Posted on by rjonakait

Our Rubicon Moment?

Friends asked me to discuss the “constitutional crisis” that the media seems to think is imminent.

My starting point is to explain that the Constitution is not static. It has changed in big and small ways; scholars have identified three major constitutional transformations.

The first came before we even had a national constitution. The newly-independent states were bound together by the Articles of Confederation, which were not considered adequate for governing the emerging nation. Therefore, men got together in 1787 in Philadelphia ostensibly to reform those Articles. Instead, they drafted a new constitution which was adopted by the requisite nine states the next year. A new government came into being. Our government today depends on that eighteenth century document, and it is controlled by the constitution much as it was back then.

Early on that founding document was seen as needing changes. Some states only ratified the Constitution with the understanding that a Bill of Rights would be added. The first Congress proposed twelve amendments, ten of which were adopted and went into effect in 1791. These additions mostly announced rights people assumed they already had and did not change the structure of the government. However, a decade later a major flaw in the document was exposed by the election of Thomas Jefferson and Aaron Burr. As a result, the Twelfth Amendment was adopted modifying the electoral college. From its inception, therefore, the Constitution has been subject to change.

The first significant transformation of the Constitution, however, came from the Civil War and its aftermath. The war occurred partly because of a major flaw in the document itself. Instead of confronting the issue of slavery, the founders tried to avoid it or make feeble compromises about it. As a result, slavery was not merely a stain on the fabric of the Constitution but woven into it. Various factions pulling at the threads and cords of slavery from all directions challenged the constitution, and war came.

In the war’s aftermath, three amendments to the Constitution were passed. The Thirteenth Amendment abolished slavery. The Fifteenth Amendment granted Black males, but not women of any color, the right to vote. These two amendments were transformative, but they were only partially successful. Slave-like practices continued to exist in the country, and within a decade of the adoption of the Fifteenth Amendment, the right to vote was stripped from most Blacks.

The Fourteenth Amendment, although it has several provisions, reshaped our Constitution by commanding that no state “shall deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The original Constitution did little to constrain the states in their treatment of inhabitants. The Fourteenth Amendment, as interpreted by the Supreme Court, changed that. For example, the Court held that the amendment’s due process clause prevented a state from taking a person’s property without just compensation. In the early twentieth century it held that the state could not abridge free speech. Over time, the Court increasingly prohibited the states from interfering with rights guaranteed in the Bill of Rights. The Court, relying on the Fourteenth Amendment, also said segregated state schools were unconstitutional and that states must afford one person, one vote. The constitutional crisis of the Civil War produced a Fourteenth Amendment that transformed the relationship between courts and individuals by expanding and clarifying constitutional rights.

The next major constitutional transformation came during the Great Depression. The Supreme Court had found unconstitutional many state and federal laws regulating businesses. This crescendoed during Franklin Roosevelt’s first term when the Court deemed unconstitutional much New Deal legislation that had been passed by Congress to alleviate the harsh economic conditions. FDR responded by proposing that the Court be expanded. Critics called it “court-packing.” Although the causes are debated by historians, lo and behold, after the court-packing proposal, some justices modified their opinions and now upheld federal powers to regulate business and other activities. The Civil War transformation expanded judicial powers to protect individuals and entities from the government. The Great Depression transformation expanded the power of the federal government to regulate activities affecting “interstate commerce,” which has been broadly defined. The decisions of the New Deal Supreme Court provide the basis for much of the federal government’s regulatory power today.

So. Are we now in the midst of another constitutional crisis? Are we due for another constitutional transformation? I see not one possible scenario, but several.

Conservatives look at our government and see a bloated bureaucracy that was not contemplated by the Constitution. It is entrenched but not elected. That bureaucracy, though authorized by Congress and the president, often seems to act independently of Congress and, more importantly, the president. Although it appears to be part of the executive branch of the government, the bureaucracy often sets and follows its own guidelines and policies. Thus, conservatives see a bureaucracy that is too often resistant to the policies of the president, and they find this in violation of the constitution. This unconstitutionality in the conservative eye must be put to rights. A constitutional transformation is needed to restore the balance that our Constitution contemplates where the president sets and enforces executive branch policies. And, under Trump, conservatives maintain we are seeing the beginning of that needed constitutional transformation.

On the other hand, some, but not all, liberals see a different potential constitutional crisis. Many of Trump’s actions and orders, they claim, have been in direct conflict with specific provisions of the Constitution (e.g., birthright citizenship), have been in violation of the separation of powers, or have violated the constitutional duty of the president to “take care that the laws be faithfully executed.”  And while conservatives see a constitutional crisis in an unelected bureaucracy, liberals see a crisis in the unfettered authority exercised by an unelected Elon Musk who has not been appointed to a Senate-confirmed position the Constitution seemingly requires.

Other liberals may be concerned about the administration’s actions, but they don’t see a present constitutional crisis. They see the system working because the courts have been hearing challenges to Trump’s and Musk’s orders. This is the normal constitutional process, and Trump has said that he will follow the judicial process. Almost all the court rulings have been in the federal district courts, which are the lowest level of federal courts. Following decisions in the district courts, those findings can be appealed to the Court of Appeals. Then the losing litigant may seek to have the Supreme Court hear the matter. (There is no right to have the Supreme Court hear these cases; it is in the Court’s discretion.) Many maintain that as long as this process is being followed, there is no constitutional crisis.

Even so, liberals who don’t see a present crisis, are concerned about a future constitutional transformation. Many, probably most, constitutional scholars believe that under existing Supreme Court rulings, many of Trump’s actions violate the Constitution or existing laws. The first fear is that the current conservative Supreme Court will ignore or overturn the precedents and uphold Trump’s actions. That is, that the Supreme Court will reinterpret the Constitution and laws to give the president even more power than he now has. This will, in effect, remake the Constitution by taking away congressional authority and individual rights and make an already powerful president even more powerful. As it did with its presidential immunity decision, the Supreme Court could transform our government to make the president more kingly, more authoritarian.

The other liberal fear is not of the Supreme Court but of Trump himself. Even though he has said otherwise, the fear is that Trump will either not use the appellate process and just keep bulldozing ahead, or even if he does follow normal procedures, he will not obey Court orders that go against him. He will ignore or defy the judiciary. Of course, he said he wouldn’t do that, and he did not disobey the courts in his first term. However, those around him have suggested that he will this time if courts don’t rule his way. And just as you can find Trump statements that he will honor the judicial process, like the devil quoting the Bible, you can find other Trump pronouncements, such as his recent statement: “He who saves his Country does not violate any laws.”

Presidential defiance of the courts would be a true constitutional crisis, perhaps a fatal one. His recent statement about not committing illegalities when saving the country is ascribed to Napoleon, but precedents go back further into history. Julius Caesar broke the law and illegally marched his troops, loyal to him more than to the nation, across the Rubicon and into Rome. The fall of the Roman Republic began, and a dictatorship took its place.

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We Stand on Guard for Thee

John F. Kennedy speaking to the Canadian Parliament in 1961:

Geography has made us neighbors. History has made us friends. Economics has made us partners. And necessity has made us allies. Those whom nature hath so joined together, let no man put asunder.

Born and raised in Wisconsin, I grew up closer to Canada than most Americans. As a result, I may have given Canada more thought than most U.S. citizens. And that means almost none. (Brief, simple quiz: How many Canadian provinces are there? Name them. How about the territories? Advanced placement: Name three of the governors, if that is the right term, of the provinces.) But our minority-vote-getting president-elect has elevated Canada in the national consciousness. Making Canada a U.S. state at first seemed a harmless bit of whimsy, but he keeps harping on it. Prominent Canadians have rejected the idea in colorful ways. But now that my attention has been directed to our northern neighbor, I am hoping that they will consider becoming part of the U.S. It is intriguing how they might change this country.

Canada’s population would entitle it to more than fifty seats in the House of Representatives. The size of the House has been capped at 435 since 1929. That number was temporarily increased to 437 in 1959 after Hawaii and Alaska became states, but it returned to 435 after the 1960 census. If that pattern were followed, the House size would temporarily increase and settle back to 435 after the next census.

Now. If Canada were to become a state and the House size remains the same, that would mean that fifty existing House seats would have to be eliminated. Perhaps Trump thinks Canada can become a state solely through presidential fiat, but in the past, it was clear that the Constitution required both houses of Congress and a presidential signature to create a new state. It is hard to picture the House voting for anything that would eliminate fifty existing House districts. That probably dooms Canadian statehood. But I assure you that if I could oversee which fifty would disappear, I would be an enthusiastic supporter of Canadian statehood.

The effect on the Senate would be less dramatic, but I say to Canada, Why not bargain, eh? Instead of joining the U.S. as one state, insist that each province come in as a separate state. (We can figure out what to do with the territories later.) That would be not two, but twenty additional members of the upper House. (Yes, there are ten Canadian provinces.)

And then there is the electoral college. Even if Canada joined the U.S. as a single state, it would still be the largest bloc of electoral votes, about a tenth of the total.

Canadians, if they used their power wisely, could control the House. If they could come in as ten states, they could probably control the Senate. And their influence in the electoral college would be immense. In other words, Canadians could control the North American continent from Key West to Hudson Bay (and perhaps Greenland, too.)

I see some benefits to that. Canada has stricter gun laws than the U.S. With Canadians as the power brokers, we could have them here. The government pays directly for much of Canadian healthcare. We could have that here. Canada has no criminal restrictions on abortion, and abortion is widely available throughout the country. We could have that here. And perhaps those snappy Royal Canadian Mountie uniforms could become standard in the U.S. The world, in my opinion, would be better with more Dudley Do-Rights.

There are a couple of things, however, that might be dealbreakers for Canadian statehood and a couple of other things I am not sure about. We would have to do something about Canada’s connections with British royalty. I know that there are many Americans who are inexplicably besotted with that royalty, but real Americans don’t want anything to do with a monarchy (even if some misguided Americans want Trump to be a monarch). While there might be some division on British royalty, there should be no debate on jettisoning the Canadian national anthem; it’s even worse than ours.

There is more to consider. Canadian statehood would probably increase the already large Canadian cultural influences on the rest of America. Do we really want more Canadian singers, comedians, and wrestlers than we have now? Can we have Canadian statehood without more Justin Biebers? On the other hand, I loved the Red Green show. Our economy as well as our culture will be affected. Certainly, Canadian companies will have a freer rein in the lower forty-eight than now. Would the wider availability of Tim Horton maple donuts and controversial Montreal bagels be a good thing, or would RFK ban those sugary treats and empty carbohydrates?

But even though there may be some undesirable consequences, better gun control, a different healthcare system, and abortion availability make Canada statehood worth it, and that is so even if I must hear “eh” more often. Please, Canada, don’t close the door to U.S. statehood. You have the potential to remake the United States into a better place. Please stand on guard for me.

Posted on by rjonakait

77 Million

Before the election, a post on a neighborhood social media site praised the Electoral College. That spurred me on to write about that institution on this blog. However, I also responded directly to the post saying that it would be interesting to see the reaction if a conservative presidential candidate won the popular vote but lost the Electoral College. I averred further that we were unlikely to find out because the probability was low that a conservative would win the most votes. The original poster replied that he did not care about the popular vote as long as Trump won. After the election, he gloated that the “conservative” Donald Trump had won the popular vote.

I do confess that I was wrong in suggesting that Trump could not win the most votes, but it was a victory with caveats.

The news analyses shortly after the election were often about groups that had swung to Trump giving him his win. I saw stories indicating that Texas Hispanics shifted to Trump as did more voters in New York City, and that young men went for Trump at a higher rate than young women did for Harris. And so on. The implications were that Trump’s victory was a landslide demonstrating the country’s hard shift to the right.

Is that so?

Trump did win the most votes, garnering at the latest count 76.8 million votes, but it appears that he did not obtain a majority. A few more votes may trickle in, but he did not get above 50%. Harris was not far behind, with 48.3% of the vote. If the country has shifted right, the tilt is less than that of the Pisa tower. In terms of the popular vote, this was the closest election since 2000. The Electoral College may have been a landslide but the popular vote was not, and it is noteworthy that Trump won some of the swing states by tiny margins.

Trump did get 2.5 million more votes than his 2020 total of 74.2 million, but the U.S. population increased by about five million during that span, or 1.5%. Trump’s votes should have increased by 1.1 million from 2020 to 2024 merely because of population growth. He did somewhat better than that and shifts to him are outcomes worth analyzing. But there was a more significant factor.

The real difference in the election was not the collection of new Trump voters but the loss of those who did not vote for Harris. Biden in 2020 got over 81 million votes; Harris had about five million fewer. While some of Harris’s shortfall may have voted for Trump, most of them did not. Many voters, in essence, disappeared, and Trump was the beneficiary. And that, not the new Trump voters, is really the big story.

Many touted the importance of the election, so it is somewhat surprising that the turnout was less by at least a couple of percentage points, than it was four years ago. Ballotpedia.org says the turnout in 2020 was 66.6 % of eligible voters and this year it was three points less.

The fluctuating size of the electorate is a complicated American story. We may pledge allegiance to our democracy or republic, whatever your ideology dictates, but we don’t always value the vote as much as our patriotic proclamations imply. I learned from The Age of Acrimony: How Americans Fought to Fix Their Democracy (2021) by Jon Grinspan that the turnout in the 1896 presidential election was 79.3% of eligible voters. But in the early twentieth century, the percentages fell, bottoming out in 1924 at 48.8%. (Grinspan suggests several reasons for the decline. Surprisingly to me, turnout fell most in the states that had adopted the secret ballot, a late nineteenth-century innovation.)

The percentage of eligible voters who vote has changed throughout our history, and the recent drop perhaps indicates the most important conclusion from the last election: A conservative can win the popular vote if the number of voters, by hook or by crook, is lowered.

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A Direct Election Would Be Different

The person who gets the most votes in next week’s presidential election may not be our next president. With our Electoral College, if a candidate loses by large margins in some states but narrowly wins states with 270 electoral votes, that person can win the presidency while losing the nationwide vote. “We the people” then takes on an ironic twist.

We should not assume, however, that if we directly elected the president that the winner of the popular vote in our present system would necessarily have won even without the Electoral College. Incentives to vote would be different. Campaigns would be different. And voting rules might change.

With a direct election, all voters would have an equal incentive to vote because all votes would matter equally. That does not exist now. An additional 50,000 votes for Trump or Harris in New York or California or Missouri or many other states would change nothing under our present system. There is little incentive to vote for president in a “safe” state. However, with the direct election of the president, voters in safe states would have more incentive to go to the polls than now. We would probably have more voters in some states than we do now.

The incentives for campaigners would also change. Now, candidates are mostly concerned with the swing states. A one percent increase for Harris or Trump could determine all the electoral votes from Pennsylvania or Wisconsin. However, a one percent increase for a candidate in the Badger State is about 30,000 votes. Now a one percent increase for a candidate in California changes nothing. All of the electoral votes will go to Harris with or without the increase. However, such a California increase means about 100,000 more nationwide popular votes. If the popular vote controlled, candidates would focus on all of the country not just a few states.

Campaign promises would also become different. Think about Iowa and the primaries. Don’t all candidates swear to support 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 Detroit or Battle Creek can be expected to make promises that especially appeal to Michigan voters. In safe states, such as Alabama, Mississippi, New York, California, or Louisiana, candidates do not now 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 would have the same incentive to pander in both places.

States would have different incentives than now for setting voter standards. We have some national voter standards. The Constitution guarantees that Blacks, women, and eighteen-year-olds can vote and that there can’t be a poll tax. Federal law says that only citizens can vote. But much that affects how many people will vote is left to the states. 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, states differ on such things as when the polls are open, who can use a mail-in ballot, rules on registration, and identity requirements, all of which can affect voter turnout, which would be important in a truly national election. Now many states do things to make voting harder with the knowledge that fewer voters will not affect the state’s power in the Electoral College. Fewer voters, however, will negatively affect the state’s power if the presidential election went to the winner of the popular vote. At least some states might reconsider their voting requirements if the Electoral College were abolished.

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The World Series of the Electoral College

A recent post on a local social media site drew on an analogy to the World Series to defend the Electoral College. The poster referred to a decades-old article recently reprinted in Discover magazine that discusses the theories of Alan Natapoff, a physicist, who favored voting by districts instead of in one mass. Natapoff, thus, seemed to be defending the Electoral College over a nationwide popular vote, as the poster clearly did.

The baseball analogy refers to the 1960 World Series where the New York Yankees won three blowouts but lost four close games to the Pittsburgh Pirates. The Yankees scored more runs, but the Pirates won the series. The poster and the article (https://www.discovermagazine.com/the-sciences/from-the-archive-math-against-tyranny) both noted, “Runs must be grouped in a way that wins games, just as popular votes must be grouped in a way that wins states.” That was fair, they maintain. “A champion should be able to win at least some of the tough, close contests by every means available–bunting, stealing, brilliant pitching, dazzling plays in the field–and not just smack home runs against second-best pitchers. A presidential candidate worthy of office, by the same logic, should have broad appeal across the whole nation, and not just play strongly on a single issue to isolated blocs of voters.” Natapoff decided that “nine-year-olds could explain to a Martian why the Yankees lost in 1960, and why it was right. And both have the same underlying abstract principle.”

There is much wrong with this reasoning. If the 60s Yankees had won the fourth game in another blowout (they scored nine runs in the final game), they would have been recognized as champs without having won a close game. Moreover, winning single games or their equivalents is not always the rule in sports. Cricket, e.g., has multi-day contests. The winner is not decided by who “won” each day, but by the total score. Had it been set up this way, baseball could be a contest decided inning by inning, or football quarter by quarter, but those are not the rules of the game. The rules are not inherent in the way the game is played and certainly not divinely inspired. They are man-made and can be changed. At one time the team that had the most wins after 154 games was in the World Series. The end. That is no longer true. The season is now longer and there are multiple playoff rounds that allow, many believe, for the possibility that a lesser team can become champions.

The poster quoting Natapoff asserts that the “popular votes must be grouped in a way that wins states.” That is not a requirement in all our elections. E.g., we use the total vote to pick our governors and don’t require the victor to have won a majority of counties or parishes. It is only because of the Electoral College that winning a state is required in our presidential elections. (I have no idea what is meant when the poster says, “A presidential candidate worthy of office should have broad appeal across the whole nation, and not just play strongly on a single issue to isolated blocs of voters.” I don’t know of a successful candidate who runs on only one issue, and when I look at the maps that will be produced of red and blue states because of our Electoral College, I see something like isolated blocs of voters. We would not have that with a nationwide vote.)

I seldom respond to any posts except occasionally to point out easily checkable misinformation. (For example, I might respond: Fact-checking sites have made it clear that FEMA workers are not eating the cats and dogs of isolated North Carolina hill folk.) I did, however, reply to this post by saying, “It would be interesting to see the reaction if a conservative won the popular vote but lost the electoral college. We are unlikely to find out. A conservative winning the popular vote???” Almost immediately someone who had already declared the post “great” said, “I couldn’t give a damn what the popular vote says as long as Trump is elected.”

This comment, of course, typifies why discussions of the way we select our president are fruitless. Alan Natapoff may have been sincerely exploring the best way to hold our elections, but most of the rest of us only want reasons for a system that will select our preferred candidate. Electoral College discussions these days are partisan ones with conservatives, like the poster, defending the Electoral College. They want the status quo because they believe it favors Republicans while reformers believe Democrats would benefit from a national popular vote. Recent history fuels these positions. Twice in the last generation we have inaugurated presidents who did not get the largest popular vote, and both were Republicans.

We did not always have this particular partisan divide. In the summer of 1968, polls indicated that 66 percent of Republicans and 64 percent of Democrats believed that the Electoral College should be replaced with a national popular vote. After the election where the popular vote was close, but the Electoral College was not, 80 percent of Americans supported changing the electoral system. In 1969, the House passed by a wide majority (339 to 70) a constitutional amendment to select the president by popular vote. The proposal, however, opposed strongly by Senators from small states, could not get the necessary two-thirds vote in the upper house.

If such an amendment could not make it through the Senate when the populace overwhelmingly favored it, a similar amendment has no chance today. Instead, those who wish to retain or change the Electoral College search for plausible reasons for their positions. The standpatters often refer to the goals of the founding generations, which, I am positive, did not use Mickey Mantle sports analogies. Many defenders contend that the point to the Electoral College was to preserve the powers of the small states in the presidential selection. Reading such comments, I pulled out The Records of the Federal Convention of 1787, edited by Max Farrand, and The Federalist Papers to see what these sources said about the discussion over the methods of choosing the president.

The issue was debated again and again in the Constitutional Convention of 1787. The delegates would agree to a method, but potential flaws in that method would circulate. A different scheme would be proposed and problems with the new proposal would be pointed out. This merry-go-round continued until near the end of the convention when the delegates finally settled on the Electoral College as it appears in the original Constitution.

The convention first voted to have Congress choose the President, but criticisms soon emerged. In James Madison’s words: “If the Legislature elect, it will be the work of intrigue, of cabal, and of faction: it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment.” Madison and others maintained that an Electoral College, however selected, would obviate some of the concerns of a congressional selection. The electors would be chosen for only one purpose and would gather just once. In the adopted version they would not meet together in one place but in the separate states so that there would be little opportunity for cabals, intrigues, and foreign influence. The congressional selection of the president, they said, would also upset a basic goal of the Constitution — the separation of powers — since the President would be beholden to Congress for his selection.

Many other methods of choosing the president were proposed and rejected: The state governors should select the President; electors selected by Congress should make the choice; electors drawn by lot from Congress should choose the President. Madison did state that the “fittest” way to select the President was to have a direct election, but he then noted two problems: “The first arose from the disposition of the people to prefer a Citizen of their own State, and the disadvantage this would throw on the smaller States.” Madison did not find this problem insurmountable and said “that some expedient might be hit upon that would obviate it.” The next speaker, however, differed with Madison’s optimism by saying, “The objection drawn from the different size of the States, is unanswerable. The Citizens of the largest states would invariably prefer the Candidate within the State; and the largest States would invariably have the man.” The delegates thought that a direct election would prejudice the smaller states, but what concerned them was that candidates from small states could not get elected. (Reminder. In 2016, Trump was a lifelong resident of a large state, but New York overwhelmingly voted against the hometown boy. Perhaps the Founders were not familiar with the adage, “Familiarity breeds contempt.”)

Madison also maintained that a direct vote would undermine the South. Many northern states had eased the traditional requirement that only white male citizens who owned real property could vote by allowing white males who paid taxes to also have the franchise. Thus, a higher proportion of people in the North could vote than in the South, and the South’s power would be diluted by a direct election. The Electoral College would prevent this calamitous possibility. It was not suggested that extension of the franchise might benefit the South as well.

Today many assert that the founders were protecting the small states by giving them a slightly greater number of electors than was justified by their populations. However, the founders addressed the small-state problem in a different way. The concern was that a candidate from a small state, even if worthy, would inevitably lose because the large-state electors would vote for one of their own. The solution: each elector would vote for two people, one of whom must not be from the elector’s state. The delegates thought that while one vote may go to the home state favorite, the second vote would be for the person seen as the best in the rest of the country. If that person was from a small state, he could be elected with a collection of second-choice votes.

The Founders added another “accommodation to the anxiety of the smaller States,” as Madison wrote in a letter in 1823. If no person got a majority of the appointed electors, then the House of Representatives would choose the President from the five highest on the electoral list with each state having one vote. The largest and smallest states would be equal in this process, which, according to Alexander Hamilton in The Federalist Papers, would be “a case which it cannot be doubted will sometimes, if not frequently, happen.”

The constitutional convention delegates knew that the large states would dominate the Electoral College, and they did. Luther Martin writing to the Maryland Legislature after the draft Constitution was promulgated but before it was adopted said that the “large states have a very undue influence in the appointment of the President.” Gouverneur Morris, a delegate to the Constitutional Convention, writing in 1803, noted that it was recognized that the large states would dominate the Electoral College. Only if the matter went to the House of Representatives did the small states have a substantial voice in the presidential selection.

The major effect of the original Electoral College was not to give power to the small states but to the slaveholding states. Madison had said that a direct presidential election was “fittest,” but it would harm the South, citing the more “diffusive” franchise in the North, but the Virginian slaveholder continued with the curious comment that with a direct election the South would “have no influence on the score of the Negroes. The substitution of electors obviated this difficulty….” The “difficulty” was avoided by basing the number of electors on representation in the House of Representatives. The apportionment of the House, of course, incorporated the three-fifths clause where that percentage of slaves was used in the allocation of House seats.

The three-fifths clause was, therefore, incorporated into the Electoral College giving extra power to the large slaveholding states. The first census in 1790 found that New York had a free white population of 313,000 and North Carolina had a free white population of 289,000. Each state had the same electors, however—twelve—after that first census. While New York had 21,324 slaves, North Carolina had 100,572.  However, when 60% of the slaves were included to determine representation in the House, North Carolina’s “population” was larger than New York’s. South Carolina had a free white population of 139,000, but New Jersey had thirty thousand more. Even so, South Carolina had twelve electors and New Jersey eleven. South Carolina had 107,094 slaves and New Jersey 11,423. (New Jersey is the starkest example of why Madison feared for the effect on the South were there to be a direct election of the President. As Madison had to know, New Jersey alone among the states then allowed white women to vote, and its total vote might have been twice that of South Carolina’s. With the Electoral College as adopted, even though South Carolina had the smaller white population, it had more power in the presidential selection than did New Jersey.)

Virginia had a free white population of 441,000; Pennsylvania had 422,000, about a four percent difference. Virginia had 292,627 slaves and Pennsylvania had 3,731. Even though the enslaved people could not vote, because of them Virginia had forty percent more electors than Pennsylvania—twenty-one to fifteen.

A direct vote for President would have lessened the power of the South; instead, the Electoral College as adopted magnified it. Founders recognized and said that large states would dominate the vote in the Electoral College, but Southern states would have special influence in picking a President because of the peculiar way in which slaves were counted.

The Founders did not protect small states via the Electoral College, and their sop of requiring electors to vote for two people with one not from the state of the elector proved to be laughable. The Framers in adopting the Electoral College did not foresee the rise of political parties even though parties were in place only a few years after the Constitution was adopted. Partisanship was evident in the first contested presidential election, after Washington retired in 1796.* By then, two men ran as a team with one running for President and the other as Vice-President. The country made it through 1796 without a major problem, but the Electoral College caused a crisis in 1800.

Thomas Jefferson and Aaron Burr ran as a Republican team in the presidential election. The widespread understanding was that Jefferson was running for President and Burr for Vice President. John Adams, the Federalist incumbent, ran with his vice-presidential running mate Thomas Pinckney against Jefferson and Burr. Jefferson got seventy-three electoral votes to Adams sixty-five, making Jefferson the apparent victor, but of course, because each elector had two votes, Burr received the same number of electoral votes as Jefferson. With two candidates yoked together by party affiliation, it was not a surprise that they would get the same number of electoral votes. A tie, which was not foreseen by the Framers, was close to inevitable with the rise of political parties.

The selection of the President in 1800 went to the lame-duck Federalist-dominated House, even though the Federalists had lost the election. That losing party had to decide which Republican, Jefferson or Burr, was the lesser evil. Thirty-six ballots later, Jefferson became the third President. And we got the Twelfth Amendment to fix this major flaw. That Amendment required electors to cast separate votes for President and Vice-President.**

At least when it came to the method of selecting the president, the Framers’ wisdom was faulty. Perhaps there are good reasons today to have the Electoral College but not because the founding generation created a perfect system. It did not protect the integrity or sovereignty of the small states. Our first six presidents all came from large states. Four of them were Virginians. This was not a surprise for the original Constitution through the Electoral College gave the major slaveholding states the dominant power in picking the President.

——————

*The Framers also did not foresee that electoral votes would be allocated by a winner-takes-all approach where the candidate with the most votes in each state would get all of that state’s electoral votes. That development, however, did not come quite as quickly as the rise of political parties. In 1796, even though Jefferson won the most votes in Pennsylvania, Virginia, and North Carolina, one elector in each of those states voted for John Adams instead, and those three votes made Adams president. He received 71 electoral votes to Jefferson’s 68. Jefferson received the second most votes. Adams’s running mate, Thomas Pinckney, garnered 59 electoral votes. Thus, under the electoral system then in place, Jefferson became Vice-President under his political enemy, Adams, an uncomfortable result.

**Elections might be more fun if we still had the original electoral scheme as indicated by Alexander Hamilton’s devious actions in 1796. Although Adams and Hamilton were both Federalists, Hamilton did not want Adams to become President. Supposedly Hamilton approached electors in states Jefferson had won and urged those electors, after voting for Jefferson, to give their second vote to Thomas Pinckney. Hamilton was hoping that Jefferson-Pinckney votes plus Adams-Pinckney votes would give Pinckney the most electoral votes and the Presidency. Hamilton’s machinations seem to have borne some fruit, most notably in South Carolina where both Jefferson and Pinckney received eight electoral votes. The scheme failed because in several states that Adams won, the electors divided their second votes between Pinckney and other candidates or did not give any second votes to Pinckney. For example, Adams received nine votes in Connecticut, but Pinckney got only four, with five votes going to John Jay. New Hampshire gave six votes to Adams, but none to Pinckney. Pinckney received twelve fewer electoral votes than Adams. But think of the gamesmanship we might have if this original electoral edifice still existed.

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Trump Tribulations

Critics maintain that the Colorado Supreme Court decision that bars Trump from the ballot is antidemocratic. They are right, but merely stating that the decision is wrong because it is antidemocratic overlooks the fact that many provisions in our Constitution are antidemocratic. Take the Senate, for example. Every state gets two Senators no matter what the state’s population. States that contain far less than a majority of the people have the majority of the Senators. This is not democratic. The Constitution limits a president to two terms. This is not democratic. I don’t know if Colorado’s decision is correct, but it is not wrong because it is antidemocratic. The court was interpreting a constitutional provision that is inherently antidemocratic because it prohibits certain people from holding office. Its enforcement was meant to be antidemocratic. Of course, ironies abound when Trump supporters label the decision wrong because it is antidemocratic. Trump without proof, of course, maintained that Obama could not be president because Barack was not a natural-born citizen as the Constitution requires. Obama was a natural-born citizen, of course, but the provision remains antidemocratic. And, of course, Trump was not democratically elected as president. He did not get the votes of a majority of the People. He became president because he got the majority of the antidemocratic electoral college. It is also ironic that Trump supporters mock the Colorado decision by invoking the mantra “Let the people decide” when many of them refused to accept what the people decided in 2020.

The “misery index”—the sum of the unemployment and inflation rates—that soared under President Trump has dropped precipitously since Trump was dumped, but it is still not as low as it was under President Obama.

After criticisms of his remarks about immigrants polluting our national “blood,” Trump responded by saying that he had not read Mein Kampf. Trump frequently does not tell the truth, but when he says that he has not read something, the odds are overwhelming that this time he is not lying.

Homelessness, which jumped under President Trump, has not returned to pre-Trump levels.

Trump’s definition of the holiday spirit is different from that of the rest of us. On December 24, Trump posted on social media that special counsel Jack Smith is a misfit and a thug. Trump wished that various people would “rot in hell.” I wonder if he was sacrilegious enough to do this from a pew during a Christmas Eve service.

Deaths per capita skyrocketed when Trump was in office. It has fallen while Biden has been President.

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The Primaries Rule

We tend to think of our country as a democracy, where “The People”– through the majority of the voters–rule. This, of course, is not completely true for many aspects of our government. The United States Senate is a prime example. The candidate who gets the most votes in a state becomes the Senator. This seems democratic enough until we realize that a minority of voters nationwide choose the majority of the Senators. Since each state, no matter how large or small its population, gets two and only two Senators, the overall composition of the body is markedly malapportioned. This, of course, is mandated by the Constitution.

Other less-then-democratic rules, however, are not constitutionally mandated but result from various political strictures and practices. Thus, the filibuster rule grants a minority of the already malapportioned Senate to dictate outcomes. In both Houses, committee chairs can determine what can be voted on, and this can defeat the will of the majority in those bodies. And so on.

We know that a minority of the voters can elect a president. That is partly because of the electoral college, which our constitutional founders gave us. In addition, however, the nonconstitutionally-mandated decision rule increases the likelihood of a minority president. Most states have decided that all its electoral votes will go to the candidate who gets the most votes. This is not constitutionally required, and at the beginning of our Republic, it was not the usual method for allocating electoral votes. Instead, states often split those votes, but now only a few states do that. So if I win a state with a large number of electors by a handful of votes, but I lose a state with a lesser number of electors by a significant amount, I may be behind in the popular vote but ahead in the crucial electoral count. The Constitution is silent on this outcome.

There is another decision rule, however, that can affect whether we have a minority president: the presence of third parties. In key swing states in 2016, Trump won not by getting a majority of the ballots. In most states he did not poll better than the Republican Romney had four years before. Instead, the third-party share of the votes increased, and Hillary Clinton got fewer votes in some states than Obama had four years earlier. In Pennsylvania, Wisconsin, and Michigan, Trump got the plurality, not the majority, and got all the electoral votes. We don’t know, of course, what would have happened had the third parties not been on the ballot, but we should realize that the rules allowing candidates on the ballot matters. The more candidates on the ballot, the less likely it is that “The People”–i.e., the majority–control. These rules matter and vary from state to state, but few of us know what they are or whether they should be changed.

Primaries, especially in safe districts, also affect majority rule. By a “safe” district, I mean those in which it is all but certain that one party will win the general election. I reside in a place where a Democrat always wins the House, the state legislative, and the city seats. The November election is a mere formality. The only truly important election is the primary because it will determine which Democrat will run. I am hardly unique in living in such a place. A few years back I read a study with a sobering statistic: while 25% of the House seats were safe several decades ago, that number had increased to 60%. With unrestrained and more sophisticated gerrymandering, that percentage is even higher now.

Almost everywhere, the turnout for primaries is lower than for general elections, even when the general election is functionally meaningless. This can mean that a tiny fraction of the people determine who will have governmental power, but the situation can be even more striking when a primary is contested with several viable candidates. The rules are not uniform for deciding the outcome of such contests. I have voted under several different systems in New York City alone. In some primaries, a candidate polling over 40% moves on to the general election, but if they do not reach that threshold, another primary is held between the top two candidates. “Ranked choice” is now used for some New York primaries, and I would explain that to you if I could, but I am like most New Yorkers who, even though voting to adopt this system, do not fully understand how it works. But in some New York primaries, a simple plurality controls. (Oh, yes, New York City is a complicated place.)

New York has just completed primaries for the House of Representatives. New districts were drawn as a result of the last census which caused the state to lose one seat in the national legislature and made for some interesting primaries. Two sitting House members were thrown together in one district and faced each other in one primary. Another district did not have an incumbent and a half-dozen interesting candidates ran for the Democratic seat in the plurality-controlled contest. The winner polled 25.7% garnering fewer than 17,000 votes. And in what is almost certainly a safe seat, he will be going to the House in January. In other words, 17,000 people will have picked the new Representative. “The People,” I guess, have spoken.

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Hail, Hail Hillsdale (concluded)

(This entire essay will be posted again in order on Wednesday, April 1.)

The last two questions of the Hillsdale College survey on the Electoral College were not about the constitutional provision but were meant to promote Hillsdale’s outreach efforts. However, the last question about the Electoral College, was, in technical polling terms, a doozy. It said I could check any or all the answers to the question, “Why do you think the movement to do away with the Electoral College has been so successful as it is?” You might wonder about their definition of “successful.” The Electoral College is with us. No constitutional amendment to abolish it recently has even passed Congress and been sent to the states. The odds that the Electoral College will not be with us for our next presidential election are about as large as me winning the 100 meter race at the Olympics. Or me being mistaken for Marilyn Monroe. (I’ve been thinking about Rudy Giuliani again.)

The answers, however, were doozier than the question. First, I could pick that civics education has been neglected. I can’t tell if Hillsdale thinks American civics has always been deficient or if they think that is a recent phenomenon. If recent, then views about the EC should vary significantly by age, and those of us of a certain age should have markedly different views of the Electoral College from those whose knees still work because our civics education was not neglected. Although there are many reasons why views of the Electoral College might differ by age besides changing civics courses, Hillsdale might have found it useful or at least interesting to capture the age differences of the respondents. However, the poll, while asking for my name and email address (Why? They already have that information or I would not have gotten their poll. Or did they want my name and email for some big brother thing? Cue Jaws music again.), did not ask for my age.

The second choice for explaining why the movement to rid us of the Electoral College had been so successful is that because “too many Americans are so overcome with partisanship that they forget how the Electoral College works to unify the country” and ensures representation of all regions and interests. On the one hand, according to this answer, the Electoral College unifies; on the other, the country is split by forgetful partisans. They are going to need to explain to me that positive unification function again because they have told me in the same sentence that it is not working.

 The third choice offers me an explanation that all of the left-wing media and in particular “The New York Times’ ‘1619 Project’” has undermined “informed patriotism by promoting a biased distortion of our nation’s history and our Constitution.” I wondered how many Kevin Bacon degrees of separation it takes to get logically from The 1619 Project to efforts to reform the Electoral College. It can’t be a straight (nor logical) path. In addition, those Times articles are eighteen months old, and almost all adults surely must have formed impressions of our presidential selection process long before that. Efforts to change the Electoral College existed well before The 1619 Project was published or printed. And surely, if The Project caused this reaction to the Electoral College, Hillsdale must think that since the 1776 Commission report is now available to all, everything is looking rosy. (Cue “Put on a Happy Face.”)

I then came to the fourth and last option for an answer to why Electoral College reform proposals have been so successful. It allowed me to check off “Unsure.” There were no more responses. I was not given any options such as the movement to change the Electoral College has been “successful” because a) it is a good idea; b) because “the people” want a more democratic country; c) because the Electoral College was an unfortunate historical accident; d) because each vote in our country should count equally; e) because each voter in the country should have an equal incentive to vote; or f) any other reason. I was reminded of Stephen Colbert’s regular shtick a decade ago when he would ask liberal guests whether George W. Bush was merely a great president or whether he was the greatest.

The Hillsdale poll is not a serious one even though it purportedly “will help Hillsdale College more clearly understand the views of mainstream Americans concerning this issue—views we will make available to policymakers and opinion leaders.” Apparently if I fill it out, I can now count myself for one of the few times ever as a mainstream American. That is a mighty incentive to do so, but I need a few more options in the answers than the ones I am offered, and any American, mainstream, sidestream, slipstream, upstream, or downstream, should feel the same if they do a modicum of thinking or research about how we select our president.

I have gotten and seen other polls that are equally as partisan as this one, but almost always these are from overtly advocacy groups. (I have been approached on the street by solicitors for the American Humane Association, for example, with, “Do you love animals?” They never seem to think mine is the right answer: “I love to eat them.”) I am not surprised when political parties or other partisan groups send me senseless, leading questions. Hillsdale College, however, claims not to be an advocacy group or a clown show. It claims to be an institution dedicated to upholding and promoting the standards of a rigorous education, and therefore it should be held to different standards from partisan or advocacy groups. It should be seeking to enlighten not indoctrinate with shoddy history and worse logic.

However, if this drivel on the Electoral College is meant as an example of the historical knowledge or critical thinking Hillsdale imparts, this conservative college is failing its students and, sadly, the country. And my ladies and lassies, perhaps you can join me in shedding a few more tears for the further dumbing down of America.

On the other hand, some of the Hillsdale online lecture offerings still intrigue me.

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Hail, Hail Hillsdale (continued)

Hillsdale College, which had mailed me a free copy of the Constitution, sent me an email about an “urgent matter” that’s “vital to our nation’s future.” I could almost hear the Jaws music as I read, “A movement is growing, led by progressives—but supported by many well-meaning Americans—to change the way we elect our president. In effect, it seeks to do away with the Electoral College as devised by the Framers of our Constitution.” I immediately noticed the absence of “other” between “many” and “well-meaning” in that sentence, but I did not know if that meant progressives were not well-meaning or that they weren’t Americans, or both. The email warned that states were joining “together in an attempt to undermine this constitutional bulwark of liberty.” This dangerous movement “has grown largely because of the failure of America’s schools to provide young people with grounding in American civics—too many Americans simply don’t understand the importance of the Constitution, including the Electoral College, to liberty.” (Quick. Tell me how the Electoral College is essential to liberty.) Presumably, this lack of understanding would be corrected if schools started following the recommendations of the 1776 Commission.

The email urged me to take a survey on “Presidential Selection.” I was curious because I have studied and written about the Electoral College [see the end of this post for references to some of those previous posts], so I clicked on the link in the email. I knew from the very first of the ten multiple choice questions that I had a problem. It asked initially if I agreed that we “should continue to elect our president through the Electoral College as devised by the Framers of our Constitution.” There is no way to answer this. You can’t continue to use something that is not being used. Our present Electoral College is not the one adopted by the Constitutional Framers. That one was so flawed from its inception that it was changed by Amendment XII (classical education useful here) within fifteen years after the Constitution went into effect. We do not use the flawed Electoral College created by the shortsighted Framers.

The second question did not ask about presidential selection, but about American civics classes. The next query returned to the Electoral College, asking if Americans understood the Electoral College “and its role in preserving free and representative government.” Quick. Tell me again how the EC does that. If it does so, it is not obvious how, or at least it is not obvious to many well-meaning Americans.

The fourth question asked if I agreed that the EC’s elimination would “disenfranchise citizens in large parts of the U.S. and increase the intense partisanship that is already dividing our nation.” Of course, that is two questions, and I don’t understand the first one. I don’t think that any proposal to reform the Electoral College would prevent or even make it more difficult for any citizen to vote. In fact, the serious movement to prevent or make it harder for citizens to vote in all elections including the ones for the Electoral College has been coming from conservative state legislatures seeking to gain a partisan advantage and make government less free and representative.

Then I was asked if I agreed that the “Electoral College requires candidates and parties to form broad coalitions that represent the interests of many Americans rather than just those of particular regions or urban areas.” And I asked myself: “To be successful in any nationwide election system don’t the parties have to represent the interests of many Americans? It seems to me that if they fail to do that, they won’t get elected. However, it begs the question of whether the EC does that better than, say, a direct vote?” As I have written on this blog, the Electoral College makes it easy to disregard the voters of a minority party in a solid Red or Blue state, and that would not be the case with a direct election of the president. I also noted “urban areas” in the question. I wonder how those who take this poll would feel if they were asked if they agreed that the Electoral College should be retained because it enhances the political power of poorly educated rural whites. Of course, such tendentious questions should not appear in any serious poll.

I felt something similar about the next question which asked if I agreed that the movement to eliminate the EC by “progressives” was politically motivated to “give an advantage to one political party over another.” That is a perfectly fair question, or it would be if paired with the flip side: “Is the movement to retain the Electoral College motivated by the right wing to give a political advantage to one party?”

Then came a question that made no sense: Was I aware that Washington legislators had “introduced legislation to abolish the Electoral College and that 15 states and the District of Columbia have already voted to do away with the Electoral College as devised by the Framers of our Constitution.”  Your first reaction might be: Well, I am now. But hold on. No one is seeking to abolish the EC devised by the Framers because, as cited above, that original failure was tossed aside by the Twelfth Amendment more than two centuries ago. Moreover, the current Electoral College is embedded in the Constitution. It could only be abolished or done away with by a constitutional amendment, as it was reformed before, not by legislation.

(concluded March 30)

April 10, 2019 “What if We Abolish the Electoral College” What if We Abolish the Electoral College? – AJ’s Dad

March 4, 2020 “Democracy Indexed and Flawed” Democracy Indexed and Flawed – AJ’s Dad

October 28, 2020 “The Shortsighted Electoral College” The Shortsighted Electoral College – AJ’s Dad

November 13, 2020 “Voter Turnout” Voter Turnout – AJ’s Dad

 [RJ1]

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Today is the Sixth of January

I had been thinking of various essays to commemorate today, January 6, often known as the Epiphany or Three Kings Day. Several topics came to mind.

First, I thought I might write about the bizarre time the spouse and I were ordered by a man to hide behind some columns in a dark crypt inside an Mayan pyramid in Yucatan, and then we think we were invited by this man (we think it only because we had such trouble understanding his English) to a neighborhood Three Kings party. P.S. We didn’t go.

            Then I thought I might write about how some traditions call the Magi Melchior, Caspar, and Balthazar even though these names are not in the Bible. I would continue by noting that not all Christian faiths limit the Magi to three or agree that the wise men visited shortly after Jesus was born. Thus, s0me denominations have as many as twelve Magi and some have the adoration by them occurring up to two years after the birth. I might include that we refer to them as “kings” even though that designation does not appear in the Bible.

            And then I thought I might explore different gift-giving traditions observing that various cultures share presents on St. Nicholas Day, December 5, or 6,  some on Christmas Eve, some on Christmas Day, some on Boxing Day, and others on January 6.

            I have several times been in New Orleans on January 6 and have always been served Three Kings cake then.  I planned to write amusingly about that tiny plastic baby Jesus hidden inside the cake, which I think is tacky. The essay would have continued with a discussion of Mardi Gras.

            However, I have been distracted today from thinking about the religious, social, and cultural aspects of January 6. All such thoughts have recently been replaced by a new epiphany that January 6 is another important day in the selection of our president. For most of my life, I considered there to be only two crucial dates for our presidential picking: Election Day (the first Tuesday after the first Monday in November) and Inauguration Day, some day in January when, according to the Constitution, a new presidential term starts at noon. I was aware that we had an Electoral College, but I never knew the date that it “met” because it never seemed crucial, and it never garnered more than a paragraph in the news. (Of course, the EC does not really meet – at least not in Washington. Instead, electors in each state separately convene and cast their votes.) If I had thought about it, I might have realized that there had to be some sort of state certification process of the vote after Election Day, but until this year I had not thought about that process. Moreover, I learned that the date of certification varies from state to state.

            And then there is the day that Congress counts the electoral vote — once again a date I have paid little attention to because for a century-and-a-half it has been an insignificant day of routine bookkeeping. I could not have told you that it fell on January 6, but now I know that it does. It is still expected to have no practical significance. The electoral count will be the same number that has been in effect since a few days after the election. However, this January 6 will garner more attention than any congressional elector count since 1876, a shameful time in our history. We can hope that today’s count will not reveal a shameful time in our current history.  

            The day will get attention because several members of Congress will object to the electoral count, and that will lead to “debate” in each House. Other than reaping attention for themselves, the naysayers are not expected to affect the election results. At least some of the constitutional subverters say their goal is not to keep Trump in office, but to address the distrust that has built in the public. F0r example, Ted (Look! I can grow a Covid beard) Cruz, a leader in attacking the election, said, “We’ve seen in the last two months unprecedented allegations of voter fraud. And that’s produced a deep, deep distrust of our democratic process across the country. I think we in Congress have an obligation to do something about that.” (Hmmm. And what’s he going to do? Tell us that the fraud is real and the election results are invalid? Yeah, that’ll help.)

            So, while he is hardly the appropriate person to address this problem, he has a point. Even I have become distrustful of our “democratic” processes, not because I buy into the baseless claims of electoral fraud, but because so many of our political “leaders” are fanning the fraud flames and are advocating extraordinary, sometimes bizarre, and often illegal and unconstitutional measures that would sabotage the democratic process. While we can be cautiously optimistic that today will end as it should with Biden’s being declared President, the bombastic stupidity that will be on display is disheartening to say the least.

            The Trumpistas are winning. They have made me distrustful and fearful. May our country and our democracy and our republican form of government survive today intact.