George Abert – Thoughts & Observations

Notes from an interesting life

Two Ideas for Making Things Different & Maybe Even Better

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These are Preliminary Ideas!

I’m posting this to solicit constructive feedback on some ideas that I sense might expand our democracy at a time when the nation suffers from what appears to be a late-stage form of polarization. I suspect but certainly don’t know that such expansion could be an effective way to end that polarization.

If you’re inclined to offer constructive feedback, please do. These ideas, if valid, need to be firmed up to gain traction and cogency.

Not Every Nation holds a Leadership Position

It’s often said that the United States is an indispensable nation and hence obliged to exercise global leadership. Perhaps. The leadership mantle is not exclusive to any one nation, and not all nations can exercise a significant role in global leadership. And, as history shows, the mantle is seldom held by any one nation for very long.

There was a time after WW2 when the United States provided global leadership in a manner that, on balance, was both necessary and righteous. In some regions this leadership was briefly welcomed. But within a decade, that righteousness began to wane to be replaced by hegemony and, eventually, hubris. By the early 1970s the United States evolved to become a kind of superpower nuisance. After the fall of the Soviet Union, that nuisance assumed an even greater maliciousness.

Fast forward several decades to the state of the United States in 2019. For a variety of reasons, the country is bitterly divided along partisan lines. As I see it, this division hamstrings the capacity for the country to properly exercise a positive leadership role, a role some outside the United States yearn for.

Perhaps we should look at ways to increase democracy as the means by which to tone down the partisan divide and reassert the nation’s leadership in a more positive manner? There are several ways this can be done, but two stand out.

One might be to eliminate geographically defined Congressional Districts and the other might be to eliminate the Electoral College. As originally conceived, the Constitution compassed arrangements that made sense given the state of the nation in the late Eighteenth Century. Given that things have evolved somewhat in the two plus centuries since the Founding, perhaps we should give things a closer look?

At Large or Virtual Congressional Districts

What if Congressmen, like Senators, served “At Large” or perhaps “Virtual” Congressional Districts? I’m not sure quite what to term these districts so perhaps you’ll indulge me and read on? According to the Constitution, each state is supposed to send two Senators to Washington. Both Senators represent everyone in their states rather than specific districts. Unlike Senators, Congressmen serve specific districts that are typically drawn up by their State’s Legislators or various types of Commissions.

Congressional seats are not apportioned in full accordance with the manner outlined in Article 1 Section 2 of the Constitution which states that “The number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative.” As the country grew, the number was limited to 435 by The Apportionment Act of 1911. If that hadn’t been done, after the 2010 Census, when the population was tallied at 320 Million, it would have been necessary to have over 10,000 representatives! Can you imagine how large a building would have to be to accommodate that many representatives and their support staff?

Moving on…

There are problems with the way most congressional districts are drawn up. The most notable is called gerrymandering[1], a practice that attempts to establish political advantage for a particular party or group by manipulating district boundaries to create partisan-advantaged districts. What is proposed herein is a process which would take the responsibility for drawing up congressional districts out of the hands of those temped to gerrymandering and place in the hands of the various parties and organizations that are able to garner enough votes to send representatives to Congress.

Instead of fixed congressional districts for which many would run campaigns to represent, there would be a primary and general election to establish a list of representatives for voters to select from. All those representing, say, the Republican Party would work with their party after elections to establish districts to represent for that Congressional Session. So, if there were four Republican congressmen elected, there would be four districts that would cover the entire state so that every Republican citizen would have a Republican representing them in that Congressional Session. What if the state that sends four Republicans to Congress also sends two Democrats? The Democratic Party, like their Republican counterpart, would establish districts for their representatives that covered the entire state such that no matter where they lived, every Democrat would also have a Democrat representing them in Congress.

How might this work? Those interested in running for Congress would organize petition drives to garner enough signatures to qualify to run and hence have their names added to state-wide Primary Ballots. In addition to garnering enough signatures to get their name added to the ballots, candidates would also state their party affiliation if they indeed were affiliated with a political party. When the ballots were printed up, the candidates would be listed by party affiliation. In states in open primaries, the ballot would have the names of all candidates regardless of party affiliation. In states with closed primaries, ballots would be printed up for each party.

It’s the custom these days for there to be just three party affiliations, Republican, Democratic and Independent. What if somebody representing some third party decided to run? Since it’s not yet illegal to run as a Communist, Nazi or Green Party candidate, those that did could call themselves, say, Independent Communists or Independent Nazis, etc. So, at this point, were any of those candidates qualified to run, their names would be listed on the Independent ballot. For now.

Voters would be able to vote for just a limited number of candidates based upon the number of Congressional Seats apportioned by the Census. Let’s say that a hypothetical state has five Congressional seats apportioned. Let’s say that the Republican ballot lists fifteen candidates. Those affiliated with the Republican Party would be instructed to vote for just five of the fifteen listed. If they voted for more than five their ballot would be deemed invalid and their vote would not be tallied. When the votes of the valid ballots were tallied, the five candidates with the most votes would go on to have their names added to the General Election ballot. The Democrats and Independents would follow the same procedure.

When the General Election Ballots are printed, all the remaining candidates, regardless of party affiliation, would have their names listed. Because this hypothetical state was apportioned five Congressional Seats, voters would be instructed to vote for just five of the candidates listed. Voting for more than five would render their ballot invalid. The five candidates with the most votes would be sent to the next Congressional Session. The parties would then draw up Congressional Districts for their successful candidates for that session. Interestingly, were a party to have only one successful candidate, that candidate would represent everyone in his or her state that shared his or her party affiliation. So, if a Green Party candidate was sent to Congress, he or she would represent every Green Party member in that hypothetical state.

Another benefit might be that congressmen wouldn’t be as obliged to go to Congress to “Bring Home the Bacon”. Sure, as is presently the case, various special interests, typically defense contractors, would be inclined to support candidates that worked to secure defense contracts that favored their state over others, but I sense the pressure to do so might not be as intense.

Another interesting variation might be to allow for more than just the three affiliations.

But let’s look at the second idea:

Eliminating the Electoral College

As does happen from time to time, there’s talk of eliminating the Electoral College, most recently in the wake of the 2016 elections by which victory went to the candidate that won the most electoral votes despite the fact that his opponent won the popular vote. The makeup and function of the Electoral College is compassed in Article II, Section 1, Clause 2 of the Constitution.

This was compassed with four features as follows:

  1. Electors are to vote for two persons, at least one of whom must be from outside the elector’s home state.
  2. Electors were not allowed to differentiate between the two persons as potential presidents or vice presidents. Electors were to simply vote for the two persons they viewed most qualified to become president. The person gaining the most votes, if a majority, would become president. The runner-up and presumably the second-most-qualified person, would become vice president.
  3. Electors, at least following the election of George Washington, would quite often fail to reach a majority for any specific candidate. When that happened, according to the original Constitution, the decision would be made by the House of Representatives, with each state’s delegation having one vote. The Constitution also provided that the House would choose in case of a tie vote between two candidates each of whom had received a majority of votes.
  4. Finally, because the Constitution, until amended in 1933, provided that newly elected representatives would meet for the first time only a full year after election, the choice would be made by a House that would likely have included some lame-ducks, including representatives who had been defeated in the recent elections. All these features were in effect in 1801.

The rational for this methodology was described in Federalist No. 68 which is attributed to Hamilton.

When the Constitution was drafted, the US was a largely rural country with few roads. Most citizens were illiterate farmers unable to keep abreast of the news. The larger cities were quite distant from the vast majority of the citizenry as well as from one another. These cities flourished because they were ports and hence able to facilitate and benefit from maritime trade. The preferred means of travel from, say New York to Boston, was by sea as overland travel took too long and was all but impossible during the winter months.

In Federalist No. 68, Hamilton argued for an Electoral College for several reasons.

  1. The first had to do with the founders’ overriding fear of mob rule. The objective was “to afford as little opportunity as possible to tumult and disorder.” “The choice of several to form an intermediate body of electors, will be much less apt to convulse the community, with any extraordinary or violent movements, than the choice of one who was himself to be the final object of the public wishes.”
  2. The second had to with their fear of foreign interference in general and with the electoral process in particular[2] “The most deadly adversaries of republican government might naturally have been to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the union?”[i]

3         The third reason was based on the founders’ desire to have the executive beholden only to the citizenry: “…the executive should be independent for his continuance in office on all, but the people themselves.”

Taken together, these three concerns were subordinate to the founders’ desire to ensure that the office was not bestowed upon “any man, who is not to an eminent degree endowed with the requisite qualifications.” While it could be possible for the actions of one state’s electors to be compromised, they reasoned that it would be quite difficult for all the states electors to be so compromised.

Article II, Section 1, Clause 2

Each State shall appoint, in such Manner as the Legislature thereof 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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

(The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not lie an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing 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. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice-President.)

The preceding clause, in parentheses, was superseded by the 12th Amendment as follows:

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. 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. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. —The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

The 12th Amendment was prompted by the election of 1800. That election was important because it was the first time an incumbent, John Adams, was defeated. He had been Washington’s Vice President for two terms and was then elected in his own right in 1796. His Vice President was Thomas Jefferson. This result reflected the Framers’ desire to avoid development of political parties and focus on the notion of best men[3]. By 1796, Adams was a member of the Federalist Party, while Jefferson was supported by the Democratic-Republican Party. They ran against each other in 1800. Both Adams and Jefferson had running mates. Charles Pinckney was Adams’ running mate and Aaron Burr was Jefferson’s running mate. The Federalist Party electors figured out that it was important not to cast both their votes for Adams and Pinckney, as that would create a tie and, if both got a majority of the vote, throw the election to the House where the Democratic-Republican electors would be inclined to vote for candidates they favored. In fact they dutifully cast both of their votes for their party’s champions, thus creating a tie majority vote that forced the House to choose between Jefferson and Burr.

The tie vote exposed flaws in the original methodology. The one-state/one-vote rule had the practical effect of giving Delaware’s sole Representative Bayard, a Federalist, the same power as Jefferson’s home state of Virginia, then the largest state. And what if a state had an even number of representatives who split their vote thus evening on their choice? In that case, the state’s vote was not cast at all! Given that there were 16 states in the Union in 1801, nine delegations had to agree on their choice. Only on the 36th ballot did Bayard finally agree to vote for Jefferson to break the deadlock. Jefferson was peacefully inaugurated on March 4, and an-important precedent was set for the peaceful transfer of power. But the original Electoral College system was exposed as flawed and there was widespread agreement that something had to be done. But what?

One possibility was to adopt a suggestion floated by Pennsylvania’s James Wilson at the Philadelphia Convention that presidents should be elected by a national popular vote. That was rejected in 1787 and did not become a serious possibility in the early 19th century. Still, it had become clear that political parties had become a permanent feature of American politics and that the Electoral College system should be modified to reflect this reality. But how?

The answer is simple: henceforth electors would continue to cast two votes, and one of them, as before, would have to be for a non-native of the elector’s home state, but one of the two votes would explicitly be cast for the president, while the other for the vice president. Never again could presidential candidates and their running mates face the embarrassing kind of tie vote that forced the House to choose between Jefferson and Burr. The 12th Amendment was proposed by the Eighth Congress on December 9, 1803 and submitted to the states three days later. There being seventeen states in the Union at that time, thirteen had to ratify it. Secretary of State James Madison declared the Amendment added to the Constitution on September 25, 1804, when fourteen of the seventeen states had ratified it. Delaware, Connecticut, and Massachusetts had rejected it. The election of 1804 and all subsequent elections have been carried out under the terms compassed by the Twelfth Amendment.

In addition to the implicit recognition of political parties, the 12th Amendment made another important change: The original Constitution provided that the failure of any candidate to achieve a majority would oblige the House to choose as president one of the five top-ranking candidates, with the person coming in second to serve as vice-president unless there was tie for second place, in which case the Senate would choose between them. The 12th Amendment obliged the House to choose the President from just the top three choices of the electors, and the Senate would choose the Vice President from the top two choices of the electors for that office. This setup guaranteed that there would always be a vice president, who could presumably take the reins of the presidency should the House be hopelessly divided among the top three candidates for the presidency.

This feature became crucial in 1824, the only time since the 1800 election that the House was required to select a president as the result of the inability of any of the presidential candidates to garner a majority electoral vote. Andrew Jackson won 99, John Quincy Adams 84, William Crawford 41, and Henry Clay 37. Under the original Constitution, the House would have been able to choose from all four, and it is possible Clay could have won. But under the 12th Amendment Clay was out of the running, and the choice was reduced to just Jackson, Adams, and Crawford.

Although no election since 1824 has been decided in the House of Representatives, a shift of just a few votes in a few key states could have forced this in 1948, 1968, and 2000. What this means, practically speaking, is that in contemporary America, Wyoming, the smallest state with just under 600,000 people, has just as much sway in choosing a president as does California with a population nearly 70 times more numerous. And interestingly, it’s possible for a popular vote winner to lose to the runner-up in part because gerrymandered delegations in the House of Representatives could vote for their party’s favorite rather than the person that actually received the majority of their state’s popular vote[4].

Because of the occasional and potential for disconnect between the popular vote and the electoral vote, there have been recurrent proposals to simply elect the president by popular vote. If, though, one shares any of White’s or Tracy’s concerns about the vice presidency, popular election would not necessarily assuage them if one were forced to vote for the president and vice-president as a single ticket[5].

One possible reform is to adopt the practice of many states and unbundle the election of the president and vice president. That is, just as in many states candidates for governor and lieutenant governor run entirely separate campaigns, meaning that sometimes the governor can be from one party and the lieutenant governor from another. One could therefore imagine separate elections for the president and vice president. Even within the Electoral College, we could imagine voting for two slates of electors, one charged with choosing the president, the other picking the vice president. Most of the time voters would pick the slates of the same political party. But one can imagine that voters might be so put off by the vice presidential candidate they would be inclined to “split” their ticket. That very possibility might serve to discipline presidential candidates more than is now the case, especially because candidates who win the presidential nomination today basically exercise unlimited discretion in choosing their running mates. This was not the case before the 20th century, when political conventions were far less “choreographed”[6] and often exercised the final choice in picking both candidates.

The 12th Amendment, although largely unknown to most Americans, has an interesting history but, much more importantly, has the capacity to play a key role should we ever become a multi-party system, as was the case in 1948 and 1968, in which a third-party candidate could theoretically earn enough electoral votes to deprive anyone of a clear majority and thus force the election to the House.

Before going forward, let’s acknowledge that the electoral process has been modified from what was originally compassed within the Constitution by the 12th[7] and 23rd[8] Amendments.

The Twelfth Amendment cannot be understood outside of the Electoral College, which was compassed as the indirect method by which Americans select their presidents.

So, why do away with the Electoral College?

For starters, the means by which to tally the vote has been vastly improved since the founding. Witness the 24-hour news coverage that accompanies the process from start to finish for which there’s a global viewing audience. There’s an almost real-time tally that occurs within minutes of the polling places being closed. If the networks can do this, surely some department within the Federal Government can be tasked with doing this.

If the Electoral College and specific Congressional Districts were eliminated, this could “expand” democracy. And since there’s some linkage between Gerrymandering and the Electoral College, eliminating both might be a prudent alternative to eliminating just one of the two.

So, should any of you, which have troubled yourselves to read this far, have any constructive ideas, kindly suggest them as comments. And, should you be inclined to be trolls, be advised that I retain the power to decide which comments can be posted.

[1] The origin of the term gerrymander dates back to the early 1800s in Massachusetts. The word is a combination of the words Gerry, for the state’s governor, Elbridge Gerry, and salamander, as a particular electoral district was jokingly said to be shaped like a lizard.

[2] At that time the concerns for foreign interference centered on Great Britain, the former colonial ruler that had designs on reclaiming their “paradise lost”. More recently this same concern has been focused on Russia, shown to have meddled in the 2016 election.

[3] Notions that were soon frustrated…

[4] All the more reason why we should adopt at Large or Virtual Congressional Districts!

[5] Political scientists have determined that voters rarely cast their vote on the basis of the vice presidential candidate.

[6] A somewhat kinder terminology than “rigged”?

[7] Amendment XII – Election of President and Vice President

Passed by Congress December 9, 1803. Ratified June 15, 1804. The 12th Amendment changed a portion of Article II, Section 1. A portion of the 12th Amendment was changed by the 20th Amendment.

[8] Amendment XXIII – Presidential Vote for D.C. Passed by Congress June 16, 1960. Ratified March 29, 1961. Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. Section 2. The Congress shall have power to enforce this article by appropriate legislation.

[i] Perhaps this is the basis for the obsession with Russian interference in the 2016 election? Noticeably absent from these Russian interference discussions is any hint at what the Russian’s motivation might be. Detectives and intelligence analysts are trained to fill in the blanks of the “Means, Motive & Opportunity” triad. While an abundance of discussion has been devoted to the Means and Opportunity, not one cogent iota of discussion has been devoted to Motive. During the Yetsin years that followed the collapse of the Soviet Union, western investment banks took advantage of the ensuing chaos to begin what could have been a decades-long plunder Russia’s eight time-zones of largely untapped Siberian natural resources. When Vladimir Putin assumed the Russian presidency, he promptly put a stop to this. Might this be why were expected to dislike Vladimir Putin as a means by which we’re to display our patriotism? Sure, the Wall Street/Canary Wharf Kleptocracy may be smarting, but what’s in it for the rest of us?

Written by GW Abert

November 26, 2019 at 09:50

Posted in Uncategorized

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