First (and last?) USA 2016 post

I’ve had nothing to say here about the US election. Well, I voted today. I am glad it is almost over. It has been depressing to watch this campaign. I offer this space for readers who feel F&V should have such a space. That is all from me (for now).

40 thoughts on “First (and last?) USA 2016 post

    • Actually, few things at this time of year make me happier than going back to standard time! I’d be happier still if we made the shift in early October and didn’t go back till April, like in the good old days. Make it bright morning in America again!!!!!

  1. Am I a terrible person for secretly hoping someone wins the popular vote and the other candidate wins the electoral college? It seems that the only time Americans think about fundamental change to our democracy is in the face of crisis or utter oblivion.

      • Maine may have voted for ranked choice but it’s unclear whether using it for the governor’s race (the reason they’re having this vote, as the leading candidate in recent years seldom/never gets 50%) complies with the state constitution, which says a plurality is sufficient to win.

      • I’m missing something about Maine. If the same majority (50% of votes + 1) is required to amend the State Constitution as is required to pass an initiative statute at a referendum, why not go for the gold, entrench IRO-AV in the State Constitution, and put it beyond legal challenge?
        My cursory skim-read through US States’ I&R rules gives a distinct impression that while it might be slightly harder to get a proposal onto the ballot if it seeks to amend the State’s Constitution and not merely the statute book (eg, 8% not 5% of voters’ signatures in California, two successive legislative sessions instead of one single session in other States), once it actually goes to a referendum, the hurdle is the same… isn’t it?

    • The cynic in me says that the only way the Electoral College will ever be dumped is if a Republican wins the Popular Vote while the Democrat takes the Electoral Vote. Of course, if anything, the opposite will happen tonight.

      The political will to change will not be found in Washington nor in 38 states when the Democrats win the popular vote and lose elections.

  2. This is our second plurality reversal in 5 elections. The Electoral College is an affront to democracy.

  3. Am I wrong or is the plurality reversal this year also a consequence of a more efficient vote distribution and not as in 2000 solely a consequence of the malapportionment (every state 2+prop) ? In 2000 Bush won 271 electors from 30 states and Gore 267 from 20+DC, so proportional that should be 211 (=271-30*2) against 225 (=267-21*2).

    • Well, actually, in 2000 it was the result of the stolen election in Florida. Otherwise, you’d have had a fairly typical result: close in the popular vote, but the leader in that vote getting a substantial boost in the electoral vote.

      Has anyone, even on the right, seriously disputed that a plurality of Florida’s voters intended to vote for Gore? This time around, it was a reversal, fair and square.

      • Barry Burden had a paper showing some Greens might’ve supported Bush in an AV world. I think the proportion was about 40%.

  4. I would hope that at some stage this blog would address:

    1. felony disfranchisement

    2. the House gerrymander

    3. the related failures of the electoral college which now run at twice this century

    • These are all states issues. We are almost alone among democratic nations in that our national elections are conducted by the sub-national entities. States determine voter requirements, states draw district lines, states determine how electors shall be apportioned to the electoral college. Nationalizing federal elections would address most of your list, but the question then becomes can states run their own elections by their own rules or will the nationalized rules trump (groan) state ones?

      • These are not states issues. The minority controls the presidency and the house by virtue of a gerrymander and that is not something envisaged even by the all-seeing, all-knowing, and all-wise delegates at Philadelphia who received the US constitution directly from the hands of God.

      • Felony disfranchisement is most definitely a state issue: “the electors in each state [for House elections] shall have the qualifications requisite for electors of the most numerous branch of the state legislature.” (Art. I, Sec. 2.1) AND “The electors in each state [for Senate elections] shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.” (Amdmt. 17, Sec. 1) You could theoretically (maybe?) set different rules for eligibility in presidential elections, but I’m not sure that’s likely as a practical matter. And in any case, the courts may have already ruled that out of (or, alternately, in) bounds.

        The gerrymander is a state issue unless Congress steps in: “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators” (Art. I, Sec. 4.1). Not being a constitutional lawyer, however, I don’t know what the acceptable scope of congressional power is on this. The Equal Protection Clause in the 14th amendment could also conceivably be relevant in bounding and limiting the power of the states, but I believe the current state of jurisprudence there is that gerrymandering on partisanship is perfectly acceptable for the states (based, I believe, on the reasoning that partisan identity, unlike race, can be quite fluid).

        The failures of the electoral college are also exclusively a states issue. Indeed the current compilation of electoral votes owes its existence to the choice of all 50 states to apportion their electors on some sort of FPTP system or combination of systems. The states could fix (or change the nature of) the problem themselves by choosing different rules. But undoing the sovereign power of the states over the appointment of electors — much less abolishing the electoral college altogether — is a matter for constitutional amendment: “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors …” (Art. II, Sec. 1.2).

      • Drew

        Syntagmatolatry is not a complete argument in and of itself and It is not enough to recite various provisions. These are not state issues, they are democracy issues, and democracy does not cease to be an important ethical standard merely because certain functions are performed by the states rather than the federation.

        The highest courts of both Canada and Australia have reached directly contrary conclusions to your own on felony disfranchisement, even though in Australia the language of the constitutional text runs almost word for word with that of the US. The US courts have long supervised state actions in electoral matters in terms of the Civil War amendments to the US constitution.

        Felony disfranchisement is radically unequal. No-one was ever arrested for driving while white, but it is not an uncommon experience for African Americans, Hispanic Americans or Native Americans. The impact of felony disfranchisement is overwhelmingly biased against racial minorities, indeed so much so that it can almost be regarded as a form of electoral apartheid by stealth. See Restoring the Right to Vote

        The disproportionate impact of felony disenfranchisement laws on people of color contin- ues to this day. Nationwide, 13 percent of African-American men have lost the right to vote, a rate that is seven times the national average.24 In eight states, more than 15 percent of African Americans cannot vote due to a felony conviction, and three of those states disenfranchise more than 20 per- cent of the African-American voting-age population.25

        It is perhaps noteworthy that none of the opposition to federal legislation van felony disfranchisement has been based on a constitutional objection.

        Judicial tolerance for gerrymandering rests on a single case. It has been discussed extensively in a previous post to this blog. The same is true of the electoral college.

    • Alan, thank you for these suggestions. With regard to the first one, I don’t know that F&V has ever dealt with suffrage-related issues. They don’t exactly fall in the scope of the electoral system/constitutional design issues that we (especially me personally) tend to focus on, but I suppose that doesn’t necessarily rule it out. As to the second one, we had a guest post on the topic a month or two back… I don’t think there’s much more to add, but maybe you had something specific in mind? As to the last one, it may not be exactly what you meant, but I have for a while wanted to write a post clarifying some issues with regard to the origins of the electoral college (and the utter irrelevance of the reasons for its creation today). I’m certainly even more motivated to write that given Tuesday’s regrettable outcome and the fact so many people are ready to defend it based on highly dubious accounts of why the electoral college was created in the first place.

  5. They are unless Congress decides otherwise. We know this Congress won’t. It should be noted that the founders created the electoral college to make sure the people couldn’t elect the President and choose a demagogue. Whether it was wise then or now, I make no judgement. But in a way, the founders did want it this way. The House would be another matter.

    • I am not completely certain the proposition that the electoral college prevents the election of demagogues has had its surest proof in recent days.

      • Even in general, if we ignore recent events, I’m not sure how that is meant to work. The argument presented in the Federalist Papers (specifically, number 68) for the Electoral College relies on the electors choosing a President “free from any sinister bias” such as “too great devotion to the President in office”. That seems to me to imply these electors not being people who are listed on the ballot as being expected to vote for a certain candidate and face criminal penalties (in some cases) if they fail to do so.

        A deliberative role for the electors, which simply does not exist today, is also envisaged by the statement that said electors “will be most likely to possess the information and discernment requisite to such complicated investigations.” (I would point out here that in 2004, one of these discerning and well-informed electors was incapable of casting a correct vote for John Kerry in Minnesota)

        The statement that “Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors 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” suggests a certain failure on the part of Hamilton to perceive the emergence of modern media; no great sin, of course, but it suggests that devotion to the thoughts of the Founders should have its limits.

    • The Founders simply *did not* choose the electoral college in order to prevent the election of demagogues. It was a complex compromise between those who wanted direct election and those who favoured election by Congress, between free states and slave states (no 3/5 extra vote weight for every slave if the vote were direct). I will endeavour to put this and related myths to rest in an upcoming post.

  6. I agree devotion to them should have its limits. In particular, either rooting the executive in the legislature or conducting a direct popular vote would be more applicable to the 21st century US. I’m under no illusions that either of these 2 options is going to happen. But maybe the “time and manner of election” clause ought to be looked at as a way to fix election federally. Relying on the states, especially in a post-Shelby County legal world, does not seem to be working out well.

  7. Does anyone else think that the Dual Member Proportional system proposed in PEI (https://peipr.ca/dmp-mmp/) could ever be accepted as a way of making the Senate proportional without violating the constitutional requirement that no state be deprived of its equal representation in the Senate without its consent?

    • I’m not a constitutional lawyer, but I think it would be questionable to argue that a state continues to be represented in the Senate by a Senator elected on the votes of another state, as the usage of a nationally proportional calculation would tend to do. The 17th Amendment says Senators should “elected by the people thereof, for six years”, which seems to relatively clearly state that Senators are elected by the people of a State, and not by the votes of another.

      • Dual Member expressly gives each district two members, no more and no less. The first place finisher in each district as well as any independent finishing first or second are automatically seated. The remaining second seats are assigned to various parties based on how many seats they deserve and how high they finished. A party entitled to five more seats would receive the second seat in the five districts it did best in; even if they were all the third place finishers entering officer instead of the second place finisher.

  8. But as it was originally written, the “state” was the state’s legislature, and the 17th amendment was passed without unanimous approval.

    I do see that point that they no longer represent the state if not elected by the people thereof and only the people, though the 17th could be replaced by an amendment establishing DMP. You’d have to amend anyway to move from having two classes of senators per state to one class (though their might be 3 classes of 16-17 states).

    I was just curious if people thought “representation” must solely be elected by the people of that state or whether using at least one of the seats for some kind of proportional representation would be acceptable.

    • It is not a tenable argument to suggest DMP as a way of making the US senate proportional within the existing constitution and then t argue that the XVIII Amendment be repealed in order to adopt DMP.

      In any case you would also need to revise Article I quite heavily because that article requires that each of the senators for a state be elected at different times. Article V entrenches equal representation in the senate and as noted, half the senators for a star cannot be elected by national proportionality without violating equal representation.

      By contrast, state gerrymanders can be ended by federal legislation or judicial decision. That is not even a new idea. The Apportionment Act 1842 prohibited the general ticket system except in states with very small populations. The constitutionality of that act has never been challenged in any way.

      The electoral college would require a constitutional amendment,

      None of these will be easy. Before 1983 Australia had an electoral system with many of the same regrettable features as the US. Most of them are now gone. It happened because parties and MPs spent almost a generation on electoral reform. There is no obvious reason to think electoral reform in the US will be easier or faster. It is any a question of the commitment to democracy that Democrats are prepared to exhibit.

      • Alan, why couldn’t the College be abolished through the National Popular Vote Interstate Compact? Do you think it will be found unconstitutional?

  9. Alan,

    “Syntagmatolatry is not a complete argument in and of itself and It is not enough to recite various provisions. These are not state issues, they are democracy issues, and democracy does not cease to be an important ethical standard merely because certain functions are performed by the states rather than the federation.”

    I fear you may be inferring an *ought* argument to me where I am posing only an *is* one. I have not intended to comment at all about whether felony disfranchisement is or is not ethical or democratic (I think it is not) or even whether it is or is not preferable in principle to have the states determine its status (I am happy to remain agnostic on this point at present). I am simply putting out a clarifying reminder that, under the rules as currently written, it is a matter that is overseen by the states, and on this point (absent any contrary court rulings) I think the provisions suffice.

    “The highest courts of both Canada and Australia have reached directly contrary conclusions to your own on felony disfranchisement, even though in Australia the language of the constitutional text runs almost word for word with that of the US. The US courts have long supervised state actions in electoral matters in terms of the Civil War amendments to the US constitution.”

    The truth of all of these statements is beyond dispute, but in the end none of them actually address the point at hand. Until the *American* courts determine that *felony disfranchisement* contravenes some aspect of the 14th amendment or other part of the Constitution, the fact remains that it *is* a state issue, and it is something that is entirely within the purview of state governments to control — grating though this may be. Consistency with prior domestic and foreign determinations might suggest that this will change in future, but that day hasn’t yet arrived. I might add that, if felons’ rights to vote are to be fully restored, it is crucial that the matter be attacked at the state level as well as the federal. (But I expect that this point, like much of what I’ve said here, is merely stating the obvious.)

    Drew

    • Yet the Congress has repeatedly legislated on how representatives must be elected, beginning with the Apportionment Act 1842 which abolished the general ticket system. Federal legislation to ban felony disfranchisement has been before the Congress for some time. I have not said anywhere that electoral reform is easy. I have argued, with the single exception of the electoral college, that the constitutional barriers are largely mythical.

      In answer to jd elsewhere, I support National Popular Vote. However the proposed compact does not actually abolish the electoral college and after Bush v Gore I would feel uneasy relying on it in a highly contested election.

      • I tend to agree with Drew on his list of things that are state problems. Congress can pass a statue regarding House elections, and that is why we have a mandate that all districts be single-member, and that elections be on a uniform day. I assume that means that Congress could mandate some uniform redistricting process. But until it does, or until the Supreme Court reverses its recent ruling, gerrymandering is indeed a state matter.

        As for the National Popular Vote plan, I am on record favoring it (there’s a whole orchard block related to it–see the list of topics on the left sidebar). I would guess the compact itself is constitutional, but whether courts would enforce a state not complying if it could throw the electoral college in favor of the candidate of its legislature’s majority party, I wonder. The constitution lets the states choose how to appoint electors, and I don’t know if a compact can supersede that (I was going to say “trump that”, but I am looking for a way to avoid that word). Even if a state in the compact had to act before the voters voted for electors, the opportunity for breaking the compact could be an ever-present danger to it, inasmuch as it depends on good will of states to be mutually enforceable. I’d be happy for someone to explain why I am wrong about this, as I hope I am.

      • There is quite a lot of law on interstate compacts,Some of it is surprising:

        “Compacts are agreements between two or more states that bind them to the compacts’ provisions, just as a contract binds two or more parties in a business deal. As such, compacts are subject to the substantive principles of contract law and are protected by the constitutional prohibition against laws that impair the obligations of contracts (U.S. Constitution, Article I, Section 10).

        “That means that compacting states are bound to observe the terms of their agreements, even if those terms are inconsistent with other state laws. In short, compacts between states are somewhat like trea- ties between nations. Compacts have the force and effect of statutory law (whether enacted by statute or not) and they take precedence over conflicting state laws, regardless of when those laws are enacted.

        “However, unlike treaties, compacts are not dependent solely upon the good will of the parties. Once enacted, compacts may not be unilaterally renounced by a member state, except as provided by the compacts themselves. Moreover, Congress and the courts can compel compliance with the terms of interstate compacts. That’s why compacts are considered the most effective means of ensuring interstate cooperation.”7 [Emphasis added]

        A constitutional amendment would obviously be preferable, but far more difficult to pass.

  10. A US district court has just invalidated the Wisconsin legislative redistricting map in the matter of Whitford v Gill. Inevitably this case will go to the US supreme court on appeal. It is likely to meet the definitional requirements adumbrated by 5 of the 8 sitting justices in LULAC v Texas.

    If a state legislative gerrymander is justiceable before the federal courts, it is hard to see how a federal legislative gerrymander is not.

  11. I’m looking out for the number of faithless electors next month. By my count some 4 have already declared that they will vote for a different person than originally pledged. As Republican electors were nominated by state parties rather than handpicked by Trump’s team, it’s no surprise that there are among them are Republicans who were known opposers of Trump before the vote. Trump has already u-turned on some conservative standpoints he touted in the campaign (such as repealing Obamacare) and this may convince more to vote for an alternative candidate to send the vote to the House. The chances of that happening are low if the map stays as expected (without any recounts changing things), as fully 37 Trump electors would have to vote for someone else. Anyway, I think the chances of at least half a dozen faithless electors (total) are very good, and my personal guess is that there is a reasonable chance of 10 or more.

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