What if We Abolish the Electoral College (concluded)

Principled and historical reasons can be lodged for and against the Electoral College, but the present partisan divide indicates that both Democrats and Republicans believe that if the national popular vote had been determinative, Al Gore would have won the presidency in 2000 and Hillary Clinton in 2016. However, that should not be assumed because if the popular vote had controlled, the vote totals for the candidates would have been different.

With a direct election, all voters throughout the country would have had an equal incentive to vote because all votes would have mattered equally, which, of course, does not exist now. An additional 50,000 votes for Trump or Clinton in New York or California or Texas would have changed nothing under our present system. With the direct election of the president, voters in safe states would have more incentive to go to the polls than now, and we would probably have more voters. My guess is that the minority candidate in a “safe” district would especially benefit. Where I vote, Democratic candidates are almost assured of winning not only the presidential vote, but also for all the other ballot spots. For many people, it is more satisfying to vote for winners than losers. If I had supported Trump, it would have taken some unusual strength to do the dispiriting thing of walking the block to the local junior high to fill in the bubble in front of Trump’s name because he was going to lose New York overwhelmingly. But, of course, the comparable dispirited Clinton supporter also existed in Alabama and Mississippi. I don’t know how the totals would have changed, but if the Electoral College had not existed in 2016, I am confident the totals would have been different from what got tallied as the total popular vote.

The direct election of the president would probably increase the number of voters. It would definitely change the nature of the campaigns. With hindsight, Hillary Clinton was criticized for not campaigning in Wisconsin. That criticism is understandable. She polled 27,000 fewer votes than Trump there giving Trump won the Badger State’s ten electoral votes. The critics’ assumption is that if Clinton had campaigned harder in the Dairy State (should a state be allowed two nicknames?), she might have switched some Trump voters to her or, more likely, convinced some who voted Libertarian or Green to vote for her. And perhaps more campaigning would have meant that some of those who sat on their hands would have come out to vote for her. If her campaign had brought one percent more to the polls to vote for her, she would have won Wisconsin.

That one percent, however, would have been about thirty thousand more votes. With a direct election, this extra targeting might not make sense, and Clinton probably would have spent more time in several other states where she, and Trump, did little campaigning—California and New York. Candidates do visit these states, but usually for fundraising, not traditional campaigning. The assumption under our present system is that both these states are safe for the Democrats and campaigning there by both sides is a waste of time. If the national popular vote controlled, however, both Hillary and Donald would have made campaign efforts in these states since an increase of a one percent turnout for the candidates in those places could mean 100,000 or more votes to the national total.

The abolition of the Electoral College would not just mean a change in the location of campaign efforts, it would also make a difference in campaign promises. Think about Iowa and the primaries. Don’t all candidates swear to defend ethanol because they think defending the corn crop is high on the list of Iowa voters? If Michigan is viewed as a swing state, candidates appearing in Lansing or Battle Creek can be expected to make promises that especially appeal to Michigan voters. In safe states, such as Alabama, Mississippi, and Louisiana, candidates do not have to make the kind of pandering promises they make in swing states. If, however, each vote truly mattered as much in Mississippi as in Michigan, candidates might have the same incentive to pander in both places.

But under the system we have, and I expect that we will continue to have, each vote for president is not equal. The swing states count more and get more from the candidates.

As a result, however we view the structure of our government, we should not refer to it as a democracy.

What if We Abolish the Electoral College?

Prominent Democrats have called for the end of the Electoral College, that unusual device through which we select our president. A Representative from Hawaii has introduced a constitutional amendment to abolish it and use the national popular vote to choose our chief executive. Conservatives now defend the Electoral College. You might think this indicates some sort of principled split over basic constitutional principles; you might think that if you were ill-informed. The defenders of the present system, of course, want the status quo because they believe it favors Republicans while the reformers believe Democrats would benefit from a national popular vote. These inclinations are fueled by recent history. Twice in the last generation we have inaugurated presidents who did not get the most votes, and both of them were Republicans.

We did not always have this partisan divide over the Electoral College. The 1968 election produced a close national popular vote but a much wider margin in the Electoral College. Six months before that election, 66 percent of Republicans and 64 percent of Democrats stated that the Electoral College should be replaced with a national popular vote. After the election, 80 percent of Americans supported changing the electoral system. In 1969, the House, by 339 to 70, passed a constitutional amendment to select the president by popular vote. The proposal, however, was filibustered to death in the other chamber by Senators from small states.

If such an amendment could not make it through the Senate when the populace overwhelmingly favored it, a similar amendment has no chance in the Senate today. However, reforms of the Electoral College are possible without a constitutional amendment. Most states now have a winner-takes-all approach to the allocation of their electoral votes. Whoever garners the most votes receives all the electoral votes. This method of allocating a state’s electoral votes is a prime reason it is possible for a candidate to get the most votes nationally but lose in the Electoral College. The winner-takes-all rule is not constitutionally required, and some states have modified it by giving an electoral vote to the candidate who wins the most votes in each congressional district with the state’s two other electoral votes going to the candidate who wins the state. Other states have signed onto a national popular vote bill that would give each state’s electoral votes to the candidate who receives the most nationwide votes. The bill would take effect in those states when jurisdictions with a combined 270 electoral votes have enacted it. (Fifteen states with a total of 189 electoral votes have already passed it.)

I think that in a land that likes to tout a government of “We, the People,” the direct election of the president would probably be a good thing. Surely, “We, the People” can be an aspirational concept under our present system where a candidate who does not get the most votes can become president. But in the unlikely event that we get to some system where the president is elected by the national popular vote, we will deepen current controversies about who gets to vote.

We don’t have national voter standards, and this is a problem if the national popular vote is to determine who will be president. For example, states have different laws concerning the disenfranchisement of convicted felons. A few states allow all to vote. Some states permanently bar convicts from voting. Some states prohibit those in prison from voting. And so on. As a result, a higher percentage of the population can be eligible to vote in State A than in State B. And of course, identification laws for voting and provisions for early voting mean some states make it easier or harder to vote. A true national popular vote should have uniform standards on voting eligibility and procedures, but we now leave that to the states. Getting to the needed uniformity seems unlikely even if we managed to implement the direct election of the president.

While states disenfranchise differing portions of its citizenry make a true national popular vote impossible, the direct election of the president would at least lessen the fact that some votes count a lot more than others in our present system. I vote in New York, but my vote for president is, in a practical sense, meaningless. Last election, I could be confident that no matter whether I voted or not, all of New York’s electoral votes would go to Hillary Clinton because she was certain to get a majority of the state’s vote. In any “safe” state, be it California, Texas, Alabama, Mississippi, or elsewhere, it is clear who will get the electoral votes, and it does not matter whether the winning or losing candidate gets more or fewer votes.

The truly important voters throughout the country are in the “swing” states. In 2016, the votes in Wisconsin, Michigan, and Pennsylvania mattered much more than in other places.  Each swing-state voter, and non-voter counts much more than those in the safe states. That may not seem American, but it is the American way.

(concluded April 12)

In Spite of the People (continued)

In the swing state of Pennsylvania in 2016, Trump did significantly better than Romney had four years before. Trump received 2,912,941 votes while Romney got 2,619,583. This increase had two components. About 376,000 more ballots were cast in 2016 than in 2012, but in addition Trump did better percentagewise. He got 48.8 percent (Clinton got 47.6 percent) while Romney got 46.8 percent (Obama got 52.0 percent) of the Pennsylvania vote. This would indicate some sort of Trump Revolution, but, if so, it was a limited one. It did not reach a majority. But notice something else: Trump and Clinton together garnered 96.4 percent of the total ballots, while in 2012, the major candidates received 98.8 percent in Pennsylvania. The third parties nearly trebled their votes in the four years, from 69,000 to 192,000. Their share went from 1.3 percent in 2012 to 3.6 in 2016. Trump won the Pennsylvania plurality by 70,000 votes while the third-party votes increased by much more than that. If Pennsylvania indicated a Trump Revolution, it also indicated a Third-Party Revolution, a move to third parties that allowed Trump to get the plurality and Pennsylvania’s electoral votes. Did Trump really carry Pennsylvania because of a Trump Revolution or because Clinton, whatever the reasons, was not a good candidate, and a sizeable number of voters went to third parties as a result wanting to vote neither for Trump nor Clinton?

The Michigan turnout did not increase in 2016 as much as the Pennsylvania vote did—65,000 more ballots were cast than in 2012. Trump, however, did get 265,00 more votes than Romney and garnered 47.3 percent of the total compared to Romney’s 44.6. But again “others” made the difference. In 2012, only 1.4 percent of the ballots were not cast for the major parties, while in 2016 it was 5.2 percent, with the totals increasing from 65,000 to 250,000. Trump’s plurality (again not a majority) was a mere 10,000 votes. The move to third parties again allowed him to win a plurality and get all of Michigan’s electoral votes.

In Wisconsin, 128,000 fewer ballots were cast in 2016 than four years earlier, and Trump got only 1,500 more votes than Romney. That doesn’t indicate a Trump Revolution as much as it appears to be a lack of enthusiasm for both major candidates. However, Trump did win the plurality at 47.9 percent compared to Romney’s losing percentage at 45.9. Trump’s margin was 22,000 votes, and again the third parties swung the state. In 2012, they got 28,000 votes and 0.9 percent of the total. In 2016, third parties garnered 137,000 votes accounting for 5.4%.

What does this indicate? Was there really a Trump Revolution that has changed the electoral landscape? Trump took these three key states, but he did not get a majority in any of them. In other words, most voters were against Trump. In each of them, he won because Clinton performed more poorly than he did. As a result, third parties surged tipping each state to Trump.

What does this mean for the future? Is there an enduring Trump Revolution that has shifted the electoral patterns? Perhaps the first thing to note is that he did not get the majority of the vote in the country. He did not even get the plurality. What is seldom noted is that the percentage he did get was not better than what Romney got four years earlier. This certainly is not a revolution.

In some key states, however, he did do better than Romney, but even so, he did not get a majority in them, and third parties surged. Of course, the best guarantee of his winning such states this time is to get more than 50 percent of the vote. At least so far, however, polls do not indicate that this is likely. Trump’s presidency has appealed strongly his 2016 base, and he has failed to attract additional supporters outside that base.

If his support continues at less than 50 percent, Trump has to pray (although I doubt he does) that the third-party surge will continue into the upcoming election so he can win electoral votes with only pluralities. That, of course, is the point to Republican support for the bizarre presidential campaign of Kanye West—the hope that it will siphon votes that would otherwise go to a Democrat. So far, at least, there is no indication that third parties will get the percentage of votes that they did last election when many voters did not like either candidate. My guess is that many of the voters for the Libertarian or Green parties assumed that Trump would not win but did not want to vote for Clinton. Checking a box for a third party was thought to have no real consequences while preserving a sense of integrity for the Clinton doubters. Voters this time are unlikely to think this way. They are more likely to realize that votes for third parties can have consequences and help elect someone they don’t want. This time around, they are likely to realize that they should make a choice between Trump and Biden even if they don’t much like either and not vote for a third party. Furthermore, in 2016 voters who liked neither Trump nor Clinton but voted for one of them rather than a third party candidate overwhelmingly broke for Trump. Polls now show voters who like neither Trump nor Biden will overwhelmingly vote for Biden.

It is a long way to the election and much can happen, but at least for the moment Trump cannot count on a high level of third party votes to allow him to get crucial electoral wins with pluralities. And besides helping Kanye to get on ballots, there seems to be nothing Trump and Republicans can do to shift votes from Biden to a third party. They, however, have no doubt learned something else from 2016 and other elections: Voter suppression can help clear a path to a conservative victory.

(concluded August 19)

In Spite of the People

It’s election season, but now it always feels that way since we seem to have a perpetual election season. This campaign stretch may feel different from past ones, however, because of the president who seems to have transformed the political landscape. On the other hand, although he has held the executive office for closing in on four years, perceptions of him have changed remarkably little during that time. He seems neither to have attracted many new supporters nor has he driven many away. He has inhabited the same landscape since his election.

If this election season is different from the last one, it is not due to Trump who remains the same but because Hillary Clinton is not the Democratic candidate. For whatever the reason, many voters who did not vote for Trump could not vote for Clinton. They voted for third party candidates instead, and in key states these votes for Libertarians and Greens gave Trump pluralities and the decisive electoral votes. Trump, although he is not about to admit it and perhaps in a delusion does not believe it, did not get the most votes in the country, but he also did not get majorities in key states that he won.

Trump certainly has passionate followers. This gives the impression that he unleashed a new conservative juggernaut and that the last election was a revolution, a Trump Revolution. That has been overstated. If there was an electoral transformation, it was not by a majority of the electorate. Even if it is true that he attracted many voters that had not before voted Republican, we should also realize that he drove away at least as many voters who could have been expected to vote Republican.

          Compare 2012 and 2016 election results. (Different sources do not always give the same nationwide vote totals, but, for consistency, I am using figures from the Federal Election Commission website.) In 2012, Mitt Romney got 60,932,152 votes. Four years later, Trump received 62,984,825. Trump got two million more votes than Romney but that does not mean that he made great inroads into previously Democratic voters.          Instead, about 7.5 million more people voted in 2016 than 2012. With more voters as the country’s population increased, it is not surprising that Trump got more votes than Romney, but he did not get even close to a majority of that increased vote. Perhaps more revealing than the vote totals for Romney and Trump is the percentage of the vote for each. Romney received 47.21 percent of the nationwide ballots, while Trump got 46.09 percent. In other words, there was no dramatic swing to him compared to the previous election. Analyses I have seen expend a good deal of effort dissecting the voters Trump attracted; they also ought to equally examine the voters Trump drove away. For example, The Great Revolt: Inside the Populist Coalition Reshaping American Politics by Salena Zito and Brad Todd mentions that “Trump’s margin was weaker than Romney’s in 86 of the 100 most educated counties—a fact that held true regardless of the jurisdiction’s normal partisan leanings.” But the authors set out only to interview voters in some swing states who shifted from Obama to Trump when there were at least as many voters who swung away from Trump. If that first group of Obama/Trump voters constitutes some new populist coalition, how should we label the at-least-as-significant second group of Romney/not-Trump voters?

          The real takeaway from the 2016 election is not that Trump did so well, but that Clinton did so poorly. Even with more voters in 2016 than 2012, Clinton got slightly fewer votes than Obama—65,853,516 to 65,899,660—with a big drop in the percentage of the ballots. Obama got a majority of the vote, 51.6 percent, while Clinton got 48.18 percent. Trump did not get a higher percentage than Romney four years earlier, but Clinton got significantly less than Obama. Wasn’t the revolution not so much for Trump as against Clinton?

          Perhaps the real revolution in 2016 was not for Trump but in favor of third parties. Obama and Romney together accounted for 98.8 percent of the vote. Clinton and Trump together only received 94.3 percent. The combined Libertarian and Green vote increased by over 300 percent. That third-party total went from 1.7 million in 2012 to 5.9 million in 2016.

          Much has been made of states that Obama won, but whose electoral votes went to Trump and swung the election to him. Let’s look more closely at three of them: Pennsylvania, Michigan, and Wisconsin.

(Continued August 17)

Why Create Election Chaos? (concluded)

If Donald Trump is not reelected in the balloting, he will need to explain the result in a way that protects his ego. Think about the last election. Trump may be the only person ever who won an election and still claimed massive voter fraud. His narcissism had great trouble accepting the fact that he got three million fewer votes than Clinton, and he made the amazing assertion that there had been widespread illegal voting, a claim that if it had been accepted could easily have led to the conclusion that his victory was illegitimate. Of course, if he loses the 2020 election, he is going to say there was massive fraud, but he will not limit the claim to mail-in ballots; he will make that assertion about every aspect of the election. He has not needed a factual basis, evidence, or common sense for making such claims before, and he won’t in November either. It is a safe prediction that if he loses, electoral fraud claims will fly.

          But there is another reason besides his ego why Trump may want to delegitimize the election. He may think it provides a path for him to retain the presidency. The Constitution in Article II provides that electors shall be appointed by the method each state legislature has mandated, which is by election in all the states. Assume that the Democratic candidate gets the most votes in a state, but the legislature, controlled by Republicans and following the Trumpian claims of massive fraud, passes a resolution that the election was not legitimate—that it was not the kind of election authorized by the state—and therefore no electors were elected as a result of the balloting? This may seem farfetched, but we can be sure that a fraud drumbeat amplified by Fox News, social media, and right wing websites will convince a sizeable number of Americans that an election was being stolen from Trump and will laud the legislature’s “brave” action. Of course, we can anticipate that the Democratic electors from that state will cast their votes on the designated date, which by statute is the first Monday after the second Wednesday in December, which this year is December 14. We might then have a slate we could call “no electoral votes” and a slate of votes for the Democratic candidate. What then? The Constitution does not tell us. It only says, “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the [electoral] certificates and the votes shall then be counted.” It does not say how to resolve a dispute about any electoral certificate.

          A federal statute, however, says that electoral votes shall be counted on January 6. If electoral votes are disputed, the state, including state courts, are to resolve the dispute before January 1, which would require chaotic, emergency actions in the states. If the state dispute is not resolved in time (I am simplifying here because the statute has many provisions), the Senate and the House meet separately to resolve the dispute. If both bodies do not agree on the resolution, then the certificate of the electoral votes sent by the governor of the state shall be determinative.

          There is an interesting twist on the resolution of disputed electoral votes. The Constitution provides that the terms of Senators and Representatives begin on January 3, but president Trump and vice-president Pence stay in office until January 20. Thus, the President of the Senate on January 6 will be Michael Pence, who could vote to break a tie in the Senate. Think about that.

          What happens if Congress determines that there are no valid electors from a state? Oh, let the fun begin. The Constitution states that “each state shall [Emphasis added] appoint” its allocated electors. Under usual legal parlance, “shall” means a requirement; the state must appoint electors. It can’t simply certify that it is appointing no electors. On the other hand, if the state determined its election required a do-over, it is unlikely that there would be time to hold another election before January 6. But what happens if the state refused to appoint electors and Congress did not agree to accept an alternative slate of electors? It would not matter, of course, if at least 270 electors had voted for one candidate or another, for that would constitute a majority of the 538 electors allocated by the Constitution. It is not clear, however, what would happen if, for instance, only 500 electoral votes were accepted. The Constitution states that the president shall be the person who got the “majority of the whole number of Electors appointed.” Does that mean 251 electors could determine the president or would it still take 270 votes? No one knows for sure. We do know that if no candidate gets the majority of electoral votes, the House of Representatives decides the outcome, but with an important twist. The House would not decide as it normally does for legislation by voting as a body. Instead, each state gets one vote—California has one vote and so does Wyoming—with the majority of the states determining the president. And the Constitution does not tell us what happens if a state’s representatives split equally between two candidates. Does each get half a vote, or is this a no-vote, which could be important in reaching a majority? Right now, the Democrats have a comfortable majority of the Representatives in the House, but the Republicans have a majority of Representatives in the majority of the states. On the other hand, the Constitution requires the new Congress to be sworn on January 3, three days before the electoral votes are counted, and it will be the Congress elected on November 3 that would make the determinations. But on the third hand, if a state contended that its presidential election was not legitimate, it would also be contending that its Representatives had not been legitimately elected. Now what? Let’s not go there.

          If Trump loses, he will contend that the election was not legitimate. If any state attempts to claim that its election was illegitimate, we can expect chaos. But chaos would be Trump’s friend. And this could be a reason why he is trying and will continue to try to delegitimize the election.

Why Create Election Chaos

          President Trump floated the idea of postponing the November 3 election. An outcry ensued, which is not surprising after one of his tweets, but this time all shades of the political spectrum denounced the idea. Republicans, Democrats, academics, columnists, constitutional lawyers all agreed that the president cannot postpone the election. A congressional law sets it, and it would take another law, not a presidential edict, to change it. Furthermore, the responders all agreed that the election date should not be changed. Even during the Civil War and World War II, elections went on as scheduled, and our present problems are not bigger than those of the past.  

          Trump may not have been concerned about the disagreements; he may only have been trying to generate an outcry. On the day of Trump’s postponement tweet, John Lewis’s funeral was being held. And then numbers were dropped that showed the economy in a historical freefall. With a positive portrayal of someone else and news that damaged reelection possibilities, Trump, being Trump, had to get people talking about him. He accomplished that. Trump may be ignorant of many things, but he, like a crying baby, knows how to focus attention on himself.

          Trump’s tweet, however, did something more. Even though several states have for years successfully conducted their elections largely without in-person voting, Trump suggested that the election be postponed until balloting could be done without the massive fraud that he says is sure to ensue from the expected wide use of mail-in ballots during the pandemic. This is a continuation of conservative cries of electoral fraud generally. Proof is not presented of the fraud claims, but it is not necessary. Eliminating the nonexistent false ballots has not been the goal. Instead, the fraud assertions lay the groundwork for advancing measures making it harder for some to vote. We may claim that ours is a democracy, or a representative democracy, but some partisans would like fewer people voting. “Voter fraud,” they shout. “We must have voter ID laws” . . . and fewer people will vote. “Fraud,” they shout. “We can’t have same day registration” . . . and fewer people will vote. “Fraud,” they shout. “We can’t have expanded early voting” . . . and fewer people will vote. “Fraud, they shout. “We can’t have a mail-in election” . . .and fewer people will vote. Our experience shows we have little voter fraud. However, our experience shows that there will be attempts to suppress the vote of certain groups, by those citing the prevention of voter fraud, no matter what methods of voting we use.

Condemn Trump if you want for his remarks about moving election day, but don’t let his provocation shift the focus from assuring an election that allows us to vote easily and equally in these difficult times. If a state plans to rely on mail-in ballots, an understandable choice during the pandemic, and you believe in our democracy, work to make sure that all who want or need these ballots get them in a timely fashion; that the requirements for filling them out are clear and simple; and that there are good methods for their timely return. We should not just concentrate on postponement tweets; instead, concentrate on good ballot design and post office performance. And then consider the best ways for efficiently and securely tabulating the results.

For in-person voting, we need to make sure that there are sufficient polling places with enough workers so that people can cast their votes easily. Each election we see voting queues that are hours long. These scenes should embarrass all who say they are proud to be an American. And, of course, these lines, surprise, surprise, are disproportionately centered in certain kinds of neighborhoods. All votes are supposed to count the same in this country. They don’t if in some places voters have to endure hours of standing or sitting to cast a ballot while other voters don’t. It should take no longer to vote in the city of Atlanta than in an affluent suburb of Atlanta, and we should be working to make that happen.

          Trump, however, was probably not so much attempting to postpone an election as laying groundwork for undermining the upcoming election. This should be a difficult task because no studies have shown that mail-in ballots disfavor Republicans. Indeed, in the present world, a mail-in election could favor the conservatives. Studies have shown that mail is more often misdelivered or not delivered in poor and minority areas, and if we have cutbacks in the coronavirus aid, we can expect a wave of evictions. People living in their cars or doubled or tripled up with relatives or friends or in shelters are highly unlikely to get their mail even if they make the effort to have it forwarded. With a mail-in election, slews of people may be effectually disenfranchised, and I doubt that these disenfranchises are disproportionately Trump supporters. A widespread dependence on mail-in ballots in a world of evictions could help Trump. Even so, Trump will want to be able to shout, or at least, tweet “unfair and illegitimate” if he loses the election. He is laying the groundwork to undermine the legitimacy of the voting.

(concluded August 7)

Seeking Inspiration

          I interrupted my self-imposed blogging schedule because I lost home internet service for a week. I posted a brief message of the forthcoming hiatus by taking my iPad to a public wi-fi place.

          Losing home internet for a while can hardly count among life’s tragedies, but its loss highlighted how much I use it. I am not an online game player or a browser, stalker, or contributor to chat rooms. Nevertheless, I use the internet many, many times throughout the day. Its loss disrupted my rhythms, and that included my rhythms of writing.

          As a student, as a lawyer, as a legal academic, and now as a blogger, I have written frequently, but the rhythms of my writing have varied. I grew up before computers and my childhood home did not have a typewriter. I did not learn to type until I taught myself out of necessity in college. Papers needed to be typed, and I could not afford to pay a typist. My parents gave me a typewriter—an extravagant gift for them. I bought a how-to-type manual and practiced on the Remington every day until I had achieved the barest modicum of proficiency. But the typing itself took such concentration that I found I could not compose on a keyboard. For years, I wrote a first draft in longhand using—I admit somewhat pretentiously–a purple-ink-filled fountain pen. I almost always got stains on my hand, but I was almost proud of the marks because they signified to me that I was a writer of some sort. I typed the second draft, and then via pen made additions and corrections to that draft and then typed it again, and so on. I wrote my first “book” this way—it was really a monograph about the military chaplaincy—and this rhythm continued for quite a while.

          Of course, the typewriter gave way to word processing, but even after Wordperfect was initially installed on my computer, I continued to write the first draft with a pen. I told myself that it made me careful because in inputting the second draft from a longhand version I had to consider every word that I had written, but I knew that this was inefficient. Eventually, however, from editing and rewriting on a computer, I found that I could compose directly on a keyboard, and the purple-inked-filled fountain pens have been consigned to stray drawers.

          Thus, a major rhythm of my writing changed, but another one did not. I have always been a drib-and-drab writer. I have read many times about what I think of as real writers who closet themselves somewhere and stay at their desk for four, six, or eight hours writing. I have never done that. I write until I complete a thought, or I get stuck as to what comes next—seldom more than a half hour and often less. I then distract myself with some other project hoping that the next writing thought will come. Often the distraction has been some household chore—cleaning dishes, snapping beans, raking leaves, brushing a stripper or varnish on wainscoting or an old desk. When I have been really stuck, I have taken walks, gone for a run, or played tennis. When I was writing my many unread law review articles, I would start writing at daybreak and be at the keyboard well after dark, but the composing would only come in those small spurts.

          I write about different things now than I did as a lawyer or an academic, but I still seldom write for an hour or even a half hour in an uninterrupted stretch. I almost never produce even a page in a sitting. A paragraph, maybe two, and then a break. The nature of the breaks, however, has changed from years ago. Increasingly, I turn to the internet for the interlude. I don’t play games online; I don’t search for YouTube videos. But I do go frequently to news websites because I continue to be a news junky.

I grew up in a household where I read two newspapers seven days a week as well as a weekly paper and various magazines. I have maintained that news-reading habit, but how I read the news has changed. Of course, in those dark ages before the internet, I would read a physical newspaper, the kind where the ink comes off and hands have to be washed after the reading. For a long time, I thought the only valid way to read the news was through a physical newspaper, but in the backwater where I started spending summers decades ago, it was difficult getting the New York Times or other big city newspaper, and I began to read the paper online. Since both the Times and my writing were on the same computer, I began to go frequently back and forth between them.

Since then internet news sources have proliferated. I now distract myself not just with the online paper but also with a New York Times briefing, a New York Times digest, news summaries from Axios and Skimm, and the websites of Politico, RealClearPolitics, FiveThirtyEight, and TalkingPointsMemo.

Of course, when I was deprived of the internet recently, these rhythms were interrupted, and I found it difficult to write, but the deprivation did more than disrupt writing patterns. It made me feel isolated, and that too made it harder to write. This blog does not have a theme other than stuff that interests me, which I hope on occasion interests some readers. I have no grand scheme other than to be original and not simply to repeat others. When I finish a piece, I await inspiration for something new, but those triggers come much more readily when I am having a myriad of experiences. Travel almost always opens my mind. A museum visit, a play, a movie may make me think new thoughts, but often the inspirations have been quite mundane—a sign in a shop window, an overheard conversation at an intersection or in a restaurant, a food display, a doctor’s visit. I only sometimes directly write about these things, but often one thing stimulates thoughts about other experiences or ideas that I want to write about—a snowfall today may make me think about snowballing as a kid; a comment about the electoral college may make me want to delve into the formation of the Constitution; passing a coffee shop may set me ruminating about my caffeine addiction.

Covid-19, however, has confined my life and blighted others. I have fewer experiences, big or small, than before the coronavirus, and it has been harder to write as a result. The loss of the internet may have bothered me at any time, but now it was added onto the socially distant life that had already made me feel isolated. The internet did come back, and it will be with me, but it made me think hard about when, if ever, we will be able to freely partake in the life that we had before the pandemic. It may be a long time before I will again have the life of regular large and small stimulations that I have enjoyed. It’s a depressing thought.

Emotional states—anger, nostalgia, feeling cute or pedagogical—have helped me to write. Feeling down has not. I need some inspirations. What should I write about?

Democracy Indexed and Flawed (concluded)

You might also say that the increasingly undemocratic representation in the Senate is what the founders of the country created. Yes, of course, those who wrote and adopted the Constitution mandated that all states, big or small or in between, would get two seats in the upper house. And perhaps that provision was necessary to get the thirteen states to meld into one country, but that, of course, does not mean that it is right for today. Those founders, unless they were on substances much different from the copious amounts of cider they drank, could not have imagined states with populations approaching 40 million.

The Constitutional framers did not create a Senate with hopes that a small portion of the population would control the Senate. A national census had not been undertaken when the Constitution was drafted, but the drafters’ views of the relative populations of the states can be seen in the Constitution’s Section 2 of Article I where the document prescribed the allocation of Representatives for the original House. New Hampshire would have three, Massachusetts eight, Rhode Island one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three, for a total of sixty-five.

The framers thought that the three largest states (this calculation included the infamous three-fifths clause) would have twenty-six representatives, indicating the belief that Virginia, Massachusetts, and Pennsylvania had 40% of the population. Both Maryland and New York were allocated six Representatives. These five states, the framers believed, had about 57% of the population. Together, of course, they had ten seats in the twenty-six-person Senate, or about 38% of the Senators, while the states with 43% of the population would have 62% of the Senators. This, of course, was an imbalance, but it was nothing like the coming disparity where 50% of the population is expected to live in just eight states by 2040. They will only have 16% of the Senators, and, of course, the minority of the population will have 84% of the Senators.  

Whether or not two-Senators-per-state is a good provision today, it is what we have because of what happened in 1787, not because we of today have determined it is the best policy for our governing structure. But even if almost all of us conclude that we should have some other way of allocating Senators, it won’t be changed. Of course, the Constitution can be amended, which requires approval from two-thirds of each house of Congress and ratification by three-quarters of the states. The states are treated equally, and the lack of approval from thirteen states, no matter what portion of the population they contain, dooms an amendment. The amendment process in general is difficult, but in reality it is impossible for changing the Senate’s composition. The Constitution’s amendment provision, Article V, says that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” I don’t think that I am being overly cynical by concluding that Alaska and Wyoming and other states will not give up their “equal” Senatorial representation.

There is another possibility for ameliorating the increasing undemocratic governmental structure. Large states such as Texas or California could divide themselves into four or six separate states, each with two Senators. The Constitution’s Section 3 of Article IV, however, says that such division can only be done with the consent of Congress. Again, I don’t think that I am being overly cynical by concluding that the Senate, where the overwhelming majority of Senators will come from the smallest states, is not going to approve the admission of such new states into the Union.

So . . . a smaller and smaller minority of the population will select a majority in the Senate. What, if in addition, the electoral college deviates further and further from the majority’s vote? Will “the people” see their government as legitimate? With these governmental structures unchangeable within our Constitutional confines, what will then happen?

The famed philosophers John Lennon and Paul McCartney seemed to advocate a mind change instead of a revolution when change might be desirable but difficult: “You say you want a revolution/ . . . But when you talk about destruction/ Don’t you know that you can count me out/ . . . You say you’ll change the constitution/Well, you know/We all want to change your head/You tell me it’s the institution/Well, you know/You better free your mind instead. . . .” But at least for me, I don’t think I can change my mind so that rule by an increasingly small minority in my country will really be all right. I don’t want to live in the equivalent of a banana republic.

But then what’s left? With no constitutional method for change, perhaps only the words of Jefferson show the path to a better democracy: “I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical. . . . It is medicine necessary for the sound health of government.”

Or perhaps we should contemplate the words of Bobby Kennedy: “A revolution is coming—a revolution which will be peaceful if we are wise enough; compassionate if we care enough; successful if we are fortunate enough—but a revolution which is coming whether we will it or not. We can affect its character; we cannot alter its inevitability.”

We should start considering the extra-constitutional changes we are assuredly going to face.

Democracy Indexed and Flawed (continued)

          While the Democracy Index lists the United States as a flawed democracy, that categorization will be difficult for many of us to accept. Meanwhile, many who might entertain the idea of that limitation will assume that we are placed in the defective bin because of Trump’s election and his autocratic actions. The Democracy Index, first published in 2006, however, initially listed the United States as a flawed democracy in 2016 before Donald J. Trump became president. Trump may be the result, but he is not the cause, of a flawed democracy.

          And although we may mouth those Fourth-of-July words—government of the people, by the people, and for the people—a little reflection shows that we don’t really believe them. Just look at the polls about confidence in Congress, for example. If we thought that government is of, by, and for us, we should have great confidence in our governing officials and bodies. That is not so. If the U.S. were truly a good and strong democracy, would approval polls for Congress hover around the twenty percent mark?

          Perhaps the surprising aspect of the Democracy Index is that before 2016 it had us in the fully democratic category, for we have always had important problems that conflicted with a fully functioning democracy. We often repeat Lincoln’s of, by, and for formulation, but if our government was so good, how was it that when he uttered them, he was speaking at a cemetery that represented the ongoing slaughter of a civil war? And, of course, the “people” then did not include women, blacks, or Native Americans.

          We have progressed, but our democracy has never been close to perfect. Our Constitution has served us well in many respects. It formed separate states into one nation that has endured, but that does not mean that the Constitution is without flaws. It permits governments to take actions to undercut democratic values, perhaps something that this blog will explore more in the future, but it also created a structure with anti-democratic features, structures that increasingly make our country less democratic.

          We certainly are aware that our method of selecting our president is not fully democratic. If democracy requires that all votes be counted equally and the person with the most votes wins, then the candidate with three million fewer votes than the rival would not become president, but under our semi-democracy, that was the result. (I previously explored the electoral college on April 10, 2019 on this blog. https://ajsdad.blog/?s=electoral.)

          The electoral college, however, is at least roughly democratic in that each state’s electoral votes roughly mirror its population size. The Senate is another story.

          Within each state, the election for Senator is democratic. Every vote in Texas, for example, counts equally in choosing Ted Cruz as Senator, but within the country, votes for Senators are not equal. The Constitution allots Texas two senators. It also gives Wyoming two Senators even though the population of Texas is about fifty times the size of Wyoming’s. In other words, each Wyoming vote for a Senator counts as much as fifty voters in Texas. Hardly democratic.

And the Senate will be increasingly undemocratic. I don’t know the initial source of this statistic, but I have seen it in several publications: By 2040, 70% of the population will live in the fifteen largest states and therefore collectively have thirty Senators while 30% of Americans will have 70% of the Senate.

Of course, even though an ever smaller minority of the population will control the Senate, that does not mean that that minority will be able to legislate for the rest of us. The House of Representatives, even with partisan gerrymandering, more accurately reflects the population trends of the country. (Unrestrained gerrymandering is something for future consideration here.) Senators representing a small portion of the population, however, will be able to stop legislation, and that minority will be able to confirm judges, cabinet officers, and other federal officials. The majority of the country will have even less power than it does now as the Senate becomes more skewed, or we might say, the cracks in our democracy will become chasms.

You might question whether the population trends reflected in that 2040 prediction will continue. People are leaving high-cost-of-living states and moving elsewhere. It is true that California out-migration has exceeded its in-migration. That does not mean, however, that its population has declined. Instead, while the rate of its growth has slowed to a trickle, it still grew by 141,300 from 2018 to 2019, a 0.35% growth rate. However, Wyoming, the state with the smallest population, has fewer than 600,000 residents. Even if miraculously Wyoming grew by 20%, it would add fewer people to its population than California now does. Wyoming would continue to fall behind in this population race, but it will still have the same senatorial representation as California.

It is true that New York, with the fourth largest state population, has lost residents, but so have the small states of West Virginia and Alaska. The New Yorkers who leave do not get in their modern Conestoga wagons and go to these small states. Significant numbers are not heading to West Virginia, Alaska, or even Nebraska, whose growth rate from 2017 to 2018 was only slightly above California’s at 0.6%.

The population disparities among the states will only increase. At the end of the coming generation perhaps 20% of the population will select the Senate’s majority.

(Concluded March 9, 2020)

Democracy Indexed and Flawed

          I had not heard of the Democracy Index until a friend recently mentioned that the United States was listed on it as a “flawed democracy.” I later learned that the index is produced by the Economist Intelligence Unit, sister to The Economist magazine.

          The EIU bases its report on sixty indicators grouped into five categories (electoral process and pluralism, functioning of government, political participation, political culture, and civil liberties) yielding a numeric score capped at 10.00. Norway, with a score of 9.87, leads the list followed by Iceland (9.58), Sweden (9.39), New Zealand (9.39), and Finland (9.25.) Countries with scores of 8.0 to 6.0 are listed as flawed democracies, and the United States was given a 7.95 score.

          This made me wonder about how I or my fellow Americans would define “democracy.” One dictionary said democracy was “government by the people, especially rule of the majority; government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.” Another source said: “a system of government by the whole population of all the eligible members of a state, typically through elected representatives.” A third source: “the belief in freedom and equality between people, or a system of government based on this belief, in which power is held by elected representatives or directly by the people themselves.”

          These definitions raised all sorts of questions and thoughts. Democracy was government by “the people,” but what was the definition of that entity? Is it the same as “the eligible members of a state”? The whole population cannot vote in an election. Ten-year-olds don’t get to cast a ballot. Isn’t it important to define what the “eligible members of a state” ought to be for a democracy? If the franchise is restricted to a tiny part of the society, but the leaders are picked by majority vote of that small group, is it a democracy? I guess it is, at least according to one definition.

          One democracy definition emphasized majority rule, but I have heard of the “tyranny of the majority,” and wondered if we would consider a country democratic that horrendously oppressed all those not in the majority. And, if a system selects representatives with a plurality but not a majority, is it not democratic or is it a lesser form of democracy?

          One democracy definition said “free elections.” That is not a self-evident phrase. I was not sure how I would define it, or if it could be defined except by negative examples.

          Even though I felt as if I would know a democracy when I saw it, I was not sure that it could be defined. Part of the problem is that the definitions, like most definitions, were binary—something was either this or not this. Something was not “sort of” this or a “better or more complete version” of this. The Democracy Index, however, accepts a more inclusive notion of democracy. Many societies are democratic, but some are more democratic than others, and I probably thought along similar lines.

          I did think, however, that third definition included a component the others did not when it said a democracy was a system of government based on the belief of equality among people. For me, I realized, a facet of a better democracy is that the ability to vote is widespread, indicating equality among the people, and that all voters’ votes count the same, again indicating equality among the people. The elected representatives of the society are chosen by determining who had the most votes cast in an election where all the voters have equal access to cast ballots and all votes carry equal weight.

          I also noticed an important absence in all the definitions. They had agreed that a representative democracy had the electorate picking people to represent them in government. But the definitions do not say that the people or the electorate choose the form of government in which their representatives will govern. But surely, the structure of the government has something to do with democracy. And “democratic” countries can be structured in ways that seem to make them more or less democratic. If our government is a flawed democracy as the Democracy Index asserts, part of the reason is that the governmental structure we have makes votes unequal. Our form of government means that some Americans count much more than others in choosing those who run the country. We are not, and cannot, be equal under our form of government. And the people of today have not chosen the structures causing inequality and a lesser form of democracy. Our forebears did that.

(Continued March 6)