2016/12/13 Tuesday - The Conscience of an American Citizen
The Infamous History of Electoral College
Even though the winner of this year’s presidential election has been declared more than a month ago, the actual counting of votes has not yet been completed. As it stands as of 12/13/2016, according to NYT http://www.nytimes.com/elections/results/president, Hillary Clinton has received 65.7 million or 48.1% of popular votes, 2.8 million more than Donald Trump who received 62.9 million or 46.0%.
As surprising as this may be, this was the second time in five elections in the last 16 years that the candidate who received the most popular votes ended up losing the election. In the 2000 election, Gore received over 540, 000 popular votes more than W. Bush, but Bush was declared winner of the presidency because of the Electoral College. Worse yet, such miscarriage of democracy in fact also occurred in three other elections, 1824, 1876 and 1888, when the winner of popular votes lost the presidency. Let’s take a quick tour in history。
The 1824 Election (Appendix A) was contested among four candidates of the same Democratic-Republican Party, Andrew Jackson, John Quincy Adams, William Crawford, and Henry. Because none of them received a majority of the electoral votes, the election was decided by the House of Representatives according to the 12th Amendment. The House handed the presidency to Adams even though he lost to Jackson in both electoral votes (84 vs. 99) and popular votes (108,740 vs. 153,544). Henry Clay, the Speaker of House Representative allegedly threw his support to Adams in exchange for later being appointed the Secretary of State. If this seemed to be political corruption to you, because it was, and the far worse was yet to come next.
The 1876 Election (Appendix A) was arguably the most bizarre and sinister in American history. In the final days of the campaign, the Democratic candidate Samuel Tilden of New York was widely regarded as the clear favorite to win. Tilden received 50.9% of the popular votes and 184 electoral votes, only 1 vote shy of a majority, while the Republican candidate Rutherford Hayes of Ohio collected only 47.9% and 165, respectively. A total of 20 electoral votes from four states were in dispute. One elector from Oregon was declared illegal for being an “elected or appointed official,” while both parties from the southern states, Florida, Louisiana and South Carolina declared their candidate won their states.
What followed was the informal, unwritten and malicious deal called the Compromise of 1877, one of the darkest chapters in American history. The Democrats, who already controlled the House of Representatives, were willing to allow the Republicans to continue its hold on the presidency since 1860 on the condition that Grant (the incumbent president) and Hayes (the incoming) agreed to end military occupation by federal troops in the South since the end of Civil War, thereby effectively ending the Reconstruction era, during which the Republican whites controlled many state governments, and even many blacks became elected officials in the South, thanks to the 15th Amendment (1870) that guaranteed the right to vote regardless of color or race.
Once its complete domination was restored in the South, the Democratic Party enacted many state laws that enforced racial segregation, perpetuated racial discrimination, and disenfranchised people of minorities in all southern states until the civil rights movement in the 1960sThe Electoral College system became a cynical means for partisans of both sides to achieve their respective disgraceful political purposes, holding on power for the Republicans and restoring racial injustice for the Democrats.
The 1888 Election between Grover Cleveland, a Democrat incumbent president, and Benjamin Harrison, a Republican senator (Appendix A), was otherwise regarded by some political observers as a rare presidential election that was conducted on both sides with gentlemen fashion of dignity and decency. Believing he should continue to focus on his duties as president, Cleveland made only one public appearance to accept the nomination, while Harrison confined his activity to carefully scripted speeches to visitors and supporters to his home in Indianapolis. Cleveland won the popular vote by more than 90,000 (0.8%), but lost the electoral votes by a 233-197 margin to Harrison.
The election was very closely fought in only four battleground states, New York, New Jersey, Connecticut, and Indiana. Had Cleveland not lost his home state, New York (36 electoral votes) by a margin of only 14,373 votes or 1.09%, he could have flipped the electoral vote to 204-197 in his favor. On this occasion, there was neither public confrontation nor backroom dealing. Nevertheless, the national margin of over 90,000 votes was overruled by the margin of 14,373 in one state, hence the will of the majority of voters was suppressed for the third time because of the Electoral College. Yet again the far worse would come next. https://en.wikipedia.org/wiki/United_States_presidential_election,_1888
The 2000 Election (Appendix A) was arguably the most controversial and bitterly fought-out presidential election in American history. Early in the election evening of November 7, Al Gore, a Democrat incumbent Vice President had won the popular votes and led in electoral votes by 255-246 over George W. Bush, a Republican governor of Texas. All major news network initially called Gore the winner of the Florida’s 25 electoral votes based on exit polls, then around 10 p.m. moved Florida back into the “Undecided” column, and around 2:30 a.m. called Bush, the winner of Florida, hence the president-elect. By 4:30 a.m., the networks retracted their prediction for the third time because Gore had closed the gap to just over 2,000 votes, and withdrew his earlier concession to Bush. An unprecedented legal battle ensued in the next five weeks while the entire country and the whole world watched with anxiety and amusement.
Given such a slim margin, Florida law mandated all votes to be recounted in all counties by machine tabulation, which further reduced Bush’s lead to only 327 out of 6 million votes. The Democrats then requested manual recount in four heavily Democratic counties under the Florida state law, which however did not provide clear guidelines for hand recounts. The Republicans sued in the federal district court to stop the manual recount, but was denied by the federal judge given the fact that absentee ballots were still being counted and the election not yet certified until November 14.
The Gore campaign requested extension of filing deadline for counties to submit their vote counts. Katherine Harris, the Florida Secretary of State who was responsible for overseeing the state election rejected such request, which surprised few observers because she was also the co-chair of Bush campaign in Florida. A lower state court allowed Harris to certify the election result on November 17, but was overruled by the Florida Supreme Court which unanimously ruled that the hand recounts to be included in the tally of votes on November 21. On November 26, Harris, with support of Jeb Bush, then governor of Florida and younger brother of W. Bush, certified Bush the winner of Florida’s 25 electoral votes by 537 votes. The Gore campaign sued again at the county circuit court to include the disputed undervote ballots in Miami-Dade and Palm Beach counties. The judge denied this request. Gore appealed his case to the Florida Supreme Court, which ruled in a 4-3 split decision to mandate manual recounts of all undervotes to be recounted in all counties. In great panic, the Bush campaign immediately filed appeal straight to the U.S. Supreme Court
On December 9, the U.S. Supreme Court agreed to hear Bush’s appeal. On December 12, in a 5:4 decision split strictly along partisan line, the five conservative justices overruled the four liberal justices in reversing the Florida Supreme Court, ordered an immediate halt to the manual recount, and upheld the certified result, effectively handing the presidency to Bush. The next day, Gore gracefully conceded the election to Bush in a televised speech.
There were at least two blatant partisan hypocrisies involved here. First, the Republicans since Reagan have always emphasized their respect of state rights and distaste of federal intrusions. Since election was entirely run by each state, the Florida Supreme Court should have had the final call in this case. Secondly, the five conservative justices oddly and very tellingly declared that their decision should not and would not serve as precedent for future election disputes. Again, the Electoral College provided the context that enabled pure partisan power grab in flagrant contempt of democracy. More importantly, a margin of 537 votes in Florida overruled over 540,000 votes nationally at the ratio of 1:1013，what an incredible vote inequality!
What is the Electoral College?
By any definition of democracy in modern time, a candidate with a clear winning margin of more than 540,000 votes, not to mention of 2.8 million votes, would have been duly declared the president in all other democracies, except America.
Such unconscionable injustice is the result of the so-called Electoral College, which allocates the 538 electoral votes to each of the 50 states based on their representation in the Congress, i.e. the number of House Representatives plus two Senators. Because each state has two senators regardless of its population, the states with less population have enjoyed far more advantages that the states with more population. The second undemocratic feature is the so-called “winner-takes-all” mechanism, which this Plaintiff will analyze its disenfranchising effects in more details later.
According to the latest Census Data 2013, Wyoming has the least population of 582,658 with 3 electoral votes allocated, while New York, my home state, has a population of 19,651,127 with 29 electoral votes allocated. This means, it takes only 194,219 persons to have one electoral vote for the state of Wyoming, whilst it takes as many as 677,625 persons to have one electoral vote for the state of New York. In another word, being a person in New York counts only 28.7% of a person in Wyoming in terms of the electoral vote allocated. Such percentage gets worse for residents in the top two states, 27.9% for both California and Texas (table below and Appendix B).
The presidency is an office that represents the entire country and receives its legitimacy and mandate from all voters. However, under Electoral College system from the 18th century, a resident living the top 44 states ranked by population would be worth less than 60% of a person in Wyoming (see Appendix B). That is even worse than the infamous counting black slaves as “Three Fifths” of person in the 1787 Constitution.
And yet, the degree of injustice actually gets far worse in the 2016 election. As aforementioned, Clinton had won the popular vote by more than 2.8 million but lost the presidency to Trump in the electoral votes. A closer look at the three states that flipped from the 2012 election, namely Wisconsin (10 electoral votes), Michigan (16), and Pennsylvania (20) indicated that the winning margins in these three states were 22,177, 10,704 and 44,312 respectively according to http://www.nytimes.com/elections/results/president. This means a total of only 77,193 votes flipped 46 electoral votes and therefore handed the presidency to the loser of the national popular vote. In another word, the national margin of 2.8 million voters in 50 states and D.C. was over-weighted by a 3-state margin of 77,193 at a percentage as little as 2.7% (77,193 / 2,848,090). This is nothing but an incredible and grave injustice to democracy and all of the people in America.
The Right to Vote is the quintessence of being a free person with unalienable rights to Life, Liberty and the pursuit of Happiness according to the Declaration of Independence. However, under the Electoral College system, each vote is NOT counted equally from one state to the next. This is not only in gross contradiction of the core ideal of “all men are created equal” enshrined in the Declaration of Independence (1776), but also in stark violation of the Equal Protection Clause in the 14th Amendment (1868) which demands “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
How did the Electoral College come about?
In fact, at its root the Electoral College was set up to protect the slavery southern states. At the 1787 Constitutional Convention held in Philadelphia, James Wilson of Pennsylvania proposed direct national election for the presidency based on the eligible voters. However, James Madison of Virginia rejected this idea because “the right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes.” In another word, the North would outnumber the South in a direct election system because slaves and people of color could not vote in the South. The Electoral College system was hence a rather trickery concept which allowed the southern states to count the slave population albeit with a two-fifth discount in allocating electoral votes, while at the same time denying these slaves the right to vote. Indeed, such pro-slavery tilt was certainly one of the key factors behind the fact that four of the first five presidents were slave-owners from Virginia, the most populous state (slaves included in headcount but ineligible to vote) at the time. It is scandalous to allow such archaic rooted-for-slavery system to continue well into the 21st century.
One of the more commonly quoted concerns the founding fathers had was the majority of population at the time lack adequate education and widely accessible information to make informed choices in elections, hence they want some well-educated individuals to serve as members of electoral college who would be able to make more informed selections than average voters. However, this argument certainly lost its reality ground once America advanced into the Industrial Age when universal K-12 public education, telegrams, telephone, phones, radio, televisions, print news media, etc. And now we are well into the Information Age with omnipresent internet and smartphones, etc. The solution to the fact that now a big portion of the population is susceptible to misinformation and outright fake news spread by certain groups, not to mention outright meddling of American election by foreign powers of no less than Russia, should be more transparency in government and campaign finance, serious professional journalism and rigorous public discourse, rather than preserving this antiquated system from the 18th century.
The third argument for the Electoral College claims to protect the small states from being silenced by the big states.. This assertion is completely ignorant of facts at best and outright dishonest for political purposes at worst. The Electoral College has at least three additional disenfranchising effects on voters of all states, small and big, rural and urban.
First, the voters who voted for the opponents of the winner in their respective states would have their votes discarded because of the winner-takes-all mechanism. For example, there were more than 4.9 million votes for Trump or third party candidates in California, and more than 4.1 million votes for Hillary or third party candidates in Texas. Nevertheless, these 9.0 million votes became worthless in the final determination of presidency (Table 1 above).
The second disenfranchising effect has depressed voter turnout because the voters of one party in states that are dominated by the other party would have far less incentive to vote. For example, significant number of the Democratic voters in states like Texas and the Republican voters in states like California did not turn out to vote at all because they knew the election outcome of their state were already predetermined, hence their votes were completely futile and their voice would never be heard. This writer argued that this is one of the key reasons behind America’s consistent lower turnout than most developed countries. Another key hindrance is holding election on a weekday rather than on a weekend, making it particularly burdensome for working people.
The third and final disenfranchising effect has even more profound impact because the Electoral College has consistently reduced the presidential election from a national election of all 50 states to a contest in only a dozen of so-called battleground states. In this 2016 election, the candidates of two major parties heavily campaigned and spent in only 11 states (see Appendix B) which were decided by a margin of 5% or less. These 11 states had total population of 89.2 million or only 28% of national population. This means the other 226.9 million or 72% of the population in 39 states and D.C. never had a chance to meet the candidates, to ask questions and voice their concerns, thereby being relegated to taken-for-granted bystanders.
For the Right to Vote to be truly meaningful and our democracy to be functioning, fair and just, (1) every vote must be counted equally rather than one being worth less than the others; (2) every vote must be included in the final tally rather than millions being discarded in the process; (3) every voter must have equal chance to participate and to be heard rather than 72% of the population being completely ignored in the campaign.
The Shameful Injustice
In fact, the 14th Amendment (1868) demands in the Section 5 that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
However, the Congress, specifically the Republican Party, has for decades deliberately refused to redress this unconscionable injustice inflicted by the Electoral College on all people of the United States.
Why? There have been seven presidential elections since 1992, where the Republican Party has lost the popular vote six times but won the presidency three times. If one party is allowed to prolong a rigged system for its own partisan gain at the expense of voters, then what we have is not a true democracy. In a true democracy, any party as well as any candidate shall and must win votes based on their policy ideas and track record, not by prolonging a rigged system such as the Electoral College to disenfranchise voters and distort people’s will.
America is incredibly the only democracy that has continued such archaic and outdated election system that has time and again undermined the very premise of “All men are Created Equal.” While people of color gained their right to vote after the Civil War, and women gained their rights to vote after the First World War, but with thanks to the Electoral College, this disgraceful fact has remained: not all votes are created equal. As a result, in two out of the last five presidential election, or 40%, the loser of the popular votes won the presidency, the most powerful office in the world.
In fact, Mr. Trump himself tweeted on November 6, 2012 “The electoral college is a disaster for a democracy” when he mistakenly believed Mitt Romney was winning the popular vote but losing the electoral vote to President Obama.
This writer agrees with Trump’s above statement, regardless whether he was being sincere or just another partisan hypocrite now that himself has become the beneficiary of such rigged system that he repeatedly denounced, because this is about the core ideal enshrined in our Declaration of Independence: “Every Man & Woman Created Equal” and the basic democratic principle of “One Person One Vote,” and “Every Vote Counts Equally” rather than one being less than 60%, or 28.7%, or even 2.7% of the other vote as discussed above.
In summary, the Electoral College has become the hotbed that enabled corruptive bargain (1824), scandalous deal for holding-on power and restoring racial injustice (1876), suppression of vote-count (2000), distorting the will of majority of voters in five occasions, and disenfranchisement of most voters in all elections in our history. Such undemocratic and outrageous injustice must be stopped and rectified with the highest urgency if President Lincoln’s words still hold true in any sense, “Government of the people, by the people, for the people, shall not perish from the Earth.”
We, as proud Americans, hand on heart, should ask ourselves,
Updated on 2016/12/15
Appendix – A
Appendix – B
Appendix – C