Saturday, November 12, 2016

Fixing the electoral college ...

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Robert Reich on Facebook
14 hrs
For the second time in five elections, the presidential candidate who won the most popular votes lost the election. And once again, presidential candidates competed in only a handful of swing states, effectively ignoring the rest of us.
We can change this bizarre system without a constitutional amendment if enough states require their electors to vote for the winner of the nationwide popular vote (instead of who won in that state).
We're closer than you might think to such a National Popular Vote compact. Already, 10 states and the District of Columbia have signed on, totaling 165 electoral votes of the needed 270. ...

By JONATHAN MAHLER and STEVE EDER NOV. 10, 2016, New York Times

In November 2000, as the Florida recount gripped the nation, a newly elected
Democratic senator from New York took a break from an upstate victory tour to
address the possibility that Al Gore could wind up winning the popular vote but
losing the presidential election.

She was unequivocal. “I believe strongly that in a democracy, we should respect
the will of the people,” Hillary Clinton said, “and to me that means it’s time to do
away with the Electoral College and move to the popular election of our president.”
Sixteen years later, the Electoral College is still standing, and Mrs. Clinton has
followed Mr. Gore as the second Democratic presidential candidate in modern
history to be defeated by a Republican who earned fewer votes, in his case George W.

In her concession speech on Wednesday, Mrs. Clinton did not mention the
popular vote, an omission that seemed to signal her desire to encourage a smooth
and civil transition of power after a divisive election. But her running mate, Senator
Tim Kaine of Virginia, highlighted her higher vote total than Donald J. Trump’s in
introducing her.

The disparity left a bitter taste in the mouths of many Democrats, whose party
won the country’s national popular vote for the third consecutive election but no
longer controls any branch of government.

“If we really subscribe to the notion that ‘majority rules,’ then why do we deny
the majority their chosen candidate?” asked Jennifer M. Granholm, a former
governor of Michigan.

Mr. Trump himself has been critical of the Electoral College in the past. On the
eve of the 2012 election, he called it “a disaster for a democracy” in a Twitter post.
Now, after months of railing against what he called a “rigged” election, he has
become the unlikely beneficiary of an electoral system that enables a candidate to
win the race without winning over the most voters.

None of Mrs. Clinton’s supporters have gone so far as to suggest that the
popular vote tally should delegitimize Mr. Trump’s victory, and the popular-­vote
margin in Tuesday’s election was in fact narrower than the one that separated Mr.
Bush and Mr. Gore in 2000.

But the results are already renewing calls for electoral reform. “I personally
would like to see the Electoral College eliminated entirely,” said David Boies, the
lawyer who represented Mr. Gore in the Florida recount in 2000. “I think it’s a
historical anomaly.”

Defenders of the system argue that it reduces the chances of daunting
nationwide recounts in close races, a scenario that Gary L. Gregg II, an Electoral
College expert at the University of Louisville, said would be a “national nightmare.”

A variety of factors informed the creation of the Electoral College, which
apportions a fixed number of votes to each state based on the size of its
congressional delegation. The founding fathers sought to ensure that residents in
states with smaller populations were not ignored.

In an era that predated mass media and even political parties, the founders were
also concerned that average Americans would lack enough information about the
candidates to make intelligent choices. So informed “electors” would stand in for

Above all, some historians point to the critical role that slavery played in the
formation of the system. Southern delegates to the 1787 Constitutional Convention,
most prominently James Madison of Virginia, were concerned that their
constituents would be outnumbered by Northerners. The Three­-Fifths Compromise,
however, allowed states to count each slave as three­-fifths of a person — enough, at

On social media Wednesday, some drew connections between that history and
what they perceived as an imbalance in the Electoral College that favors

“Electoral college will forever tip balance to rural/conservative/“white”/older
voters — a concession to slave­-holders originally,” the author Joyce Carol Oates
wrote on Twitter.

To its critics, the Electoral College is a relic that violates the democratic
principle of one person, one vote, and distorts the presidential campaign by
encouraging candidates to campaign only in the relatively small number of contested

“I think it is intolerable for democracy,” said George C. Edwards III, a political
science professor at Texas A&M University and the author of a book on the Electoral
College. “I can’t think of any justification for it, and any justification that is offered
doesn’t bear scrutiny.”

But calls to change the system, which would require a constitutional
amendment, are likely to fall on deaf ears with Republicans in control of both houses
of Congress.

And though there was some momentum for reform after Mr. Gore’s defeat, it
dissipated after Mr. Bush and Barack Obama won both the popular and electoral
votes in 2004, 2008 and 2012.

Some states have discussed a possibility that would not necessarily require
amending the Constitution: jettisoning the winner-­take-­all system, in which a single
candidate is awarded all of a state’s electoral votes — regardless of the popular vote
— and instead apportioning them to reflect the breakdown of each state’s popular
vote. Two states, Maine and Nebraska, already do this.

But even that approach could face challenges, said Laurence H. Tribe, a
professor at Harvard Law School.

For reformers, the best hope may lie in the so-­called National Popular Vote
Interstate Compact, an agreement among states to award all of their respective
electoral votes to the candidate who wins the popular vote in a given election.
So far, 10 states and the District of Columbia have joined the agreement. But it
will only go into effect when enough states have signed on to guarantee that the
winner of the popular vote would win an election.

For now, it seems, any change still remains a far-­off notion.

“I am very mad at James Madison,” said former Representative Barney Frank, a
Massachusetts Democrat. “But I don’t think there’s anything I can do about it.”


The Electoral College and the Popular Vote

It's theoretically possible that the Electoral College could upend the results of the 2016 presidential election, but such an event would be unprecedented.

On 9 November 2016, the day after Donald Trump was elected the 45th president of the United States, a petition appeared on urging the United States Electoral College to reject the way states voted during the general election, placing into office not the person who received the majority of electoral votes (Donald Trump) but rather the person who received the most popular votes nationwide (Hillary Clinton, as of this count):
On December 19, the Electors of the Electoral College will cast their ballots. If they all vote the way their states voted, Donald Trump will win. However, they can vote for Hillary Clinton if they choose. Even in states where that is not allowed, their vote would still be counted, they would simply pay a small fine - which we can be sure Clinton supporters will be glad to pay!
We are calling on the Electors to ignore their states' votes and cast their ballots for Secretary Clinton. Why?
Mr. Trump is unfit to serve. His scapegoating of so many Americans, and his impulsivity, bullying, lying, admitted history of sexual assault, and utter lack of experience make him a danger to the Republic. 
Secretary Clinton WON THE POPULAR VOTE and should be President. 
The petition is referring to "faithless electors," an extremely rare but not wholly unprecedented phenomenon in the United States.
The electoral college system employed by the United States in presidential elections represents something of a compromise between direct and representative democracy. Rather than holding a single national election, the U.S. effectively stages fifty-one separate elections (one for each state plus the District of Columbia). Whichever presidential candidate receives a majority of individual votes within a state then receives all of that state's electoral votes (the amount of which is based on state's population). Those electoral votes are represented by party-selected electors, who meet 41 days after the general election to cast their votes for President. Whichever candidate receives a majority (270 or more) of those electoral votes is the winner.
The Founding Fathers discussed at length whether presidential elections should be based entirely on the will of the people, or whether Congress (or some other small body of wise and informed men) should choose the President. They concluded that direct democracy was potentially dangerous, because a charismatic tyrant could manipulate the will of the people.
For example, James Madison, writing in 1787, argued against direct democracy, saying that it created a perfect breeding ground for tyranny:
From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.
Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.
A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking.
The compromise the Founding Fathers devised is the one we still use today, based on an Electoral College system:
The Electoral College was devised at the Constitutional Convention in 1787. It was a compromise meant to strike a balance between those who wanted popular elections for president and those who wanted no public input.
At the time, the country had just 13 states, and the founders were worried about one state exercising outsized influence. Small states were worried that states with large populations would have extra sway. Southern states with slaves who couldn’t vote worried that Northern states would have a louder voice. There were concerns that people in one state wouldn’t know much about candidates from other states. The logistics of a national election were daunting. The thinking was that if candidates had to win multiple states rather than just the popular vote, they would have to attract broader support.
What this means is that the Electoral College exists primarily for two reasons: to allow for fair and equal representation of states, no matter their size or population, and to prevent a person unfit to govern from attaining office.
Under the Electoral College system, it is possible that the candidate who receives the most popular votes nationwide does not win the election, a phenomenon that had previously occurred five times in U.S. history prior to 2016.
The catch to all of this is that electors are not absolutely required to vote for the candidate to whom they are pledged by the results of their state's vote. They nearly always do so since they are typically strong supporters of the political parties who appoint them (electors are a mix of government officials, party activists, and high-profile figures in their communities), but so-called "faithless electors" can (and occasionally do) vote for another candidate or don't vote at all.
Twenty-one states do not have laws compelling their electors to vote for a pledged candidate, and although the rest of the states do have laws on the books penalizing faithless electors, those penalties can only be applied after the fact and do not change faithless electors' votes. Only two states (Michigan and Minnesota) current have laws that void the votes of "faithless electors":
Faithless Electors" are members of the Electoral College who, for whatever reason, do not vote for their party's designated candidate.
Since the founding of the Electoral College, there have been 157 faithless electors. 71 of these votes were changed because the original candidate died before the day on which the Electoral College cast its votes. Three of the votes were not cast at all as three electors chose to abstain from casting their electoral vote for any candidate. The other 82 electoral votes were changed on the personal initiative of the elector.
Sometimes electors change their votes in large groups, such as when 23 Virginia electors acted together in 1836. Many times, however, these electors stood alone in their decisions. As of the 2004 election, no elector has changed the outcome of an election by voting against his or her party’s designated candidate.
Despite these 157 faithless votes, and a Supreme Court ruling allowing states to empower political parties to require formal pledges from presidential electors (Ray v. Blair, 343 US 214), 21 states still do not require their members of the Electoral College to vote for their party's designated candidate.
There are 29 states (plus the District of Columbia) that require faithfulness issue a small variety of rarely enforced punishments for faithless electors, including fines and misdemeanors.
The upshot of all this is that yes, it is theoretically possible that — as urged by the petition cited above — a large group of Republican-selected electors could choose not to cast their ballots for Donald Trump, but to instead defect and vote for Democrat Hillary Clinton (or some other compromise candidate) and thus deny the putative election winner (Trump) from gaining the White House. Such an event would technically be constitutional, but it would also be wholly unprecedented in American history and would require a sudden and drastic change in the United States' political traditions.
In short: extremely, extremely unlikely.
LAST UPDATED: 11 November 2016

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