Immediately after Election Day, I wrote a column supporting the electoral vote system that governs choosing a President. The system is set forth in the Constitution’s 12th Amendment, in which the Constitution’s original electoral vote procedure is reformed. I now suggest that we reform it again.

As the adoption of that Amendment shows, the electoral vote method is not sacrosanct. It is an approximation and legitimately subject to modification. This is one of those occasions. Hillary Clinton is on her way to a popular vote win of over 2,000,000 votes; the margin right now surpasses 1,700,000. Those who feel cheated of a clear popular vote win cannot be dismissed by pointing to the 12th Amendment. So what then can we do ? And why do it?

First : although the Constitution was agreed to as a pact among stares, and everything in it is done to protect as much state sovereignty as feasible, the entire relationship of the states to the government agreed to in that pact has changed. When the Constitution was agreed to, and still when in 1804 the 12th Amendment was adopted, voting was restricted to men of property. Universal adult suffrage did not arrive until later, indeed not until the adoption of the 19th Amendment giving women voting rights. (Some may say that universal suffrage wasn’t achieved until 1965, when the Federal Voting Rights Act was enacted.) Universal suffrage upends the assumptions upon which the 12th Amendment (and its predecessor in Article 1, Section 3 of the Constitution itself) were based. With a small electorate, all of one social class, selection of a Federal President by the stares worked no disadvantage upon anyone. No one in that social class was attempting to disfranchise anyone else in it or to gain systemic advantage. Indeed, the compromises made upon representation in Congress and senate were agreed to in order to safeguard reasonable equality among the states. Today the opposite is true. States have gerrymandered Congressional districts in order to disfranchise political opponents or to vitiate their voice.

Second : the electoral vote system was never intended to enable a minority President. Its apportionment of votes more or less approximated proportionality — so successfully that only on three occasions prior to this time did a candidate win office with less popular votes than his opponent, and then only by a very small number. In fact, the electoral vote system agreed to was purposed — as I have stated above — to advantage exactly the opposite result : that the elected person have the support of a majority of voters. How could it have been agreed to otherwise ?

Third : the Federal President agreed to in the Constitution was not conceived as having much independent power; Congress was everything. The Constitution’s negotiators did not want a king. Their plan proved durable. Except during the Civil War — which proved a portent — not until the 20th Century did the Federal President begin to acquire significant sovereignty. Concurrent with enormous increases in the Federal budget, and the expanded executive agencies vital to execute an increasingly complex executive mission, the Presidency more and more directly acted upon individual lives, not only upon state governments and their elites. Today, the Presidency is looked to by all the people as the ultimate arbiter of justice and economic progress, and in large measure it is no mistake to so expect.

Fourth : in an age of globe-wide commerce and information, travel and personal movement, there is no going back to the simple, low budget Federal government assumed by the Constitution’s negotiators. Any attempt to do so would create enormous economic dislocation, or personal injustice, or both. Nor does the newly elected executive have any plans to do so. (His plans will seriously weaken America, but in a different direction.) This being the case, the manner of his or her election needs accord greater say to the voters and less to the individual states. Otherwise, we have taxation (and much else) without representation. In addition, the information debated in a national campaign is disseminated nationally — in no way locally. There is no way to recover the unchallenged sovereign uniqueness of early 19th Century states.

Still : the states do have a vital role to play in our Federal pact. Retaining some measure of state advantage in the electoral system assures that candidates will campaign locally and bolster the individuality of the states where the campaign is hard fought. Still, the huge population of our big states cannot simply be fenced off from the power their numbers must possess in our universal suffrage nation.

I therefore suggest the following electoral reform :

( 1 ) each state’s electoral votes shall be cast proportionally. Example : if in North Dakota candidate A gets 63 % and candidate B gets 27 %, that’s the percentage that each candidate shall be entitle to when the electors vote.

( 2 ) each state shall be entitled to an aggregate electoral vote corresponding to its proportional share of the population attributed in the most recent official census, the aggregate base being 438 — the number of members of Congress — to which each state shall add two 92) electoral voters corresponding to its membership in the Senate. Said proportionbal shares s hall be carried out to the second decimal, so as to approximate as nearly as feasible to the actual proportion — no rounding off.

This reform would not produce an absolute popular vote result, but it would avoid the dire consequences of the present winner take all system, where voter minorities within one state end up with no vote at all in the actual result. And let us not shy from saying that in many states, the minority being shut out is racial : people of color. Mississippi. for example, is 37 percent Black, but because the state’s white voters — 63 percent of the total — vote about 90 to 10 for the candidate opposed by 98 percent of Black voters, its Black voters are disfranchised as surely as if the 1965 Voting Rights Act had never been.

Other Southern states vote much the same way; and the only reason why Black voters in the North are not usually disfranchised is because up here, white voters do not mostly vote for racial purposes. The present electoral winner campaigned to increase the racial purposes of white voters, and he had some success, aided by many states;’ attempts to make difficult for voters of color to vote at all. His evil purposes must be made less doable. Reforming the electoral rules will help.

We cannot have a racialist nation. If we do that, we are no longer America, we are something else, something unConstitutional and uncivilized. Those who seek such an illiberal politics — and the present electoral winner has stoked their cause on purpose — must be cancelled. Reforming the electoral apportionment will help cancel them. we must do it.

Some argue that no, we are not a democracy, we are a Constitutional republic. My reform suggestion does not fall afoul of that argument; accommodation is made to factoring the States as electing entities. However, I do advocate factoring in a popular vote component, yes. Given the significance of the modern Presidency — enormously expanded from the purely executor functions accorded by the Constitution — it is unjust to accept a en electoral system that allows a 2,00,000 vote loser to win the office that he lost.

Let us not overlook that this same “constitutional republic’ argument is used to support Gerry-mandered Congressional districts that segregate and diminish the voting power of minorities (racial and political) in direct contradiction to the universal suffrage imperative won by generations of civil rights activists. Because of Congressional Gerry-mandering, imitated in state legislative apportionments as well, minority voters are shut out of power as effectively as if they had no vote at all.

This tactic  cannot be allowed to prevail. It must be changed. We may not be able to eliminate racialist  voting, but we can curb its control of election laws and voting procedures, both of which must be voter-neutral.

To sum up : Hillary Clinton should have been elected. She has the votes — by a lot. Her opponent’s one percent wins in four key stares cannot be allowed to overtop Clinton’s massive victories in other states. The system must change, and we know it.

—- Mike Freedberg / Here and Sphere


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