The Electoral College is a weird way of electing a president for the whole country. Increasingly, it has emerged as an albatross. We have to deal with it because it's in our Constitution.
Stephen Sears, of Duke University, supports the present system, though, largely (he says) because of the considerable burden of proof that change would have to have. It hasn't been met, he says. (I heard him say this on one of those taped presentations, with notes in his lap and nearly everyone else eating lunch--a very regular thing in DC--on C-SPAN at 4 a.m., a great conceptual time for insomniacs.)
This election will prove his thinking to be erroneous, it says here. We are careening toward some serious manipulation in the Electoral College results, if the numbers become close. Corruption possibilities cry out for testing. With 45 around, it may easily happen.
Thing is, says Lawrence Lessig of Harvard--a former presidential candidate himself back in '16, though almost no one paid attention--the idea of getting electors to change the votes they have traditionally been assigned to actually cast in a very token way has already happened. The George W. Bush campaign was going to try to do just that in case the 2000 election came in close, which it would have been had Al Gore won Bush v. Gore in the Supreme Court.
Lessig would like to see a proportional representation of the Electoral College in the states. He would assign a percentage of the electoral vote as a reflection of the popular vote to the top two candidates--most likely Republican and Democrat but not always; one recalls George Wallace in 1968 and Ross Perot in 1992. It's like throwing a gossamer thin cover of the popular vote over the country and pretending that the Electoral College still matters, except this would pretty much render it irrelevant. It would carry to the fourth decimal point, and obviously eliminate the need for actual people to actually vote somewhere.
Long, long ago, I read the famous writer James Michener's take on this called Presidential Lottery, written in the wake of the 1968 election, which was nearly thrown into the House of Representatives, very much like this present one might as well, with a 269-269 tie being not unreasonably possible right now. And he did include Lessig's idea. But he also added one that in a small way is being implemented: The so-called District Plan.
That means that presidential elections are largely done by Congressional districts, with the winner of the state's total popular vote taking the two electoral votes representing the Senate seats. That way, the uniqueness of the state as an entity is preserved, but the particular make-up of a district's population is respected, too. It's a balance, like federalism. Kind of what the Founding Fathers had in mind.
Nebraska and Maine are doing this right now, because there's nothing in the Constitution that says how or on what basis electors vote in the Electoral College. As Lessig pointed out, the practice of winner-take-all began in the Jacksonian Era of the 1820s--its process created by the 12th Amendment in 1804 because the Election of 1800 was a complete and utter mess brought on by the unforeseen development of political parties--and has by practice pretty much circumvented actual constitutional replacement ever since. Strange that such an archaic entity has been allowed to remain, except it's always been a pretty heavy lift to amend the Constitution and, as practical people as we are, we've always figured if it ain't broke, don't fix it.
But it is broke. It does not do what it's really supposed to do. As Lessig said, too, 95 percent of all TV ads in a campaign are shown in 'battleground' states, which are sufficiently fickle so a candidate doesn't know which way it will go (Like, of course, Wisconsin. We forget that all states aren't like that.). So they pay attention--lots and lots of attention--to them. You don't see much of any of that in New York, or Virginia, which is now considered safe Democrat. You don't see it in Wyoming, either, where 45 polled 70 percent. But those people are citizens, too. Do you think they would be encouraged, or discouraged, to vote based on this system?
But what do you know, the votes of Maine and Nebraska are split. Nebraska has four Congressional districts. Three voted for 45, one for Biden, and 45, who carried the state, got five electoral votes, Biden one. Maine has three districts. Two voted for Biden, one for 45, Biden carried the state and got four electoral votes, 45 one. That's at least more representative and far more justifiable.
The difference, and a big one, is that electors should be duty-bound to vote the way their district and/or state voted. They would report to the place they've always reported on the date specified, like they always have, but their votes would directly reflect what the people of that location wanted. They can't change their votes because they've lost their temper or be controlled by a caucus leader, as Virginia was by Senator Harry F. Byrd in 1960, when the delegation voted for him instead of the winner of the popular vote, John F. Kennedy. Is it perfect? Of course not. But it's sure a hell of a lot better than what we have.
(You may wonder where the direct popular vote suggestion went. Okay, so if you're Republican, your guy has lost seven of the last eight popular votes. Is that an attractive option? C'mon, now....)
The Supreme Court took half a step there when, in July, it ruled that states may pass laws that lock in electors to vote the way the popular vote went in their respective states. But it did not say they had to. Shenanigans may yet take place if the electoral vote appears close. Remember, 45 is capable of anything.
Most importantly, it's not winner-take-all, in which last time, and possibly this time, the winner of the electoral vote might easily not be the winner of the popular vote. As a whole nation, this is unrepresentative, no matter what Stephen Sears says. We have a minority president, and we may still have one, never mind his awfulness. There is no justification in that. Nobody else gets office who loses the vote.
In the bigger picture, a president who doesn't represent a majority of the people fights for legitimacy, as this one (deservedly) has. George W. Bush, who lost the popular vote by some five hundred thousand, would have, too, if 9-11 hadn't happened (which was on his watch, remember) and the country hadn't congealed around him in panic and fear, to which he responded by encouraging it to go shopping while he invaded Iraq, which had nothing to do with the attack.
Now, tell me: What's wrong with doing it in district style? If Maine and Nebraska have taken it upon themselves to cast their electoral votes in this fashion, other states would do worse than to consider it, too. Not only that, but no constitutional amendment is necessary. They just decided to do it that way. Nobody's won a reversal in court, largely because there's a general consensus that it's a fairer way to do things. There's an underpinning about that that if given the chance, we really would dispense with the whole thing. If it was that important, it would have been challenged and might have lost. But it wasn't.
Of course, there's territory to be protected, so state legislatures, especially the larger ones, would balk at such a change, thus ending its reliability to one party or another. California would lose its incredible power with its 55 electoral votes coming all in a block. But so would Texas, with its 38, and Florida, with its 29. But outside of primaries, campaigns don't go to California anymore, either, nor have for quite some time.
Biden toyed with visits to Texas and Florida, but backed away. His polling, which appears to have been far more accurate, must have shown that it would be futile. Especially in this time of pandemic, it was better not to waste visits.
His campaign gained with the saving of resources that he can now pour into 45's court challenges (also necessitated by the Electoral College), but the people of those two states lost a glimpse of him. They were cheated. It isn't right.
Of course, if you open up the necessity of campaigns to more visits to more states, you also make it necessary to spend much, much more money (which I used for quite some time to justify the Electoral College, higgledy-piggledy, but--I'll put it like a politician--I've evolved on the topic). That makes Citizens United almost necessary then, too, with its permission to provide nearly bottomless pockets by interest groups who put on attack ads (Anybody notice that in Wisconsin?). But increased federal funding might also be justifiable: If you want to see them, then pay for it.
We are weighed down by this system, though. It does not serve the nation well. It does not encourage policy for the whole country, says Lessig, but policy and rhetoric for the 'battleground' states only.
He's right. They are largely industrial states where coal mining, a growing dinosaur, continues to flourish and discourage change. Solar and wind power can help enormously, but we aren't milking those sources nearly enough. You don't have to drill into the earth and disrupt the countryside to take advantage of them. All you have to do is walk outside. The costs are only positive. You wreck nothing. You endanger no one.
We must change this system, which has long ago fixed a glaring new problem. It was invented when the nation was a much, much different place, much less diverse and needing to kow-tow to Southern, slave-holding states who wanted a more or less equivalent say in the proceedings (and was tied to the Three-Fifths Compromise, for which a civil war was fought).
That time is long gone. Originalists in their bow-ties and rubber-chicken lunches of the Federalist Society (at which the above conversation took place on January 4, pre-pandemic, and doesn't that seem like a light-year away) can huff at attempts to brush off cobwebs, but the rest of us go, Huh? Really? You really think this works?
Those who wish to turn the clock back have, for the moment, control over the federal judiciary, which I predict will be a growing problem as we move through this century, and chortle at those who want government to do what it's supposed to do--take care of its people. All of the people. Everywhere.
Power, husbanded for its own sake (45 not being the only one; he's merely shameless), will backfire. This may be the moment of truth. Meanwhile, we await the vote count and all the machinations to follow, all because of the Electoral College. Meanwhile, Joe Biden's three and a half million vote lead keeps growing.
Be well. Be careful. Wear a mask. With some luck, I'll see you down the road.
Mister Mark
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