Blog #94 – In What Ways is the Electoral College Illegitimate Today?


Blog#94 – In What Ways is the Electoral College Illegitimate Today?
The Electoral College itself is illegitimate and vitiates a key principle of constitutional law: “one person, one vote,” grounded in part on the Equal Protection clause of the Fourteenth Amendment and arguably underlying the Fifteenth Amendment as well.[1]

Trump lost the 2016 election by a popular vote. He only won the Presidency because of the distortions of the Electoral College. The Electoral College distorts election results, and violates the principle of one-person one – vote, in the following ways:

1. Voting in the Electoral College is by states, not by counting individual votes. The number of votes a state has does not reflect the choices of its voters, but is skewed in favor of smaller states, who have three votes (paralleling the number of Senators and the minimum of one Representative each state has), and is thus skewed in favor voters in smaller states.
2. Voting in the Electoral College is by states, not by counting individual votes. In each state, all its electoral votes are cast in favor of the party with the majority of votes, and the votes of any member of the minority party in that state are disregarded, and without influence in the national result. It’s winner take all in the Electoral College vote count, which means losers’ votes don’t count at all.[2]
3. The Electoral College was provided for in the Constitution by the framers as a compromise with the interests of the slave -holding states, and with intent to insert a buffer between a popular vote and a theoretically more deliberative small body, out of an open fear of direct democracy.
4. The numbers show that the net effect of the Electoral College procedure is to give the vote of each African-American and Hispanic citizen in each state significantly less weight in the final election result compared to the vote of each of the majority white citizens. The votes of Trump voters counted more, per person, than the votes of Clinton voters.
5. The Fifteenth Amendment, passed during Reconstruction, may well be considered to void this Electoral College arrangement, opening up to questions of the legitimacy of its results in 2016.

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[1.] See http://www.theconstitutionproject.com/portfolio/one-person-one-vote/; “
An examination of the Supreme Court’s dilemmas and tensions as it stepped into the “political thicket” of voting and representational equality, establishing the practice of what has become a core American principle: “One person, one vote.” It has the echo of a core American belief. It rings with the same distinctively American clarion call for equality and individual empowerment that reaches back through the ages to the nation’s founding: “…of the people, by the people, for the people”, “All men are created equal” S But it wasn’t until 1963 that “One person, one vote” became a widely articulated core principle of the Constitution when it was first spoken by Chief Justice Earl Warren’s Supreme Court.”
[2.] “For example, Blacks constitute about 36 percent of the Mississippi electorate, the highest Black voter percentage in any state in the country. About 90 percent voted for Clinton. But whites are 64 percent of the state’s votes, and about 90 percent of those chose Trump. Trump therefore handily won 58 percent of the state’s total vote and all [100 percent] of its Electoral College votes. In 2016, as for decades, the Electoral College result was the same as if Blacks in all the southern states except Virginia and Maryland had not votes at all.” Bob Wing and Bill Fletcher Jr., “Rigged, The Electoral College,” Z Magazine, January 2017, p. 2.

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Blog #93 – Election figures show Trump with only 27.2% of eligible voters: What Mandate?


Donald Trump aimed his New Year’s Eve tweet at “my many enemies and those who have fought me and lost so badly they just don’t know what to do.” Leaving aside the incredibly childish gloating over “his enemies,” from someone who occasionally talks about “bringing our nation together,” has Trump’s staff succeeded in keeping from him all knowledge of the actual vote counts in the 2016 election, in which his leading opponent, far from “losing badly” to him, in fact got 2,000,000 popular votes[1] more than he did?

Or has his staff not let him learn that, out of some 232,000,000 persons eligible to vote [2] in 2016, only 62,000,000 actually voted [3] for him, not only less than for Clinton , but also only 27.2% of those who were eligible [4]. 79% of those who were theoretically eligible to vote for him did not do so– less a glorious victory for Trump than a rejection of his candidacy by a large majority of Americans, a failure of the Trump campaign, hardly a victory.[5]

Or has his staff not let him learn that the roots of the compromise that resulted in Article Ii of the Constitution creating the Electoral College, was the founders’ distrust of grass-roots democracy and later white leaders concerned to hold down freed black voting impact, coupled with the gerrymandering of Republican-led legislatures o distort their states’ votes?[6] Or is Trump simply incapable of acknowledging facts that undermine his claims to have a broad popular mandate in this election?

The argument in defense of the Electoral College, now sometimes made, that it did not affect the outcome in the 2016 election, even though a national popular vote shows Hillary Clinton winning over Donald Trump now by over 2,000,000 votes; if the rules had been to have the popular vote determine the result Trump would have campaigned differently and won anyway. Indeed, Trump may have campaigned differently and gotten a different result; but so would Clinton. There is no reason to believe it would have made more of a difference in the number of voters voting for Trump than the in the number of those voting for Clinton.

Conclusion:

So on the figures, it was Donald Trump who “lost so badly” in the 2016 national election, who often seems not to know what he will do, whose mandate, if he has one, is a negative mandate, a mandate to follow the wishes of the electorate and serve all of the people of the country, not just his friends, ignoring those who disagree with him as “his many enemies.” Susan Douglas lists multiple cases in which opinion surveys clearly reveal the majority differing from Trump on key police issues, speaking of them as an “anti-mandate” to his claims.[7] His true mandate, from the figures, is one to unite and to seek compromises and unity for the good of all Americans, inclusively.

[1]So on the figures, it was Donald Trump who “lost so badly” in the 2016 national election, who often seems not to know what he will do, whose mandate, if he has one, is a negative mandate, a mandate to follow the wishes of the electorate and serve all of the people of the country, not just his friends, ignoring those who disagree with him as “his many enemies.” Susan Douglas lists multiple cases in which opinion surveys clearly reveal the majority differing from Trump on key police issues, speaking of them as an “anti-mandate” to his claims.[7] His true mandate, from the figures, is one to unite and to seek compromises and unity for the good of all Americans, inclusively. > “Trump’s Antii-Mandate,” I These Times, January 2017, p. 8.
[2] The actual figure is “almost 3,000,000”: 65,844,954 – 62,979,879 =2,865,075
(http://uselectionatlas.org/RESULTS/national.php?year=2016).
The actual figure is 231,556,622 (http://www.electproject.org/2016g).
(http://uselectionatlas.org/RESULTS/national.php?year=2016).
[4](62,979,879 / 231,556,622) = 0.2719847891026844
[5] Why for whom they would have voted had they voted must necessarily remain speculation, logic suggests categories:
a. prevented from voting by deliberately restrictive provisions;
b. dissatisfied with all the alternatives , or
c. happy to let the then predicted if mistaken expectations of majorities for Hillary Clinton become effective without needing heir vote .
If a, they would hardly be likely to vote for the Republicans who by and large were behind the increasing voting restrictions ;
if b. believing their inaction would result in the victory of the predicted for Clinton, were satisfied with that second-best non-Trump result ; or
if c. supporting a Trump defeat, believed their votes not necessary to ensure that result.
In any of those cases, non-voting voters were logically more likely Trump critics than supporters
But ignore these speculations, the broad parameters of the argument that Trump has only minority support in the electorate, still stands.
[6] A good summary of the history is at http://www.freep.com/story/opinion/columnists/stephen-henderson/2016/11/19/electoral-college-race-problem/94079504/. For a more extended discussion see: . Perhaps it is now time to rid ourselves of the last constitutional vestige of the peculiar institution: the electoral college.” P. 1155, 1156. Finkelman, Paul, “The Proslavery Origins of the Electoral College” (2002). Cardozo Law Review, Vol. 23, 2002. Available at SSRN: https://ssrn.com/abstract=1447478. The author concludes: “Over one hundred and thirty-five years ago the United States rid itself of slavery. Perhaps it is now time to rid ourselves of the last constitutional vestige of the peculiar institution: the electoral college.”
[7] “Trump’s Anti-Mandate,” I These Times, January 2017, p. 8.