Voting Rights

Democracy rules

As this article shows even one of the world’s most autocratic and corrupt leaders wants popular voting to give authority to his party’s rule. Might makes right, but it doesn’t create the appearance of justification for political power and it is inherently unstable.

If he thought about it creatively, Putin could consider adapting the American electoral college system to his purposes. In the United States the people don’t pick the president by vote. They are only told that they do.

Instead they pick electors, who, under the 10th Circuit’s decision in Baca v. Colorado Department of State, can choose anyone they want for president. Political parties nominate electors by opaque processes. It is reasonable to suppose that every elector has made or received sizable political donations in order to be noticed by the nominators. They are quintessential apparatchiks.

Perhaps to avoid embarrassment or to convince voters falsely that they are choosing the president, many states do not reveal the names of electors on the ballot. Even where they are identified the only voters sure to know them are their family members.

The electors from different states do not deliberate. They do not even meet with each other. Yet they are described as attending an electoral college. This college has no courses, instructors, or degrees. But the description persuades some otherwise reasonable people that this nonexistent institution effects a ratiocinative process for choosing the nation’s leader.

Just as mind-boggling is the way many people, including judges, think that history should command the country to perpetuate this process. In brief, it is thought by many that the writers of the Constitution wisely designed a system unchangeable for the ages when they imagined white men from 13 eastern seaboard states would travel by horseback for about four to five weeks to Philadelphia (or later, Washington) in order to negotiate on which slaveholder or slavery-tolerating person a majority of them would accept for president.

Electors are also described as representing the interests of thinly populated states (most in French territory at the time of writing the Constitution, so not contemplated as stakeholders by the framers). But it’s a good bet not one elector knows soy from sorghum and that all or almost all live in cities or suburbs. At any rate, we know that not a single elector has a published farm policy or a “small state” policy.

To top it off, the media collaborates enthusiastically with politicians in convincing the American people that their votes matter and that the system serves the best interests of the whole country.

How could Putin not win his elections with this method?

And if Russians could be convinced as easily as are many Americans that they actually had voted in a fair and meaningful way then he would have the legitimacy he craves for his exercise of autocratic control.

Just a thought.

What do to about Baca, part 2

"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass - a idiot". -- Charles Dickens, in Oliver Twist.

The Baca decision holds that the framers intended for electors to decide as independent agents who should be the president and who the vice president. Each state has unfettered authority to decide how to appoint electors—by vote of the people, by vote of the legislature, by lot, by the machinations of horoscopes or ouija boards ("spirit of George Washington, who should be president?"), by sale to the highest bidder.

Could a state really sell elector seats? That's a law school question that may need to be answered in real existing politics.

Anyhow, other courts may agree or disagree with Baca, and perhaps the United States Supreme Court will have something to say about this matter. Surely it's important for everyone to know well in advance of the November 2020 election whether Americans are actually voting in a reliable, meaningful way for president or vice president, or whether instead they are delegating that choice to electors.  

If the Constitution means that voters are merely delegating the important choice to electors, then people deserve to know a lot more about who is taking on this important job. 

Many states do not even list the electors on the ballot. Even if on the ballot, they do not campaign. They do not explain why they deserve to be trusted with the responsibility to pick the nation's only two national government executives. To set forth their qualifications, they are going to need to raise money. The candidates for president in 2020 will spend, all in, a total of $3 to $4 billion on presenting their merits. If the voters are not in reality choosing among the parties' nominees, then all that money perhaps should be spent to present the electors to the voters. The electors themselves do not have to choose among the nominees of the parties anyhow, so there is little purpose to the political spectacle that we currently call the presidential race.

If the Baca becomes the law of the land, people leaning left and right on the political spectrum should agree that this law creates an ass of a system. The obvious alternative is to let the voters directly pick the president. Do not blame the Baca court. Instead, recognize that it's high time to amend the Constitution's broken, antedated, and otiose method of choosing the president. 

American history reveals a halting, sometimes wandering, but always vital expansion of democracy. The Baca reading of the framers' intent may be right. But in that case, the framers' conception at last should be updated to reflect the virtue, indeed the necessity, of a truly democratic process for choosing the nation's two top leaders.

In this process, step one is to decide if the candidates for president should be highly encouraged to campaign everywhere for everyone's vote. If the answer to that is yes, then the national vote must choose the president, instead of the current system according to which a handful of swing states attract all attention and distort policies and governance away from the desires of most people. 

Step two is to decide if every vote cast nationally should be of equal weight. It could be thought that the composition of the Senate, which cannot be changed by constitutional amendment, suffices to protect the interests of small states. In that case, there's no reason to give small state voters more weight in picking the president than voters in big states. But if the small states' officials want to demand greater voter weight in order to compromise on a constitutional amendment, then every voter can have their votes weighted according to the relative population of the state in which their vote is cast.

Step three is to make up the national mind about whether the president should always be chosen by majority vote, as opposed to having most people vote against the person as occurs fairly often. To produce a majority for the president, the United States would need to adopt some sort of run-off, either instant (also called ranked choice) or a two-stage voting method. 

Finally, in the amendment, the country could throw away the obviously anti-democratic back up methods of the Constitution, election by the House where each state has one vote or election by the Senate. 

 Baca presents anew the long-bruited, extremely obvious fact about the American system of choosing the president. It is terribly flawed. It does not serve either party well, and harms the whole country in numerous ways. The Baca judges are not idiots. They intended only to describe what the framers intended. The system, which did not work beyond the Washington Administration, has become more and more idiotic as the country has grown and changed. When the law is this much of an ass, it's incumbent on all of us to change it. 

What to do about Baca

Here is the letter we sent to the attorneys general of all states plus the District of Columbia:

Dear Attorney General:

 I write on behalf of the Making Every Vote Count Foundation, a nonpartisan organization dedicated to research and civic education on the merits of choosing the president by means of the national popular vote.

This month the United States Court of Appeals for the Tenth Circuit held unconstitutional a Colorado law providing for the removal of presidential electors who fail to vote for the presidential candidate receiving the plurality of votes within the state, Colo. Rev. Stat. § 1-4-304(5).  See Baca v. Colo. Dep’t of State, No. 18-1173, 2019 WL 3938266, at *2 (10th Cir., Aug. 20, 2019).  According to this decision, no state action of any kind – judicial, legislative or executive – can limit in any fashion the decision of an appointed elector to cast a vote for the President and Vice President of his or her choice. 

 The Baca court correctly acknowledged that each state has “the plenary power to appoint its electors.” Id. at 41.  However, the court also held that after the appointment, “the Constitution identifies no further involvement by the states in the selection of the President and Vice President.”  Id. at 48. Therefore, the court concluded that the Constitution does not empower a state to enforce in any way “a state-required pledge to vote for the winners of the state popular election.”  Id.

The Baca reasoning must bar any legal action to enforce an elector’s promise to vote for a certain candidate.  It also may mean that a state cannot bar from the ballot a slate of electors who promise only to exercise their good judgment in voting for president and vice president.

We believe it is imperative that your office consider the implications of Baca in a timely manner, given the relatively short time frame between now and the preparation of ballots for choosing electors for the presidency that commences in January 2021. We believe that as many as 30 states now have laws and regulations that Baca would invalidate, and others should be aware of what steps they now cannot take.

On the other hand, a state may still enact, and when it is effective also enforce, the National Popular Vote Interstate Compact.  The state has plenary authority, whether acting pursuant to legislation or ballot measure amending the constitution or laws of the state, to determine the manner of appointing electors.  To date, 15 states and the District of Columbia, with a total of 196 electors, have enacted the Compact.  It takes effect when enacted in states with electoral votes totaling 270 or more.  When effective, the chief election officer in states that have joined must determine who has won the most votes nationwide.  Based on that determination, the state will appoint the slate of electors nominated by the party whose presidential nominee has won the national popular vote.  The Baca decision does nothing to disturb this procedure.

A state adhering to the Compact may permit electors to aver that they, as a matter of conscience, favor voting for the winner of the national popular vote for president. They may state also that, if appointed, they will act in accordance with their conscience and vote for the presidential candidate who receives the most votes nationwide. The Baca reasoning does not preclude such pledges by would-be electors. 

In order to give guidance to those who might wish to be electors, to political parties, to voters, and even to presidential and vice presidential nominees, we urge you each to issue, as soon as practical, a formal opinion stating whether your state will follow the Baca reasoning, and whether you concur with our view that the Compact in any event may be adopted in any state.

We have consulted with our attorneys at the law firm of Covington & Burling LLP regarding these issues.  Should you wish to discuss this matter further, you may contact me directly or reach our attorneys, Gerard Waldron and Matthew Shapanka, at the firm.  Thank you for your consideration.

 Sincerely yours,

 Reed E. Hundt, Chairman & CEO


Fred T. Goldberg, Jr.

Judge Lisa Foster (Ret.)

James K. Glassman

Richard S. Tedlow

Jake Fuentes

Jennifer A. Holmes


cc:Attorneys General of the 50 States and the District of Columbia

Invitation to Extreme Unpredictability: Summary of Baca v. Colorado Dep’t of State (10th Cir. 2019)

The United States Court of Appeals for the Tenth Circuit just reached a decision that expands the anti-democratic nature of the Electoral College into a new realm of unpredictability.

If this decision becomes the law of the land, then electors chosen by popular vote in a state, or by a national popular vote if that reform goes into effect, can ignore the voters and pick the president and vice president of their choice. They do not even have to choose between the candidates nominated by the two parties. An elector can pick anybody he or she likes.

The court felt that the framers of the Constitution intended to give electors this unfettered power. In the current century, this reading of original intent leads to many startling possible scenarios, including the use of unlimited funds and unthinkably powerful advertising techniques to persuade any and all of 538 electors that someone not chosen by the people of any state, much less the whole country, should be president.  

Here follows a summary of the decision:

 Plaintiff Michael Baca was a presidential elector appointed in Colorado, which, by statute, required its electors to vote for the winner of the popular vote in that state. Colo. Rev. Stat. § 1-4-304(5).  Even though a majority of Coloradans voted for Clinton, Mr. Baca attempted to cast his vote for John Kasich on the date that the electors met to cast their votes. The Colorado Secretary of State removed Baca as an elector, and replaced him with a substitute elector who voted for Clinton.

Baca sued under 42 U.S.C. § 1983 for an alleged deprivation of his constitutional rights provided by Article II and the Twelfth Amendment. The Tenth Circuit found that Baca had standing to challenge Colorado’s statute. The court further found that the “state’s removal of Mr. Baca and nullification of his vote were unconstitutional.”  Baca, at 2.

The court framed the question as “whether the states may constitutionally remove a presidential elector during voting and nullify his vote based on the elector’s failure to comply with state law dictating the candidate for whom the elector must vote.” Id. at 63. The court found that although the Supreme Court has not ruled on the question directly, it has stated in dicta, concurrences, and dissent, that the original intent of the Constitution “recognized elector independence.” Id.  at 66.

Colorado argued that “the power to bind or remove electors is properly reserved to the States under the Tenth Amendment.” Id. at 76. However, the court rejected the argument that the power to bind electors was “reserved” to the states under the Tenth Amendment “because no such power was held by the states before adoption of the federal Constitution.” Id. at 77.  Accordingly, “The Tenth Amendment thus can provide no basis for removing electors or canceling their votes . . . .” Id. at 78. Because the Tenth Amendment did not reserve the power to nullify the vote of a presidential elector, the court framed the question as “whether the Constitution expressly permits such acts.”  Id. at 78.

The state, relying on the president’s power to remove officials, argued that “the power to appoint necessarily encompasses the power to remove.” The court disagreed.  Though the court acknowledged that “the state legislature’s power to select the manner for appointing electors is plenary,” id. at 79 (quoting Bush v. Gore, 531 U.S. 98, 104 (2000)), it did not follow that the state also had “the ability to remove electors and cancel already-cast votes after the electors are appointed and begin performing their federal function,” id. The court distinguished presidential appointees, who are subordinate officers in the electoral branch and thus under the president’s control, from electors, who perform a separate federal function from the states that appoint them 

The court found that “Based on a close reading of the text of the Twelfth Amendment, we agree that the Constitution provides no express role for the states after appointment of its presidential electors.”  Id. at 84. The court noted that “From the moment the electors are appointed, the election process proceeds according to detailed instructions set forth in the Constitution itself,” and “Nowhere in the Twelfth Amendment is there a grant of power to the state to remove an elector who votes in a manner unacceptable to the state or to strike that vote.” Id. at 86.  The court concluded that “while the Constitution grants the states plenary power to appoint their electors, it does not provide the states the power to interfere once voting begins, to remove an elector, to direct the other electors to disregard the removed elector’s vote, or to appoint a new elector to cast a replacement vote.” Id.  at 86-87.  In other words, because the Constitution does not give the states an explicit right to remove electors or control their votes, no such right exists.

The court looked the words “elector,” “vote,” and “ballot,” and found that these terms, as they would have been understood at the time of the adoption of Article II and the Twelfth Amendment, established that no role for the state existed beyond the appointment of electors.  Id. at 88. The court found that contemporaneous dictionaries reflect that “the definitions of elector, vote, and ballot have a common theme: they all imply the right to make a choice or voice an individual opinion.” Id. at 90.  The court also looked at the term “elector” as it is used elsewhere in the Constitution, and found that “electors” in Article I and the Seventeenth Amendment “exercise unfettered discretion in casting their vote at the ballot box.”  Id. at 92. The court also found that the Federalist Papers were “conclusion that the presidential electors were to vote according to their best judgment and discernment.” Id. at 105-09.

The court noted that there had been a longstanding practice of requiring electors to pledge to vote for a certain candidate. However, the court found that the fact that Congress had previously counted every “anomalous” vote that had ever previously cast, pledges notwithstanding “weighs against a conclusion that historical practices allow states to enforce elector pledges by removing faithless electors from office and nullifying their votes.” Id. at 101.

Nor did the fact that most states do not even list their electors on the ballots change the court’s conclusion that interference with an elector was unconstitutional.  Id. at 101-105.  The court noted that the Supreme Court had found that “[t]he individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college.” Id. at 104 (quoting Bush, 531 U.S. at 104). Accordingly, even though all states now allow the citizens to vote for presidential electors the state “can take back the power to appoint electors.” Id. (quoting Bush, 531 U.S. at 104).  The court found that, similarly, “Although most electors honor their pledges to vote for the winner of the popular election, that policy has not forfeited the power of electors generally to exercise discretion in voting for President and Vice President.”  Id.

In conclusion, the court found that the Secretary of state “impermissibly interfered with Mr. Baca’s exercise of his right to vote as a presidential elector” by “removing Mr. Baca and nullifying his vote for failing to comply 114 with the vote binding provision in § 1-4-304(5). Mr. Baca has therefore stated a claim for relief on the merits, entitling him to nominal damages.”

States must react to this

This reasoned decision by the 10th Circuit makes clear that states cannot punish or in any meaningful way constrain an elector from voting his or her conscience.

Prospectively, this means that states must strike from their codes any statutory or regulatory infringement on the authority of an elector to think and not just act when it comes to choosing the president.

In implementing this reform, states might as well go ahead and also vote on the National Popular Vote Interstate Compact. Under that law, states would appoint electors nominated by the party whose candidate won the national popular vote. The electors cannot be punished if they choose otherwise, but the states plainly have plenary authority to appoint electors from the national vote winner‘s slate.

If states don’t want to pass the Compact then they still have to implement a method of appointing electors that preserves the freedom of these individuals to choose as president the person they think best suited for the job.

As I understand this case, they can choose any otherwise eligible American citizen.

Adopting the Compact might seem to many states the better way to organize the presidential selection system in the wake of this decision.

Battle in Colorado

A sign that the national popular vote movement threatens to succeed is this well-funded Republican effort to repeal Colorado's adoption of the National Popular Vote Interstate Compact. 

The goal for the Republicans is simple: maintain the possibility of obtaining the presidency while having most Americans vote against their nominee. This is called minority rule. It is utterly inconsistent with the Constitution which was specifically designed to have a majority pick the president—a majority of electors, state delegations, or Senators, as the situation required. This original intent has been twisted over time to be a mechanism by which voters in a consortium of states dominated by one party, plus pluralities in five or fewer swing states, choose the president, even while most Americans vote for someone else.

Some Republicans believe their party and the country would be better off if their party did not depend on the archaic and otiose electoral system to produce a Republican chief executive. They are being overcome by the party professionals and big donors who believe Donald Trump represents the sort of nominee the party will continue to produce, like it or not, and that therefore their nominee cannot win the national popular vote. These people generally favor keeping the country on the carbon platform that is burning up the world, maintaining the current levels of income and wealth allocation, and the current tax policies. They may not support the immigration or trade policies of the administration but they believe these stances are useful ways to win the electoral college and so must be tolerated.

Most Americans do not agree with these policies. If the national vote chose the president, neither party would nominate people who deny climate change, adopt racial references to rile up white voters, support extreme income and wealth inequality, or conduct trade wars that raise costs for all Americans. Democracy is, as it is supposed to be, the method of having political leaders do what most people want.

 But in Colorado, not to mention most of the country, you still see people like Governor Hickenlooper in this article, fail to note the importance of the national vote as a fight for democracy. It is time for the national vote reform to battle on a big stage.

To defeat the repeal effort, it will be necessary to contest the issue in three ways:

1. Get national and local attention to the issue, which is democracy versus autocracy. Let there be no mistake: the repeal cause in Colorado has its source in the battle for a permanent minority to choose the president.

2. Coordinate all grassroots activity in Colorado in an open, collaborative manner, with experienced personnel handling the many dimensions of the contest, as was done in the 2018 victories against gerrymandering in Michigan and elsewhere.

3. Use the legal resources of Making Every Vote Count and any other volunteers to take all appropriate issues to all appropriate courts, while endorsing the fundamental idea that a ballot measure to have the people pick the way to pick the president is precisely in line with the fundamental cause here: democracy should be expanded in America. 

Who cares what most people want?

It never even crosses the mind of the CBS reporter or the Trump campaign manager that most people in the country disapprove of the president.

In America’s screwy system, that doesn’t matter. Donald Trump only needs to win Florida to be in the re-election catbird seat. That’s why he kicks off his campaign there. No one comments about that either.  It is taken for granted that the president should be reelected or not based on whether he gains a narrow plurality from people in Florida and a couple other swing states. 

Then his campaign manager talks about a “landslide” consisting of winning by a few votes a couple of very tiny states that Trump did not carry in 2016. This is a landslide composed of a couple of pebbles. 

Donald Trump currently holds the record for consistent disapproval. No matter. Unless a few states change the way the electors are picked, most Americans don’t matter in picking the president. This is the reason why it was dreadful that the governor of Nevada vetoed the National Popular Vote Interstate Compact. He could’ve been part of the most important reform in the political process. He could have been somebody. 

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.

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.

Karl Rove’s Weak Defense of the Electoral College

In his editorial, “The Lovely but Unloved Electoral College,” appearing in the April 10, 2019 Wall Street Journal, former George W. Bush strategist Karl Rove does not so much defend the Electoral College but attempts to minimize its failings and paints a parade of horribles that he imagines would descend if the system were altered.  If anything, much of his defense of the current system is an argument for its alteration.

First, Rove states that there is “zero chance” of abolishing the Electoral College because it would take a constitutional amendment. While he is correct that an amendment is unlikely, he is wrong that there is no other way for the system to change. The National Popular Vote Interstate Compact is an agreement among states to give their electoral votes to the winner of the national popular vote once states with 270 electoral votes join the Compact.  Right now, fourteen states plus DC have passed the Compact, totaling 189 votes—70% of the way to becoming effective.  There is tremendous momentum behind the Compact, with Oregon likely to be the next state to join with 7 additional electoral votes.

Rove does not argue that it is good that the Electoral College sometimes means a person becomes president despite the fact that more voters preferred another candidate.  Instead, he argues that splits between the Electoral College and the national popular vote are a “rare divergence” explained by “extenuating circumstances.”

But these “circumstances” are in fact strong arguments for reform. He argues that the only reason George W. Bush lost the popular vote in 2000 is because the TV networks prematurely called Florida for Gore at 8:02 Eastern time, while many western states were still voting.  Rove does not provide a citation for his assertion that “Republicans were more likely to be discouraged and stay home, probably costing George W. Bush several hundred thousand votes and two states, New Mexico and Oregon,” but even if it were true, this is a good reason why the country would do better under the popular vote.  If all votes count equally, it will be much more difficult for networks or other actors to interfere with the results, intentionally or otherwise, while votes are still being cast.

Rove also asserts that “Winning GOP candidates may have fallen short in the popular vote in 1876 and 1888 only because the black Republican vote in the South was being extinguished by violence.” What he doesn’t mention is how the Electoral College meant that even if they had been able to vote, the votes of African Americans in the south would not have counted because they could not get a plurality in the states where they lived, a problem that persists to this day.

More important than past elections is the likelihood that the Electoral College will thwart the will of the people in the future. Rove notes that there have only been five Electoral College/popular vote splits out of 58 elections, but fails to note that splits have occurred in two out of the last five elections, and two out of the last three open elections. Our analysis shows that, far from becoming more and more rare, splits will become increasingly likely when the outcome rests on just a few swing states.  In close elections, there will be a split in up to 32% of elections, with neither party having a long-term advantage.

Next, Rove suggests that a number of consequences would befall our nation if we switched to a national popular vote: there would be recounts needed in many states, third parties would multiply, and small states would be ignored.  But those are all problems that exist in a worse form under the current system than under a popular vote. 

  • A popular vote election involving hundreds of millions of voters would be unlikely to be close enough to need multiple recounts, unlike the winner-take-all Electoral College where the election can turn on a few hundred voters in a single state.

  • Right now, a third party candidate could theoretically win the election with only 23% of the vote. Under a popular vote, a third party would at least have to get more votes than anyone else. Further, many Americans feel disenchanted with the two major parties and would welcome real third party challenges, perhaps in combination with ranked-choice voting

  • Finally, small states, as well as most big and medium-sized states, are already ignored by candidates who instead lavish almost all of their attention on big swing states like Florida and Pennsylvania. 

Rove claims that “[t]he Founders knew what they were doing. Abolishing the Electoral College is an awful idea.”  But though the Founders were brilliant men, they were not omniscient. They came up with a compromise that reached the necessary votes—and that was constrained by the hard limits on travel and communications at the time—but which they themselves acknowledged was not perfect.  More importantly, it bore very little resemblance to the Electoral College as it operates now. It was, according to Hamilton, meant to be a deliberative body of a “small number of persons, selected by their fellow-citizens from the general mass, [who] will be most likely to possess the information and discernment requisite to such complicated investigations” as choosing the president.  Of course, the reality is far different.

It is time to work within the confines of the Constitution to allow the people to choose the president. Article II, Section 1 of the U.S. Constitution allows the states to determine how electors are appointed. If state law in enough jurisdictions directed the electors to pledge their votes to the winner of the national popular vote, campaigns would have to look everywhere for votes instead of focusing on a few swing states. Only then will every vote matter equally.

Majority of Americans Support Getting Rid of Electoral College

The widespread discontent with the Electoral College has recently gone from a slow, constant simmer to a full-on boil.

Making Every Vote Count weighed in on Hardball with Chris Matthews tonight, as CEO Reed Hundt joined the show to discuss the system’s inequities.

The Biggest Threat to Democracy is up to the States to Fix

The Democratic House has passed a massive election reform bill, HR 1:

The sweeping bill is aimed at getting money out of politics and increasing transparency around donors, cracking down on lobbying, and expanding voting rights for Americans by implementing provisions like automatic voter registration.

This bill would go a long way to restoring the voting rights of U.S. citizens.  However, it will probably never even get a vote in the Senate.  And HR 1 does not even address the reason that most Americans’ votes don’t count in the presidential election: the Electoral College.  Unless you happen to live in a swing state, your vote is either taken for granted or ignored. 

But there is some good news.  States have the power to allocate their electoral votes in any way they chose.  If the states pass a law that pledges their electoral votes to the winner of the national popular vote, candidates will campaign for every vote everywhere and every vote will count equally.

Voting Holiday

Senate majority leader Mitch McConnell says that making election day a national holiday is a “power grab” by the Democrats.

This idea is not about giving power to the Democrats. It is about giving power to the people. Right on.

Everyone in elected office legitimately holds their position only because they have obtained the consent of the governed. That is conveyed by voting. The more people who vote, the more the consent is validated. 

 It is weird for Senator McConnell to complain about democracy when the administration he helps so much is trying to unseat the leader of Venezuela on the grounds that he did not legitimately obtain the consent of his governed through a fair election

Declaring election day a holiday makes it easier for people to give their consent to Senator McConnell exercising power over them, but it also celebrates that act of democracy. I particularly like the idea of combining Veterans Day with Election Day because soldiers fought and died for democracy. 

Colorado State Senate Passes National Popular Vote Bill

On January 29, Colorado’s Senate passed a bill that would add Colorado to the list of 11 states plus D.C. to join the National Popular Vote Interstate Compact. Currently, the Compact has 172 electors that will be pledged to the winner of the national popular vote if states with a total of 270 electoral votes join the Compact.  

The Colorado bill will now go to the state’s House for consideration.  If passed, Colorado would add its 9 electoral votes to the tally.

Not Quite

“[T]he minority share of the electorate is growing,” and this favors the Democrats, assert Levitsky & Ziblatt. They then explain that the Republican response has been to limit participation by, inter alia, pushing for voter ID laws. These have “only a modest effect on turnout. But a modest effect can be decisive in close elections…” Pages 183-85.

Two comments.

First, increase in minority participation may be important to the national popular vote, but of course that is irrelevant to the question of who wins the presidency. The increase in minorities in the overall population arguably has motivated Republicans to vote for their nominee in swing states more than it has favored Democrats in swing states.

Second, the “modest effect” is especially critical in swing states. In a national popular vote system, voter ID laws would not matter much because their “modest effect” would be unlikely to alter the outcome.

The Presidential Selection System Magnifies Threats to Fair Elections

In an article describing the influence of voting machine lobbyists in Georgia, the New Yorker explains: 

“The practice of democracy begins with casting votes; its integrity depends on the inclusivity of the franchise and the accurate recording of its will. Georgia turns out to be a prime example of how voting-system venders, in partnership with elected officials, can jeopardize the democratic process by influencing municipalities to buy proprietary, inscrutable voting devices that are infinitely less secure than paper-ballot systems that cost three times less.”

In 2016, 77,704 voters in three states flipped the election from Hillary Clinton to Donald Trump.  That’s just 0.057% of all votes cast.  In our winner-take-all system where a small number of states determine the president, we are incredibly vulnerable to election manipulation.

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

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

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

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

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

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