Sunday, March 19, 2017

Wouldn't going by Popular Vote be an even worse system than the Electoral College?



The primary concern of the Founder Fathers was to protect the rights of the individual to live and work according to his own judgement and conscience. The right to vote was not primary. It couldn't be, as the Founders considered individual rights to precede government.  


Notice the hierarchy established in the U.S. Constitution's philosophic blueprint, the Declaration of Independence. The issue of voting only arises with the creation of a government. First, it is established that man has certain unalienable individual rights—including life, liberty, and the pursuit of happiness. Then, “to secure these rights, governments are instituted among men.” Only after establishing the imperative to recognize rights and the need for rights-protecting government does the issue of voting arise—the “consent of the governed” clause pertaining to the government’s “just powers.” The right to vote—to have a say in the operation of the government—is a logical extension of our fundamental rights as human beings. It is not one of them. “Democracy” is not mentioned in our Constitution or the Declaration of Independence. Why? Because the fundamental presumption of America is not the primacy of majority rule. It is the primacy of liberty.


In other words, the Founders didn’t intend to create an absolute democracy—which I call democracy fundamentalism to distinguish it from the severely limited republican democracy we now have—in which the vote is the be-all and end-all. This is important when considering the means by which our votes choose our political leaders. One of the areas in which the Founders most showed their brilliance is in the area of structuring government so as to distribute political power—the power of the gun—in a way that minimizes the chance of an unhealthy concentration of political power and thus the emergence of tyranny that can threaten individual liberty. What kind of tyranny? Not just monarchy, but all kinds of tyranny, including the tyranny of the majority. It’s called the separation (or balance) of powers, also referred to as checks and balances.


Enter the Electoral College. The Electoral College must be understood within the context of the separation of powers. Article II of the constitution states that “Each State shall appoint, in such Manner as the Legislature there of 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” [my emphasis]. By giving the states, through their elected legislatures, the constitutional responsibility to pick the president through the Electors they appoint, the states collectively can act as a check on the power of the federal executive branch, or individually as a check on a popular majority dominated by large states.


Additionally, the state legislatures can step in and override their respective state popular votes for a variety of reasons. For example, in the case of an inconclusive vote due to voting machine breakdowns, massive fraud, terrorist attack, etc. the legislature can assert its authority to choose the electors and facilitate the smooth completion of the electoral process. In addition, the electors, though morally duty bound to cast their votes for whom they are pledged, can constitutionally override a popular vote in the unlikely event that an irrational, emotionally charged electorate chooses a demagogue with dictatorial ambitions, or other extreme circumstance. It is entirely within the realm of possibility that the Electoral College process may someday save us from the rise to power of an elected American Hitler or Chavez. In the leadup to the Electoral College vote on December 19th, 2016, there was a popular campaign to convince the electors not to cast their votes for Donald Trump on the grounds that Trump is unfit to be president, such as that his “impulsive nature would lead the country into another war.” The attempt failed, as expected. In the end, seven electors voted for people other than those they were pledged to, with Trump losing two votes and Clinton losing five, leaving a final tally of 304-227 for Trump. The defections went to John Kasich [1], Ron Paul [1], Bernie Sanders [1], Colin Powell [3], and Faith Spotted Eagle [1]. I don’t believe Trump is incompetent or unfit, at least not enough to warrant an electoral college upset of the voters. And he certainly doesn’t rise to the level of a Hitler or Chavez. But it is the job of the Electoral College to consider such issues before voting. While it may seem like a rubber stamp, it is not. It is a real structural bulwark against tyranny.


But the Electoral College does not sidestep “the will of the people,” to use that ridiculous catchphrase (what “will” of which “people?”). The popular vote does count. The state legislators, after all, are elected by popular vote. Furthermore, every state uses a direct popular vote to choose the electors (though no state has to)—all but Maine employing a winner-take-all system. The important point is that the Electoral College is part of the checks and balances that prevents tyranny and thus protects our freedom, while also acting as an efficient and transparent means for we voters to choose our leaders.


The Electoral College system not only serves an important function in the balance of powers. It works very well.


America is a big and diverse nation of 50 states. What concerns citizens in one state may be different from other states. States vary widely culturally and economically. Thanks to the Electoral College setup, presidential candidates must travel to many states to win the hearts and minds of popular voter majorities in those states, which means the candidates must learn about what issues concern people around the country. Isn’t that what we want from a president—someone who knows something about people she is to govern outside of concentrated bastions of support in a few big states?


There is nothing sacred about a national popular vote—not in a constitutional republic based on rule of law and limited, individual rights-protecting government; not in a United States of America. The national popular vote is irrelevant—and logically so—given the wide diversity of interests and concerns among the people in the states. In fact, if you take out California, by far the biggest state, Trump won the national popular vote by 1.5 million (at last count). California went for Clinton by a 4.3 million vote margin. That’s a lopsided 62-32%, way out of touch with the national electoral mainstream but enough to swing the national popular vote totals to Clinton. If you take out New York, another big state with a similarly lopsided Clinton margin, Trump won the other 48 states by 3.2 million. There were no large states that went for Trump by anything close to the CA-NY margins. Even reliably Republican Texas, the second biggest state, only gave Trump a 9% point margin. I mention this only so one can easily see why the national totals are irrelevant.


This highlights the fairness aspect of the Electoral College. Is it fair that the economic, cultural, and issue concerns of just one big state should decide what “the will of the people” is, and trample all of the rest? I say no, it is not; not in a nation as big and diverse as America. “The will of the people” is in fact a myth. It rests on the collectivist premise that “the people” is an entity with a will of its own apart from the individuals that comprise it. That’s mysticism, not reality. In reality, America is a nation of 330 million individual wills, about a third of whom cast ballots. The fact is, every voter has the same equal chance; each votes his choice of to which candidate to assign his respective state’s electoral votes.


There are better ways to measure the popular vote. That’s what the Electoral College system measures. Every elector is backed by popular vote at the state level. In other words, Trump did win the popular vote—30 times; that is, in 30 states totalling 306 electoral votes. Clinton won 21 times (including the District of Columbia). The national popular vote totals notwithstanding, Trump won fair and square, although admittedly without a full blown political mandate. But these virtues, important as they are, are secondary.


The crucial consideration is that liberty, not democracy, is the goal of the American republic and the starting point of American politics. The Electoral College is part of the checks and balances in the distribution of political power in a nation that measures freedom by the rights to life, liberty, property, and the pursuit of happiness, not merely the right to vote. The ballot box is a tool for maintaining a constitutional republic, which America actually is, not the mainstay of a democracy, which America is not. (These lasts facts have been substantially eroded, leading to increasingly unrestrained growth in government powers—which explains why elections have become such divisive and contentious affairs. People have increasingly seen their economic fortunes as tied not to their own self-productiveness to government aggression against other economic factions. In elevating the vote to such supreme importance, we forgot freedom. But that is a subject for another day.)


No one component of the checks and balances that the Founders put in place can guarantee that tyranny won’t arise, of course. And eliminating the Electoral College wouldn’t be the immediate end of freedom in America, though it would be a step in that direction. Indeed, vital as they are, checks and balances in and of themselves are no guarantee of preserving freedom. The long term battle to achieve and maintain a free society is primarily intellectual and philosophical.


That said, doing away with the Electors and allowing the voters to bypass their own elected state legislatures through a direct popular vote would further marginalize the states and further concentrate power in the federal government and in electoral majorities or even pluralities. Furthermore, a direct national popular vote model would pretty much destroy any chance of achieving a clear winner, as Donald Trump achieved by a 306-232 electoral vote margin. [Full disclosure: I am not a fan of Trump.]


I have disagreements with the Founding Fathers. The Electoral College is not one of them. “Wouldn't going by Popular Vote be an even worse system than the Electoral College?” It’s not a question of which is “worse.” The Electoral College institution has demonstrated strengths and virtues that make it an ingeniously good method. Not only would a direct popular vote be “worse”: It would be utterly ridiculous, even laughable, given how out of sync it would be with the character of American culture and society. Remember that liberty, not majoritarianism, has primacy in America. Don’t let the democracy fundamentalists get their way. Keep the Electoral College. It is, in my view, a valuable and unifying—and quintessentially American—institution. It is a valuable tool for fostering electoral coherence, restricting majoritarian power, and protecting our basic freedoms.


* In the leadup to the Electoral College vote on December 19th, 2016, there was a popular campaign to convince the electors not to cast their votes for Donald Trump on the grounds that Trump is unfit to be president, such as that his “impulsive nature would lead the country into another war.” The attempt failed, as expected. In the end, seven electors voted for people other than those they were pledged to, with Trump losing two votes and Clinton losing five, leaving a final tally 304-227 for Trump. The defections went to John Kasich [1], Ron Paul [1], Bernie Sanders [1], Colin Powell [3], and Faith Spotted Eagle [1]. I don’t believe Trump is incompetent or unfit, at least not enough to warrant an electoral college upset of the voters. And he certainly doesn’t rise to the level of a Hitler or Chavez. But it is the job of the Electoral College to consider such issues before voting. While it may seem like a rubber stamp, it is not. It is a real structural bulwark against tyranny.


Related Reading:







The Conscience of the Constitution—Timothy Sandefur

1 comment:

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