Democracy skewed? About the future of the Electoral College and voting rights in America

“The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honours in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.”

Alexander Hamilton, Federalist Papers 68.

The republic’s birth in 1787 was difficult and painful, but the founding fathers remained steadfastly committed to their new offspring’s wellbeing. Embraced by the community at large, the newborn was heralded as a beacon of light that would eventually lead all of mankind out of the dark ages. Even the ugly birthmark on the baby’s forehead did little to spoil the joyous occasion. Yet by the early 1860s, the only black spot on an otherwise flawless white body politics had morphed into a gaping nasty wound, rendering the condition of our patient terminal. With only blunt instruments available to the surgeons at the time, the procedure that followed was a bloody dirty affair. Though in 1865 the Republic was miraculously declared out of danger, and frenzied attempts were made to stitch up the wound; unfortunately, erasing the last traces of the operation came to an abrupt end in 1876, allowing gangrene and other infectious diseases to trouble the patient once more. Invisible to the jaded eye of unsuspecting onlookers, new cancer cells grew and spread beneath the scared tissue of a reconstructed Union. But rather than waiting for any last minute deathbed confessions, or contenting ourselves with Palliative care, urgent wholistic treatment is needed. With democratic principles withering away on life support in intensive care, not Chemo but Immunotherapy is required. Returning to the founders political imperative that republican government must rest on the principles of majority rule. is the order of the day. In other words, enhancing the responsiveness of the political immune system itself will see to it that the numerous ailments afflicting the patient can be remedied. Given the patient’s serious condition, it is time for electoral reform.

Out of the last 8 presidential elections, the GOP candidate won the popular vote only once back in 2004. Changing demographics and shifting cultural sensitivities have caught Republicans in a bind. To buck the trend of eroding popular support, the party has settled on a morally disgraceful but politically potent strategy. First though, it is the catastrophic blunder in progressive circles to have sought refuge in identity politics that is now the lifeline the right clings to. The left the world over has nothing better to do than to turn groupthink and cultural affinities into a new religion and unchallenged belief system, marshalling the tired cavalry on the moral high ground and concentrating their firepower on the already converted. With zest and zeal they scheme, moralise and preach, but the warriors doings in truth mask an unwillingness to take on deeply entrenched powerful economic interests. Then there is the savvy understanding on the right that economic grievances in conjunction with an imaginary loss of national belonging is a political gold mine ripe for exploiting. Yet, the most lethal weapon in the GOP’s armoury is its structural advantage in the Electoral College. With federal institutions originally crafted to amplify the representation of former slave States, Republicans enjoy additional cloud in both the Senate and the House as well. Strategists have astutely recognised that the party can obtain and maintain power without having to win a plurality of votes nationally. Indeed, reaching a baseline of votes in only a handful of southern States suffices for Republicans to win the White House and to control the legislature. The cost – benefit analysis on the right is therefore clear; a flawed electoral system makes it unnecessary to moderate its views on social and economic issues. turning out the radicalised base with a few swing voters here and there will make all the difference between winning and losing. How eager the party is to stay the course has become apparent following Trump’s election defeat last November. With Georgia featuring prominently as a battleground State, and with the GOP seeing its tenuous grip on power melting away, Republican lawmakers have rushed to pass new voting measures designed to depress African American voter turnout. But Georgia is only the test run for a full-fledged nationwide assault on voting rights. These sorry machinations have paved the way for Jim Crow policies to scrape their way back into the nation’s history, breathing new life into the rotten miserable carcass of white supremacy and racism, with its harrowing stench wafting through the land far and wide. How these ailing limping party apparatchiks reconcile their reasoning with the founders belief that an imperfect Union is in need of constant reform and improvement is puzzling. The framers faith in successive generations to heed their call for constant betterment was obviously misplaced.

A troubled institution

Following the Philadelphia Convention in 1787 Hamilton observed in Federalist Paper 68 that, “The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents.” In this, the icon of the republican movement was both self-indulgent and somewhat misleading. Given the effect of the electoral process on the office of the presidency itself and its indirect impact upon the legislative branch of government, devising a legal framework governing presidential elections was a highly controversial affair. In fact, it took delegates 22 days and 30 votes to settle the issue. Charged with resolving the inherent contradiction between ’voter parochialism’ and ’legislative intrigue’, three factions were competing for attention and support. One group favoured Congress to elect the president, but this would have run counter to prevailing republican thinking at the time which stipulated that all branches of government had to balance each other out. Also, it would have made the executive branch solely dependent on the legislature, in effect turning the Union into a parliamentary system. Another grouping in Philadelphia fixated on the idea that State Legislatures pick the president, but then again the institution of chief executive would likely have lacked national character, with only State politicians elevated to the highest office in the land. A third subsection of delegates demanded nationwide popular elections. After all, it was not demagoguery weighing on the framers minds, but rather something they perceived to be an information problem. Imagining republican institutions to be highly deliberative in nature and given the size of the country, they didn’t believe that the national collective was capable of making informed choices regarding the presidency; an intermediary was called for. Even so, the proposal for popular elections gained some traction as James Madison himself was open to the idea in principle, but having done his math he told his colleague James Wilson that the South would lose every time. So the southern States drove a hard bargain in 1787, and only their outsized representation in federal government could persuade them to join the Union. By adopting parity in the Senate and by threshing out the shameful Three-fifths compromise for allocating seats in the House of Representatives as well as in the Electoral College, their acquiescence with Unionist principles was bought. People treated as subhumans with no rights at all were still valuable assets for the slaveholding class when accruing political capital. What amounted to the most significant moral failure of the convention didn’t bode well for the future of the republic. With the exception of Massachusetts, all other former colonies whose delegates had convened in Philadelphia were slave States. This has led some scholars to contend that the slave issue mattered little in the constitutional design. However, as the population census 1790 illustrates, the number of slaves varied considerably between States, giving the South a clear incentive to push for enhanced representation in government. Straddling the stage in the convention hall wearing the mantle of prophecy George Mason, whose reputation as an original thinker preceded him, dangled his national Bill of Rights like a rag in front of a bull. To Mason’s chagrin the bull was ready to charge. With the convention cock-a-hoop, his cherished national Bill of Rights was quickly buried. though without Mason’s dogged determination, the final document arrived at in Philadelphia may have looked far more elitist and less democratic. Attempts by Madison to salvage the situation didn’t stop Mason from walking away from the constitution, even though Madison had promised Mason that he would introduce a Bill of Rights during the first session of Congress. In the end a man as principled and uncompromising as Mason was one out of three delegates who refused to sign the final document. His fellow Virginian Madison was as good as his word, and a national Bill of Rights was quickly passed once the first Congress had been gavelled in. Yet, Mason, who by then had retired to his plantation a defeated man, remained livid considering the new Bill of Rights woefully inadequate. Venting his frustrations Mason wrote, “There is no declaration of rights, and the laws of the general government being paramount, the declarations in the separate states are no security … The president has no constitutional council. From this defect spring the improper powers of the Senate and the unnecessary office of the vice-president, who as president of the Senate dangerously blends executive and legislative powers … There is no section preserving liberty of the press or trial by jury in civil cases, nor is there one concerning the danger of standing armies in time of peace.” At a time without party politics as we understand it today, the architects of the republic believed the Electoral College to be of little consequence, expecting most presidential elections to be decided in the House. Even the outstanding minds of a remarkable generation were not gifted with clairvoyance, and their thinking mustn’t stand as a historic monument to be marvelled at in perpetuity. Not the legacy of slavery motivates reformers today, but we must be thankful to all the historians who have helped set the record straight. While the inner workings of the Electoral College have remained largely unchanged, a slew of constitutional amendments have been passed slightly tinkering with its mechanics. To cite only a few, following the 1800 presidential election which saw Thomas Jefferson and Aaron Burr tied, Congress proposed and the States subsequently passed the Twelfth Amendment. Replacing the rules laid out in Article II of the Constitution, the new provisions were designed to guard against a repeat of the 1800 election outcome by separating out elections for president and vice-president. With the advent of party politics and with the Electoral College becoming more and more contentious, debates over its reform are as old as the republic itself. Towering figures such as George McDuffie and James Madison worried about more and more States opting for winner-take-all in allocating their Electors. Both men favoured the method by which Electors would once again be chosen in direct correlation to Congressional districts. With the political climate heating up in the early 19th century, their proposals went nowhere. Incorporating the rights of former slaves led to the Reconstruction Amendments, namely the Thirteenth, the Fourteenth and the Fifteenth. of particular interest here is Amendment XV, prohibiting voter discrimination on the basis of race.

“Section 1., The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, Color, or previous condition of servitude. Section 2., The Congress shall have power to enforce this article by appropriate legislation.”

Amendment XV, US Constitution.

With Congress shunning its responsibility and with Republicans selling out their loyal army of African Americans like chickens ripe for slaughter in the cosy smoke-filled rooms of Wormley’s Hotel in 1877, the article proved inconsequential for numerous ’freedman’. During Jim Crow, Congress would have been legally required and morally obliged to throw out the votes tallied in the South – yet nothing happened. The judiciary was and is a tool for the powerful only. Except for the disputed presidential election in 2000, when the Bush- and Gore campaign structured their legal arguments around the Fifteenth, the measure up until then had hardly ever been tested in court. The Supreme Court’s decision to hand the election to Bush will live in infamy and serves as a warning that Amendment XV, while compelling in its language, is no adequate safeguard for protecting the right to vote. A campaign driven by democratic norms celebrated the world over almost succeeded, and the Electoral College was nearly abolished in 1970. It was the only time in US history that the reform movement enjoyed bipartisan support, and the House with an overwhelming majority proposed a constitutional Amendment that would have done away with the institution altogether. Yet, in the end it was another antiquated institution that killed the Amendment in the Senate, the Filibuster. As the popular vote and the Electoral College continue to diverge, the institution has once again drawn the ire of Democrats and progressives who fear that Republicans enjoy an unfair advantage not based on democratic principles. With the GOP having given up on winning the popular vote altogether, activists and academics on the progressive side are ready to do battle and to push the reform process forward.

Since many proponents of the status quo make a case laced with cheap ideology and fraught with intellectual contortions, and given their tiring propensity for using the terms ’republic’ and ’democracy’ synonymously, it is no surprise that the scholarly literature on the subject is heavily biased in favour of reform. Sane Voices speaking up in support of the Electoral College are far and few in between, but especially their arguments are worthy of serious consideration. With care taken only among the most outstanding of social scientists, George C. Edwards, political scientist, Jordan Chair in Presidential Studies at Texas A&M University as well as distinguished fellow at the Rothermere American Institute at the University of Oxford, debates the pros and cons in his highly engaging book Why the Electoral College Is Bad for America. While acknowledging the high transition costs involved in moving away from the institution, Edwards nevertheless concludes that it has outlived its usefulness. Approaching the subject slightly differently, historian Alexander Keyssar, an expert on voting rights and voter suppression, ponders the institution’s endurance and longevity. In his book Why Do We Still Have the Electoral College, Keyssar identifies two reasons: “inertia”, or call it prudence if you will, and “federalism.” Indeed, it is federalism that makes up the main thrust of Guelzo’s argument. Allen C. Guelzo, Senior Research Scholar in the Council of the Humanities and Director of the Initiative on Politics and Statesmanship in the James Madison Program at Princeton University, is one of the few academics who makes an almost compelling case for the Electoral College, describing it as a vital organ in our body politics even today. “The Electoral College underscores that our system of government is a federal system. We only got the Constitution because the constitutional convention persuaded the States to enter into a federation arrangement.” For Guelzo, the Electoral College is deeply embedded in federalist principles, “So looking at it through all these lenses, what comes right to the fore is that federalism is in the bones of our nation constitutionally speaking, and I would be concerned that we can’t start removing bones without the whole body coming into jeopardy.” Expounding on the nature of government, he sees the Electoral College as “embodying a fundamental instinct on the part of the founders, and that fundamental instinct was slow down.” A government in slow motion, according to Guelzo, is what the framers had in mind and is by extension therefore desirable. In his reckoning, the electoral system as it currently stands forces candidates to appeal to a wider range of voters than would otherwise be the case, a point hotly contested by his opponents. In addition, the Electoral College helps to “contain voter fraud”, a highly speculative unsubstantiated point that would certainly have ruffled Trump’s feathers. Arguing the other side of the coin Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale University, is largely dismissive of Guelzo’s concerns, though not without qualifications. Amar’s eagerness to reform is best encapsulated in one word, “equality.” “All American voters are basically equal to all other American voters, and your vote should count the same; whether you are Californian or Kentuckian, whether you are Red or Blue, whether you are black or white, whether you live in a city or suburb, whether you live in the countryside.” According to Amar, States have already incorporated this rather theoretical conception by electing their Governors directly. Unlike Guelzo, Amar is scathing about the Electoral College being a prerequisite for a healthy federal structure. “Constitutional rights, Bills of Rights minority rights, judicial review, bicameralism, except in Nebraska, two-party system, the same two parties in all the 50 States in America, single-member districts, first- past-the-post – Your States are little versions of America’s, and your Governors are little versions of Presidents. Indeed, many Presidents have been former Governors.” Reinforcing his point, Amar uses the electoral processes already a living reality in 50 States as a blueprint for what needs to be done nationally, and he does so without diminishing the role of States in the Union as such. Guelso’s other contention that a popular vote for the office of president would lead to more voter fraud is largely lost on Amar, as indeed there is no empirical evidence available to support such claims. For Amar, the notion that the Electoral College forces candidates to engage with more voters than a national popular voting scheme amounts to a “racially coloured” proposition. Given the good personal chemistry between our two intellectual titans, both men agree more than they disagree. Amar concedes that reforming the Electoral College is highly problematic. What makes doing away with it such a challenging issue is that a “national voting apparatus” would be called for. With States jealously guarding their powers over shaping the electoral process, how likely is it that they would voluntarily surrender their prerogatives on this matter? Without federal oversight, States would likely try to outdo each other by getting as many people to vote as possible. Only nationally agreed rules can even things out and ensure that votes are tallied equally. For his part, Guelzo acknowledges that the College is far from perfect but urges caution when considering reform proposals hastily stitched together. “One man one vote, yes we resonate with that. But implementing it – we don’t even do that for instance in how we elect Senators because it’s always going to be two Senators from each State. We don’t even do that with the House of Representatives. I don’t get to vote for the Representatives from Delaware. I live in Pennsylvania. I vote for Representatives who only gonna represent Pennsylvania. I don’t have a say in how people’ are elected from other States, and yet I am under the jurisdiction of that same House of Representatives. So one man one vote, it is a great Formular, but we have to watch carefully how we actually implement it. How does it actually work. I am not sure it actually works against the Electoral College.” Giving up on their affinity for mathematical reasoning and leaving their political instincts at the doorstep, some reform advocates have put forward proposals to apportion Electors by either Congressional districts or by outcomes based on proportional representation. Basing their ideas on Main and Nebraska, the only two States in the country running a hybrid system that allocates Electors by popular vote and Congressional Districts, they have started calling for its rollout nationwide. Amar is livid, “If you don’t know anything that sounds really great, it is an utterly stupid idea, and I will explain myself and will be very straight.” To begin with, it would bring gerrymandering right into presidential elections. Furthermore, this ’idea’ may work in small-sized States with its population evenly spread, but it is no recipe for curing the ills of the Electoral College. By applying the rules as hypotheticals to the State of Pennsylvania, Amar shows the corrosive impact these measures would have on electoral outcomes. As Democrats tend to win the big States but Republicans prevail in a plurality of States, the College is only slightly tilting Republican at present. As Amar explains, “The reason it’s not skewed is because of winner-take-all because Democrats tend to win most big States, let’s say in an average election 7 out of 10. They win 7 out of 10 big States, and winner-take-all gives them a big bonus. The Republicans benefit because they win more States overall, and they get to extra Electors, especially in big States where no one lives like Wyoming. These two skews offset each other almost perfectly right now.” Abolishing winner-take-all by adopting the district plan would lead to a College massively skewed Republican. In short, it’s a “partisan scheme if you know math.” Taking things a step further, Guelzo demonstrates what were to happen in the populous State of Texas if proportionality entered into the equation, “”If we were to move to a proportional system for Texas, then what we would have to do would be on the percentages of voters for MRs. Clinton or for MR. Trump – we would have to divide the electoral vote of Texas as 15.5664 Texas Electors for MRs. Clinton and 18.8028 Electors for MR. Trump.” Too true MR. Guelzo, Electors slavishly labouring under such an arrangement are sorry miserable creatures prone to be cut up into tiny little pieces at any given moment. By its very design, proportionality while keeping the Electoral College would lead to massive “voter disfranchisement”, something that is a far cry from realising the core democratic ideal of one-person-one-vote. On this, two sound minds argue as one. Beyond all the substantial issues raised in this debate, there is another heartfelt takeaway for all of us to behold: no matter the deity you pray to, we all must be grateful that even in today’s America intellectuals can respectfully disagree with each other and still be good friends.

A third way? The Interstate Compact

Political practitioners can ill afford to cling to pipe dreams which likely will never come to fruition. If we were asked today to design institutions based on republican principles, we would create a political system far more responsive to democratic norms and ideals. But starting from scratch all over again is a luxury we don’t have, and frankly suggesting a rewrite of the founding document would be absurd. Crafted by the framers to rein in the “passions of men”, amending the constitution is a slow process, nowadays riveted with ideological strive. In a nation blindly worshiping at the altar of American exceptionalism, reforms are hard to come by. Taking note of this predicament, in 2008 the Interstate Compact was born. It aims to reform but not to demolish the Electoral College. to dispense with one frequently encountered misconception: the Compact doesn’t create a national popular vote and leaves the current legal infrastructure governing elections in place. As stipulated in the constitution, States will continue to have sole and uncontested jurisdiction over the entire electoral process, from organising and supervising the vote to tallying the result. States party to the agreement pledge their Electors to the candidate who wins the national vote. At a glance the scheme seems compelling and straightforward. But, like everything American these days, there is a fly in the ointment. For the agreement to come into force, States making up 270 Electors would have to opt in. As of now, only 15 States plus the District of Columbia, making up only 196 votes in the College, have signed on, rendering the Compact effectively comatose. Remember that politicians are like small children – they love flattery and crave attention, and for those reasons alone swing States are unlikely to join in. But for the dead to rise, they will be needed to cross the magic threshold.

throwing down the gauntlet, senior jurists have cast doubt on whether the agreement would ever pass muster in federal courts. Because elections are under the jurisdiction of individual States only, legal scholars suggest that States entering into a voluntary agreement on such a matter may violate the constitution. For the arrangement to ever wake from its slumber, either a constitutional Amendment or at the very least a statutory Act of Congress would be required. With the district plan unmasked as highly partisan and with the Interstate Compact unlikely to ever come out of stasis, how do we chart a sensible path forward? Associate Professor at the University of Massachusetts Amherst Amel Ahmed who identifies herself as a progressive breaks free from groupthink and an unyielding drive for uniformity common among leftists these days, counselling against wasting precious time and energy on the Electoral College. “Listen, I don’t deny that the system is currently in peril, and my reason and my appeals often are to the effect that we have parties that are acting in ways that are bringing on a crisis of democratic legitimacy. And they’re pursuing, in the case of the Democratic Party, a really risky strategy, and in the case of the Republican Party a strategy that has essentially given up on the popular vote. And so, when you have parties acting this way, my concern is also that you put in place a different institution. What if there is really something organisationally wrong with these parties, and they still continue acting irrationally, or they still can’t calibrate? And so, electoral changes are always risky.” In Ahmed’s eyes, fighting voter suppression must outweigh any heartfelt desire to reform or even to abolish the Electoral College. Putting meat on the bones by dissecting the matter further, Alexander Keyssar, the expert on voting rights and voter suppression, laments that voter disenfranchisement and voter suppression are too often used interchangeably. While motivated by the same inferences and rooted in the same prejudices, they are not the same and mark different political eras in US history. “Disfranchising or disenfranchisement is taking away a person’s legal right to vote or taking away a group’s legal right to vote. So if you pass a law saying that black people can’t vote, you are disenfranchising them. If you pass a law that people under 25 can’t vote, you are disenfranchising, or if you say short people can’t vote that would be a law that disenfranchises.” With outright disenfranchisement becoming politically less expedient over the centuries, especially following the Antebellum period, voter suppression emerged as a mechanism to make it harder for certain groups to register and to cast their ballot. Indeed, as Keyssar reminds us, voter suppression is “intrinsically linked” to voting rights. Following the Supreme Court’s decision in 2013 to drive a dagger right into the heart of the 1965 Voting Rights Act, and in doing so effectively ending ’second reconstruction’, the floodgates for new Jim Crow legislation opened. In predominantly Republican strongholds with a large noncitizen population and strong minority representation, deplorable legislation is already on the statute books. With progressive movements having succeeded in expanding the franchise to minority communities, the present assault on voting rights, according to Keyssar, is the return to political patterns and legal machinations that have shaped American history for more than two centuries, “Those reactions have tended to be particularly strong when the new voters, the new sources of political power – the new wielders of political power – are ethnically and/or religiously different from ’mainstream’ American society and come from the working classes or the poor … to my knowledge, and I have been studying this for quite a long time, nobody has ever tried to disfranchise or suppress upper middle class or elite white males.” To buck the trend of voter suppression rearing its ugly head again, Keyssar calls for a constitutional Amendment that would create a national right to vote – for him it’s the only way forward.

More than 200 years ago John Jay warned, “And I sincerely wish that it may be as clearly foreseen by every good citizen, that whenever the dissolution of the Union arrives, America will have reason to exclaim, in the words of the poet: farewell a long farewell to all my greatness.” With the founding fathers watching on in bewilderment as their Republic slips in and out of consciousness, we do well to remember that Jay’s prophetic utterances may yet catch up with us. Unless we together embark on the journey of reform and complete reconstruction, it will be our generation that raises its hands in pathetic surrender and bids farewell to American greatness.

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