It’s tempting fate to say it, but the toxic trinity of COVID-19, a tanking economy, and his reflexive racism finally seem to be eroding Trump’s base. The tragedy is that each percentage point of disapproval has cost tens of thousands of unnecessary deaths. Ninety days out from the Presidential election, there are legitimate concerns about domestic voter suppression and foreign interference, but if you believe the Vegas odds, Joe Biden’s heading for a big victory.
However, a Biden landslide would have at least one downside. It would once again divert attention from a flaw in American democracy that could help foster Trump version 2.0. When the Constitutional Convention of 1787 concluded its work, it proposed a Republican form of government rather than a full-fledged democracy. The explicit intent was to prevent ‘mob rule’ because, in the words of one cantankerous Massachusetts delegate, ‘evil flows from an excess of democracy’.
But over the last 230 years more democracy has been steadily pumped into the system, expanding the electorate through the removal of colour, gender, and entitlement restrictions. Yet a glaring exception to the trend towards a more inclusive ‘one person one vote’ democracy is how we elect the President. Instead of a national vote for a national office, we instead have the Electoral College, in which each state has a group of Electors equal to its number of congressmen plus its two senators. It’s these Electors who actually vote for the President, and the Founding Fathers’ hope was that they could be relied upon to make a considered choice in the best interests of the nation. Alexander Hamilton thought the system would ensure that ‘the office of the President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications’. Not exactly a pen portrait of the current incumbent.
Hamilton’s Olympian ideal didn’t survive first contact with post-George Washington political realities, so the Electoral College has been tweaked over time, including the introduction of state-level Presidential popular votes. Forty-eight states have a ‘winner takes all’ system, while in Maine and Nebraska, Electoral votes are also allocated by congressional district.
Despite these tweaks, the Electoral College still creates a dangerous democratic deficit that stems from two distinct sources. The first is the wasted votes problem shared by all multi-constituency ‘first past the post’ systems. Since Presidential votes are counted at the state rather than national level, a tight race in California could erase the views of nearly 10 million people. Declaring state-level winners also creates a binary and misleading red/blue map that masks the continuum of political purples at a local level. We saw an extreme example of this wasted vote phenomenon in Scotland in the 2015 Westminster election, when only 50% of the popular vote won the SNP 56 of 59 seats.
The second flaw in the Electoral College is the malapportionment of power created by each state having two senators regardless of population; the so-called ‘Great Compromise’ of the Constitutional Convention. This small-state affirmative action of 1787 has been amplified over time by urbanisation to the point where half the country now controls 80% of the Senate; a legislative bias that then flows through to the Electoral College. This November, the average Electoral College vote will represent 436,000 citizens. But in sparsely populated Wyoming, it’s only 188,000, while in California it’s nearly 700,000, giving one modern cowboy nearly four times the electoral power of a Hollywood mogul.
These design flaws matter, because they can drive a wedge between the popular vote and the election result. In 2016, Trump lost the popular vote by nearly three million, or just over 2%, but he won the Electoral College by squeaking out small wins in Wisconsin, Michigan and Pennsylvania. Some would-be ‘Hamilton Electors’ tried to change their vote to keep Trump out of office, but any discretion they thought they had under the constitution was definitively removed by a recent 9-0 Supreme Court decision prohibiting ‘faithless Electors’.
The macro problem for American democracy is if minority Presidents become a feature not a bug of the system. Five times a Presidential candidate has won the popular vote and lost the election; three times in the 18th century, but two out of the last five, with George W Bush losing to Al Gore by half a million votes in 2000. Even more alarming is that in a further six elections a mere 10,000 vote swing in a single state would have produced a minority President. Because of the system’s built-in bias towards white conservative rural voters, Trump has a plausible path to victory in November where he loses the popular vote by a whopping 5%. It would be legal, but it certainly wouldn’t be democratic, and in the words of the constitution’s architect James Madison, it would undoubtedly be a ‘filtration of the popular will’.
At every level of US politics, from dog catcher to Senator, the rule is that most votes wins, except that is for the most important elected office in the world, because people still vote for the President as a citizen of a state, not as ‘we the people of the United States’ as stated in the constitution’s preamble. But a national popular vote isn’t just a radical new idea hatched by snowflake coastal elites in response to Trump, in fact it was first proposed during the Constitutional Convention by a Scot.
When it comes to Founding Fathers, that ‘bastard, orphan, son of a whore and a Scotsman’ Alexander Hamilton has rightly got a lot of attention over the last few years, but another Scottish Founding Father should be just as well known. Born in 1742 in Fife, James Wilson emigrated to Philadelphia at age 23. Having established himself as a successful lawyer, he went on to sign the Declaration of Independence, and indeed there’s solid evidence that Jefferson’s text paraphrased – and some would say plagiarised – an essay Wilson wrote in 1768 opposing the Stamp Act.
Wilson also played a critical role in drafting the US constitution, advocated for its ratification, was twice elected to Congress, was the first law professor at the University of Pennsylvania, and was then among Washington’s first appointments to the US Supreme Court. Despite that stellar resume, he isn’t better known because, like many Scots, he had some vices. In Wilson’s case he liked to gamble, and his land speculation eventually landed him broke and in debtors’ prison. No matter what you’ve accomplished in life, if you die a disgraced and penniless fugitive at age 56 in a cabin in the woods, you risk getting air brushed out of history.
Wilson was educated at the peak of the Scottish Enlightenment and was a radical and eloquent democrat. Maybe channelling his Presbyterian upbringing, he believed that power should flow up from the people and that government should reflect popular sovereignty at every level. During the convention, Wilson spoke 168 times and his mind was a ‘blaze of light’ according to another delegate. When it came to the Executive branch, Wilson proposed both a single individual as President and a national popular vote, but on the latter he was actively opposed by delegates who wanted Congress to pick the President to prevent the office becoming a ‘foetus of monarchy’.
After debating the topic on 21 separate days, Wilson’s eleventh-hour compromise was indirect election of the President via the Electoral College. This concession secured the support of the southern states because, although their 700,000 slaves couldn’t vote, they did count as three-fifths of a citizen for the purpose of allocating congressional seats, hence they also amplified the South’s power in the Electoral College.
By design, the American constitution isn’t easy to change. Amendments require congressional super majorities and then approval by three quarters of the states, and since 1795 only 17 have been ratified. The first of nearly 700 attempts to reform or abolish the Electoral College was proposed as early as 1797, but the last serious effort was exactly 50 years ago in response to the insurgent Presidential candidacy of yet another white nationalist.
In 1968, the third-party candidacy of Alabama Governor George Wallace came just 78,000 votes shy of denying Richard Nixon an Electoral College majority, which would have meant that the House of Representatives would have decided a Presidential election for the first time since 1825. Spooked by this close call, a constitutional amendment to adopt a national popular vote passed the House in 1970 and had overwhelming support from the public. But the amendment was filibustered to death in the Senate by a coalition of rural and swing states who refused to unilaterally disarm. So, for 50 years there’s been no serious attempt to abolish the Electoral College and the country has only become more divided. As Michelle Goldberg of the New York Times recently observed, ‘when one is accustomed to privilege, equality feels like oppression’, and that’s the attitude adopted by many of the states that currently benefit from the Electoral College.
There is, however, an alternative to getting the turkeys to vote for Christmas. The Interstate National Popular Vote Compact is an agreement between states to cast their electoral votes for the winning national candidate, regardless of their own state vote, provided enough states have signed on to control the majority. It’s perfectly legal under the constitution, as states control how their Electors cast their votes. In the 13 years since it was launched, 15 states and the District of Columbia have signed up, representing 196 of the 270 votes required for activation. But with Trump’s only viable path to victory a minority vote, few Republican-controlled states are currently willing to consider it; although that might change if Trump loses Texas and suddenly eight million Republican votes don’t count!
For the last four years, we’ve seen the dangers of a minority President. If we don’t reform the Electoral College, the system will continue to foster divisiveness and focus unwarranted attention on a handful of states. Trump has undermined American democracy but imagine a competent minority President eking out a win and then doing a lot more damage with the power it gives them. A national popular vote would not only be fairer, it would also help moderate our politics, as candidates would need to fight for every vote in every purple county rather than trying to just polarise the privileged few.
So, even if Biden wins big, America still needs to complete the journey James Wilson fought for in Philadelphia and become a true democracy. Like the Confederate flag, just because the Electoral College is traditional, it doesn’t make it right, and the reality of 27 constitutional amendments should nullify the ‘Infallible Founding Fathers’ argument. Not only should we take down the statues that honour the sins of the past, we should also dismantle the institutions that still give a minority an outsized influence over who governs America. Even if we manage to dodge another four years of Trump, the time has clearly come for mob rule at the American ballot box.
By Alan McIntyre | 5 August 2020