The Mostly Forgotten Constitutional Role of the Electoral College
29/11/16 19:57
A Letter to the U.S. People about the Electoral College and Its Constitutionally Obligatory Role in Honorably and Carefully Affirming or Overturning the Choice Made by Citizens to Protect the Republic and the World Against Potentially Dangerous Leaders Lacking Qualifications, Skill, and Temperament to Be President or to Protect the Nation Against the Impact of Election Manipulation by a Foreign Nation Trying to Elect the President Most Favorable to Their Own Interests
Donald Wright Patterson, Jr., December 11, 2016
(Updating and refining the original draft posted on November 29, 2016)
Explanatory Note: This discussion is important to transgenic food and farming because the quality of the national leadership has determined the quality of the food people and animals are fed, and it also determines (as it has for decades) the healthfulness of the food and farming system. This is even more basic when the farming system is understood to be central to the management of climate change and the sequestration of the excess atmospheric carbon. Farming methods determine whether farm soil will be able to sequester carbon, and at present, the favored methods and policies have been subversive to the interests of the people, the nation, and the world.
Nothing from an alien power or even from the imagination Karl Marx could have been as destructive. None of the recent U.S. governments have been good enough on this issue, but some have been slightly better than others. Massive change is needed, and some leaders may more likely than others to promote or enable that change by fully performing the research it requires. Change is unlikely from someone who says he does not read books, and it is also unlikely from leaders who have close corporate affiliations and loyalties.
Finally, this article might have been published in other places if time permitted, but it did not. Only 20 days remain before the Electoral College (EC) votes, so it is better to post some discussion somewhere than it is to seek other places to post it. Many think it unlikely the electors will do anything but affirm the state vote outcome, but they could. They have the power to do elect anybody they want as president and vice president. The question is whether or not they will feel patriotically and ethically obligated to do it.
They may also need to feel they would be publicly supported in doing it—at least by the supporters of the candidate who won the most popular votes. That might not be an easy question for many people because it would mean overruling the presumed winner of the electoral vote. Thus, discussion of the role of the Electoral College is needed prior to the day when they vote. It is needed whether or not most of the press and the media want to promote such a discussion. To help to accomplish the work others may not want to do, permission is given to share the discussion below or post links to it.
The Constitutional Intention and the Practical Politics in 1787
The Electoral College (EC) was created for two basic reasons:
1. As a check against the voting power of the most populous states, and
2. To help protect the republic from the unwise exercise of democracy by ill-informed citizens susceptible to the demagogic appeal of a potential tyrant.
At the time the Constitution was written, communications were slow and difficult, so a worry existed that voters might lack the information needed to vote wisely. The EC was created to protect against that. Now, communications are nearly instantaneous, but new reasons exist to cause voters to be poorly informed. These include: the intensive and profitable promotion of fake news, the amorality of candidates no longer committed to the truth and who will say whatever they think will curry favor with voters, the existence of many voters who are not educationally prepared to be wisely discriminating, the common dissemination of opinion-based and shallow, inadequately penetrating horse-race journalism, and the widespread use of negative campaign tactics aimed to lead voters astray.
The EC was also created because the smaller states had less reason to want to join the Union if they were going to be dominated by the most populous states. Back then, for example, the electoral role of Virginia was similar to the modern role of California. The first four out of five presidents were from Virginia, and they governed for 32 out of the republic’s first 36 years. In addition, the 3/5ths rule gave the South greater power in the Congress, so the EC was a way to help provide some balance for the smaller states with fewer slaves or maybe even no slaves.
The design of the Electoral College was a necessary expediency in helping to get the Constitution ratified, and it also may have helped belatedly to bring Vermont into the Union. Without a stronger voice in the EC, Vermonters might have wanted to remain as an independent republic. The small states did not want to be satellites of the large states, and they also did not want to join with neighboring states to become bigger states. No states have ever wanted to merge to increase their power. The question now is whether or not the EC is still needed or desirable in a nation with 50 states facing different political realities than existed in 1787. It cannot any longer possibly be fair to all voters in the age of “one-man-one-vote,” but the small states still want it to persist, and given the way the Constitution must be amended, the EC is unlikely to be eliminated.
Nonetheless, to many people in the most populous states, the EC empowers the most retrograde voices in small Republican states, and they have good reason to be dissatisfied at a time when the United States should be setting an admired democratic example for other nations. Any persistence of anti-democratic values adds to negative perceptions around the world. The EC gives voters in some small states a voice three and four times as strong as the voters in the most populous states. When that voting power is exercised to determine the winner of the presidency, it becomes a tyranny by a minority. It has strengthened the power of the Republican oligarchy which is already stronger than its number of voters because of the power of the gerrymander in the many states under Republican control.
Estimates suggest Democrats would need to produce 12% more votes nationally to overcome the partisan Republican gerrymander, and that also impacts the alignment of the EC. EC victory for Democratic presidential candidates is made much more difficult, and that means the winner of the popular vote may more often fail to win the EC. Republican power is increased even more because Republican voters turn out more reliably, especially during off-year elections (when the presidency is not contested). Because of their political control in many states, Republicans have been able to rig the system in their favor. For example, in Wisconsin in 2016, their voter I.D. rules prevented a reported 300,000 voters from casting a vote. That was important because Trump won the state by only 27,000 votes.
For another example, in North Carolina dozens of polling stations were closed in minority communities, and that increased the length of the lines at the remaining polling stations. It also made the voting locations harder to find and get to. The tactic suppressed voting, but no one knows how many votes were left uncast because of the eliminated polling stations. The vote outcome for both president and senator could have been affected. In Ohio, the vote recording feature on voting machines was turned off, and that potentially enabled the vote to be hacked without any record of the changes made. Similarly, in Pennsylvania, the DRE machine provide no vote record, and that makes impossible a true recount of the voting results with full knowledge of voter intent. The best possible is discovery of unlikely anomalies, and the system would not have been set up as it was if it had not been designed to make manipulation easier. If the people creating the system had delivered fully competent integrity, they would not have permitted the system to have been designed as it was. They would have used different equipment, and they would have required a confirmed paper record of all votes. Anything less than that puts the honorable integrity of the election in doubt, and it also discredits democracy around the world.
The Motivations Stimulating the Creation of the Electoral College
at the Constitutional Convention and the Subsequent History
At Philadelphia during the summer of 1787, the founders were greatly fearful about the dangers of excessive, destructive, or unwise democracy, but they also wanted enough democracy to permit the system to repair its own mistakes. Frequent elections meant no one would serve for long without having their stewardship reaffirmed or rejected by popular vote, but because the founders were fearful about potential failures by the voters, they wanted a way to immediately correct such a failure at least in the case of a presidential election. They wanted to prevent the election of someone the electors might see as a potential tyrant—or as incompetent.
On two prior occasions, 1888 and 2000, the EC did not install the winner of the popular vote as president. They installed the winner of the EC vote even though that candidate lost the popular vote. That has come to be expected, and it is reinforced when electors who vote differently than expected are called “faithless.” They are not seen as patriots doing the job the Constitution intended them to do, but obviously it would be much better if they never felt the need to do that job. On two other occasions, 1824 and 1876, the winner of the popular vote was overruled by the House of Representatives. Also, in 1800, the outcome of the election had to be determined by the House after Thomas Jefferson and Aaron Burr both collected the same number of electoral votes. The outcome was determined in favor of Jefferson because Alexander Hamilton and his allies favored Jefferson more than Burr.
The circumstance led to the passage of the 12th Amendment. It fixed a failure by the Constitutional Convention to anticipate the problem that occurred in 1800. The trouble occurred because the Jeffersonians failed to withhold one of Burr’s electoral votes (he was supposed to be the VP candidate with Jefferson). That one vote was supposed to be omitted in Georgia, but the instruction must not have been received. The error allowed Burr to contest Jefferson for the Presidency, and he took quick advantage of the opportunity. If he was more popular than he was, even in his own home state, he might have succeeded.
The existence of the EC empowered the choice of the people to be overruled when the electors would decide that was necessary. Silently underlying the Constitution and its subsequent evolution through amendment was a tacit assumption the people could learn from their errors and improve the quality of the government over time, but that is not the way things have worked out. The quality of U.S. democracy has not improved, and neither has the quality of the presented candidates. Not enough improvement has occurred, and in many ways most recently, the governing system has regressed to a level of dysfunction that did not exist in the past.
Partly, the dysfunction results from a failure of civic education and civic participation by citizens, but it also results from the partisan desire to put party interests above the public interest. Because of a failure of citizen ability, many people have not been able to accurately understand the way the government has worked and failed to work and make sure the ills of the system are fixed. With less ability to vote wisely, less ability to understand all the issues, and less ability to resist exploitative manipulation by demagogues and charlatans, the U.S. democratic image suffers. The competence of citizens is essential, and without that the system fails.
When the Electoral College was created, the electors were expected to possess the wisdom to overrule the vote of the people when and if that would be believed necessary, but they could not do it capriciously without destroying the credibility of the political system. The electors would need have good reasons for their decision, and they would need to make those reasons plain and persuasive to at least a majority. This is a role they should take seriously in 2016, and whatever they decide to do in the public interest must be rationally justifiable and wisely protective of the republic.
The future of the republic and the world could rest on the prudence of their collective vision. This is not a minor matter of concern only within the United States. The decision made or not made will have world-wide impact, and because of that the wisdom of the electors is more important than ever it has needed to be. Never before has a president-elect lacked less of the knowledge and the experience needed to serve prudently and carefully. Some have said he could use nuclear weapons without any real constraint, but beyond that are the implications of his many conflicts of interest which seem unlikely to be resolved. He may be exempted under the ethics law, but he is not exempted from the “emoluments” clause of the Constitution.
Potential Economic and Other Impacts Resulting from Deterioration
of the U.S. World Role and the Absence of Voter Concern About It.
World confidence in the dollar has been shrinking even before the election as countries want to trade without depending on the dollar. If this continues, nations around the world will have no reason to hold large quantities of dollars to meet their foreign trade obligations. As a result dollars would flood back into the United States bidding up prices and imbalancing the number of dollars in circulation. inflation could result without the Fed being able contract the money supply quickly enough. Their years of Fed “quantitative easing” would serve to make the problem worse. It is just a euphemism for printing money when interest rates are too low to do anything. This problem could get worse very fast along with the decline of worldwide public confidence in U.S. leadership and the U.S. dollar as the international medium of exchange.
Policies affecting international public confidence in the United States could be very different depending on who is the President. The public health, the environment, climate change, and many other issues could also be affected very differently for the same reason. Wise decision making on many issues has been and will likely continue to be compromised as a result of corporate power in the political system no matter who is president, but the difference at the margins could be significantly more dangerous depending on who the nation’s elected and appointed leaders are. This is why the decision made by the EC has more than minor importance.
The politically empowered and their elected allies have pursued their own common interests for decades, and those interests have abused the public interest, failing in many ways to serve the public need. Global climate change, for example, is the result of fossil fuel interests protecting their profits in the face of the need to establish better technologies. The destruction of the ability to grow nutritionally healthful food, instead promoting food causing chronic affliction in half of the U.S. population, is another example. Meanwhile, systemic failure and the socio-economic harm resulting from it caused many people to vote for Donald Trump.
Trump was favored because he promised to “drain the swamp” and reform the system for the benefit of the many people whose needs have long been neglected and ignored. Included among the Trump voters were many in the middle class voting for Trump because they had lost faith in the ability of the democratic system and Democratic leaders to address their issues. One farmer was typical when he said he hoped Trump would come to Washington and “throws everyone out because they are all corrupt.” Because of this attitude, voters placed their faith in a perceived strongman to fix everything for them. They wanted someone greatly different from all the conventional politicians that had been paraded before them as potential candidates. They did not know much about the Trump plan, so they were willing to give him blind faith. Many people felt desperate to find someone different with the capacity to overturn the established system in favor of something entirely different. Many also did not want a woman as their president anymore than they wanted a black president.
Not everyone voted for Trump out of anger over the prior election of a black president they and their leader could not accept as a true citizen, but many did do that. That was plainly a factor in motivating many voters. Even many white women wanted to get back to traditional white male leadership. They did not want to elect anyone likely to continue the political program of someone they viewed as an interloper. They also voted against feminism. Many of the voters wanted to return to the 1950s when women were at home and the work of only men was enough to provide the family income. This attitude was made clear in pre-election polling and voter interviews.
A major trouble was: Trump made only broad, general political commitments without being required to be specific about the programs he intended to put in place if he was elected. In that, the voters were conned, and they allowed themselves to be conned just because they wanted to believe. Thus, many voters lacked the ability to cast their votes after a careful, thoughtful review of the issues and the planned policies. They voted blindly, and that faith is already seen to have been misplaced within a month after the election, but it is hard to hold him accountable when so much of the campaign messaging was reduced to 140 character capsules. After he complains about SNL, one woman used Twitter to try to hold him accountable. May she thought that was the only way he would read the message. Her effort is at: http://news.groopspeak.com/a-woman-just-stood-up-to-trumps-latest-outburst-on-twitter-and-america-is-cheering-her-on/
Already, even two weeks after the election, Trump had dialed back on several major commitments, and that could serve to undermine voter confidence. At least one women lost confidence when the man who had foreclosed on her home was appointed as Treasury Secretary, but that was not as bad for many as the decision not to prosecute Hillary Clinton. That change showed the hostile attitude toward Clinton was empty campaign rhetoric playing deceitfully to the grandstand. Then, Trump said part of the wall on the Mexican border would be a fence. Even worse for Trump’s ability to fulfill his commitment was the statement by the Indian leaders controlling a large segment of the land along the border saying they would not allow anything to be built on their ground. That would require the fence to be built in Mexico or around the outside of the Indian Reservation. Either way, reality turns the Trump talk about the border wall into empty political rhetoric that could not be fulfilled.
In addition, much recent border traffic has been flowing out of the United States, not into it. That turns Trump’s project into a solution to yesterday’s problem, but the real answer is to fix the problems in Mexico and Central America that cause people to want to travel to the U.S., and of course, much of Trump’s wall already exists because it was built by Bush-Cheney. Video on YouTube shows many people climbing over it in only seconds. One video has people building a ramp, so they could drive cars over it. Another shows packages being sent over the wall using a catapult. Beyond that, the border police have said they do not need more miles of wall or fence. They need other kinds of enforcement technology more.
The Stimulus of Voter Motivation, the Functional Disability
in Voting Wisely to Protect Their Own Collective Interests,
and the Potential Role of the Electoral College in Relation to Both
All of the concern about illegal immigration arises because many Trump voters do not want people to come into the United States to take jobs they want for themselves and others like themselves. They also do not want to have wages bid down to their disadvantage by both legal and undocumented workers. On the other side from many Trump voters has been an even more influential Republican constituency wanting the plentiful availability of cheap labor because it improves their profit margins and often has given them better quality, more healthy, less stress-injury prone, more diligent, more compliant, less angry, and more grateful workers compared to many other available U.S. workers who have often been angry, resentful, attitude impaired, and too afflicted by chronic affliction to be functional. This is a clash of interests within the Republican Party.
Voters have shown a lack of the ability to effectively assess their own interests and the most realistic ways to address them. For example, they cannot bring jobs back from overseas by cancelling trade agreements if many of those jobs have been taken away by robots. They could suffer greatly because they have favored answers that will not help them. Even worse was a serious inability to correctly assess the seriousness of the claims asserted against Hillary Clinton. Sexism, misogyny, and many years of fake claims may have caused that to be greatly magnified in their minds.
In the face of its major obligation to protect the republic, the Electoral College has usually provided no more than a rubber stamp affirming the vote of the people. They did that even in 2000 when they might not have if they had more information available to them. Rubber stamping the vote may have become a virtual habit as if no more than that would ever be needed, and to make it worse, some states have passed laws requiring the electors to be no more than a rubber stamp. Yet, if the Constitution was important, those laws might have been struck down as soon as they were passed. Unfortunately, not even constitutional originalists wanted to stand up to do that. When the intent of the Constitution needed to be defended they were out-to-lunch.
Now, because of the apparent unnecessary rubber-stamp uselessness and unfairness of the EC, many people on the anti-Trump side have come to consider it a vestigal organ that should be abandoned, but this year, at least, some might be grateful for its existence. At least, a possibility exists that 37 electors could muster the courage to decide the election was flawed and that Donald Trump should be prevented from assuming the presidency. For those who want to see it, much evidence is available to suggest the validity of that view. The question is whether they could all agree to elect Hillary Clinton instead. They might not want to do that given the strong negative public views against her. If the electors wanted someone who would stand strong for a healthful and nutritious food and farming system, or if they wanted someone who is strong on the need to address climate change, they might want to prefer Senator Sanders except that many of the Republican electors are unlikely to want to vote for any Democrat. If the electors in Texas wanted to change their votes to support Clinton, they could change the outcome of the election all by themselves because they have 38 electors, one more than the 37 needed.
The electors are empowered to pick the best possible candidates for president and vice president including someone who did not run for either office. Their job is to protect the republic; the only question is whether or not they will take that role seriously. If the Republicans electors would take it seriously, they would be more likely to want to support some other Republican that they would consider less dangerous. That might be easier for many Democrats to accept, and an article proposing this alternative appeared in the Washington Post on December 5, 2016 by Michael F. Cannon, who is a resident scholar at the Cato Institute. It is at: https://www.washingtonpost.com/opinions/democrats-can-use-the-electoral-college-to-stop-trump-but-not-how-you-think/2016/12/05/c69bb24e-ba86-11e6-94ac-3d324840106c_story.html?hpid=hp_no-name_opinion-card-a%3Ahomepage%2Fstory&utm_term=.ab471e287739
On November 24, 2016, Professor Lawrence Lessig of Harvard University Law School, an early Democratic candidate for president provided an alternative view urging the electors to choose Clinton because she won the popular vote by a wide margin. Headlined, “The Constitution lets the electoral college choose the winner. They should choose Clinton,” the article is at: https://www.washingtonpost.com/opinions/the-constitution-lets-the-electoral-college-choose-the-winner-they-should-choose-clinton/2016/11/24/0f431828-b0f7-11e6-8616-52b15787add0_story.html?tid=a_inl&utm_term=.1556c8a32877
The trouble is: majority rule might be too simple a concept for modern Republican partisans to want to accept, especially after they had worked so hard for so long to rig the system to enable the minority domination at least in many states and in the House of Representatives. Despite the logic of allowing the winner of the popular vote to win the presidency, the biggest difficulty might be reaching agreement on an alternative. That would be the reason why Trump would he claiming he would have won the popular vote if it had not been for three million illegal votes. Even though he presented no evidence to support his claim, he would have wanted to muddy the water enough to give the electors the cover needed to vote for him.
If the electors cannot agree on any better candidate, they might just elect Donald Trump by default even if they all think he would likely endanger the future of the republic. That would represent a massive failure to perform the job they were put in place to do, but many people believe they would be likely to do that anyway, especially when they do not gather in one place to deliberate together before they vote. This is a year when they should gather in a central location to take their work seriously, but that does not mean they will do that or will even feel the need to do it.
Maybe the hope has always existed they would never need to do the serious work of choosing an alternative to the EC winner, and maybe that has created a sense of inertia about the role of the EC. But that would not justify abject failure when the moment of truth for the nation would arrive. One of the dangers linked to the U.S. sense of exceptionalism suggests the nation will always be blessed by some source of guidance able to overcome any crisis even in the face of leadership dysfunction. The Constitution was written as it was because the potential limitations of the voters was feared. Maybe the fear would have been felt justified long ago if a candidate like Donald Trump had ever previously appeared. The people can feel blessed that none did, but that did not mean none ever would appear. Some historians have felt someone like Adolph Hitler could have taken root as easily in the United States during the Great Depression as he did in Germany, but others have doubted that because the same conditions of national humiliation did not exist in the U.S.
Often U.S. presidential candidates may have been better than the people deserved given their own failure of civic virtue or active participation. Maybe that blessing meant their angels have been protecting them as an act of merciful charity. Now, the people may need the electors to assume the role because their better angels are finally MIA for reasons many people might not easily understand or even want to understand. When the two major party candidates had high negatives and were not believed by more than half of the electorate to be good enough to meet the challenges of the moment, someone is sorely needed to fix the democratic failure of the U.S. people to make their political system work as their leading national ancestors hoped it could.
Against that history, the people of many other nations are watching to see what will happen. They have an ox or many oxen in the arena, and among those who are watching the U.S. election outcome are especially those who hope to see U.S. democracy fail. Many in this group believe democracy, especially U.S. democracy, is horrifically myopic, exploitive, amoral, arrogantly entitled, and destructive. That’s why some of them are motivated to fight against it. Many of these people count time in millennia, not just two or four-year election cycles or in 90-day units as is the case with most publicly-traded corporations. They do not know how it is possible for a nation to be as myopic in its core values as the United States is. This myopia manifests as serial, multilateral, unconscionable expediency.
The Political Dynamics of 2016, the Environmentally Destructive,
Health-Harmful Domination of Corporations Over People,
and the Long-Term Political Consequences of the Civil Rights Legislation
Passed a Half-Century Earlier
Only rarely in the past has the outcome of the popular vote been different from the electoral votes, but it could start to happen more now that the nation is so polarized and evenly divided between red and blue states with the blue states dominating the nation economically, and the red states possessing weaker economies and therefore fewer people. This was part of the imbalance motivating more red-state voters to turn out for Donald Trump in 2016. They expected him to deliver the desired change that was considered unlikely or impossible from an establishment candidate like Hillary Clinton. That may have been as important as the partisan negativity and even hatred subjectively and brutally sown against her for decades.
Trump voters manifested a rebellion against policy that has left them economically handicapped, and the rebellion was the direct result of the Johnson-era civil rights legislation that gave more voting power to the cities and suburbs while taking previously entrenched political power away from the nation’s rural areas. This was a much bigger impact of the civil rights law than the impact on ability of black people to vote and be represented. The result was like the reimposition of Reconstruction, and it has caused a similar backlash from white rural voters in many states.
This seminal disempowerment of rural white people caused a still continuing realignment of voters and officials from the Democratic party to the Republican party. The rebellion was also against the continuous, decades-long weakening of the middle class because of the overwhelming political power of corporations, and many rural voters hold this against the Democratic Party more than they perceive the culpability of the Republican Party. What had begun with rural disempowerment and continued with disempowerment of other politically weak and unorganized people has ended up with the establishment of a new aristocracy of corporate super-citizens. Once the corporate political methods were established, they were duplicated on virtually every issue where corporate money could be milked by the elected representatives in exchange for favorable policy.
Many examples of the corporate political empowerment can be cited, but Obamacare Is one of the most prominent. It improves health insurance for some people, but the greatest benefits were designed to go to corporations because that is the way the pay-to-play political system works. Once agribusiness learned how to use the idea to strengthen their own empowerment, other corporations did similarly with continuing support from the Supreme Court. The Buckley v. Valeo decision is 1976 was part of it, but there have been many decisions transferring political power in the nation from the people to the corporations.
The result has been the massive disempowerment of all the people into a place formerly occupied only by black people. That’s why so many white people are so angry, and that is why they want to blow up the system. This was a major impact of the civil rights legislation, or it was a consequence many have not understood until they became the victims of it. Somehow, a New York billionaire with investments in some 500 corporations and acting experience as a reality television personality was able to convince voters he was on their side and would be able to “drain the swamp” and reshape law and policy for their benefit. Very few Republican voters proved able to be skeptical about the claims or even seemed to feel the need to investigate them carefully. That was a civic failure, and better civic education was needed to help repair it.
If voters were capable of doing better, Donald Trump might not have received the first vote, but Hillary Clinton might have also been disqualified because of her enabling role in her husband’s soap opera and corporate subservience. Even though others in the past had been much worse without having been scrutinized for their behavior by the media or anyone else, the United States now lives in global fish bowl, and because of that, standards and the stakes are much higher. That is a major reasons a person like Donald Trump is so dangerous to the republic and to the world.
People do not get second chances anymore because the pressures on the nation have become too great to permit it. If Hillary Clinton had been as capable as she needed to be, she would have needed to help prevent the failures of her husband’s presidency from occurring. Many people did not vote for her in part because they did not want to be reminded of the past Clinton moral failures every day for four or eight years. Many people cannot look at Bill Clinton without the latent image of his serial philandering filling the screen. Many Clinton supporters did not understand this reality, but they needed to. It cast a pall over their own moral inadequacy.
Even if Trump would prove to be worse than Clinton ever was, many people did not want to risk being bitten by the same dog a second time. Better to be bitten by a new dog than be bitten by the same old dog a second time. For many, it was a moral issue even if they forgave Trump for his “locker room” attitudes. It was a moral issue where Democratic amorality looked worse to Republicans than Republican amorality. They did not want to see Act Two of the same play after they had agonized over the first act. A repeat too awful to contemplate, but they might not have felt the same way if the first act had not been a Democratic act.
The Real and Flagrantly Exploited Grievances of the Trump Voters
Plus the Shameful, Anti-Democratic Voter Suppression Tactics
in the States Under Republican Political Control
The real grievances of Trump voters have needed to be addressed for decades, but they have not been—by either major party. They have been ignored, and that represents a major failure of U.S. democracy to address significant minority interests. The result is a loss of faith in democracy with many aggrieved voters wanting to employ a strongman to blow up the system for them. The Trump voters were suffering from the same kind of humiliation and disempowerment that caused Germans to support the rise of Adolph Hitler and give him autocratic power on their behalf. This does not mean Trump will be another Hitler, but parallels exist between the attitudes enabling them both to come to power.
At the same time, the nation is confronted by the results of an election giving the Democratic candidate over 2 million more popular votes than the Republican in an election where abuses have been illuminated but not yet significantly investigated and confirmed. Most importantly, they have not received attention from law enforcement. Stories about vote suppression in 2016 first appeared from Greg Palast, the reporter who uncovered the voter purges in Florida in 2000. (These purges enabled George W. Bush to initially appear to have won in the state by 537 votes, and that remains the official margin of his victory because a full statewide recount was not allowed by the 5-4 functionally partisan Republican majority of the U.S. Supreme Court.) If the recount had been permitted to proceed, Gore would have been shown to be the winner unless additional fraud by officials prevented that during the recount.
In 2016, Palast illuminated similar multi-state voter purging by Republican Secretaries of State in several collaborating states under the Crosscheck project. Aggressive elimination of voters from the voting rolls was perpetrated because two different people were claimed to be the same person voting in two different states. Just because both people had the same first and last names, they were eliminated. The project focused on minority voters, but the same tactic could also be used against many white people if that had been the preference. The project was different from the one in Florida in 2000 but the intent was similar: to purge black voters and suppress the black vote. Other minorities may have also been suppressed, but more information is needed to fully understand the targeting.
Most important is the total number of people purged. Palast cites over one million purged voters based on the information he has obtained. He has presented his findings to the Justice Department, but no follow up has been reported as of December 5, 2016. Also, no investigation by state legal authorities has been announced, and that seems unlikely if the state Attorney General is also a Republican. The Florida project in 2000 was about the aggressive elimination of all voters with a name the same or similar to a convicted felon, and most of the felons were black because black people are convicted at a higher rate even if they do not deserve it. People with black sounding names seemed to have been singled out. That showed a systemic prejudice, but incarceration and lengthy prison sentences has also been used as a way reduce the number of black voters.
In the absence of a federal initiative to learn the full facts about the purge, private resources are needed to pursue a more detailed investigation. Required are interviews of the purged voters to obtain information about their experience and the accuracy of the claims asserted against them. Past studies have found very few people trying to vote more than once, but Republicans persist in their claims about voting by undocumented immigrants and dead people. They have not presented any evidence to support their claims, but that does not matter when people live in a fact-free zone. They will say anything they want and hope some people will be believe what they say, and in any case the tactic distracts attention away from their party’s voter suppression program.
Even if the claims were justified by some past behavior, specific evidence from 2016 is still needed. Past history cannot be allowed to dictate any present conclusion. Even more important is the need to investigate machine voting anomalies like the one in Wisconsin showing different outcomes in machine-voting precincts compared to the paper-ballot precincts. Various anomalies in the vote counting emerged, and they were reported by Alternet and The Palmer Report but not promptly by the corporate mainstream media. Major media reporters continuously stated no evidence existed to show any reasonable questions existed. They could have researched the sources others were reading, but they did not.
On Sunday, November 20, 2016, Palast wrote: “Donald Trump did NOT win this election. Trump not only lost the popular vote by millions—he did not legitimately win the swing states of the Electoral College. Michigan, Florida, North Carolina, Arizona, Ohio: every one was stolen through sophisticated, and sickeningly racist vote suppression tactics.” (The full story can be read at gregpalast.com) Nonetheless, on November 23, 2016, the Washington Post published a story by Philip Bump headlined: “There’s still no good evidence that the election was rigged.”
The bias of the WaPo story was clear, especially in the face of a Huffington Post story by Associate Politics Editor Marina Fang a day earlier. Writing under the headline “Data Scientists Encourage Hillary Clinton To Challenge Election Results,” Fang used the same sources as Bump but sustained a different conclusion. While Bump used a quotation from a leading expert, J. Alex Halderman, in one way, Fang used his full statement to support the opposite conclusion. Fang quoted Halderman’s conclusion: “The only way to know whether a cyberattack changed the result is to closely examine the available physical evidence — paper ballots and voting equipment in critical states like Wisconsin, Michigan, and Pennsylvania. Unfortunately, nobody is ever going to examine that evidence unless candidates in those states act now, in the next several days, to petition for recounts.” That happened the next day, but still Bump exhibited atrocious journalism; he cherry-picked an early part of the same quote to suggest the need to do nothing. That suggested a biased desire to promote a pro-Republican conclusion.
Fang’s and Bump’s stories can be examined side by side to assess the responsible adequacy of the journalism. Bump’s story is at: https://www.washingtonpost.com/news/the-fix/wp/2016/11/23/attention-democrats-theres-still-no-good-evidence-the-election-was-rigged/?hpid=hp_hp-top-table-main_riggedelex-fix-12pm%3Ahomepage%2Fstory and Fang’s story is at: http://www.huffingtonpost.com/entry/hillary-clinton-challenge-election-results_us_5834e3a6e4b000af95ed3a34 The biggest failing is that neither story covered the issue raised by Greg Palast even though he had been prominently interviewed by Amy Goodman on Democracy Now! His findings were not hard to know about by anyone who wanted to diligently research the election-related issues.
On the same day as the Bump story, November 23, 2016, The Guardian published two stories by Jon Swaine about the prospects for a recount in key states: “Hillary Clinton urged to call for election vote recount in battleground states” and “Jill Stein prepares to request election recounts in battleground states.” The stories are at: https://www.theguardian.com/us-news/2016/nov/23/hillary-clinton-election-vote-recount-michigan-pennsylvania-wisconsin and: https://www.theguardian.com/us-news/2016/nov/23/jill-stein-election-recount-fund-michigan-wisconsin-pennsylvania If a publication in London had picked up the story, a question might be asked about the reason U.S. publications were not on top of the story. Maybe it was because they wanted to promote a mainstream narrative suggesting Trump had won the election and nothing could be done about it.
Also on November 23, Richard Wolffe editorialized in The Guardian: “Under Donald Trump, the US will no longer be the beacon of the free world” at: https://www.theguardian.com/commentisfree/2016/nov/23/donald-trump-presidency-beacon-leader-of-free-world-democracy That issue, by itself, should have been worthy of detailed examination by every newspaper in the nation, but the story was widely ignored or neglected. Meanwhile, the business community in the United States started to decide they liked Donald Trump. In particular, the stock market showed it. Some would have certainly liked the appointment of Goldman Sachs people to cabinet positions. That was embarrassing enough following Trump’s promises to voters, but it was even more embarrassing to have a newspaper in Great Britain outshine U.S. news sources on U.S. coverage.
Soon others did pick up the recount story, but they did not fully cover all the relevant details including those raised by Greg Palast. That suggested the purges in 2000 in Florida and the issues in 2004 in Ohio had taught them nothing. Either that or editors had partisan or other political reasons not want to give the story attention. This kind of response was seen increasingly as the press and the media fell under corporately friendly, concentrated ownership. Both news coverage and editorial policy was affected, and some coverage was cut back for budgetary reasons.
Recounting votes is a separate issue from investigating voter purges, but they both could have been covered in the same stories—because they are interrelated. Important also is the coverage of the court cases brought by Republicans to stop the recounts. If they did not have something to hide, they would not have done that. They would have appreciated the jobs provided to those doing the recount, and they would have been as interested as others assure the integrity of the election process. Some news organizations could have invested money and people to perform and confirm the findings by Palast and other election monitoring organizations. Under a fair process, that work would be required officially before the results of the election could be certified. If anomalies or any kind of hacking of the election would be evident, the election should not be certified until they can be repaired even if a new election is required to do it. When the results of a flawed election are certified, that plainly works to undermine voter confidence and public faith in the democratic ideal. Lower turnout of voters will certainly be one of the results.
After the recount in Michigan, Wisconsin, and Pennsylvania was requested, many myths emerged about the Green Party intentions, and the facts were not made plain by many news sources. The best news story on the subject was by Greg Palast, based on an interview with Bob Fitrakis, one of the attorneys leading the recount effort for the Green Party. The November 30, 2016 Palast report on the realities of the recount is at: http://www.truth-out.org/news/item/38553-the-no-bs-inside-guide-to-the-presidential-vote-recount. An alarming detail was discovered after the assurance was made that no hacking of voting machines was possible because the machine were not connected to the Internet. Maybe not, but they were connected by modem to phone lines, and that allowed anyone with the phone numbers to access the machines. In addition to many questions about the counting of absentee and provisional ballots, discarded ballots also needed to be examined to find out if they were discarded for valid reasons. In the city of Detroit, 300,000 discarded votes were found, so they were potentially 6more than enough to affect the outcome of the election.
One Potential Answer Would Be to Give the Electoral College
Expanded Election Oversight Responsibility
Maybe it should be up to the EC to find out about the failures as part of their mission. Maybe they should be a voter elected non-partisan body with the sole job of managing, overseeing, investigating, and reviewing the election process with the sole purpose of guaranteeing its integrity. Maybe they should not be empowered to decide the outcome and overruling the people, but instead maybe they should be empowered to call for a new election if problems caused the first one to be compromised. A better process would certainly be required if honest elections were more important than the expedient and quick determination of a winner as was seen in 2000 against the recount mandated by the Florida Supreme Court. Especially at the end of a long election process, no reason should exist to impair the counting of the ballots and the process of making sure everyone has a fair, unimpaired chance to vote. Honest elections are central to the credibility of democracy, so expedient delivery of the wrong decision (as was done in 2000 by the Bush v. Gore decision of the U.S. Supreme Court) should be much less important than delivery of an accurate and honest outcome with all ballots correctly counted.
All purging of the voter roles must be subjected to oversight to make sure it is not done to serve partisan objectives, and maybe some uniform federal standards should likely be set to make sure no groups are treated less fairly in some states than they are in others. This is necessary to make sure abusive practices do not not rule in some places and not others. The United States should be the place in the world where the best and most exemplary elections should be conducted, but that is not true at present. A full recount should always be required in the case of a close election, but Supreme Court prevented and harmfully disallowed that in Florida in 2000. The results of that failure have been very costly to the U.S. international image. Complete and accurate counting should be a uniform mandate in any federal election and also in all others by state and local law. Without that, the United States cannot be an internationally admired and respected nation. The people in all nations are affected by voting process in the United States, so they do pay attention. They are so powerfully affected, many wish they could have the ability to vote in the U.S.
Under a functional and honorably democratic government, the results in 2000 should have resulted in either a law or a constitutional amendment working to make sure no similar situation ever happened again, but instead the suggestions made by the Carter-Ford investigation helped to make some of the problems with the system worse. For example, by failing to address the issues with voting equipment, they virtually guaranteed worse results in the future. In 2004 in Ohio, worse was the result, and that was at least as embarrassing as the outcome in Florida in 2000. They also did nothing to prevent partisan voter purging even though they called for restoration of the vote to ex-felons who had served their time.
Alternatively, the EC could have been empowered to fix the Florida and Ohio issues instead of leaving it to a clearly partisan U.S. Supreme Court majority as was done in 2000. In the era of partisan and sophist courts with life-time tenure and failure to adjust their thinking to the reality on the ground, the electors might be able to reach a more wise conclusion than the courts can, especially if they were turned into full-time election managers overseeing all local, state, and federal elections. Before the EC could be fairly and reasonably established in their expanded oversight role, the two at-large electors in each state (those related to members of the Senate) should be removed from each state’s EC delegation, and in the case of the presidential election, the EC should be required to meet in a central place, so they can deliberate collectively and transparently about any issues that arise. In the 21st century when the United States should be setting a wise and responsible example for the rest of the world, no justification can possibly exist for continuing an 18th century anti-democratic expediency designed to balance the political power of 13 state oligarchies where all eligible voters totalled only 6% of the population.
A system that continues to allow smaller red states to dominate the outcome of presidential elections can be neither admired nor recommended to other nations struggling to build and maintain functional democracy, especially not when one-person-one vote should be the rule. If the EC is going to continue to exist without stimulating a majority rebellion against it, representation should be more balanced with the population of each state. This is logical no matter if the EC continues in its present role, or it is given an expanded management and oversight role.
If the electors are now, in 2016, doing the job they were intended to do, they would all be busy full-time examining all the evidence of compromised election results, and they would be provided the resources to do that. They would also have the power to require law enforcement to assist them with the work. It would not be left to Greg Palast to appeal to the Justice Department on behalf of the people. Also, it should not be left to partisan politicians to decide what should be done and not done. This is especially important in a system facing gravely destructive partisan polarization and little ability to work together in the common public interest.
If the EC would be given the power to call for a new election with the incumbent president remaining in office until it can be conducted, they might be empowered to enable the two leading presidential candidates of any political party with more than 15% of the Primary Election vote total to appear on the new General Election ballot together with a chosen vice-presidential running mate. A run-off could also be enabled if none of the candidates would win more than 50% of the total vote on the first round. Above all, one way or another, the failures of the U.S. election system need to be addressed to prevent the United States from being a laughable, anti-democratic, dysfunctional international embarrassment, and even a pariah.
The Proposed Redesign of the U.S. Presidential Election Process
to Make it Less of an International Embarrassment and Even a Joke
U.S. standing in the world is impaired when the people of the world treat the U.S. election circus as a shameful form of reality televison or even a charade. It is now being viewed by hundreds of millions of people in many nations, often with disgust, sadness, and disappointment. The establishment of an honest and honorable election process is essential if the United States wants to continue to be a leading nation setting a good and reputable example for the benefit of the people in many emergent and struggling democracies. Further, the entire process, including the Primary Elections, should be structured to take no more than 90 or maybe 120 days with perhaps one or two months added if failures in the first election would make a new election necessary. At the very least, an amendment is needed to provide direction in the case of a compromised election.
As part of the proposed change, rallies and advertising (including the use of twitter and other social media) should be disallowed because their negativity and their partisan nature is destructive of the unity democracy requires to be successful. The power of money in the system is a measure of systemic amorality, and if it cannot be restricted by law, its deployment should be restricted in other ways for the same reason car drivers are required to stay on the right side of the yellow line. If they did not, chaos would result. Chaos has been the result of the way the U.S. political system works, and now a systemic change is needed to repair that.
The current system is a form of legalized and unconstructive anarchy, and because of that, its most negative and destructive elements must be eliminated. The allowable process also must be abbreviated because the sheer duration of elections destroys the essential political fabric of the republic. When elections are destructive in the way they are conducted and allowed to be conducted, the rules governing them must be changed. The current U.S. system exhausts and alienates every one, making unity impossible to restore after the election season is over. In fact, the parties no longer wanted it to be restored because their ability to raise funds and whip-up their constituencies depends on maintaining an environment of permanent partisanship and polarization. The establishment of national consensus on many important issues is made virtually impossible and ever undesirable for partisan reasons.
Until now, any restrictions on campaign behavior have been seen as a violation of First Amendment rights, but when the speech is used hatefully and harmfully, it is much the same as yelling “Fire” in a crowded theatre. It is even worse than that because the election theatre is the whole nation, and the harm is spread widely in every state and region. It leads to state and regional antipathies. The longer elections go on, the worse it becomes. Under the proposed values, the only information General Election candidates would be allowed to disseminate to voters would be one written and one video statement of any length, and they would be allowed to present these on a Web site. Beyond that, they would be required to participate in an extended series of debates, each covering a separate issue area with no duplication of questions from previous debates. These would be the only campaign events, and no candidate would have time for more because of the need to prepare for the next debate.
At least two debates would be held every week for four to six weeks. Maybe at most, candidates would be allowed to give two televised speeches directed to all of the people, nationally, not just to their own partisans at rallies or even private meetings. No commitments could be made to interest groups, and if they were found to have been made, the offense would be subject to prosecution. Commitments could only be made before the full national forum or in the public written and video statements. This arrangement would restore the management of elections to the voters, and it would prevent candidates from manipulating the election process for their own benefit. The people should have full rights under the Constitution to regulate the way elections are conducted. Nothing should deny them that right. If that is not clear already, it should be made clear by constitutional amendment. Election law might not be strong enough to do it.
The EC could become the people’s agent directly responsible for election management and the honorable integrity of all election processes. Oversight would be maintained over the balloting in Primary Elections even though the parties would be able to organize the primaries under their own rules. Possibly a rule could require a standardized primary process in all states, so that all the states operate under the same rules. One common rule might allow Independent voters to vote in any party’s primary. Another rule might direct all voting to be by mail or by delivery of ballots in person at a specified location. That would eliminate the cost of managing polling stations on Election Day and would allow balloting over a period of weeks.
When the regulatory right over the General Election is denied, the destruction of the republic is enabled and promoted with impunity, but many aspects of the Primary Election process could still remain under the control of the parties, and they could manage them in any way they could want to except that they should not be allowed to exclude Independents from voting in any state. They would just have to conduct the primary within a more limited amount of time, say 30 days, or 45 days at most. That would be a way of limiting the caused destruction, and it would discourage excesses of partisanship over an extended period of time. It would also encourage Primary candidates to craft their message to a national audience, and the would help to create more unity.
If all Primary Elections were held on the same day, that could help eliminate the exasperations of a long process. With that and the possible ability of the two top vote getters in each party to appear on the General Election ballot (together with their chosen running mate), voters would be better served. The worst aspect of Primary Elections with low voter turn-out could be avoided to some extent. Most importantly, the public interest is not well served when elections run on for more than a year. Time, energy, and money has been wasted on that, and all the excess resources should be spent instead on other priorities. Massive expenditures on extended elections cannot be seen as a wise or moral project. With these proposed changes, disunity caused by the election process would hopefully be easier and quicker to overcome. The longer election seasons are allowed to continue, the more the disunity is allowed to become entrenched and damaging to the public interest.
Performing the Job the Constitution Intended and Preparing
an Evidence-Based Report to Explain and Justify the Decision Made
Finally, either the EC should do the job it was created to do (and be provided with whatever resources are needed to support their decision with evidence), or it should be abandoned. The existence of the EC cannot be justified if it is no more than a bland and blind rubber stamp of the election outcome. It must exist to deliver particular benefit. If the electors do not want to do the job they were expected to do and instead want to provide no more than a perfunctory rubber stamp affirming the decision of the state voters regardless of the popular vote totals and all other protective considerations, then public respect for the role of the EC would likely continue to suffer. Above all, electors should always be sought who are prepared to do the job as the Constitution intended.
The nation has been fortunate to have needed the intervention of the EC very little, but that does not mean it is bad precaution as long as the Electors are fairly chosen and small states are no longer made more powerful than larger states in the EC. That is not justifiable under the one-person-one-vote ideal. The elimination of the at-large electors could be a preliminary step before deciding to give up on the protective value of the Electoral College altogether. Under this idea, the candidates for elector would be required to campaign for the position in each congressional district, explaining their view of the job to be done. They should not be as anonymous as they have been traditionally.
No matter what they decide to do, respect for the electors individually and collectively could suffer with some groups, so the definitive test should be whether or not they did the easy thing or the right thing under some generally agreeable objective standard. In 2016, the question will be: did they take their patriotic duty seriously, or were they no more than party hacks incapable of more than mindless affirmation of the partisan expectation regardless of the circumstances. If the latter is all they can do, then they are one more example of the political dysfunction and failure of courage afflicting many of the politically empowered in the United States. Shamefully, they will live, alongside everyone else under the public and international consequences of their failure to do as they should have done to protect the nation and the world from an adverse decision.
The only obligation the electors have under the Constitution is to not vote for a President and a Vice President from the same state. Apart from that, they can do whatever they believe they should do to protect the republic. If they allow the nation and also the world to be run down a rathole because they have no sense of larger obligation, they should live in shame and infamy for the rest of recorded history. In the interest of doing better, they should be communicating with each other and deliberating together carefully and thoroughly, but many may not be doing that.
The electors should also be writing down a justification for their behavior. That should be a minimum requirement either individually or collectively. Because of the importance of the EC in protecting the republic and the world, that requirement might be put into a constitutional amendment or at least a law. Above all, the electors should not be allowed to drift off anonymously with no responsibility for their failure to perform or even perceive a larger obligation that should be taken seriously. The constitutional role of the EC requires a level of seriousness yet to be seen in any past election including the two in 1888 and 2000 when the popular vote was different from the state vote reflected in the EC. On the two other occasions, 1824 and 1876, when the winner of the popular vote was not made president, the House of Representatives determined the outcome according to their political preferences and regional deal making. They also did that in 1800 when the EC was accidentally deadlocked.
All five of these elections showed an unquestioned or unrepaired commitment to the anti-democratic empowerment of some states over others, and in 1876, it was done to end Reconstruction in the South and restore to power the white oligarchy. That was a feckless example for the United States to set, but it was not as important as the example set now in 2016 when the rest of the world is watching and waiting to see what will happen. Responsible behavior is now much more fundamental to the world wide public need. At the same time, citizens should be asking themselves if they did the right thing when they cast their votes. No matter who they voted for, they should ask themselves if they exercised their judgment as responsibly and wisely as they should have in service to the public interest. They should ask themselves if they should have been more active in the nominating process. In the absence of that commitment or civic capacity, better civic education would be called for, including adult education if people would be chastened enough to want it. Patriotic and responsible citizens should want it, and if they do not, they should be doing independent study on their own. Many do that, but it still is not a civic habit for everyone. Most people think of voting as a right they can exercise or not according to their own choice.
Only a relatively small minority seems to think of voting as a civic obligation or a gift voters give to their fellow citizens for the purpose of creating a better nation for the benefit of everyone. Yet, that attitude is basic to making democracy workable. No one should be be surprised to find their elected officials are dysfunctional when they are also dysfunctional in the way they think of their role in the system.
(Before December 19, 2016, the electors can be petitioned to investigate the issues about the 2016 election by going to this Web site: http://asktheelectors.org)