he claims, and then he compares West Virginia to California, noting that California has 20 times as many people and only 11 times as many electors. I do not think “commensurate” means what Abernathy thinks it means.

Item 7:  If the president were the person who won the national popular vote, then a “disproportionate majority of voters from the largest states” would be “imposing their will on the more vulnerable minority in smaller states.” There are many things wrong with this sentence, but I conclude with noting only three: (i) a majority is not “disproportionate” under a popular vote system; it is proportionate to the votes cast; (2) under the existing, anti-democratic system the “vulnerable” minorities in every state are “imposed” upon because their votes for the runner-up are discarded, meaning never counted with like-minded voters in other states possibly to form a majority opinion; (3) no candidate seeking a national win would ignore voters anywhere, because campaigns are not that dumb, whereas in the current system the two major parties do not campaign in about 40 states, with more than 80% of the population.  

No Need To Dismantle

In reviewing George Edwards’ Why the Electoral College is Bad for America  (2004), Jeffrey Cohen of Fordham University concluded: “I do not think the Founders designed the electoral college with egalitarian ends in mind, but that does not mean that, over 200 years after the adoption of the Constitution, we should not promote political equality, even if it means dismantling institutions that undermine political equality.”

Of course the granting of suffrage to former slaves and women and people aged 18 to 21 all promoted “political equality” even if the electoral system denied true equality.

But it’s also worth noting that the Electoral College does not need to be “dismantled.” Any state can choose as electors those from the party slate whose nominee for president has won the most votes cast in the United States. That would make every vote count, or matter, equally.

Things Have Changed

In 1981 Neal Peirce and Lawrence Longley revised The People’s President.

A key quote:

“…we must ask ourselves: to what world does our presidential election system really correspond? Is it adapted to a modern technological society in a politically mature nation, where every American considers the ballot his birthright? Or is more a vestige of the world of two centuries past, when voting was haphazard, the secret ballot scarcely known, the society disjointed and spread of a vast frontier?”

From the vantage point of 2018, the dichotomy seems endearingly quaint, and not nearly dramatic enough to address the real crisis apparent in America – namely, can we have a system of government that most people think is both fair and reasonably well-working.

On the one hand, the presidential selection system causes the candidates to take for granted and hence ignore more than 80% of the population. Instead of every American considering the ballot a birthright, almost everyone is aware of how little the participants care about their preference for president. The angry ones do the choosing and structurally everyone else is marginalized: so it seems.

On the other hand, in the modern era voting is “haphazard.” Social networks and identity politics strip secrecy from everyone’s probably choice. The society seems more “disjointed” than in the lifetime of the longest-living among us. And the virtual world is a disturbingly “vast frontier.”

So neither on the one hand nor the other is there a happy choice. Time for a new method.

Blast From the Past

The great historian C. Vann Woodward (author of The Strange Career of Jim Crow) wrote in the New Republic in 1968 that “Little can be said in defense of an electoral college in which one vote represents 75,389 in Alaska and another 392,930 in California.”

The skew nowadays is worse, and with more than 50% now in only nine states, it is irrefutable that the current presidential system is grossly unfair to most Americans. Indeed, only in Maryland and Oregon can it be noted that the percentage of electors is the same as the percentage of the population relative to the whole country. In two states, the system is fair. In 48 plus the District of Columbia the system gives either too much or too little weight to the preferences of citizens in the choice of the president.

In addition to state-by-state inequity, Woodward also noted, “If the sacred rights of minorities are cited, one should recall that in the 11 elections from 1908 to 1948, 44% of the popular vote cast by minority voters was not represented by a single electoral vote.”

Woodward was reviewing Neal Peirce’s The People’s President: The Electoral College in American History and the Direct Vote, which he called a “useful handbook and history of…maladies of the electoral system.” It’s time for another such book, because the sickness has gotten worse, and threatens the survival of the Republic.

Peirce reported that by 1966 513 resolutions for constitutional amendments reforming the system had been introduced in Congress and only one succeeded: the 12th Amendment ratified in 1804 to fix the screwy Jefferson-Burr result that Alexander Hamilton resolved, to his ultimate death, now perhaps the most well-sung story in American history.

However, at the time of Peirce’s book and Woodward’s review no one seemed aware that states acting alone or together can adopt a different system for choosing electors.

Democracy East and West

The United States and India are the world’s two largest democracies. They are populous and diverse. This national unity through cultural diversity is what the two nations have been known for. There is another bond between them.

Emerging as a democracy one-and-a-half centuries after America, India has looked to the United States as the model of a democratic republic with a global leadership role. Both democracies are grounded in the principles of the rule of law, separation of powers and judicial integrity.

Similarly, the US Constitution has been a founding document for other nations, for example in South American countries, though quite a few there have slipped away from democracy at times. Democracies around the world are now backsliding—in the case of Hungary, where one party gained the majority in the last election and then imposed restrictions on other parties to prevent them from standing a chance in future elections. These examples teach us that, once lost, democracy may be very hard to regain, and reform— including election reforms— must therefore be fought for before it is in danger of extinction.

India and the United States are also going through, in parallel, a period of deep division and extreme polarization. In both Indian and American politics and government, there is a high and rising risk of eroding democratic principles and norms. The recent political trends in both countries, it seems to me as an Indian who has gone to law school, traveled in and cares about America, are less about the traditional left-right divide and more about the bitter clash between narrow xenophobic populism and a more generous appreciation of their countries’ roles in the global community. Politicians have exploited this clash and the electorate is not only splintered but also confused, unaware of the issues, fearful and distrustful.

I do not presume to have a prescription for how the United States can fix itself, but I do know that it is important to India and the rest of the world that it do so in a way consistent with the principles of democracy, [transparency], freedom of the press and an independent and non-partisan judiciary. India must also undertake reforms that advance these values, protecting its institutions and civil society from the threat of democracy declining. Nations can and should be models for each other. Now, more than ever, it is important for like-minded countries, like the United States, India and others, to uphold and pursue the values we share consistent with our own distinctive cultures.

Capt. Loveleen Kaur Mann is a former JAG officer of the Indian Army. She is a fourth generation Sikh soldier and belongs to Panjab, India. During her corporate stints, she has had the opportunity to work with colleagues of religious diversity including in Kashmir. She is an alumna of Georgetown University Law Center, Washington DC. Her interests include skydiving and exploring new cultures and places, having travelled 34 US states.

Essential Reading on Democracy: Dr. Carol Anderson’s One Person, One Vote

The concept of “One person, one vote” became a widely articulated core principle of the Constitution when it was first spoken by Chief Justice Earl Warren’s Supreme Court in 1963. In Dr. Carol Anderson of Emory University’s new book One Person, No Vote, the scholar exposes how this fundamental egalitarian principle of Constitutional law and its enforcement by the Civil Rights Act of 1965 has again become violated with shocking impunity throughout the American South. After the Supreme Court’s 2013 Shelby ruling which rolled back key protections of the Act, many states have implemented discriminatory measures which effectively disenfranchise large numbers of black voters. Along with Dr. Anderson’s seminal book White Rage, which chronicled the near-century of disenfranchisement that preceded the Civil Rights Act despite the ratification of the 15th Amendment in 1870, One Person, No Vote is essential reading for all citizens concerned with the resurgent anti-democratic pressures in our society.