Archive: Opinions

The third and final 'chapter' of my examination of the Electoral College, and a crucial (perhaps historic) decision to be made by the Supreme Court in this current session. Again, to reiterate an important point in this case to be heard this April and decided in June: the Court always has the prerogative to decide narrowly or 'widely'. In other words, this case of a Colorado elector may be decided solely on its merits with no other Constitutional application, or the Court may decide on the Constitutional issue of how electors are chosen and what the state may then elect to demand of the elector, thus implications for the 2020 and future presidential elections. The latter is much more probable and this could become a 'hinge' upon which a divided republic may swing this November. Does my vote count, and how did we get to this point?

The Electoral College, in essence, was created by the Constitution to ensure that the Chief Executive was chosen by a dispassionate assembly of leaders rather than by 'popular' vote. This was an ingenious compromise between various options that lasted exactly two four-year terms. When Washington retired (and thus set one of many precedents, this being a two term self-imposed limit that lasted until 1940) all hell broke loose in the form of 'factions', otherwise named Federalists and Republicans, as personified by John Adams and Thomas Jefferson, two personages that could hardly be more dissimilar in attitudes and viewpoints, bound for enmity in the years prior to their deaths on the same day.

Hamilton wrote in the Federalist papers that "...this process of election affords a moral certainty" that only the most qualified would rise to the Executive.

Let's assume that the 'democratic' (small d) arguments win out and that the Electoral College is abolished, thus going to a direct, popular election of the President. It should be pointed out, as an aside, that in 1789 the President, as they eventually agreed to call him, was not a very powerful figure, quite by design.

To give a purely popular vote a hue of historic shading, here's a few examples of how the popular vote 'broke out' in our nation's history. James Garfield, in 1880, had a popular vote margin of 1898 ballots, just a 0.09% plurality of the national vote. John Kennedy won in 1960 by .17% (point one seven); Grover Cleveland in 1884 by .57%; Richard Nixon in 1968 by 0.7%; James Polk in 1844 by 1.45%; Jimmy Carter in 1976 by 2.06%. Most of these contests featured at least one 'third party' candidate. Lincoln won in 1860 with just 39% of the popular vote.

Fact: each of the above elections were won with a healthy majority in the Electoral College, in a combination of small and large states to eliminate the cry of "foul", and eliminating the anomalies which have occurred when Electoral College numbers were eclipsed by a different result in the popular vote.

Now, imagine each or all of the states dealing with a demand for a recount in the above close contests (and, note that many of them were pretty recent, in this age of instant media access and reporting). Anecdotally, Richard Nixon was urged to demand a recount of the Illinois vote in 1960, but declined, deciding it would create havoc, and send a wrong message to our overseas adversaries.

And, speaking of overseas observers, that was exactly the concern of the Framers in 1787: that indecision or ambiguity of leadership and our electoral process would be dangerous to the newly-formed United States. Considering the continuous drumbeat of stories about Russian meddling (true or not is not necessarily the point, in my opinion) we are still in the same position of needing not only 'strong' and definitive leadership as well as an unambiguous transfer of power. Imagine the Florida debacle of 2000 repeated in all fifty states in a contested recount? Please, that potential should keep us all up at night. Note the closeness of the vote in the above 'cherry-picked' contests.

Also, those who desire a 'democratic' process for presidential elections also see no problem with more than two or three candidates. Can you imagine twenty or more 'favorite sons', as they are called in nominating conventions, clogging every one of the more than one hundred million ballots? This was precisely one of the reasons for the decision to compromise with an electoral college, thus bringing the thirteen states closer in line with each other to afford affirmation by the several legislatures.

The allowance (say, appearance) of multiple candidates is also reason for some to call what could be considered the worst of European politics (which some on the Left profess to admire): a run-off between the top vote-getters which would push the electoral process even further to excess in time and money, already totally out of hand.

Can you imagine, say, in 1968, a run-off between Nixon and Humphrey (Wallace being eliminated by less than 10% of the popular vote) because neither had achieved a majority (50% +1) and both competing for the Wallace voters? In 1968, that would have been a prescription for disaster, and potentially predicated serious civil disturbance, as if 1968 wasn't already on the brink as it was. All in the name of 'democracy', one person, one vote, first around the post to a true majority.

How about the big state/small state argument? In a purely popular vote contest, the Republicans could probably ignore California and New York, but the Democrats would probably ignore large swaths of the interior of the U.S., the smaller states in population, as they would appear to be solidly 'red'. Take a look at a map of the U.S. broken into red counties and blue counties. You'll see red all down the Mississippi/.Missouri/Ohio river valleys, framed by blue coastal areas. That's a bit of hyperbole, but the essence is that certain states would be considered 'solid' (ask any high paid consultant who is on presidential strategy teams) and be ignored by the other party. This is not serving the country's best interests, giving rise to feeling that a vote doesn't count, and totally ignoring the fastest growing 'party' in America: its 'independents', God bless 'em.

There is another danger called a 'popular vote compact' which Colorado has now joined, which would require its signers to ignore their voters and grant their electoral votes to the national popular vote winner. Refer, if you will, back a few paragraphs to the narrowness of some of our historic elections and note how easily a tight popular vote could happen again, and remember that the Constitution does not denote a requirement for 'winner take all' as is the case in 48 of our 50 states.

That compact (legal? Constitutional?) goes into effect once states representing 270 electoral votes (the current majority needed to elect) have signed. If New Mexico and Delaware (two of the least populated states, thus carrying enormous weight per voter)sign as they are expected, then 14 states and District of Columbia, with 189 total electoral votes, will have signed on to this 'compact'. By the way, the states which have signed on are all what the media call 'blue states'. Not a single 'red state' has signed onto this, thus giving some an argument for a 'blue state coup', or, in reality, a Constitutional crisis. It has been pointed out that the Republican party has won the few anomalous elections without a popular vote majority, and demographic projections are that due to rural/urban skews, they would continue to win these unusual elections where the popular vote was overturned by the electoral vote.

The Constitution has protected us (imperfectly, no doubt, as both Hamilton and Madison pointed out) from our worst excesses for 230 years, as well as giving the world an example of the best device and governmental structure that humans have ever devised for self-governance. You may disagree if you wish, but please point out a better system, and be prepared to back up your choice with facts. The same problems, fears and challenges that existed in 1789, and the years preceding with a corrupt and disastrous 'confederation' (please note the 'con' implication) exist today, perhaps in hyper-mode. The 'populism' that seems to have taken over our headlines and political thought has always existed (read any English version of a foreign newspaper) and in all flavors and hues. There is left-wing populism and right-wing populism and both seem to be tending to the extreme, both here and abroad.

To bring this 'hypertension' into the Constitution is exactly what the Founders (yes, rich white men, I know) feared, and we're wading into deep and troubled waters here.

I'm not advocating for a strict interpretation, for that would lead us to a 'literalist' decision that could obliterate the idea of an electoral college, and I have already pointed out the historic dangers of 'pure' democracy. We were never meant to be a 'pure' democracy and even in 1789 it was viewed as simply too complicated and fraught with dangers mentioned above, not to mention over 200 million in population. An 'app' to count the votes? Please, refer to the Florida primary a few weeks ago.

The reality is that the Supreme Court is going to need a steady hand, nerves of steel and a Solomon-like joint wisdom in this decision. Are they up to it?? And, if you were one of that august Nine, and you felt that it was of prime importance to decide in a 'wider' context, how would you decide? Is it merely a question of 'does my vote count?' More intrinsically, is the nation's future riding on this one?