Blog #121 – Immigration and Foreign Policy


Immigration Policy

Letters from the August 13-20, 2018, Issue

Written July 19, 2018 [minor elisions, insertions]

Re The Nation’s July 16/23 special issue, “Needed: A New Foreign Policy”: Truer words were never written. But there’s a puzzling aspect here as well. The one issue that has mobilized Americans politically today—immigration reform—appears only as a minor point [in of foreign policy]. The growing inequality among nations, which is the ultimate cause of the immigration problem, is presented as an aspect of economic growth, or as a blot on our humanitarian values, and it’s both. [Local and national level reforms are urgent, But the causes [of immigration] are international. Shouldn’t it be front and center [a foreign policy issue also?] Only international measures can ultimately deal with it. Yet Trump is strikingly oblivious to its causes.
Peter Marcuse
santa barbara, calif.

The above appeared as a letter to the editor of The Nation. But, apart from the omission of consideration o the relationship between home immigration /emigration issues and foreign policies, there are   a number of other concerns that should be highlighted in any serious reconsideration of foreign policy for the United States. I list only a few briefly here, and hope they will be developed further shortly in the Nation’s 4-part series, which  is still incomplete as I write this,  and elsewhere.

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What are the practical and political implications of this analysis?

Only to mention a few:[1]

An International Fair Labor Standards Agreement, whose agenda could include wage, working conditions, protection of rights toorganizx, transparency. Possibly integrated into tariff considerations? Environmental standards for goods in international commerce?

An international enforcement agency, with provision for fines for violation as financing?International labor code or standards, and reqilrement for posting on products and disclosure

Tariff policy on goods where code compliance not transparently posted?

International support for right to organize as human right

Spelling out local legal status of rights provisions of international law?

International standards for fair elections, with international  non-recognition of results of non-complying designation of holders of key political offices ?

Major economic development assistance (Marshall Plan (for hight emigration countries)?

An International Fair Labor Agenda?

With an  enforcement agency, and recipient of fines for violation as financing?

International labor code or standards, and reqilrement for posting on products and disclosure?

Tariff policy on goods where code compliance not transparently posted?

International support for right to organize as human right?

Clear, comprehensive, and legally enforceable provisions for prevention of discrimination against members of any group defined by ethnicity, color, gender, or culture.

Minimum standards for public education, with coordinated international assistance?S

Economic development assistance for high emigration countries?

All seen as legitimate agenda items for foreign policy debates and international agreements.

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Clearly pie n the sky, in terms of actual formal implementation. But perhaps useful as a statement of goals and basis for a vision of what an international democratic and humane world order might look like?

To put up against the vision of an international world order led by an “again great America,” whose leadership is voluntarily accepted by the rest of the world, despite its own internal failure to adopt such proclaimed standards or act as an active and open-minded model for others on the world stage?

Not “Americans to make America Great for Americans Again,”  but

But “All Together to Help Make the World Freer, More Equal, and More Democratic for All. Now.”

[1] A number of more detailed and thought-throug of veersions of such a list, intheform of social movement and political and religious and humanistic groups, and deserve coordinated and serious study.

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Blog #119 – Roe vs. Wade, an Alternate Approach: Recusal


Blog #119 – Roe vs. Wade and Supreme Court Appointments

Trump’s promise not to appoint anyone to the Supreme Court who would hesitate to overturn Roe vs. Wade is unethical and an act which invalidates any appointee to the Court who if appointed ruled pursuant to it.  It would violate the U.S. Judicial Code and the ABA’s Model Code of Judicial Conduct. Were Kavanaugh to be appointed, he would have to recuse himself from take part in the consideration of that case, leaving the decisions on it in the hands of the remaining 8 court members. And that obligation to recuse himself would be an on gong one, as long as Trump remains in office – an obligation which might be thrust upon him by the remaining members in considerations from which he would need to recuse himself. .

Those concerned about the future of Roe vs, Wade to the next Supreme Court if Kavanaugh is on it are properly barking loudly out of concern, but up the wrong tree. The problem is one which Trump has created, not Kavanaugh, and which an attack on Trump’s involvement offers the route to the best solution: the prospect of a recusal of anyone he nominates from consideration of the case any time within his own term of office. .

for a more detailed statement of the argument, see pmarcuse.Wordpress.com, Blog #120 – “Roe vs Wade, An Alternate Approach: Recusal2,”

 

 

Blog #115 – Facing the Causes of Immigration Problems


Facing the Causes of the Problems with Immigration

The ultimate causes of the emigration producing immigration crises in the U.S. and elsewhere are the gross inequalities among and within nation in resources and power. The only real solution to the crisis is to move to equalization and sharing among nations, through agreements and institutions at the international level. It is the opposite of the direction in which Trump is moving U.S. policy.

The issue of separating children from their parents within the process of dealing with immigration should be beyond the pale of reasonable disagreement, and the basic answer should be non-controversial: very simple, DON’T DO IT! Indeed, the details need working out, but that is no excuse for not dealing with the causes of the immigration problem as such. Looking at causes seems almost taboo today. Either it is too complicated, and we have no time to think about causes, or, if we do, the remedies seem so farfetched as to be utopian and not worth even thinking about.

But the cause of the immigration problem is in fact very simple. The need to emigrate from one country to another arises out of the gross inequality among countries of the world: inequalities in income and wealth, inequalities in power, unequal levels of security and dignity afforded their residents. And at least the first step dealing with these fundamental causes of emigration might seem to be equally clear: they can ultimately, but the sooner the better, be dealt with at the international level, what we newly call the global level. After the end of the First World War, there was a brief flurry of interest for collective international action at that level. The nations of the world went so far as to adopt a Universal Declaration of Human Rights, whose language is on a par in its nobility with the language of the United States Declaration of Independence, and deserves to be as familiar:

“Recognition of the inherent dignity and of the equal and inalienable right of all members of the human family is the foundation of freedom, justice, and peace in the world. “

It is the foundation on which any quest for the solution to the problem s of immigration should rest.

That sounds fine, but totally theoretical. One might start with the briefly discussed but ill-fated efforts to agree on national quotas, which at least reflected an incipient belief in an international approach to the problem. Agreement might be sought, perhaps, for international standards at some absolutely minimal level, e.g., no separation of children from parents, some guarantee of due process. Some international standards actually already exist, for instance in the definitions agreed upon in the 1951 Geneva Convention on Refugees for concepts such as fear of persecution and justifications for seeking asylum. Or agreements against the use of poison gas and chemical weapons in warfare, etc. Why not international standards for the treatment of those seeking to emigrate out of similarly defined urgent need?

There are also already a variety of national and inter-national limited agreements for immediate remedial measures. Germany finances aid to Turkey to promote its measures reducing flight from that country. Prime Minister Netanyahu of Israel briefly signed an agreement, unfortunately sort-lived, helped by the High Commissioner for Refugees, to support financially measures in Eritrea and Sudan to staunch the flow of refugees from those countries to Israel, and to cooperate with other western countries to accept refugees emigrating from them.1.  Other ideas have surely been advanced along similar lines, and deserve study attention,

And could one not at least envision further principled moves to support universal free education through grades 12 with an international fund and matching local contributions for financing? Wasn’t there once a broad Marshall Plan in which victorious countries aided devastated ones after the Second World War? Wouldn’t such be aspirations at least to put on the table in international conferences, and even in our own election campaigns?  Wouldn’t positive relations with our allies and neighbors, not a route the Trump administration seems interested in taking, be enhanced by such discussions?

As further steps, could one not at least envision universal free education through grades 12 with an international fund and matching local contributions as financing? Wouldn’t that be an aspiration at least to put on the table in international conferences, and even in our own election campaigns?  Wouldn’t positive relations with our allies and neighbors, not a route the Trump administration seems interested in taking, be enhanced by such discussions?

Might even  Donald Trump find some value in such a direction, as relieving him, all alone, from having to face problems that  he clearly is not on the way to  solving by himself ? Cynically, perhaps, but usefully, kicking the can of immigration reform upstairs?

1.See Michael Stard,The Wall and the Gate: Israel, Palestine, and the Legal Batle for Human Rights, review by David Shulman, New York Review of Books, June 28, 2018.

 

 

 

Blog #111 – Men Quit, Women Don’t ???


Blog #111 – Men Quit, Women Don’t ???

Abstract

A narrow blog, specifically for those  interested in the treatment of gender in the media who have seen a recent piece in the New York Times  headlined “Why Men Quit and Women  Don’t,” which purports to explain why a statistical finding that  the drop-out rate for women in the Boston Marathon this year is lower than for men has nothing  to do with gender but simply shows that women “thrive on adversity,” in this case “the need to juggle training in non-ideal circumstances [the worst weather in decades].” The statistics are pretty shaky, and it’s not clear why such an explanation is not strongly gender related. It is worth examining because, intentionally or not, it plays into the concern with the social stereotyping that  goes into the gendered attitude towards women, and tends to minimize that  problem by minimizing the role of gender.

*****

Why Men Quit and Women Don’t –

reads the headline by Lindsay Crouse in the Opinion section of the New York Times on April 20, 1018).[1]

The story is based on the fact that men dropped out of the Boston Marathon this year and previous years at a faster rate than women did: “Men quit and women don’t,” the story announces, and tries to explain the difference by examining the correlation between various physical or psychological or social characteristics of men and women. It finds that won’t do, and ends up claiming that “the simplest explanation [for women dropping out less than men] is not based on gender at all.”

But, in fact, it is directly related to gender, the social and cultural definition of male and female rather than the biological definition of female. You might think that a writer, if concerned about gender equality, might happily display the headline above to show that the gender stereotype of women as weaker than men is false, and argue that, the headlined facts prove that the idea that men do better than women in contests of strength and endurance, as in marathons, is a false and gendered idea. In fact, the article perversely argues that gender has nothing to do with the disparate results for men and women.

Yet gender does matter. Because Marathon drop-out rates are not simply a reflection of the physical difference between men and women.

To begin with, the article is based on a flawed statistical analysis. It does not in fact show that “men quit and women don’t.” It is elementary statistical nonsense, both in its sample selection and its lack of control for other variables. I   The men and women being compared are not randomly selected, 16,587 men chose to enter the Boston race, only 13,391 women entered it. The reasons for that difference need to be factored into any explanation for the different results which gender-related differences, .e.g. in income, time availability and responsibilities, status, expectations,  all are llikely to play some role.  The aticle itself lists some of them.

The artcle  finds that finishing rates for this year’s Boston Marathon “varied significantly by gender,” and then spends the rest of its time trying to show that, contrary to that finding, women don’t in fact quit less than men.  It is like arguing that women have shorter stays in hospitals than men because women are stronger than men, and it has nothing to do with the gendered treatment of women. It is, on its face, absurd, if done without controlling for why women go to hospitals in the first place, whether they can afford hospitalization as well as men, are insured as well as men, whether the hospitals are military hospitals or specialized or general care hospitals, charity hospitals or research hospitals or psychiatric hospitals whether they are admitted on an emergency basis or are long-term than men, etc.

Both proportionally and in total numbers, more men run in marathons than women do.  Maybe men who run in marathons are richer than women who do, women being paid less and poorer, can less afford the time to run or train to run, so the women who do actually get to run in the Boston Marathon are exceptionally well fit compared to the men who run, more of whom are able to afford to run and do so even without special training.  If men and women were exactly alike, proportionately more men would drop out than women, because the men who started were a less selective group among all men, than women were among all women?  The fewer women who entered marathons had been more highly selected, i.e. healthier, more ambitious, hardier, than the average woman, but therefore proportionately also once entered in the race, proportionately dropped out less?

But then, the question is, why do not more women enter marathons?

The history of gender discrimination in marathons should not be ignored.

The population that enters marathons is in any event hardly representative of a cross section of all people, and to draw conclusions about all people from a sample that is not representative of all people, or compare two samples, e.g. men and women that are not similarly selected, are violations of the most elementary rules of statistical analysis. And to conclude that the difference between men and women in drop-out rates is not gender related after just writing that men start marathons more aggressively than women because that is in the nature of men, and that and women are often discouraged from being athletic and competitive as unwomanly, is to abandon any pretense of understanding either gender or statistics.

And not gender-related? Gender differences are of a different order than differences of sex, and require quite different approaches if equality with justice is a concern. The history of gender discrimination in running competitions and women’s active struggle to overcome it needs to be told, and helps explain the additional motivation of women holding up without quitting in marathons. Women indeed had to be more aggressive than average men if they wanted to run in a male dominated and often legally exclusively male field. The first Olympic marathon was held in 1896. It was open to men only. Women were allowed to begin competing in marathons starting in 1972.[2]Women were excluded from participation in the Boston Olympics Marathon until 1984.[3] The history is not well known; it is not mentioned in the article.

The article concludes:

…the simplest explanation is not based on gender at all. This Boston Marathon was ideal for people who thrive in adversity. Top spots for men and women went to amateur runners who juggle training in non-ideal circumstances around work and family… the female runners who made it in Boston had already overcome more social obstacles than men. They may simply be tougher. hardly a random selection.

And that’s not a characterization of the normal gendered role of women?!

Maybe if men had to successfully “juggle training in non-ideal circumstances around work and family,” as women disproportionately now do, which  Lindsay argues makes women’s experience less likely to let them drop out than men, then men should just get more training in circumstances like  those facing women, and thereby toughen up to stay the course better than they do now. And women might be provided with greater and fairer social support, economic support, status and recognition, opportunities to train and to run.Those  might not be a bad ideas in  any case…

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Footnotes

“Woman who blazed a trail for equality in marathons hits London’s starting line. Kathrine Switzer, the first woman to officially compete in the Boston marathon, will fire the gun on the elite race,” The Guardian. reads a headlilne in the Guardian. Available at https://www.theGuardian.com/sport/2018/apr/21/kathrine-switzer-boston.

“The thousands of spectators who line marathon routes are famous for screaming encouragement, but it has not always been that way.”‘One guy shouted at me, ‘you should be back in the kitchen making dinner for your husband’.”It is one of many moments that Kathrine Switzer recounts as she talks about her memories of becoming the first woman to officially run a marathon. It was 1967 and women were not allowed to run more than 1,500 metres in sanctioned races. Marathons were for men.“https://www.telegraph.co.uk/athletics/2018/04/21/marathon-trailblazerkathrine-switzer-just-20-year-old-kid-wanted/

In 1972, women were officially allowed to run the Boston Marathon for the first time.

Opinion | Why Men Quit and Women Don’t – The New York Times

https://www.nytimes.com/2018/04/20/opinion/boston-marathon-women-nurse.htm [1]

[2]An excellent detailed history of the struggles needed before wwomen were evenly  allowed to run in major marathons, ncluding the Olympics, is in Olympic Marathon, by Charlie Lovett, excerpted and available at “The Fight to Establish the Women’s Race” http://www.marathonguide.com/history/olympicmarathons/chapter25.cfm

 

[1] Available at https://www.nytimes.com/2018/04/20/opinion/boston-marathon-women-nurse.html.

[2] “Women and exclusion from long distance running.” Lisa Wade, PhD on April 21, 2017. Sociological Images. https://thesocietypages.org/socimages/2017/04/21/women-and-exclusion-from-long-distance-running/

[3] Before 1972, women had been barred from the most famous marathon outside the Olympics-Boston. That rule did not keep women from running, though. In 1966, Roberta Gibb hid behind a bush at the start of the Boston Marathon, sneaking into the field and finishing the race in an unofficial time of 3:21:25. She was the first woman known to complete the arduous Boston course. Gibb had been inspired to run by the return of her race entry with a note saying that women were not physically capable of running a marathon. Charlie Lovett Olympic Marathon, “The Fight to Establish the Women’s Race”, available at http://www.marathonguide.com/history/olympicmarathons/chapter25.cfm

 

Blog #95a – Questioning “So-Called President” Donald Trump’s Mandate, Immediate Actions


#95a – Questioning “So-Called President” [1] Donald Trump’s Mandate:
Immediate actions, Long-Term Possibilities, Constitutional Questions.

This blog, and the blog before it, Blog #95 – “Given the Electoral College, who “won” the 2016 Election?” – summarize the findings of Blogs #92a to #95 on “so-called President” Donald Trump’s claim to have won the election as president of the United States, and suggests some Immediately practical reforms of the Election Process in the United States They raise some longer-term issues about the constitutionality of the Electoral College per se, issues whose results in the 2016 election deserve wide discussion. [1a]

IMMEDIATE ACTION POSSIBILITIES.

First and foremost, questions about the legitimacy of the 2016 election process and its results must become matters of wide-spread concern and debate. That means raising in the public debate the question of the legitimacy of Trump’s Electoral College “win,” challenging every boast that Trump or his positions represent a landslide, a majority, a popular consensus, a mandate, etc., every time such claims are made. It is in fact estimated at only 27.2% of all eligible voters at Blog #93.

Watching how the question is formulated is important.

It’s not “What did Trump do to win the Presidency, “ but “what aspect of the Electoral process enabled him to claim that office when he in fact only received a minority of the popular vote in the election for it?”

Nor is “what did Clinton do wrong that cost her the election?” the key question. She in fact got almost three million more votes than the nearest contender for the office. The question is rather, “Why, if Clinton got a significant plurality of all votes cast in the election, did she not get the Presidency?”

And it’s not, “How could Trump convince a majority of the voters of his ultra-conservative agenda,” but “How was it a relatively small proportion of the electorate (my estimate above was 27.2% of those eligible to vote} could impose such an agenda on the rest of the country?”

Perhaps even more important in the public discourse, a recurrent theme among those defending Trump and his policies, and many presumably “neutral” commentators” is that,” after all, he was elected the President of the country, and, whether you agree with him or not, you have to respect that he is the legally chosen representative of the people and must be recognized as speaking for them in what he says and does.” “He got elected; live with it,” goes the line.

But that’s precisely wrong, and runs against across the grain of the whole theory of democratic government Trump is not entitled, now that he has “won the election,” to impose his particular agenda on the country by executive mandate or administrative fiat. On the contrary; he was elected by the
votes of 62,980,160 voters out of a total population of eligible voters of 231,556,622, or 27.2 % of the electorate. He has an obligation to represent all of those 231,556,622, whether they voted for him or not, or didn’t vote at all. [1b]. His voters actually represent a minority of the American citizenry , and in fact not even a plurality of the actual voters.{See Blog #93} He not only has no over-riding mandate behind his policy positions, he in fact has a positive mandate to compromise, to consult, to listen, to bring people together. Supporters or interviewers who are content to stop at, “after all, he’s the President,” mistake how a real democracy functions.

LONGER TERM ACTIONS

Longer term but needing to be kept constantly on the table, is the National Popular Vote proposal (NPV}. It is simple. It would have every state have its Electors in the Electoral College allocate their votes in the same proportion as the national popular vote. If states with a majority of the electoral vote now adopted it, it would guarantee that the Electoral College result would be the same as the national popular vote.[2].

NPV has three big advantages: It is intuitively fairer, more democratic, and is simple and relatively easy to understand. And it does not necessarily favor either major political party today. It has already bi-partisan support in at least 11 states, with more considering it. And it solves the constitutional problem that Electoral College votes are weighted in favor of small states, because however many electoral votes a given state has, they will be cast to accord with the national popular vote result.

And it does not require a Constitutional Amendment to be effective, just agreement of the states having entitled to the majority of Electoral College votes.

It has two disadvantages: It does not solve the plurality/minor parties’ problem. But to do that would complicate the initial reform effort substantially. And it might still permit a plurality to win the Presidency. Only adding even more complicated (although fairer) Proportional voting methods would solve that problem (and be fairer to minor party voters as well), but seems too cumbersome for at least the first effort at reform.

Politically, the National Popular Vote Proposal is however a positive demand, for four reasons:

First, it is both intuitively and logically right. It improves democracy in government, and is likely (although not guaranteed) to advance social justice in its substantive results.

Second, it is a unifying demand, putting the leftish, Sanders wing of the Democratic Party into contact with the mainstream, and facilitating communication and persuasion in on-going political work.

Third, it highlights Trump’s minority support status, accentuating how far he is from a mandate for his policies, how strong the argument is that he must recognize the needs and demands of the majority of the voters in what he does while still in office. And,

Fourth, it is achievable –.it has already been enacted into law in 11 states with 165 electoral vote, and has further been passed by one chamber in 3 Republican and 1 Democratic-controlled legislatures. Only 270 are needed for it to become effective.

Then, a problem with both short and longer term approaches. The proportion of actual voters casting ballots among present and potential voters is strikingly less in the United States than in other developed democratic countries. Part of the reason no doubt lies in the skepticism about the difference it makes, with neither major party offering a break-through in meeting voters’ deepest concerns. But a part of the explanation for the fact that 40% of those eligible to vote did not do so lies also in the obstacles placed in the way of registration to vote in many states, which the courts are partially remedying. Strong national legislation would help.

As this is written, Trump is maintaining that that perhaps 3,000,000 votes, even among the limited numbers actually voting, were illegal. That’s been met with wide-spread incredulity. In fact, if the winner-take-all provision part of the Electoral College voting process, adopted at the discretion of each state, were dropped, the number of actually effective votes might be increased by a least an equal number.

Restoring the “preclearance” provisions of the 1965 Voting Rights Act,”, requiring with appropriate language, advance approval by a federal court or the Department of Justice for questionable state changes to voting regulations under the Voting Rights Act would surely increase the number of eligible voters significantly, removing inappropriate barriers to participation by many.

And there is a simple non-controversial measure that would undoubtedly be helpful in increasing the number of voters actually voting:

Make Election Day a national holiday

Perhaps even provide that it be a paid holiday in covered employment, as many state laws and some government contracts now provide for sick leave—perhaps by requiring Election Day as a paid holiday under the Fair Labor Standards Act.

Like NPV, the call for Election Day as a holiday is simply a good government measure, one that advances democracy, and should not become a partisan political issues. It would surely have a healthy, and progressive, impact both on how many vote and who votes; no one should object to it. And the country is surely rich enough so that it can afford one day a year of less production in the cause of better and more responsive government. And, for that matter , wouldn’t one day less of being required to go to work to make a living advance the quality of life for all our people?

CONSTITUTIONAL QUESTIONS

The constitutional questions surrounding the Electoral College are fundamental questions.
Article I of the Constitution as first adopted, provided

Article I

“…in choosing the President, the votes shall be taken by states, the representation from each state having one vote.” [2a]

It has been almost unanimously implemented through state action since then to provide that the votes of a state shall be that resulting from a winner-take-all count, i.e. a state’s one vote shall be for whoever gets a plurality of that state’s votes,. Thus the votes of all losers in the state’s votes are disregarded in determining who has won the final vote in the Electoral College.[3]

But the Twelfth Amendment, Article II, adopted in 1804, provides:

Article II
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress
Under that provision all states have, a least since 1824, adopted a winner take all election procedure [4]. Its effect, of course, is to make the minority votes in any state irrelevant in the final count for Electors. While it might seem unfair to any party coming in second in any individual state’s race, any party winning a plurality will appreciate the rule, and thus, since winning parries make the rules it has apparently remained unchallenged over time.
But winner-take-all does seem to abridge the rights of a substantial number of voters in any Presidential election, and arguably to violates the intent of the 15th amendment.[3]
So the U.S. Constitution does not mandate that system, however. Instead, it is left up to the states to determine how they select their representatives in the Electoral College, and the states have followed the winner-take-all arrangement without serious challenged since its adoption in 1804. For the first 13 presidential elections, spanning the first four decades of the history of the United States, states experimented with many different electoral system. By 1836, all but one state, South Carolina, uses the winner-take-all method based on the statewide popular vote to choose its electors. South Carolina continues to have its legislature choose electors until after the Civil War. [4]

The Fifteenth Amendment, passed during Reconstruction, contradicts , in spirit if not in terms, this Electoral College provision. Adopted in 1870, it reads:
Amendment XV
Section 1.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
Section 2.
The Congress shall have power to enforce this article by appropriate legislation

In adopting the 15th Amendment, the intent was to grant all citizens, including the recently liberated black slaves, a full “unabridged” right to vote, implicitly with a vote equal to that of all other voters. The Electoral College procedure favoring some voters over others {See Blog #94} distorted – abridged — that result. If 65,845,063 Clinton voters in the 2016 popular election had their vote discounted by 29% [See #blog 95} compared to the vote of the 62,980,160 Trump voters there is clearly something wrong. Such a discounting is an “abridgement” of their right to vote, in the terms of the 15th Amendment.

But it did not make any practical difference in the outcome then, and when it much later did, the 15th Amendment argument seems not to have been made to challenge it.

It might be argued that the language of the 15th Amendment created a class of particularly protected citizens: “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude,” and that category of voter is not affected by the current procedures in either the national popular vote nor the votes in the Electoral College. But it should not be hard to demonstrate factually that those whose votes have been abridged in 2016 by the Electoral College winner-take –all system were indeed disparately voters who individually or as a group were disparately of a particular race and had suffered then or earlier by conditions of servitude of members of the group.. The minority voters, many of the 65,845,063 Clinton voters, were in a minority in their states although in a majority in the national vote, should be entitled to the protection of this language of the 15th Amendment

The Fourteenth Amendment’s language, with its equal protection language, does not single out any particular group for special protection, but applies to all. Its reach protects “citizens of the United States” and extends to “any person within its jurisdiction the equal protection of the law.”
While not directly referencing voting rights it contains a broad edict:

Amendment XIV, Article I

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Supreme Court ruled in Bush vs. Gore.

Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665 (1966). “…once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”.”[5]

Ironically, Donald Trump himself left the door open to a challenge of the legitimacy of the results of the ‘Electoral College vote when, in the course of the election campaigning Ohio, he flatly refused to commit himself to respect the vote, whatever it would be. Trump told supporters that “the bottom line is we’re going to win.” He would “accept a clear election result,” but he would also “reserve my right to contest or file a legal challenge in the case of a questionable result.[6] Presumably, if he were to consider rejecting the vote of the Electoral College because it was rigged, he would object whether the rigging was in his favor or in Clinton’s. He simply wanted to reserve the right to challenge the results when the appropriate time came.

The public needs to engage with these questions, and the courts and the legislature should now be asked to address them directly. Until they are resolved, a dark cloud will hang over any claim of Donald Trump to the Presidency of the United States.

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[1] I would never have thought it appropriate to use this phrase had not Trump himself spoken of the recent decision of Federal District judge Roberts of the Federal District Court in Washington state, with which he disagreed, as the decision of ”this so-called judge.” It may however not be inappropriate in this case; see our conclusion below.
[1a] The six most relevant recent blogs, all at pmarcuse.wordpress.com, are:
#91 – Explaining the Election in 10 Sentences – Preliminary
#92a – Electoral Reform: Outing the 1%
# 93 – Election Figures Show Trump with Only 27.2% of Eligible Voters-What Mandate?
#94 – In What Ways is the Electoral College Illegitimate Today? #95 – Given the Electoral College, who “won” the 2016 Election
#95a – Questioning “So-Called President Donald Trump’s Mandate+
[1b]https://docs.google.com/spreadsheets/d/1VAcF0eJ06y_8T4o2gvIL4YcyQy8pxb1zYkgXF76Uu1s/edit#gid=2030096602 https://twitter.com/totalogic
[2} http://www.nationalpopularvote.com.
[ 2a] Somewhat ambiguous language, but interpreted as meaning all the Electors from each state share one vote, that plurality in that state’s vote, and it shall be for both President and Vice President, so that those two offices will be filled by the same party..
[3] See “The Equal Protection Argument Against Winner Take All in the Electoral College: The Constitution doesn’t require the Electoral College to count votes the way it traditionally has”. By Lawrence Lessig | December 12, 2016,, available at http://billmoyers.com/story/equal-protection-argument-winner-take-electoral-college/ and Blog #94,“In What Ways is the Electoral College Illegitimate Today
[4] http://www.fairvote.org/how-the-electoral-college-became-winner-take-all.
[5] http://caselaw.findlaw.com/us-supreme-court/531/98.html
[6] http://www.usatoday.com/story/news/politics/elections/2016/10/20/donald-trump-election-results-debate-hillary-clinton/92450922/

Blog #95 – Given the Electoral College, who “won” the 2016 Election


#95 – Given the Electoral College, who “won” the 2016 Election

This blog, and the blog after it, Blog #95a – Questioning “So-Called President” [1] Donald Trump’s Mandate: Immediate actions, Long-Term Possibilities, Constitutional Questions,–summarize the findings of Blogs #92a to #95. [1] on “so-called President” Donald Trump’s claim to have won the election as president of the United States, and suggests some Immediately practical reforms of the Election Process in the United States They raise some longer-term issues about the constitutionality of the Electoral College per se, issues whose results in the 2016 election deserve wide discussion

This blog argues that the figures as to who would have won the national election in 2016 if that election procedure had been fair are clear. If every vote was counted fairly, so at every non-Trump vote counted for the same Electoral College vote as every pro-Trump vote, if, for instance, the election were simply decided by the results of the present national popular ,Trump would not have won that election {See Blog #94}.

Under present procedures of the Electoral College:
For Trump, his actual popular vote 62,980,160, produced 304 Electoral College votes
Or one popular vote produced 0.0000048 Electoral College votes.
Thus it took only 207,172 actual votes to produce each of his Electoral votes.

But for Clinton, her actual popular vote, 65,845,063 produced only 227 Electoral College votes,[2]
Or one popular vote produced only 0.0000034 Electoral College votes.
Thus it took all of 290,066 popular votes to produce each of her Electoral votes.
Each of Clinton’s popular votes was worth only 34/48, or 71%, of what one of Trump’s popular votes was worth.

Result: Trump wins 2016 Electoral College vote Trump 304 Clinton 227, and gains the Presidency.

But if every actual vote cast by a voter counted for as much as every other vote, not the 34/48 ratio above,–if all persons’ votes were equal)[3] , Trump would come in a clear second, behind the first place winner by over 2,5000,000 votes. If each vote actually cast for Clinton carried the same weight in the Electoral College as each vote cast for Trump, the Electoral College vote would have been Trump 304, Clinton 314;[4]

Result: Clinton would have won the Presidency.

Trump “won” the Presidency in a procedurally unfair election. Only the distortions of the Electoral College, specifically its abandonment of the one person –one vote principle, permitted his victory.”
What difference do all these numbers (e.g, 71% weight given to a vote in one camp compared to 100% weight given to to the other) make, now that Trump has been inaugurated?
See Blog #95a – Possible Actions for Democratization and Questions of Constitutionality of Trump’s electoral “victory.”

[1 ] The six most relevant recent blogs, all at pmarcuse.wordpress.com, are:
#91 – Explaining the Election in 10 Sentences – Preliminary
#92a – Electoral Reform: Outing the 1%
#93 – Election Figures Show Trump with Only 27.2% of Eligible Voters-What Mandat
#94 – In What Ways is the Electoral College Illegitimate Today?
#95 – Given the Electoral College, who “won” the 2016 Election?
#95a – Questioning “So-Called President Donald Trump’s Mandate, Immediate Actions+
[2] Calculations based on http://uselectionatlas.org/RESULTS/national.php?year=2016 . http://www.270towin.com/news/2017/01/06/donald-trump-officially-wins-presidency-as-electoral-votes-counted-by-congress_440.html#.WIQkTn2kyio.
[3] As they are in the popular vote .
[4] Actually, the totals have to add to 538, so this would be 45.94%*538 = 247 Trump and 48.03%*538 = 258 Clinton . In either event, Clinton would have won .I thank Aaron Marcuse- Kubitza- for the point, and help generally on the calculations

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.

————————

[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.