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.

Blog #81e. – Towards Transformative Approaches to Unjust Inequality.

Blog #81e. – Towards Transformative Approaches to Unjust Inequality.

Given that the conservative responses to unjust inequality essentially accept its existence, that the liberal  does something to ameliorate the results of unjust inequalities but does not address their causes, and that the progressive response does even more, but both within  severe limits that leave the production of such inequalities essentially untouched, and finally given that radical responses, although  they do address the causes of unjust inequality, are not  on the real world agenda anywhere in the world today, what can be nevertheless be done to achieve a more desirable handling of issues of equality than  our present system presents?

The suggestion here is to push for actions that are immediately possible, but that point transformatively to the more radical proposals necessary to eradicate unjust inequalities.. At least four modest but theoretically promising types of efforts in that direction are already under way, although their transformative potential is not always stressed: 1) transformative electoral activities; 2) transformative demands in the active day-to-day political arena; 3) transformative  pilot projects attempting to model in limited practice solutions  that would be radical if comprehensively adopted; and 4) transformative educational efforts involving teaching , research, writing, public debates, on the real sources of unjust  inequalities and the possible steps to their eradication – and the development of theory. These might be considered four fronts in the effort to tackle the unjust inequalities that characterize our present societies.

1)      Transformative electoral activities.

The progressive democratic-socialist campaign of Bernie Sanders for the presidency in the United States would be an example. If it is seen simply as a normal campaign for the election of a particular individual with a particular attractive platform, it may have limited impact, and may not survive a likely electoral loss. If the electoral campaign is seen as accompanied by a political revolution, as its rhetoric in fact proclaims is necessary, it points to broader and deeper issues, and opens the door to consideration of radical possibilities going beyond the progressive.

Historically , the record of radically-oriented national election campaigns  has not been good, although they have a long tradition behind them, just this  century, the Socialist Party, the Peace and Freedom Party, The Progressive Party, Jesse Jackson’s campaign, all had very limited influence.  Today, the Working Families Party is active in electoral campaigns in some states, but it remains small. In crass political terms, the experience seems to be that the more radical the platform the less effective the electoral impact. Efforts are beginning to evolve to have the Sanders campaign itself lead to some type of on-going organized involvement both in future elections and/or in current political issues. Whether it will be an exception to the rule remains to be seen.

2)      Transformative demands in the active day-to-day political arena

The individual issues that are fought over in any even formally democratic society usually center on specific concerns, but may or may not be seen as parts of more fundamental societal arrangements, and may then, very much context dependent, have a transformative impact.  The criticism of the role of money in political campaigns could point to a full public funding of campaigns, with limits on private money going far beyond simple calls for transparency. Calls for a $15 minimum wage may open the door to an on-going push for a livable wage and beyond, to a truly equitable distribution of compensation for work done, and minimums set on the basis of an expanded definition of what such a wage should provide. Single-payer insurance provision to cover the cost of health care could raise the question of whether health care should not from the get-go be free, not provided on a fee-for-service basis but as a public good, as basic public education is provided, or police or fire protection or the building of streets and highways. Modest proposals for participatory budgeting could raise the question of whether all budgeting decisions could not be made with grass-roots democratic involvement. Support for the creation of Community Land Trusts as owners of land could raise the question of simple public ownership of all land, as a natural resource.[1]

Keeping Liberal and Progressive proposals expanded to their radical fullest regularly in sight, while still getting ones hands dirty in the struggles to achieve what can be done day –too-day, would be a way of making many existing political efforts not only more appealing in the present but also transformative to what might be done in the future to fully end unjust inequality.

3)      Transformative pilot projects attempting to model radical alternatives.

The history of utopian communities is extensive and rich. They are rare today. But the attempt to try out radical ideas on a limited scale, with the transformative goal in mind of leading to their wide-spread and comprehensive adoption, remains important. Indeed, utopian thinking and puzzling out what ideal cities or countries or neighborhoods might look like is an exercise that might be more important now than ever, now that any new idea is likely to be met with the charge that nothing like that has ever been done before, where’s the data to support it, let’s stick to doing things that we know can be done in the world that we have, not the world we want. In limited practice, solutions that seem utopian might in fact be tested and shown to work on a small scale, and would be very radical if comprehensively adopted. The work of Gar Alperovitz and the Democracy Project,[2] and the New Economy efforts, are provocative. Learning from such efforts could indeed be transformative on the way to broader change.

But there are severe limits to most pilot models, involving, viability today in the here and now. Dangers lie in the context of a competitive profit-driven society, with constant down-ward pressures on wage to maintain financial viability. Even short-term, internal democracy in e.g. co-ops, and more, may end up at risk. And how the transition might be made from pilot project to its broader environment. The  temptation and often apparent necessity of building fortified silos of justice in a desert of unjust inequality  to broad social change is under-discussed.[3], [4] Pilot models are a good and helpful step towards a just and equal society, but do not inevitably lead us there.

4)      Educational efforts and the development of theory.

Most of those reading tis blog, and certainly its writer, have not been brought to concerns about the unjust inequalities discussed in these blogs by their own material deprivation, by the kinds of physical exploitation and immiseration that classic images of revolutionary subjects evoke. As this is written, The New York Times headlines a front-page story about “How the G.O.P Elites Lost the Party’s Base” and describes how “Working Class Voters Felt Ignored by Republican Leaders.” The Republican Party having deserted its “traditional blue-collar working class base—“its “most faithful voters, blue-collar white Americans.”[5] The descriptions set conventional social theory about class relations on its head.  But it reflects a current reality: the wide gap between undying material relationships of class and power, on the one hand, and the ideological interpretations and their psychological reflections that characterize so many political disagreements and rationalize the unjust inequalities that we see today. It is a gap that is ideologically, in the broad sense of the term, created, and it requires ideological counters if there is to be any hope of serious social change.

Ideological efforts to confront unjust inequalities have two aspects: one involving educational work, the other theoretical work.

Education is a somewhat awkward term for public information or savvy use of the media to tell a story, to convince readers or listeners or watchers, to convey the news in critical depth, to undo prejudices and stereotypes analyse conventional wisdoms. It may involve letters to the editor, journal articles, phone calls, panels, or, research, funded or not.

Theoretical work overlaps with the educational somewhat, but has a different audience and somewhat different audience: It may be educational, in the above sense, but it is also directed at those already concerned and active, and involve itself in clarify cause and effect relationships as a guide to strategy and tactics in ideological/political confrontations. Research of course has standard of logic and fact-finding that are necessary for credible work, but in the choice of subject matter and willingness to draw conclusions relevant to issues of equality that radical research show its usefulness. As the social psychological processes of one-dimensionalization grow in importance, the counter processes of logical analysis and exposure become ever more important.

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Transformative might thus be the name of such blended proposals aimed at dealing with unjust inequality in a politically feasible fashion. . It would characterize ideas, demands, program proposals, legislative actions, social movement demands, which would marshal political power behind immediate demands for liberal or progressive measures coupled with a consistent and open consideration of the political feasibility of forwarding the goals of the Radical approach and building the foundation for struggles for radical action

A Transformative approach would add a recurring footnote, as explicit as the political situation will allow, to Liberal and Progressive demands. It can help to maintain awareness of the depth of the problem of Unjust Inequality and of the need for each individual program and proposal to recognize that the ultimate goal is actually the elimination of Unjust Inequality altogether. It can help keep pressure on the arc of history to bend ever more towards social justice and just equality..

 

ds Transformative Approaches to Unjust Inequality.

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[1] For further examples of potentially transformative demands , see my Blog #30: Beyond Immediate Proposals: Some Transformative Provocations

[2] See http://garalperovitz.com/ and Gar Alperovitz “The Question of Socialism (and Beyond!) Is About to Open Up in These United States”, April 13, 2013 Truth out News Analysis

[3] For my own views of the potentials and limits of the pilot project approach see Marcuse, Peter. 2015 “Cooperatives on the Path to Socialism?” Monthly Review, vol. 66, No. 9, February, pp. 31-38

[4] For a further discussion, see also Blog# 58a: From Immediate Demands to Utopias via Transformative Demands

[5] March 28, p. 1.

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This blog is one of a set of five dealing with Unjust Inequality:

Blog #81a: What’s the Problem? Not Just Inequality

Blog #81b: Inequality: What’s the Answer? Economic or Racial? Conservative or Liberal-Clinton?

Blog #81c – From Clinton Liberal to Sanders Progressive Responses

Blog #81d – Inequality: A Radical Response

Blog #81e. – Towards Transformative Approaches to Unjust Inequality.

Blog #75 – “Blaming an Un-named “System” for Police Shooting Blacks

This Blog #75 – “Blaming an Un-named “System” for Police Shooting Blacks Is A Cop-0ut,” argues responsibility rests in three areas: Individual perpetrators (the policeman, in the case of the killing of minorities ), the social institutions (police departments, the criminal justice system, and the underlying social, economic, and political system. All need to be named and addressed. They will not all be resolved at once, but transformative measures may begin to address them within the existing system
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In a recent The New York Times opinion piece ii, Professor Mullainathan, in “Police Killings of Blacks: What the Data Says” seems to be joining liberals, and even radicals. He argues that the data shows that, although African-Americans are only 13.2% of the population, they are 28.9% of those arrested by the police, and 31.8% of those shot by police. As possible explanations he points to the risks of living in “a high-poverty neighborhood,” the social institutions that “tie race to crime,” the economic policies that limited opportunities.” He concludes “removing police racial bias will have little effect on the killing rate,” presumably because of all these other factors.
“. . [After]… accounting for why some of these encounters [of police with blacks] turn into killings, [racial bias] is swamped by other, bigger problems that plague our society, our economy, and our criminal justice system.”
So far so good.
But he ends the piece with
“…there are also [my italics] structural problems underpinning these killings. We are all responsible for those. “
“We are all responsible.” What started out as a fairly radical move to enlarge the approach to the problem beyond the mere bias of individual policemen, ranging over a whole set of social institutions, and finally pointing to the bigger problems that plague our society, ends up with no idea about what is to be done, no conclusions about what it is that produces these plagues, no allocation of responsibility to any human agency. If we are all responsible, no one, no group, no interests, are responsible, no specific forces “plague our societies.” The system is not wrong; it is plagued by a disease. The disease is not named. The sub-headline for the piece summaries it as “finding some blame in persistent systemic issues.” The system is to blame. The system remains anonymous, incorporeal, inhuman, somehow natural, just there. It is not named or addressed. Blaming it is a cop-out.
The formulation “we are all responsible” is simply wrong. Some benefit from it; others suffer under it. It is man-made (less woman-made), defined by those with power, power which is very unevenly distributed. The 99% are not responsible for it, the 1% are. The formulation “blame in persistent systemic issues” is not a radical criticism of the system, but rather a cop-out,iii undercutting efforts to identify who is actually responsible, avoiding identifying the real changes that might address the roots of the problem the data identifies.
Going beyond the cop-out of blaming “the system,” three actions are needed: first, the actors that implement it need to be specified, second, the institutions that are the framework of their actions need to be confronted, and thirdly the system that underlies their actions needs to be named. Finally, of course, the purpose of all this is to formulate a viable political responses to change he present patterns.
We may look at the human agents responsible for these killing of blacks at three levels:
1) the individual perpetrator, the policeman firing the shots in our case;
2) the social institutions which directly produce, promote and constrain the individual perpetrator’s behavior, in our case the police departments, the criminal justice system, the schools, the housing, and
3) the underlying system, economic, social, political, cultural, which for present purposes I would name the racist/capitalist system (more on its definition below).
1. Firstly, as to the individual responsibility:
it is true that it is “too large a problem to pin on any specific individual officers.”iv But it is individual officers that do the shooting. They are at the flashpoint where the damage is done. Do they have the intent to kill blacks? Perhaps not. They are indeed constrained and subordinate to the system. Yet they have a certain amount of free will. But it is not a matter of an intent to kill blacks, but rather of the actual and predictable and known impact of they actually knowingly dov. In Fair Housing legislation, the law prohibits not only actions undertaken with the “intent to discriminate” but also actions “having a disparate impact” on members of the protected group. The standard for a police officer should be no lower than the standard for a planner or zoning administrator or developer. Certainly, the individual police officer is also subject to the social institutions and agencies– the courts, the legislatures, the schools, and the overall set of criminal justice policies, budget cuts, and social patterns. And is further moulded by the underlying system, with its inequalities, its insecurities and fears and perverse incentives. But holding the single individuals responsible for the direct result of their actions when they have in fact a realistic choice would surely be fair and a major help in avoiding those results. The courts are an appropriate institution to do the fact-finding and the balancing of individual choice against the social and constitution constraint required to deal with the specifics of individual situations, and if they are biased, the tools to deal with that bias are certainly known and in general available.
2. Secondly, as to the social institutions:
If, as Mullainathan and many others properly argue, more or better education is required, it should be provided, if the courts are not doing their jobs as they should, then the judicial system should be reformed; if police departments were reformed and trained, controlled, incentivized, not to shoot and kill, there would be less killing; if a gun culture is partly responsible, it should be addressed by appropriate legislation and civil society condemnation. Such reforms will certainly not be adopted without conflict. There are vested interests, both public and private, behind the institutions as they are, and serious reforms will meet serious opposition from powerful opponents. The distribution of power, rather than the search for justice, makes the fair resolution of these issues difficult. But these institutions have been made by human beings, and they can be changed by them.
While underlying systemic factors mould both the actions of specific actors and of specific institutions, placing some blame for their result properly points to the complexity of the problem, “blaming the system” is no reason not press for remedial actions and reforms, which could ameliorate even the most difficult of the issues involved .. They are not all structural systemic, and it is counter-productive to assume they are, or to think they cannot be significantly alleviated even with the existing underlying system.
3. But, thirdly, as to the underlying systemic issues
Systemic structural issues clearly are involved. There are some problems arising from the underlying system that cannot be solved by simple piece-meal reforms, problems such as inequality, poverty, exploitation, and oppression along class or racial or national or cultural lines, perhaps climate change and environmental degradation. The difficulties even of piece-meal reforms, reformist reforms, are immense as the conflicts about racial segregation reveal.vi
Even the Catholic Church, to the extent that Pope Francis today speaks for it, acknowledges that
If the system is to be properly blamed and then addressed, it must first be named and its key characteristics understood. Karl Marx had a comprehensive analysis, and would simply call the system capitalism. In today’s discussion, movements such as Occupyvii and Pope Francis have somewhat similar approaches:
“While the earnings of a minority are growing exponentially, that of the majority is crumbling. This imbalance results from ideologies which uphold the absolute autonomy of markets and financial speculation, and thus deny the right of control to States, which are themselves charged with providing for the common good.viii.”
“When money, instead of man, is at the center of the system, when money becomes an idol, men and women are reduced to simple instruments of a social and economic system.”ix
“[S]ome people continue to defend trickle-down theories which assume that economic growth, encouraged by a free market, will inevitably succeed in bringing about greater justice and inclusiveness in the world. This opinion, which has never been confirmed by the facts, expresses a crude and naive trust in the goodness of those wielding majority from the prosperity enjoyed by those happy few. This imbalance is the result of ideologies which defend the absolute autonomy of the marketplace and financial speculation. Consequently, they reject the right of states, charged with vigilance economic power and in the sacralised workings of the prevailing economic system.”x
The issues raised here, and underlying the Occupy movements 1%/99% cry, are truly systemic: the level of inequality, the ideology of the free marketplace, the limits on the power of democracy over the state, the role of economic power, the lack of inclusiveness among peoples and groups, are deeply embedded in the system, whichever name is used for it. It is not any old “system” that has the characterisitics of ours today, and should be blamed, but a very specific one that is responsible..
It might take an old-fashioned revolution really to get at the roots of these problems, to do it comprehensively, for they are all interlocked, as the current discussion of intersectionality stresses.
And a revolution is perhaps a theoretical possibility in this period. The new left of the 60’s certainly thought it was fifty years agoxi; the Black Panthers saw themselves as “Vanguards of the Revolution”. Many social activists and their theoretical supporters, from anarchists to Marxists, believed that the seeds of profound change were here then, and their reasoning might well apply today. Today’s systemic economic crisis would provide some grounds for such an expectation. But a revolution does not seem exactly in the cards right now; indeed, one from the right seems much more likely than one from the left, in many places in the world.
The reason revolution is not likely deserves extensive examination, much more than there is room for here xii Those with a vested interest in the present underlying system are powerful, and have convinced many, probably the majority, that they benefit from lt also. The system seems to be producing the goods, as Herbert Marcuse formulated it. But it does not follow that, because we can’t have a revolution right now, nothing can be done to change things as they are, and perhaps even move today to a point in time where the radical changes implied by a revolution could indeed be brought about.
Nor does it help to say: “We are all responsible” for these system-based ills that we are all to blame for them. “We”xiii are not all to blame, at least not in anything like equal measure, and ignoring that fact is both wrong and counter –productive in dealing with the issues. There are specific interests , specific groups, perhaps classes, perhaps the 1% or the .1%, that stand behind the institutions needing change that block that change, block reform. Ignoring their identity undercuts the process of dealing with those who are in fact responsible and to blame for the problem: Their identities are not obscure: the anti—regulators, the low-wage employers in manufacturing and services, the real estate ghetto builders and maintainers, the politicians still seeing advantage in their bigotry, hedge funds and financial speculators. Yes, “we” certainly need to act to change the system, but to get there we need to hold accountable those that are in fact responsible for it’s being the way it is. Much can be reformed within the existing underlying system, even if it is not easy to do and inevitably will be controversial
4. Formulating Responses: Transformative Goals.
But the system is not God-given, nor a natural beast, but one of a number of alternate systems, which may have their own pros and cons, be variably achievable and sustainable, but can be actively pursued here and now by those ill served by the present system. It may take a revolution to achieve the major changes necessary to go to one or another of the alternatives, but it can be done. Legislatures are likely to be the sites of many of these
battles, and the normal mechanisms of liberal democracy, including particularly the electoral procedures, which would need to be used strategically to the fullest extent possible.
“Transformative” is a useful term for the kinds of demands and approaches that bridge the need to deal with all three levels of responsibility outlined above.xiv Two complementary avenues might be envisioned: one pursuing loaded reforms, the other exemplary reforms.
Loaded reforms address directly individual perpetrators and social institutions but stressing their connection with the underlying causes and pointing in the direction of change, pointing out causes, exposing, not only what is happening but why it is happening, who the actors are for and against, what the lines of struggle ultimately are, just who the 1% are, what power they hold and how they benefit from the system, who the 99% are and how they suffer from it. Their hallmarks are seeking the immediately feasible within the system but naming the obstacles to real success: the remaining inequalities and the long-orange systemic alternatives that are ultimately needed for real success.
Such reforms are loaded in the sense that they acknowledge their own limitation, at the same time pointing to the further changes that would be required for substantial structural change. In the shootings of African-Americans by police, reforms in the training of police, in the punishment of offenders, in the availability of guns, etc; but reforms acknowledging that poverty, frustration, misunderstood but real grievances, a search for security as well as safety in the system as a whole, are causes of the police actions and the judicial systems responses that also need to be addressed.
Exemplary reforms bring into existence relationships among individuals and groups , patterns of organization and doing business, rules of behaviour, that pre-figure within the existing system possibilities that can only be fully developed beyond it, but can have real if limited impact within it. Projects such as worker-owned cooperatives, community land trusts, radical educational offerings, participatory budgeting, will not produce structural change by themselves, but will show that real alternatives are available to existing structures and behaviours.
Again, in the police treatment of minorities, projects such as community control of the piece, Planned diversity in housing, full citizenship rights for all residents, are examples that can support movements for more wide-spread and deeper extensions of such approaches.
Blaming “the system,” without naming it, without going beyond addressing individual ills as isolated unrelated problems, will not do. It will not go far to address underlying social issues. Seeing who is responsible for social ills, who benefits from their existence, what institutions need change, are all necessary, and beyond that, pressing for solutions that are transformative, policies that are loaded progressively and exemplary in reality, are needed.

—references

ii October 18, 2015, The Upshot, p. B6
iii I only realized the pun after I used the term: it lets the cop out of responsibility…
iv Mullainathan, supra.
v A paraphrase of the general sense of what creates liability in civil law, on a continuum with culpability in criminal law. For a concise discussion, see Paul H. Robison, Mens Rea, at https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved=0ahUKEwjmuZCs1L7JAhVKcT4KHfEpB0gQFggvMAI&url=https%3A%2F%2Fwww.law.upenn.edu%2Ffac%2Fphrobins%2Fmensreaentry.pdf&usg=AFQjCNFnYj1gAqCw_JFTrIBZBVXDr4MtVQ&cad=rjt
vi See blog #70 – The Causes of Discrimination. And they are global in scope, on segregation alone see most recently https://www.washingtonpost.com/news/wonk/wp/2015/12/02/how-the-rise-of-american-style-segregation-is-feeding-division-in-europe/
vii See Blogs #1-10, supra
viii https://w2.vatican.va/content/francesco/en/speeches/2013/may/documents/papa-francesco_20130516_nuovi-ambasciatori.html
ix https://www.ncregister.com/daily-news/pope-francis-catechism-for-economics/
x http://fortune.com/2015/09/14/pope-francis-capitalism-inequality/. And quotes collected at http://gawker.com/here-are-11-top-screw-capitalism-lines-in-pope-franci-1471888334
xi See Herbert Marcuse, Essay on Liberation, and Peter-Erwin Jansen and Charles Reitz, eds. 2015, Herbert Marcuse’s 1974 Lectures at Vincennes University.
xii See also, even more briefly, Blog #74 – On the Relevance of Herbert Marcuse
xiii See Blog #35 – Watch your Language, Krugman, and the Rest of Us, and Blog #37 – Lopsided Language.
xiv See Blog #30: Transformative Proposals in Nine Areas, at pmarcuise.wordpress.cm.