Tuesday, December 20, 2016

Amending the Electoral College

The electoral college as a means of selecting the president was established for a number of reasons, none of which are particularly good. In essence, the Founders were afraid the general voting public wouldn't select men like themselves, (under the Articles of Confederation, farmers had a nasty habit of selecting other farmers to represent them) plus an electoral college style selection rather than a popular vote increased the power of southern slave holding states that had a much smaller voting population and really, really, really liked slavery and political power.

In just about every way, even after the amendment to allow direct election of the electors by the people, the electoral college is an elitist, out-of-date institution that has, now that we live in a heavily urbanized county, directly disenfranchised voters who live in cities.

For the most part, fixing the electoral college fell into the “not worth the trouble” category of problems, but, with two of the last three presidents winning their first terms while losing the popular vote, it is clear now it must be changed.

Here is a proposed amendment to the Constitution. (In your head, feel free to give the prose that Constitutional flare.)

The winner of the total national popular vote shall be considered to have received the 270 electoral college votes unless: The popular vote is essentially a tie and no candidate has a 50% plus 1 majority, at which point, the distribution of the electoral votes shall revert to existing state by state distribution procedures and/or the influence of a foreign power in the election is suspected, the winning candidate is suspected of potentially impeachable offenses, and/or the winning candidate does not take appropriate steps to eliminate conflicts of interest that would allow the winning candidate to use the office of the President for personal gain. Congress, state legislatures, and the people, will all be empowered to petition for a review in the third case, at which point, electors selected according to state rules will be empowered to secure briefings from the relevant law enforcement agencies and/or Congressional committees before meeting in their state capitals on [date]. They will also be empowered to discuss and coordinate with each other in the time preceding the meeting. At the review meeting they will be empowered to either ratify the existing results, select the candidate who was previously defeated in the general election, or call for a new Presidential election in a timely fashion that allows for the party of the removed candidate to select a new nominee with all other parties being allowed to re-run their original candidates and/or select new ones at their discretion. The current administration will continue until the results of the new election are certified reflecting the above process plus two months to allow the new incoming President to establish their transition.

Here's what I'm thinking with the above amendment. First, and most importantly, it recenters political power to one person=one vote. It doesn't matter where you live, you have the same voice in choosing your President as everyone else. If you're going to object by saying the smaller states and rural areas deserve a voice, I'll say three things: First, I believe the assumption that urban and rural, high-population and low-population, and coastal and central states having diametrically opposed interests is an assumption we need to reexamine. (And, is likely, another one of the ways Republicans kept getting the people they hurt to vote for them, but that's for a different post.) Second, small states already have the Senate (and in many ways the House). Third, MORE PEOPLE MEANS MORE PEOPLE.

Second, it's always handy to have a system that sorts out ties and, in a virtual tie and in the absence of a majority, the geographic distribution of support makes sense. It's the political equivalent of an away goal.

Third, if it looks like I'm proposing this amendment specifically to prevent another Trump from happening, you're goddamn right I am. The world has changed since the framers wrote the Constitution and the ways in which a foreign power can influence our election and how an elected president could exploit the position for personal gain have changed. Trump, conveniently, has pretty much exposed all of those changes. Honestly, “preventing another Trump” is probably the best reason I can think of for doing just about anything. And, as we have seen with the extent and intent of Russian meddling only becoming clear after the election, it would make sense to have some procedure to prevent a criminal from taking power even when they are able to dupe the people for a day. Furthermore, it is now clear that norm and convention is not enough to prevent a kleptocrat from exploiting the presidency. The removal of conflicts of interest must be enshrined in the Constitution.

One of the major problems we have faced in our both the election of Trump and the election of George W. Bush is the totally unnecessary compulsion to declare a winner on election day. Nearly all of our misconceptions about Trump's election came from declaring him the winner before all the votes were counted; before we learned how narrow his victories in the rust belt were and how dramatic Hilary Clinton's popular vote lead became. But once a narrative is set it is difficult to change and so Trump is acting like he has a mandate, 52% of Republicans believe he won the popular vote, and the pressure to ensure an orderly transition of power hamstrung any efforts the Obama administration might have made to reassess the election. When we look back to Bush's first election, there really wasn't any good reason to stop counting in Florida. If we establish a simple procedure in the case of a delay of the results, then there isn't a problem if it takes longer than usual to determine the winner.

Obviously, given that I'm not a statistician or a constitutional scholar, there are some gaps in my proposal. What would be a statistical tie? Less than 1% difference seems too high, given the numbers we're talking, so less than .5% perhaps. I don't know. Second, in terms of petitioning for review, it can't be so easy that the losing party always request it, but it also can't require a majority or super-majority as then as long as the president-elect is a member of the majority party, odds are said party will never allow a petition of review no matter how criminal the president-elect may be. The same balance must be struck with the ability for states and the people to request a review. The bar must be set high enough so the review doesn't become a way for the losing group to gum up the transition, nor must it be so high that the party in power is able to always prevent it.

There are two ways to amend the Constitution and we can call for both of them. The first an amendment can be passed by a super-majority of both chambers of Congress so, you can call your Congressional representatives and the second is through a Constitutional convention as called by the states. Historically, Congress has acted before such a convention could be called to pass the requested amendment because once that convention is called anything can happen.

It's hard to imagine contemporary Republicans supporting this at either the national or the state level because the odds that they can win a national popular vote as they are composed now is just about zero, but you can do something or you can do nothing. Calling for this amendment will, if it gains any traction, at the very least, force Republicans to spout their bullshit about small states. And now, while the wound is still raw, is the time to start pushing. Maybe the above suggestion isn't the right way to fix the problem, but I hope, it get the conversation started.

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