There Has to be a Better Way to Choose a President

Twelve people stood on stage last night, each trying to explain why they should be the next President of the United States. But after yet another three hours of back and forth between a dozen candidates, have we learned enough to choose a president?

We were in a similar situation four years ago. At that time, we were fairly certain that Hillary Clinton was going to be the Democratic nominee. Meanwhile, the Republican race, with its multitude of characters, seemed like a farce. No one really stood out. At the time, Donald Trump has a substantial following, but not a majority of Republican voters. He gained his support mostly do to name recognition, and turning the Republican debates into Jerry Springer-like events, that many found entertaining.

Over the next few months, as primaries and caucuses were held, the experienced politicians in the Republican field found that they could not put their egos aside, and Trump racked up the delegates, based on name recognition and his entertainment value. By time the dust settled, and the two major candidates selected, many in the electorate asked, is this the best we could do.

That questions haunts the process of selecting a president to this day. Is this the best we can do?  The process is easy to criticize. It takes too long. It’s tiring for potential voters. It’s superficial. It’s too expensive. It’s too divisive. It gives a small minority of people way too much power in influencing the outcome. And in the end, it is just way too possible for the choice of most American voters to be ignored, as the person losing the popular vote can still wind up being the president.

It’s no mystery why in many elections, voters complain that they are choosing the lesser of two evils.

Surely, we can do better.

While the Democrats were engaging in their debates here in the United States, a fascinating crisis of leadership unfolded in the United Kingdom.  A new Prime Minister, Boris Johnson, has failed to convince fellow members of Parliament that leaving the European Union without concluding a deal upon which both the U.K. and the E.U. could agree would be a satisfactory outcome of Brexit. As a result, Johnson lost vote after vote in Parliament, and even saw enough of his party’s members defect to the opposition to rob him of a majority in Parliament. There was discussion of holding an election to choose a new Parliament. What was astonishing was that no one in the United Kingdom even questioned that such an election could be completed in five weeks.

Five weeks to choose an entirely new government in the U.K.; meanwhile, the campaign to choose a new president in the United States persists for more than two years. How can that possibly be?  Do we really need all that time to make a reasoned decision?  Some might even argue that the U.S. presidential campaign is never-ending. Indeed, President Trump continued to hold political rallies almost immediately after being sworn into office.

Is this really the best we can do?

Richard Nixon once said of running for president, that first one had to run to the right as far as he could to court Republican voters to nominate him. Then, during the general election, that same person had to run to the center as fast as he could, to convince independent voters to choose him over his Democratic rival.

It’s no wonder why American politicians are accused of flip-flopping.

To fix the system would go beyond tweaking what the United States already has. Indeed, simply abolishing the Electoral College would not be enough. The problem with the U.S. system includes our primary system, which takes too long, gives too much influence to two states with small populations, entrenches the two party system, and leaves a large number of voters without a voice in nominating the presidential candidates.

The first big contest of the nomination season is the Iowa Caucuses.  Iowa represents less than one percent of the total U.S. population. Yet, presidential candidates flock to Iowa early every four years to court the state’s voters. Especially when a candidate trails in the national polls, if that candidate can somehow convince Iowa voters to choose him or her, that candidate can experience a huge burst in popularity and news coverage. At times, a win in Iowa can create enough momentum to propel a candidate to the nomination.

Similarly, the first primary election takes place in New Hampshire, where the population is roughly one-third that of Iowa. An victory in the first election of the primary season can be as equally powerful, especially for a dark horse candidate.

But why do states with such small populations have such a big influence over the major parties’ nomination?  The short answer is tradition. Other states have tried to schedule their contests before Iowa and New Hampshire. But each time, the major parties threaten to discipline those states if they do so. For example, the major parties have threatened not to recognize any delegates selected in contests that occur before Iowa and New Hampshire.

The argument is that small states would otherwise get lost in the shuffle, if states with larger populations, such as California and Florida, have all of the influence over the nominations. But why is that a good thing?  Some may even argue that giving states with lower populations so much influence over the presidential nominations goes against the democratic principle of majority rule.

Moreover, the current nomination system is built around the assumption of two major parties: Democrats and Republicans. Democrats, of course, tend to lean left, or liberal, in their political views, while Republicans lean right, or conservative.  But in the last few decades, the number of U.S. voters who identify themselves as either Democrats or Republicans has fallen. A 2017 Gallup poll showed 31% of Americans identified themselves as Democrats, 24% as Republicans, and 42% as independent of any political party. Confining the nomination process to just the Democratic and Republican parties means an extremely large percentage of the U.S. electorate has no say in that process.  Moreover, because each party has a definite leaning on the political spectrum, this means the more extreme voters in each party have a disproportionate say in who gets nominated. The nominees, then, tend to be more liberal or more conservative than the population at large. Centrist candidates are at a big disadvantage in the current system, even though most American voters tend to be more moderate than liberal or conservative.

It’s no wonder, then, why there is often wide-spread disappointment in the two major nominees for president.

Those who may favor third party candidates get ridiculed. A nominee from the Libertarian or Green Party has no chance to win. So why waste your vote on a third party the argument goes. And so, independent voters, who make up the largest block of voters, are the ones who have to compromise the most when choosing between the two major parties’ nominees.

Why does it have to be like this?

Of course, the final blow to democratic principles occurs when in the end, the choice of most U.S. voters is ignored, and the loser winds of becoming the president. This is the result of the Electoral College. To summarize, the reality of the presidential election is that there are 51 separate elections, one in each state and one in the District of Columbia. Each state is given an amount of electors equal to the number of senators and representatives that states send to Congress, with the District of Columbia receiving three. The result of this system is to give voters in states with smaller populations a greater say in who becomes the president. Thus, the loser of the popular vote can still become president provided he or she can win in enough states. This has happened five times in the history of the United States. But the last two times have happened within 16 years of each other.  With Republicans having appeal to many of those smaller states, they have something of an advantage in the Electoral College system. Therefore, what was once thought of as a rare oddity of the American system threatens to become the norm in elections to come.

In sum, for a country that prides itself on being a democratic republic, its method of choosing a chief executive goes against many democratic principles.

In recent years, there has been a growing cry to eliminate the Electoral College. Some states have passed laws to give their states’ electors to whomever wins the national popular vote. The problem with concentrating on the Electoral College is that it fails to address all of the issues with the entire process.

A far more satisfying approach is to do away with the entire nomination system and Electoral College. The United States should adopt a system much like Louisiana’s non-partisan primary. In such a system, two elections are held. The first is a primary, in which every candidate runs, regardless of party affiliation. If somebody receives a majority (greater than 50%) of the vote, then we have our winner and the second election is cancelled. But if no one wins a majority in the primary, then the top two candidates face each other in the general election, held about one month later. Several countries, such as France, employ a system like this.

Such a system cuts down on the length of the presidential campaign, thus ending the non-stop campaigning we have today. Because it is a national election, no one region would have greater influence over the others. Because it is non-partisan, centrists and third party candidates have a greater chance of winning, meaning voters can freely vote their conscience, instead of choosing the lesser of two evils. It is a more democratic system, and likely to result in candidates that reflect the views of a larger proportion of the U.S. population.

By: William J. Kovatch, Jr.

Trump's Telephone Call with Ukrainian President Volodymyr Zelensky Reveals Why Trump Must be Impeached

On Wednesday morning, the White House released damning evidence which revealed that U.S. President Donald Trump deliberately sought information from a foreign country that Trump hoped would be damaging to a political opponent, former Vice President Joe Biden.  Specifically, the White House released a memorandum of a telephone conversation between President Trump and Ukrainian President Volodymyr Zelensky that took place on July 25, 2019.

The phone call was at the heart of an allegation by an unnamed member of the U.S. intelligence community, who filed a whistleblower complaint with the Inspector General of the Intelligence Community, Michael Atkinson, on August 12, 2019.  Prior to the release of the transcript, all that was known of the complaint was that it concerned an allegation of an inappropriate promise made by Trump to a foreign leader through a telephone call.  The complaint was deemed credible and of an urgent concern by Atkinson, who turned over the complaint to acting Director of National Intelligence, Joseph Maguire.  Because it had been deemed of urgent concern, federal law required Maguire to turn the complaint over to the intelligence committees of the House of Representatives and the Senate.  When Maguire failed to do so in the time proscribed by statute, Akinson alerted Congress to the existence of the complaint.

While the Administration dragged its heels on releasing the text of the complaint, the Wall Street Journal published an article on September 21, 2019, asserting that Trump had pressured Zelensky about eight times in the telephone call to investigate Biden and his son Hunter.  Despite initial denials and cries of  "fake news," Trump himself acknowledged that he had pressured Zelensky into investigating Biden and his son.  Trump's admission, along with his Administration's intransient stance on withholding the text of the complaint, prompted the House Democrats to meet on Tuesday night.  As a result of that meeting, House Speaker Nancy Pelosi, who had been opposed to impeachment over the findings of the Mueller Report, announced that the House would now begin a formal impeachment inquiry.  Feeling the political pressure on him growing, Trump agreed to the release of the transcript of his telephone call after obtaining consent from the Ukrainian Government.

It should be noted that no real word for word transcript of the telephone conversation exists.  Rather, the White House released a memorandum of the telephone call pieced together by government officials whose job included taking notes of such conversations.

Nonetheless, despite Trump's claims that the telephone call was "perfect," and that the transcript would exonerate him, the memorandum instead provides a smoking gun of an abuse of presidential power for personal political gain.

A review of the conversation demonstrates how Trump brazenly ignores his constitutional oath, and seeks to use his office for his own personal benefit.

Specifically, the memorandum confirms that Trump requested that Ukraine cooperate with his private attorney, Rudolph Guiliani, and the Attorney General, William Barr, specifically mentioning Trump's belief that Biden stopped a prosecution in the Ukraine that involved Biden's son, Hunter.  After Zelensky agreed to cooperate, Trump stated that he would have both Giuliani and Barr call Zelensky.

Joe Biden, of course, seeks the Democratic nomination for the 2020 presidential election, and currently leads the pack of potential nominees in most polls.  Indeed, in head to head polls, Biden leads Trump by wide margins.  Receiving information that Biden acted corruptly from Ukraine could potentially help Trump in his bid for reelection.

Trump faces the problem, however, that no evidence exists showing that either of the Bidens did anything wrong.  Before Zelensky was elected Ukraine's President, Vitkor Shokin served as Ukraine's top prosecutor.  He was supported by Russia, who was interfering in Ukrainian internal politics.  As is well known, once Ukraine started to turn more towards the West, Russia supported armed Ukrainian separatists, and even invaded Ukraine, occupying the Crimea and claiming it as Russian territory.

Shokin was viewed by Western European governments and the Obama Administration as being soft on corruption.  President Obama sent Biden on a mission to Ukraine to pressure the Ukrainian President to remove Shokin by withholding about $1 billion in U.S. aid.  The intention behind the move was to pressure Ukraine to be tougher on corrupt oligarchs through more aggressive investigations.

At the time, Biden's son, Hunter, held a position as a paid member of the board of a Ukrainian oil and gas company, Burisma.  While Burisma had been under investigation by the Ukrainian Government, under Shokin, the investigation had stalled.  Thus, by insisting on the appointment of a tougher prosecutor, Biden was not only representing official U.S. policy, but risking a renewed investigation of the company that employed Hunter.  No evidence exists that Biden was using his office for personal gain, or that Hunter himself had engaged in any sort of corruption.  Trump's goal. therefore, was simply to manufacture as much alternative facts as possible to cast dispersions on Biden, and hopefully use that to whittle away at Biden's lead in the polls.

In addition to claiming that his request to the Ukrainian President was appropriate, Trump has also claimed that the memorandum shows that there was no pressure placed on Zelensky, and no quid pro quo (or an exchange for something of value to Ukraine for providing the requested information).  Trump's defense again strains credibility.

At the beginning of the telephone conversation, Trump reminds Zelensky that the United States has been Ukraine's biggest supported.  Trump denigrates the actions of European allies, such as Germany, for not doing as much as the United States in supporting Ukraine.  Zelensky responds by fawning all over Trump, agreeing with his statement "1000%."  Most of Zelensky's responses transmit his desire to stay in the good graces of the Trump Administration.  Specifically, Zelensky is quoted a saying, "We are ready to continue to cooperate for the next step specifically we are almost ready to buy more Javelins from the United States for defense purposes."  A Javelin is a missile used by the U.S. military, and would presumably be used by Ukraine in defending its territory from Russia and Russian backed separatists.

This reference to Javelin purchases must be placed in context.  Congress had approved about $250 million in military aid to Ukraine.  However, just days before this telephone call, Trump had ordered that the disbursement of this aid be suspended.  It should also be noted that Trump's admiration of Russian President Vladimir Putin is well-known globally.  In fact, not long after this telephone conversation, Trump publicly stated his support for the readmission of Russia to the G-8, even though Russia had been thrown out because of its invasion of Ukraine.  Clearly, Zelensky had reason to believe that Trump's continued support of Ukraine in its struggle against Russia was soft at best, and could be withdrawn if Ukraine did not do as Trump requested.

In that regard, Trump is quoted as stating, "I would like you to do us a favor though," immediately after Zelensky brings up his desire to buy more Javelins.  The juxtaposition of this request from Trump immediately after Zelensky's spoken desire to buy more missiles, as well as his use of the word "though," indicates that Trump's willingness to provide additional aid was contingent on Ukraine's cooperation with his request for a favor.

What is interesting, however, is that Trump requests more than one favor.  The first one concerned a matter Trump refered to as "Crowdstrike."  Crowdstrike is the company that the Democratic National Committee used to investigate the hacking of its email server.  The Crowdstrike, the FBI and Robert Mueller's investigative team all concluded that Russia was responsible for that hacking.  Yet Trump refused to believe his own Government in reaching that conclusion.  One reason for his belief is because Crowdstrike never turned the physical server over to the FBI.  Trump believed rumors that Ukraine was in possession of the server.  He therefore asked Zelensky for his help in proving that Trump's convoluted conspiracy theory was true.

It is beyond odd that Trump demanded of the Ukraine that it find evidence Trump hoped would exonerate Trump's buddy, Putin, from the conclusion of the U.S. intelligence community, the FBI and the Mueller team that Russia interfered in the 2016 U.S. presidential election.  It demonstrates Trump's refusal to accept the conclusions of the Mueller and his team, who spent about two years investigating Russia, the Trump Campaign and the Trump Administration.  That investigation resulted in numerous criminal indictments, including the indictments of Russian officials.

Indeed, the timing of the telephone call further demonstrates the contempt that Trump held for Robert Mueller and his investigation.  Mueller had testified before Congress on the day before this telephone call.  Through his investigation, Mueller presented evidence of Russia's interference in the election, that the Trump Campaign had welcomed Russia's interference (although the conduct of campaign officials did not rise to the level of conspiracy), and of numerous instances that could support a conclusion that Trump engaged in obstruction of justice by frustrating the investigation into Russia's interference.

Mueller crafted his report on the investigation with the understanding that a sitting president could not be indicted during his term in office.  Thus, Mueller was careful not to make a conclusion that Trump had committed criminal acts.  Nonetheless, through his report, Mueller made it clear that his investigated did not exonerate Trump.  Rather, he preserved the evidence so that it could be used presumably either by Congress through impeachment or through a criminal prosecution once Trump left office.  Trump and his Administration publicly characterized the investigation as finding that there was "no collusion" and "no obstruction," despite the fact that Mueller made neither of those findings.

Trump, of course, repeatedly referred to the Mueller investigation as a "which hunt," confessing his belief that he, his campaign and his administration did nothing wrong.  Thus, in an interview aired in June of 2019, Trump answered a question from George Stephanopoulos by stating that he did not think it would not be wrong to accept information about a political opponent in an election from a foreign national.  Trump even indicated that if a foreign national provided such information, that he did not believe it was necessary to inform the FBI.  This brazen flaunting of the law raised such an uproar, that the Chairwoman of the Federal Elections Commission was prompted to tweet that "it is illegal to solicit, accept, or receive anything of value from a foreign national in connection with a U.S. election."  A thing of value incudes information that can be used against an opponent.

Trump, of course, never accepted that he did anything wrong.  Thus, in the shadow of Mueller's testimony before Congress, Trump went one step further than merely welcoming foreign interference in a U.S. election; he outright solicited such interference from a foreign leader.

The conclusion here is inescapable.  The memorandum of the telephone call to Zelensky shows that Trump has violated the public trust.  He has violated his oath to protect and defend the Constitution against all enemies, foreign and domestic.  In fact, Trump himself has violated the Constitution as well as criminal law by soliciting foreign interference in connection with a federal election.  In order to protect the constitutional balance, governmental ethics and our treasured democracy, the House of Representatives has no choice now, but to proceed with the impeachment inquiry.

By:  Willliam J. Kovatch, Jr.

Mid-Term House Results Highlight Decline in Republican Voter Base

Desiring to place a positive spin on the outcome of the 2018 mid-term elections, President Trump will most assuredly emphasize Republican gains in the Senate. Despite a pick-up of five seats (as projected at the time I write this) for a 56 seat majority, however, the results of the Senate races do not diminish the fact that the Republican Party is dying. 

The trend in the American electorate is more accurately demonstrated by the results of the elections for the House of Representatives. There, the Democrats, needing to pick up 23 seats to be the majority party, are projected as of the time of the writing of this to win as many as 35 seats. 

The Founding Fathers, fearing mob rule, built safe-guards into the Constitution, insulating the Government from the popular vote. Thus, the President is not directly elected by the people. Instead, the people vote for Electors, who make up the Electoral College and who in turn choose the next President. The number of Electors each state has is the sum of the number of the state’s representatives in the House and the number of the State’s senators. This results in disproportionate power being given to the voters in states with smaller populations, such as Montana and Utah, than to those in states with large populations, such as California and New York. 

Likewise, each state has two senators, regardless of whether the state has a population of 700,000 or 7 million. 

Even if a policy or presidential candidate lacks the support of the most voters nationwide, the structure of the US Constitution means that that policy or candidate can still win the day. 

Indeed, in the history of the United States, there have been five times when the candidate winning the popular vote nonetheless lost the presidency. The two most recent times occurred in 2000 and 2016 when the Republican candidate lost the popular vote but won a majority in the Electoral College. 

It should come as no coincidence that these two most recent examples involve Republican presidents. The fact is that the Republicans have seen their core supporters diminish for quite some time now. In fact, Republican Donald Trump lost the popular vote in 2016 by almost 3 million. The reason Democrat Hillary Clinton lost the Electoral College vote was due to the fact that her voters were concentrated in highly populated states where the individual vote has less power. 

Take the 2012 federal elections as an example. That year, the only group that gave Republican Mitt Romney a majority was white males. This caused a lot of soul-searching within the Republican Party, with many Republican leaders seeing a dire need to expand the appeal of the party to other demographic groups. As one effort to attract new voters, Republicans even initially supported a liberal version of immigration reform, which passed the Senate but died when Tea Party members in the House branded the bill as amnesty.  Fearful of the new-found power of the Tea Party, House Republican leaders backed away their support of immigration reform. 

The rise of the Tea Party itself serves as an example of how a group took advantage of political structures meant to counter the popular vote to gain power. When Republicans won control of the House of Representatives in 1994, after over forty years of Democratic majorities in that body, the party concentrated on protecting its power.  Republicans, led by Tom DeLay, focused on state legislature races, the state legislatures being the bodies that created congressional district maps. In a process known as gerrymandering, state legislatures controlled by Republicans drew maps that purposefully created a large number of districts where the population favored the Republicans. That is, the legislatures created safe Republican districts. While gerrymandering has been a part of American politics since the republic was formed, it had never been accomplished on so grand a scale before. The unintended consequences of this round of gerrymandering was that Republican House members now found stronger competition from more conservative candidates in the primaries than from challengers in the general election. Thus, the conservative Tea Party found themselves with power disproportionate to their actual size in the general population. Tea Party members strongly influenced the direction of the Republican Party.

While Republicans count on white makes for their support, the trend in the United States has been for white males to make up less and less of the general population. In order for Republicans to maintain popular support, Republicans needed to appeal to other demographic groups. 

However, Republicans have chosen not to broaden its appeal, but instead to attempt to counter the trend of the growing number of non-white voters. This can most easily be seen in the party’s immigration policy. While Republicans have opposed the ability of undocumented aliens to enter the country, they have also pursued policies to stem legal immigration. The Trump Administration, for example, has imposed harsher requirements on immigrants with at least a college education to qualify for a visa through the H-1B program. The Administration also seeks to impose restrictions on asylum-seekers, and wants to change the law to limit family-based immigration. If successful, the result of such policy positions will be to reduce the growth in non-whites within the US population. 

Applying these trends to the 2018 elections, Republicans picked up Senate seats in states such as North Dakota, Missouri, Florida and Indiana. These were all states that voted for Trump in 2016. Republican wins should therefore not be surprising. Indeed, of the 35 seats up for election in 2018, 26 were Democratically held. That meant going into the election, the Democrats not only had to defend all of their seats, but also pick up three of the remaining nine seats. The task of making gains in the Senate was much more difficult for Democrats. 

Gains in the House, however, are much more reflective of trends in the US population. Despite Trump’s claim to economic success, issues such as health care, the protection of women from sexual assault, harsh immigration enforcement, Russian interference in the 2016 election and the rise of racial bigotry all played a role in the Democratic victories. Indeed, the Democrats made these gains despite the aforementioned disadvantage of Republican gerrymandering. Clinging to gains in the Senate, which themselves will have no effect of the balance of power in Congress due to the fact that the Republicans already had a majority in the Senate, will do little, if anything, to enhance the long-term prospects of the Republicans. 

By contrast, a Democratically controlled House will not only thwart Trump’s agenda, but will give support to the continued investigation into Russian electoral interference headed by Robert Mueller. In sum, the results of the 2017 mid-term elections were a clear disaster for Trump and the Republican Party, and far more reflective of the hurdles Republicans face in future elections. 

By: William J. Kovatch, Jr.

Electoral College Victory, Popular Vote Loss: The New Norm in U.S. Presidential Elections?

When I was a boy learning about civics back in the 1980s, the idea that a person could win the Electoral College, but lose the popular vote was a novelty.  Sure it had happened three times already in U.S. history.  But the last time was in 1888, when Benjamin Harris beat Grover Cleveland.  As old as some of my teachers were, none of them had lived through that election.

Indeed, the latest examples for us were the Electoral College landslides of 1980 and 1984. We had teachers who liked to point out that a shift of just a few thousand votes in West Virginia in 1960 would have given Richard Nixon the Electoral College victory despite losing the popular vote.  But the fact was, it hadn't happened in almost 100 years.

But now it has happened twice in a sixteen year period.  Both elections involved a popular vote that was so close between the two major candidates that less than one percent separated them.  Both elections involved neither party receiving a majority of popular votes due to third party candidates.  In both instances, the Republican candidate emerged victorious in the Electoral College.

What was once a novelty of our system I believe has become a more likely outcome in future presidential elections.  It all has to do with demographics, and how the Electors are distributed.

Representation in the Electoral College rides off of a state's representation in Congress.  Each state gets the same number of Electors as it has Representatives in the House and Senators.  The District of Columbia gets at least the same number of Electors as the least populous state, which right now is three.

We all know that each state gets two Senators regardless of population.  That gives states with smaller populations the advantage.  In a state like California, there are approximately 680,000 people per Elector.  But in a state such as Montana, there are about 330,000 people per Elector.  Thus, if you live in a state with a smaller population, your vote in the presidential election has a greater weight.

When you compare the election results since the 1990s, what you see is that Democratic voters tend to congregate in states with a large population along the coasts.  Indeed, the Democratic candidates won by huge margins in New York and California.  Smaller western states, such as Montana, Idaho Utah, North Dakota and South Dakota tend to vote Republican.  That means that proportionally speaking, because of where voters live, Republican voters tend to count more in presidential elections. 

We all know, then, that presidential elections come down to the battleground states.  These are the states where the populations tend to be split more evenly among Democratic and Republican voters.  In those years where the elections are close, but the trend in these battleground states is to break with the Republican candidate, it will be more likely that the Republican will win enough states to secure an Electoral College victory, but when the tally of nation-wide popular votes is reported, win less than the Democratic counterpart.  Unless Democrats move out of cities like New York City and Los Angeles and into more rural areas, this trend is likely to continue.

Whether you believe this system should be changed is largely determined by whether your candidate wins.  The loudest calls for change in the Electoral College have not surprisingly come from Democratic voters.  But I recall a discussion during the 2000 campaign, that imagined the alternative possibility.  Namely, it was postulated that George W. Bush could win the popular vote but lose to Al Gore in the Electoral College.  It was further postulated that the Bush Campaign was ready to litigatie if that occurred.  Of course, we know that the opposite was true, that Al Gore narrowly lost the Electoral College and commenced litigation in Florida over the manner by which paper ballots were counted.  It was a contentious legal battle that very quickly found its way to the Supreme Court, and had this country uncertain for some time over who won the election.

In the end, the Electoral College is a method enshrined in the Constitution.  It can be changed, but only by a constitutional amendment.  Given that all of the methods of amending the Constitution require a super majority and that our electorate appears to be evenly split, it seems likely that the Electoral College is here to stay for quite some time.

By:  William J. Kovatch, Jr.

This Election Has Shown It Is Time to Strengthen the Electoral College

Guess what.  The U.S. Constitution does not guarantee the right of the people to elect their president directly.   As any middle-schooler can tell you, our system is based on a College of Electors, selected by each state, who in turn have the authority to cast the first ballot for president.  In fact, the Constitution does not even guarantee the right of the people to select their electors.

Section 1 of Article 2 of the Constitution provides, “Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors . . . .”  (Emphasis added).  Although the Electoral College has been modified from time to time through amendments to the Constitution, none of those amendments explicitly guarantees the right of the people to vote either for the president or for an elector.

Put simply, the Constitution establishes a system where each state chooses electors to send to the Electoral College.  The number of electors is equal to the number of Representative to which that state is entitled in the House of Representative, plus the number of Senators.  In addition, the District of Columbia, which is not a state and is not entitled to any representation in Congress, is provided with no more than the same number of electors as the least populous states.  The electors meet in their respective states and vote, in separate ballots, for president and vice president.  The results are transmitted to Congress.

A person must win a majority of votes from the Electoral College to be elected president or vice president.  If no candidate wins a majority of votes for president, the House of Representatives has the task of choosing the president.  But, the House votes by state.  Each state is given one vote, and the Representatives can only for one of the three top vote getters from the Electoral College.  In the Senate, if there is no Electoral College majority for vice president, Senators vote for one of the two top vote getters. 

Why did the Founding Fathers establish such a system to select the chief executive of the United States?  As with many of the structures created through the Constitution, the Electoral College was created out of a fear of concentrating too much power in one person or one group of people.  To put simply, the Founding Fathers had just fought a revolution to break away from the rule of a tyrant. 

But as John Madison noted in Federalist No. 10, tyranny could include an “overbearing majority.”  Madison warned that a group of citizens, “whether amounting to a majority or a minority of the whole” could unite to push “some common impulse or passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”  Madison recognized that people are fallible and selfish, and that this would cause differences of opinions and interests.  A group of people, to whom he referred as “factions,” could join together to pursue a common zeal over their particular opinion or even of a particular leader.  And thus divided into different parties, they could develop “mutual animosity” and attempt “to vex or oppress each other” rather than “to cooperate for their common good.”  Madison’s driving point was that the tyranny of a majority could work to oppress and infringe on the rights of a minority.  For these reasons, he, and other Founding Fathers, opposed pure democracy.

Instead, Madison argued for the creation of a body of people chosen by the citizens through which the views of the public could be passed.  The hope was that by choosing wise representatives, the good of the public as a whole could prevail over parochial interests and passions.  That is, Madison argued for the creation of a republic.

Yet, through the Constitution, the Founding Fathers did not create a purely parliamentarian form of government.  That is, they did not create a government where the legislature chose the person or group of people who would execute the laws.  As Alexander Hamilton explained in Federalist No. 88, the Founding Fathers wanted to make the chief executive officer, that is the president, independent from the legislature.  That is, they wanted the president to be free of any taint or influence from a pre-existing body.  It was thought that if the president were chosen by Congress, the president might be tempted to suppress his duty to pursue the good of the whole to the temptation to please Congress in order to preserve his tenure in office.

Putting the two fears together, that is the fear that a majority can itself be tyrannical, and the fear that an executive who is chosen by the legislature would be dependent upon the legislature and thus sacrifice the pursuit of the common good, the Founding Fathers devised a system whereby the people would choose a group who would come together only once for the sole purpose of selecting a chief executive, and then be disbanded.  The hope was that this smaller group of people, which we call the Electoral College, would give serious deliberation to the qualities needed for leadership, and choose a wise and virtuous leader.

In that way, the Electoral College was meant to protect the new republic from the dangers of demagoguery.  That is, a charismatic person could influence the general public by inflaming passions instead of reason.  Once in power, a demagogue could then trample on the rights of the minority.

Under the system envisioned by the Founding Fathers through the Constitution, the role of the people was no to select a particular person to be their president.  Rather, they were to select a group of people wise enough to select a person to be the president.

Unfortunately, in practice this is not was happens.  Through tradition, over time, the states have mostly chosen to hold popular elections where that state’s entire delegation of Electors would go to the winner of the popular vote.  In all but Maine and Nebraska, the states have chosen a winner take all approach. That is, each candidate nominates a slate of Electors, and the winner has his or her chosen Electors named to the Electoral College.  Thus, instead of choosing a group of people, individually, to in turn select our president, we vote for the person we want to be president, and the state’s Electors go to that person.  This turns the presidential election into nothing more than fifty-one different elections.

This system, which has grown out of tradition and not out of any constitutional requirement, has some unintended consequences.  First, it makes political parties indispensable.  Second, it distorts the popular vote.

With respect to political parties, in order to win the presidency, a person must be able to garner a few hundred people who will be loyal and vote for him when the Electoral College meets.  This means that a candidate must have an organization, and it must be on a national scale.  This is why it is virtually impossible for independent or third party candidates to win the U.S. presidency.

With respect to the popular vote, each state is guaranteed at least three Electors.  But, there is no guarantee that population is evenly spread across the states.  Thus, in less populous states, like Montana and North Dakota, voters have a disproportionately large say in who will become president.  It also means that it is entirely possible for a person to receive more popular votes for president, but because those votes may be concentrated in one state, lose the Electoral College count.  This has happened three times in U.S. history.

But, there is yet a third unintended consequence.  This system as it is currently configured is more vulnerable to demagoguery.  Specifically, most people today receive their news through television.  Television is a medium that thrives on images and short messages.  To get a message across, particularly on news programs, images must elicit an emotional response and do so in a short period of time.  Thus, the ten second sound bite reigns.  Television is not a medium conducive to a reasonable deliberation of complex issues.

We see this now in news shows and political fora.  Formats are not meant to encourage an intelligent dialogue as they are to encourage shouting, loud disagreement and entertainment that targets the short attention span.  In order to prevail, a person must look good, and have a catchy slogan.

But it is this manipulation of passions and emotions that motivated the Founding Fathers to create the Electoral College in the first place.  And indeed, this 2016 election has demonstrated the very danger that gave our Founding Fathers nightmares.  Both major political parties have been manipulated by demagoguery, and thus have nominated candidates with which many in the general public are completely dissatisfied.  Name recognition and entertainment have become more important factors in selecting candidates than a serious discussion of the issues that face this country.  Thus, this year many U.S. voters are left with the choice of voting for a candidate they don’t like in order to stop a candidate they hate.

The answer to this dilemma may simply be to strengthen the Electoral College, and have it return more to the roots of what the Founding Fathers intended.  That is, the U.S. public should go back to selecting a group of people who will in turn select the president rather than voting for the president directly.

One way to strengthen the Electoral College would be to eliminate the winner take all system.  Rather than vote for a single person, and all of a state’s Electors go to that person, voters should be forced to choose the Electors directly and by name.  If a state has six Electors, then the voters in that state should select six people to attend the Electoral College.  The names of the presidential candidates themselves should not be on the ballot.

The elections should not permit voters in a single sweep to select a slate of candidates. Each candidate should be selected separately.  Moreover, the candidates for Electors should not be grouped by party or by whom they support.  Indeed, nowhere on the ballot should a political party appear.  They should be listed either randomly or alphabetically.  This would have the effect of having a voter actually research the candidates for Electors, and determine if that person would be wise enough to in turn select the president.  If a person wants to select Electors all from one party, then have that voter research and know that information before coming to the ballot box.

Moreover, election of the Electors should permit vote stacking.  That is, if a state entitled to six Electors, then each voter in that state should be entitled to six votes and use them as they please.  If one voter wants to use all six votes on a single candidate to ensure that a particular viewpoint has a seat at the table, then so be it.

Finally, the Electoral College should not be a single day event where the Electors simply cast a vote.  To the contrary, it should be a multiday affair, where each Elector has an opportunity to say either what issues they find important, what qualities in a candidate they find important, or which particular person they may want as their president.

Yes, these proposals would remove the choice of presidency one step further away from voters.  But that does not make it undemocratic.  Voters will still have choice and a say in their chief executive.  But that choice would be less likely left to the winds of passions, ignorance and demagoguery.  It would instead make the process more deliberative and serious.

By: William J. Kovatch, Jr.