[EL] Two thoughts on the Electoral College and National PopularVote

[Paul Lehto]

When the Electoral College was approved constitutionally, it was well known
and expected that the only candidate who stood a real chance of winning
under such a system was George Washington. As such, one can understand the
Electoral College system as being a form of election-rigging, albeit a
legal and constitutional one, in favor of candidates with more national
bases of support.

The Constitution when adopted was certainly not a perfectly democratic
document, it was compromised at several key points such as the issues of
slavery and disfranchisement of many people including women. The trajectory
of US history, however, has been steadily in the direction of greater
democracy and "making real" the promises of the Declaration of Independence.

Because the Electoral College is directly brought into question here,
pointing to its less than totally democratic nature is perfectly legitimate
as a point.  Though there exist arguments in favor of its continuance, it
would seem that none of these arguments carry more weight than the
principle of one person one vote and the equal weight to be accorded to
each person's ballot. The compelling circumstances of helping to ensure a
national-unity president in the form of George Washington are significantly
diminished in modern times, for we no longer have an infant nation in need
of a steady start.

How would allowing the voters of several states to more or less control the
outcome of the presidency via overwhelming majority votes in those states
be more fair, Tara asks?  It would be more fair from the standpoint that
arguments for in effect weighting the votes of persons in other states more
heavily *do not seem to be collectively able to muster the weight and
momentum necessary to dislodge or overcome the one person one vote
principle.*  Having differently weighted votes is a form of aristocracy,
not democracy. The tradition of coloring the states blue and red implicitly
reflects a one ACRE one vote system, not one person one vote, and acres
don't have votes.

If Texas v White is correct and we have an indissoluble union, then the
need to keep some states happy out of concern they may leave the union
dissolves, because they can't leave.  This throws us ever more on the
trajectory toward fuller democracy.

Over the generations, proposals and establishments that are less than
democratic have consistently tended to fall.  These processes take
generations or even centuries, but the trend is unmistakeable.  The
question is whether the Electoral College should fall at the present time
due to its undemocratic elements, or whether it's days/years are not yet
numbered in the single digits.

Yes, we have tolerated practices for many decades that were not democratic
in very significant part because they had constitutional status.  These
compromises on the questions of democracy have been shown over the course
of history to be amongst the ugliest and most regrettable chapters of US
history.  So, should we continue to compromise democracy with the electoral
college (albeit in more minor ways than slavery, etc) simply because it has
constitutional status?  The record of the Constitution is one of
regrettable compromise made out of fear of civil war but which ultimately
did not avoid civil war, anyway.  In the areas where the Constitution did
not compromise with the principles of democracy it has a much more glorious
record.

Elections are the one and only way of determining the will of the people,
which in turn is the one and only source of legitimate government power.
If a proponent of an argument can not trace the basis of their claims
concerning the control and exercise of governmental power to a vote of the
people or the principles involved with such votes, then the argument lacks
democratic legitimacy, no matter how compelling the argument may seem.
Arguments for "efficiency" and/or "conclusive" election results are often
examples of this.  They are superficially compelling and this is why the
efficiency of dictatorships is their most attractive governance feature.
But efficiency is not democratic, so Truman said "if you want efficiency,
you'll get a dictatorship."

The same would go even for questions of "fairness".  Democracy is quite
often very fair, but is not necessarily so, since the loser in a
majoritarian vote can always come up with as many unfairness arguments that
they wish, and these unfairness arguments might even be considered to have
merit.  But so long as majorities are not violating fundamental rights of
others, a free people must be able to effect non-rights-violating
"unfairness" if it is truly to be a free people.  If the people are not
free to be "unfair" outside the scope of the fundamental rights of others,
then they are a managed and controlled people, not a free people.

Paul Lehto, J.D.

On Wed, Nov 28, 2012 at 10:51 AM, Tara Ross <tara at taraross.com> wrote:

> Paul (and I think a few others) have made a completely fair and legitimate
> point.  There is no urgency this election year to get the counting done.
> If there were more urgency, some things would be moving faster.  Yes, good
> point. I should have acknowledged it before.****
>
> ** **
>
> On the other hand, there is also no controversy this year.  Controversy
> would slow the counting down and hamper our ability to reach a certain
> election outcome.  For reasons I’ve outlined on this list serv before, the
> Electoral College has helped to control controversy, fraud and other vote
> counting problems.  We should not dismiss those benefits too lightly.****
>
> ** **
>
> I am at a loss to understand why electoral certainty is supposedly at odds
> with democracy.  So lawsuits, recounts and controversy, complete with each
> side’s lawyers manipulating the legal system to their benefit…..that’s more
> democratic?  And why is pure democracy the only “fair” way to determine the
> people’s intent?  Such a statement assumes the very matter in question. The
> Founders did not make such an assumption.  Instead, they left themselves
> open to the idea that a presidential election process can legitimately
> require candidates to obtain support from a majority of some other
> aggregate of individuals.  In this case, the Founders opted for a system
> that would require a majority of states’ votes.  Candidates are required to
> obtain a majority—but it is a federal majority, not a majority among
> individuals.  Historically, this system has done a great job of determining
> who has the support of most Americans nationwide. We are better off with
> these national candidates than with more regional candidates like Grover
> Cleveland (1888).  Had Cleveland won that year, he would have done so
> because he ran up his vote totals in the South.  Why should a handful of
> Southern states be able to pick a President for the rest of the country?
> Why is that purely democratic outcome more fair?****
>
> ** **
>
> ** **
>
> ** **
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Paul Lehto
> *Sent:* Tuesday, November 27, 2012 2:54 PM
> *To:* Sean Parnell
> *Cc:* law-election at UCI.EDU
> *Subject:* Re: [EL] Two thoughts on the Electoral College and National
> PopularVote****
>
> ** **
>
> ** **
>
> On Tue, Nov 27, 2012 at 11:51 AM, Sean Parnell <
> sean at impactpolicymanagement.com> wrote:****
>
> [...] I think the implications for National Popular Vote are pretty
> obvious – had this been a closer election (say, Bush-Gore or Kennedy-Nixon
> close) we’d still not know who the president was, and there would be
> horrific legal battles being waged right now all across the country over
> which ballots should or should not be counted. The Electoral College seems
> to have provided conclusive clarity rather quickly. ****
>
>
> It's really doubtful anything would still be undecided today if late
> counted ballots were seen by election officials as of equal importance to
> election day ballots, absent orders staying vote counts.  All of the votes
> could have been counted by this time and even days earlier if there was
> anything pressing the issue, but statutes such as California's make the
> deadline 31 days so like all deadlines the tendency is not to get things
> done "early."
>
> Election officials generally count fewer votes each day (as a general
> trend) and in California they take their leisurely time because they are
> given leisurely time by statute to do so.  It seems everyone in campaigns,
> some in the media, and some election officials are sufficiently burned out
> by the time election day finally passes that they feel they badly need a
> vacation and often take one.  These officials are greatly assisted in not
> having a sense of urgency with regard to completing counts by the actions
> of many on this listserv, who have already written all the original drafts
> and some final drafts of what this election "means" - undermining the
> motivation to take the remaining vote counting seriously even though late
> counted ballots are demographically different than election day ballots.
>
> The false assumption in Sean's argument and in the USA Today editorial is
> that the amounts of time being taken are really needed when the time is not
> needed.  Had Los Angeles County for example subcontracted this task it
> could have been done long ago, even by hand counting.
>
> In addition, the purpose of a voting system is two-fold: to measure voter
> intent and to generate evidence of error or fraud that the administrative
> and legal systems can act upon as appropriate.  The purpose of voting
> systems is not to generate or output a "conclusive" result, as Sean states
> above.  From the standpoint of any democracy or republic the only desirable
> "conclusive" result is in situations where the intent of the voters is in
> fact "conclusive" -- which is not in all cases.
>
> The desire for a "conclusive" result is not a democratic desire unless and
> until it is shown that the intent of the people is 'conclusive."  It really
> should not be a problem to wait a couple of weeks if that is truly what it
> took to properly count all the votes, but as I say above, this amount of
> time is not necessary under present circumstances.
>
> Paul R. Lehto, J.D. ****
>
>
> ****
>
>
> --
> Paul R Lehto, J.D.
> P.O. Box 1
> Ishpeming, MI  49849
> lehto.paul at gmail.com
> 906-204-4965 (cell)
>
>
>
>
>
> ****
>



-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4965 (cell)
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