Keeping Our Republic: Challenging the Oregon Vote in 2020
The volume is loud to eliminate the electoral college. The rhetoric is straightforward – vote in DC, not the states.
The truth, however, is much more profound. To save one of the remaining institutions of Constitutional republican government action is needed. I believe in the rule of law, federalism, due process, and checks and balances. Our greatest enemy is the consolidation of power which would arise from a direct vote for President of the United States.
By taking the states out of the equation, power would be more easily consolidated by the media-masters of the current Citizens United era. The popular vote for president would consolidate power at the top, taking it from the states and the people living within their communities. This would advance an increasing imperial Caesar-like presidency, portrayed through a national media, an unassailable hegemon in a capital far away from most Americans.
Our founders anticipated this and worked to build a structure that checked absolute power and balanced various power centers against each other. Important in this design is the electoral college that vested the presidency in an individual gaining the most popular support balanced against the interest of the entire union, as represented by each state.
Tumult and Disorder
The electoral college was established in the Constitution to mitigate against “tumult and disorder.” It was an element of the republican institutions formulated for a federalist form of government. Federalist #68 by Alexander Hamilton explained, “Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”
http://avalon.law.yale.edu/18th_century/fed68.asp; (A seminal article on the subject was written in 1962 by the late Estes Kefauver: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2919&context=lcp)
The Tumult of the 1800 Election
The original formulation of the electoral college was not entirely successful in preventing tumult and disorder. In the election of 1800, no candidate received a majority of the electoral votes, so the election went to the House of Representatives. Controversy over interminable tie votes (between Thomas Jefferson and Aaron Burr) eventually led to the passage of the 12th Amendment.
With the 12th Amendment the rules of the process remained very similar when no majority is obtained in the electoral college: “But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.”
The vote for president would be taken in the House of Representative and for vice president separately cast in the Senate.
The 12th Amendment did not change how the votes were allocated among the states and the agencies conducting the elections.
Republican Form of Government
The original Constitutional formulation was the United States as a republican form of government. It was not a democracy, because only US Representatives were directly elected. Initially, democracy was limited beyond the structures of the Constitution because senators were elected by state legislatures before 1914 and the president by the electoral college.
Also, the franchise did not extend to women, Native Americans, slaves and nearly all free-blacks, and others without property qualifications. Over time these barriers have been beneficially eroded through Constitutional Amendments and legislation (e.g., a more perfect union). Nevertheless, some residents remain ineligible to vote, depending on state law. Primary among these excluded groups are those 16 and 17 years old, aliens and felons in some instances.
For the most recent 2018 mid-term election, about half of the eligible voters chose not to vote. Though over time, the franchise has been extended, it has not been taken up by some Americans.
A Republic If You Can Keep It
From the beginning, the republican form of government was clearly required by the Constitution. It was perceived as susceptible to erosion through efforts to consolidate direct democratic power, intrigue, and corruption. This is clearly stated by Benjamin Franklin’s famous response when asked what form of government the Constitution requires, he responded: “A Republic if you can keep it.”
The electoral college is a primary element of the American Constitutional system. It allocates votes based upon the initial “Great Compromise” between the People and the States, big states (Virginia Plan) and small states (New Jersey Plan) which established the House of Representative and the Senate.
Under the formula, each state has electoral votes consisting of the number of representatives and senators. In this case apportioned representatives represent the People, while two votes for each state, represents the States – a balancing factor essentially that each state is equal within the Union deriving from the original roll-call to establish the Constitution.
National Popular Vote
Eliminating the electoral college has become a favorite subject in 2019, especially among Democratic Party candidates for President. This can be accomplished by amending the Constitution or alternatively by an agreement among states constituting a majority of the electoral votes. The effort is called The National Popular Vote Interstate Compact (NPVIC).
This measure will be activated when states representing 270 electoral votes approve it and join the compact. They agree to cast their electoral votes to the national popular vote winner. At this point, about another 80 electoral votes are necessary to cause its implementation.
Implementing the NPVIC
If the states get to 270 votes, it will raise both Constitutional and practical issues. There is a variety of opinion about whether the compact could be implemented constitutionally because some see it as undermining the Constitutional system with a “workaround” or circumvention. Some maintain it could, but others contend that it would as a minimum have to be approved by Congress.
There are also practical problems. For example, should the politics in a State change, could the State be removed from the Compact? Also, as suggested by California’s former Governor Arnold Schwarzenegger when he vetoed California’s participation before it was subsequently approved. The governor expressed concern about a possible reckoning from State voters when they cast electoral votes for a candidate losing the election in the state.
Needing More Than A Workaround
Though the National Popular Vote Interstate Compact (NPVIC) may come to pass, it will remain a “workaround.” The signatories to the Constitution anticipated that modifications to it would be done in a consistent, orderly fashion.
This has generally been true. For example, in the Twentieth Century prohibition was approved through the 18th Amendment, with the Volstead Act. When it proved unpopular maybe unworkable, it was removed through the 21st Amendment, not a convenient alternative circumvention.
This bolstered the Constitutional process. The NPVIC would not. It is then essential to understand the implication to change the electoral college “the old-fashioned way.”
Public Opinion about the Electoral College
According to Politico “Half of voters, 50 percent, say the national popular vote should be used for presidential elections, the poll shows — more than the 34 percent who think presidential elections should be based on the Electoral College. Sixteen percent of voters have no opinion.”
An Analysis of Electoral College Voting Allocations
An analysis has been prepared which compares the electoral votes from each state with an allocation of electoral votes. The factors correlated are current electoral votes and electoral votes based on “voting-eligible population.”
The Excel-Pearson’s-R -function between the two is 99.7%. This means the erosion between proportional voting within states for president when eliminating the 2 votes per State is 3/10ths of one percent. It is this 3/10th of one percent that the future of our Republic hangs.
We also learned from the analysis that the impact per State in most instances would be 0 or 1 vote. In about 22% of the states, there would be more significant variation. By my analysis, Florida would gain 6 votes, California 5, Texas 4, and New York, Ohio, North Carolina and Pennsylvania 3. In terms of losses New Mexico, Hawaii, New Hampshire, Rhode Island, DC, Vermont, South Dakota, North Dakota, and Wyoming would lose 2.
The bottom line, inconsistent with conventional wisdom based on the 2016 election is Republicans would pick up 3 electoral votes, while Democrats would lose 3 a net total of 6.
Other analyses have tested how voting would perform with different allocations under the current electoral college system. The website 270 to win has provided this analysis: https://www.270towin.com/alternative-electoral-college-allocation-methods/
For the 2016 election, there would not have been a different conclusion based on electoral college allocations. However, for the 2012 election, there would have been. Under some scenarios, Mr. Romney would have won and become president.
Complexities of Changing to National Proportional Voting
Moving away from electoral voting from the States with the apportionment based upon the original great compromise, destroys one of the few remaining pillars of the Republican form of government and will reduce the balance of power equation between the states and the federal government. Our history is how this relationship over the years has served reform, developing a more perfect union, encouraged internal stability by buffering tumult and disorder.
I believe it is because we have significant problems with the partisan bents of 24/7 news services that can in an unbalanced manner focus coverage and advance specific talking points. Another major problem is derivative from Citizens United that money, especially on a national basis, can buy the best coverage possible. We should always work towards all-politics-is -local and our institutions must support this.
Challenging the System in 2020
My personal conclusion as an Independent rural Oregon voter is, I dearly want to retain what remains of our American Republic. I do, however, want to assure that votes are reported proportionally within each state to ensure everyone is counted. This I believe is required by the 5th and 14th Amendments as expressed in Baker v. Carr.
If we can achieve a proportional vote within each state, we can reassure the American voting public that their vote counts.
Therefore, my fondest desire is to find the funding to support a proportional vote challenge when the electors after the 2020 election determine to report one winner-take-all-ticket. The vote must be declared based upon the proportion of vote within my state.
Does anyone have a plan for how I could mount this challenge in December 2020? Please let me know at firstname.lastname@example.org .