Snatching a Defeat from the Jaws of Victory

This is me in a London pub when the final Florida results were announced. I had gone to the party expecting to celebrate the first female President of the United States. For reference, that is both my unhappy face and the expression I make when being confronted by that creepy ghost kid from “The Grudge.” This photo appeared in the Guardian. (Photograph: Chris J Ratcliffe/Getty Images)

Today I want to talk about the Electoral College, districting, and how to fix it through eliminating voter suppression and increasing access to the polls.

I’ve mentioned in previous super long posts, in 2016 I was finishing my PhD. I turned it in in September and defended it early in the following year. I’m now Dr. Schulz. Yay me. Anyways, that meant that in the months before the election I could only be so active in politics and I didn’t have much money. But the 2016 election was poised to be blissfully historic, and I did not want to be left out. I had registered with Democrats Abroad UK (DUAK) and in order to be a part of the festivities I had volunteered to work the door because I could not really afford the entrance fee.

Prior to that fateful night I was relatively confident that Clinton would win. I had been obsessively checking the statistics and it looked good for her even on the most pessimistic and my personal favorite stat machine, 538. I did have a small nagging feeling though that things wouldn’t go as planned. I had posted on facebook a few times warning everyone that they needed to get their butts to the polls and not vote third party. Most of these were a bit sarcastic and phrased largely as, “I’m sure everything will be fine, but just in case it isn’t would you please kindly make sure you have no reason to feel guilt or regret.” And also something about a “uterocracy.”

Things immediately went south. By the time I had arrived in the pub it was clear that there were already problems. Durham County, North Carolina was having trouble verifying voter registrations and had had software and hardware malfunctions resulting in massive lines and concerns of voter suppression and purging. That deeply concerned me because I had been aware of voter purges happening throughout particularly “the South.” (I’m afraid none of these sources I’ve provided are contemporaneous. Sources from 2016 reporting voter suppression are usually quite short and lacking in detail simply because it was so close to the date. There was also, as many may recall, Russian interference.) The news coverage announcing the Durham issues — particularly surreal to me as Durham, North Carolina is named after the UK Durham where I earned my doctorate — indicated that there could possibly be an extension of polling hours and that the courts could get involved. So, it made me nervous, but I brushed it off. I resolved that I’d wait until things started looking certain for Clinton before I went and got my drink.

I never did have that drink. The wine glass pictured above belonged to someone across the table from me.

As the night progressed and I continually refreshed my browser, other would-be party-goers would come up to me and ask me what Clinton’s electoral route to the presidency could be. There wasn’t much I could tell them. California and it’s 55 electoral votes were hers, but she had no chance at winning Texas and it’s 38. When they asked me, I expected she would pick up Arizona, the Northern Midwestern states (wherein her defeat was writ), but to my mind the linchpin was Florida. Early voting in all states indicated she was leading and so until the Florida panhandle was counted I truly did think she would win by a squeaker. In truth, once all the votes were counted she won by a landslide, but only took 232 of the necessary 271 electoral votes.

So …. what the hell? She wins by three million votes — more than any white man in US history — but loses the Electoral College? Democracy fail.

The issue is truly with the Electoral College. Most of you know this story by now so I’m not going to go too far into it. The electoral college was the brainchild of Alexander Hamilton (yes, that Alexander Hamilton), and was meant essentially to prevent the formation of political parties and any one state in the Union from gaining hegemony over the others. It was also meant to keep people from running for office. The idea was that Presidents and Vice Presidents would be selected by people who knew them and their work. Each voter would cast two votes at least one of which had to be for someone outside of their own state (to avoid so-called “favored son” voting). Once one candidate gained over 50% of the vote and more than anyone else (possible because they’re casting two votes), that candidate would be named President and the runner-up would be Vice President.

Thomas Jefferson and Aaron Burr blew this out of the water when they ran on a ticket together. They did two things that were not meant to be done: they ran for office, and they ran essentially on a party ticket. (Funny to my mind, Thomas Jefferson later had to invoke War Powers to deal with pirates, and while that is relevant to interpretation of Executive Powers today, it’s not really relevant to this current discussion. I just think it’s kind of funny.) I’m actually really oversimplifying what happened with Jefferson, Burr, Adams, Hamilton, and the election of 1800, but there’s just too much ground to cover. (And even those links I provided are quite short so if you’re really interested there are biographies available on all these figures.) The point is that after the parties started messing with the Electoral College rules in that way it became clear that a rewrite was needed. The Twelfth Amendment — which provides that rewrite — went into effect before the 1804 election. The Twelfth Amendment requires votes to be cast specifically for President and Vice President. So Electors are voting by ticket and this absolutely requires that Electors be party specific.

The common misconception is that the Electoral College was meant so that the illiterate public would not pick some authoritarian spray tanned fool for President and that would have been remarkably prescient of our Framers, but it’s not really what they had in mind. (Although, particularly Madison’s writings in the Federalist Papers is often unnervingly applicable.) The idea of not campaigning, slower communications, and relative literacy in America did make the Electoral College a more streamlined methodology of electing a President, but the real reason behind it was to ensure that power was not concentrated in one area of the country. Remember, this system was created before the US was bi-coastal.

A lot of people particularly those disappointed by the 2016 and 2000 elections want to do away with the Electoral College entirely. It has largely outlived its usefulness and it does unfairly weight states with smaller populations. The issue though is that eliminating the Electoral College would require a Constitutional Amendment as detailed in Article V of the Constitution. (I’m using that particular reference because it includes this note among others about how Amendments are passed.)

The typical means of amending the Constitution involve an amendment being formatted and then passed by a two-thirds vote through both houses of Congress. If you read through them you’ll note several of the Amendments have conditional language that suggests the writers were not sure it would pass. The 20th, 21st, and 22nd all have a clause which starts, “ This article shall be inoperative unless it shall have been ratified ….” and then gives conditions by which it can be added to the Constitution. In the present environment having a two-thirds vote pass in both the House of Representatives and the Senate specifically for an Amendment nullifying the Electoral College is laughably implausible. It might be reasonable to conclude that Democrats would want it as despite having secured majority votes in all but one Presidential election since 1992 (George W. Bush lost the popular vote in 2000, but won it in 2004) they have only seated Democratic presidents for four of those seven terms. But, if Democrats are more popular than Republicans it is in Republicans’ best interest to keep the Electoral College in place. Even if they privately have reservations, party defections come at tremendous costs. Neither the House nor the Senate is two-thirds Democrat controlled and so it is very unlikely that an Amendment would pass in that manner.

The other possible option is a Constitutional Convention. This has — outside of the Philadelphia Convention of 1787 when the one and only Constitution of the United States was written — never been done. Even the Bill of Rights was ratified through Congress. (And there were originally 17 of them.) Logistically, this is unlikely to happen because it requires the state legislatures of two-thirds of the states to request it. In this case it does not really matter that no party controls two-thirds of the state legislatures because a Constitutional Convention is not specific. The states can call for one, but they cannot directly dictate what can or cannot be discussed. And therein lies the danger for both major parties.

This short media style article lays out largely without political inflection some of the questions which would of necessity arise were a Constitutional Convention requested. The author (himself a professor of Constitutional Law) briefly notes that some political issues might be brought up including repeal or strengthening of the 2nd Amendment, repeal of the 17th Amendment, and the addition of Amendments of diverse form and origin perhaps to limit campaign contributions, or to impede suffrage. Depending on how a Constitutional Convention goes the result might just be the addition of an Amendment eliminating or nullifying the Electoral College, but it might not include that and it could potentially result in something like the nullification of voting rights, the repeal of anti-slavery laws, or changes to the 1st Amendment. While these things might seem fantastically dystopian they are possible and similar seemingly innocuous moments in the history of other countries have lead to authoritarian regimes. (Madeline Albright details some of these including those in Hungary, Turkey, Russia, and Poland among others in her book Fascism: A Warning.)

Additionally, the USA is really the first modern democracy (you can make arguments regarding parliamentarian systems, but most of those required and were built around a monarchy which the US system specifically rejects) and unlike — for example — France, we’ve only had one Constitution. That might not seem like a big deal but it imbues the United States with particular diplomatic gravitas worldwide. At least as far as the democratic system is concerned. If we have a Constitutional Convention, even if everything turns out just fine (and the point of my last post was that despite our best intentions we’re never immune) we will have rewritten our Constitution. What gravitas is left to us after Trump’s impeachment, indictment, imprisonment, or just Presidency will have been destroyed.

It may seem at this juncture like I’m ramping up to promote the NPVIC. I’m actually not. It sounds great, but I doubt it wold work. If it does, great, but I think it’s a pipe dream. I’ve been over the NPVIC before, but I did it in an undedicated post so let me take you through it again in the likely event you’re not an avid fan of literally everything I’ve ever posted. NPVIC stands for National Popular Vote Interstate Compact. The idea is that it would practically invalidate the Electoral College by having states which make up 271 Electoral Votes pledge to dedicate those Electoral Votes to the winner of the national popular vote regardless of who won the vote in their state. It goes into action once enough states sign on. And at that point it makes no difference if the other states are just doing their thing because regardless of how their votes go 271 — enough for the Presidency — are guaranteed to the candidate who wins the national popular vote. Sounds great, right? And at present they already have states amounting to 172 votes. They only need about 100 more!

I’m being a little sarcastic here with the exclamation points but the initial 172 were easy. The next 99 are going to be near impossible to gain. First off those first 172 include California, New York, and Illinois which make up 104 Electoral Votes all on their own. With that in mind 172 is considerably less impressive and there’s no more super populous consistently blue states to be had. But secondly, the states not yet signed to this compact are largely red or swing states. If one looks at the political trajectory it’s clear that the United States is only getting more liberal and as I said prior, Republicans have only won the popular vote once in the last seven Presidential elections. It is not in Republicans’ best interest to support the popular vote because it locks them out of power. Even if they are at heart what’s called little d democrats or people who support the ideals of democracy, joining onto the NPVIC puts them out of power and out of work. If they’re ideologues they’re not going to do that, and if they’re party animals they are absolutely not going to do that.

But the other thing is even assuming a Republican legislature of a red state was convinced that the NPVIC was the right thing to do the governor would veto it. And I honestly believe that even if this happened in Wisconsin which is more of a swing state, but where the legislature is red and the governor is blue the governor should veto it because it would require the Electors from that state to vote against the will of the people in that state. It would be a win for Federal democracy but a loss for state democracy and could easily lead to riots and a state or Federal emergency. It’s irresponsible for a governor of a state which is red or swing to sign onto that legislation because their responsibilities are to their state and the people of their state. For the same reason it was the right decision for blue states, it’s wrong for red.

And finally there’s simply the matter of prestige, attention, and a small economic boost during elections. No one really cares what happens in the Presidential election in California because California is so blue it becomes indistinguishable from the Pacific Ocean at times. But people really care what’s happening in Florida because Florida can go either way. (I know what you’re giggling about. Stop it.) If swing states sign onto the compact they’re still swing states, but they no longer drive the election. California drives the election. To me that’s awesome and it means Democratic Presidents 4EVA❤, but I don’t think Florida is going to sign onto something just because it makes me put a little heart emoji in a Medium story. (Although, Florida is pretty odd, so perhaps I shouldn’t characterize what decisions they might or might not make.)

There simply is no practical extra-constitutional means of circumventing the Electoral College. But while that may be disappointing, there are ways to ensure that the person preferred by the electorate is elected to the Presidency.

The 2000 Electoral College debacle was probably not intentional on the part of the Republican Party, but the 2016 election absolutely was. I do not mean to cast aspersions where they are not due, but in this case they are absolutely due. There were two major pincers to this plan the first being gerrymandering and the second being voter suppression. Gerrymandering does not directly effect votes in the Presidential election as those are compiled into state totals which count towards votes in the Electoral College, but it does influence who is elected to state and federal legislatures, who is elected governor and by extension who becomes Secretary of State in each state and thereby is in control of registration and counting votes. Voter suppression does effect the final tally because voters tend to group by demographic into support of either major party and are therefore very easy for the less ethical statesman to target.

So just to get this out there, the Republican efforts to continue winning elections have been unforgivably racist.

Remember at the outset of this story how I talked about Durham, North Carolina? Well, most of the voters who ended up being turned away, discouraged from voting or given provisional ballots just happened to be black. And if you honestly hand-on-heart believe that was an innocent mistake by people just trying to prevent voter fraud then Brian Kemp among others has a bridge to sell you. (For a narrative easy read the first chapter dedicated to the 2016 election I recommend Carol Anderson’s One Person, No Vote and for a more academic discussion I recommend Lorraine Minnite’s The Myth of Voter Fraud.) The story in Durham, North Carolina in November 2016 was a reprise of countless elections prior all the way back to the Jim Crow era and was itself reprised in multiple states including but not limited to Georgia during the 2018 midterms. It’s often aimed against African-Americans, but Texas has it’s own story of intentionally excluding Latinxs along with African-Americans and of course, who can forget in the wake of the pipeline crisis the disenfranchisement of Native American voters in North Dakota.

The argument for voter suppression is supposedly that without it there would be voter fraud. That’s a really cynical argument though and if you believe it at all I really must ask you to read the Minnite book I linked above. In each case of voter suppression or intimidation or purging the point is not at all to avoid voter fraud but to control the election. In both the Texas and North Carolina cases suits had been brought by minority communities regarding unfair “packing” and “cracking” of their populations into districts intentionally drawn to diffuse the effect of their votes. In Texas the districts were redrawn to be slightly more equitable, but not as well as they might have been. In North Carolina, the legislature having been told it could not do a “racial gerrymander” openly said it would then do a “political gerrymander” and put in a provision guaranteeing all but three districts be majority Republican. This means that without a bi-partisan or non-partisan redistricting Republicans not only can ignore the votes of people they think might vote against them, but they can control the state and federal legislatures in perpetuity. It’s incredibly racist and immoral, but just look how it effected the Blue Wave in 2018. The Democrats had a better election in 2018 than the Republicans did in 2010 and yet Democrats gained only about 40 new seats whereas Republicans in 2010 gained about 60.

Voter suppression can also become voter intimidation and the two books I linked explain that. However, I also want to link this. This is the story of Crystal Mason and hers is absolutely meant to be a cautionary tale for people of color. Firstly, people of color particularly black Americans are disproportionately targeted by police and the judicial system for incarceration. This is part of institutionalized discrimination. People of color do not commit more crimes than white people they’re just less likely to get a pass and more likely to be given harsher sentences. And, felonies were intentionally delineated to disproportionately target specifically black Americans. It is therefore no mistake that felons are not allowed to vote or at least not allowed to vote for a set amount of time. (In some states a felony and some misdemeanors means that individual can never again vote and in other states it means they cannot vote for a set number of years after which their rights are restored). Crystal Mason had been incarcerated as a felon and was out of jail. At the encouragement of her mother and unaware that it was not legal for her to do so she cast a provisional ballot in the 2016 election and is now facing five years in federal prison. The message here is clearly, “think twice about voting, black people because you might go to jail for it.” This was done specifically not just to take away Mason’s rights but the voices of other black people who might not be sure why they aren’t registered or why they’re having bureaucratic difficulties at the polls, or just trigger in them the innate fear of authority that has been encouraged through extrajudicial murders and violence towards African-American communities committed by the largely white police force.

Putting to one side less overt voter intimidation there’s also a much more immediate and obvious threat that people of color have to deal with when going to the polls. One of the few things I could actually do in the feverish weeks and months between submitting my doctoral thesis and the election was peruse Facebook for threats on polling stations and report those to the FBI. I’m not even kidding. I went on Facebook and looked for groups and individuals that were threatening violence towards particularly minority groups and I reported them to the FBI. I am deeply uncomfortable with the number I was able to find. When I got on the thing it was because one guy on one group seemed a bit crazy and I traced him back thinking I’d deal with him and be done with it. Nope. Pandora’s box.

The reason for this is that although it is illegal to engage in voter intimidation in many states so-called poll watching which can but does not always include challenging the voter in person on whether or not they have the right to vote or deliver absentee ballots is legal. Poll watching — as the argument goes — prevents voter fraud. Supposedly. But of course voter fraud isn’t really a thing. David Frum, himself a long-standing conservative and until the ascent of Trump a Republican made a point in his book Trumpocracy that voter fraud is a largely pointless exercise to be undertaken by the sort of individual a poll watcher might intercept and carries an outlandish penalty. He did cite considerably more cases than Hillary Clinton did in her own book, but was of the opinion that there were so few possible cases that it could not be reasonably considered a problem. Poll watching is essentially a legalized form of voter intimidation and in past elections it was paired with other forms of voter suppression to intentionally limit particularly minority voter access to the polls. When it happens Parties and organizations like the ACLU may file suits to implement tactics to alleviate it, but usually by that point it is too late and the election has already been pushed further one way or the other or stolen in its entirety.

The reason I’m going into so much detail about gerrymandering and voter suppression in a story about the Electoral College is ultimately, the way to eliminate the Electoral College is to nullify its usefulness to Republicans. Democrats are already largely sold on getting rid of or significantly amending the Electoral College, but Democrats do not control two-thirds of the federal legislature and would not be able to enlist Republicans because the Electoral College is currently their only feasible means towards Republican Presidencies. However, the country is moving leftward. Part of this has to do with women becoming increasingly involved in politics and some of this has to do with minority populations growing and steadily gaining recognition and voice in governance.

A President is elected to office if she or he is able to gain 271 Electoral Votes. The NPVIC shows us that there are about 172 votes that will basically always go to the Democratic nominee. But what if Texas with its 38 votes went blue? What if Alabama and Georgia with 9 and 11 turned into swing states and Arizona with its 11 started behaving like California? That brings those 172 safe Democratic Electoral Votes up to 246 putting a Democratic nominee consistently just 26 votes from election give or take and making it an uphill battle for any Republican who wants to be President. Now, you might think I’m a little loopy for naming those states in particular because in that list only Arizona is even remotely swingy but, I will explain.

Texas is the fastest growing state in the union and has taken districts from states like New York. But it’s not growing in white conservative rural voters. It’s growing in Hispanic urban liberal voters. The crowning ruby of the GOP crown is about to turn into a sapphire. Likewise, Arizona has a large Hispanic population and in 2018 showed its frustration with the GOP by sending the openly bisexual Sen. Kyrsten Sinema (D) and five Democratic Representatives to Washington. Alabama and Georgia were not so vocal, but Alabama replaced Jeff Sessions with Doug Jones in a special election largely thanks to African-American turn out. Given reason to do so and less voter suppression, Alabama might start looking rather purple. Georgia particularly after Brian Kemp might seem like a lost cause but it bears repeating that Brian Kemp engaged in extremely sketchy voter suppression tactics to win against the immensely popular Stacey Abrams. If voter suppression and intimidation is cleaned up particularly in states with large non-white populations those red states will probably turn blue.

‘Southern Democrat’ is about to take on a whole new meaning. Ironically, the South will rise again, just not the way anyone really expected. But not only is eliminating voter suppression via judicial reform, correcting unfairly drawn districts, and eliminating voter purges and poll watching the right thing to do, it will force both parties to reckon with the voices and needs of non-white Americans. (BTW even if you happen to be white, you should be really excited about this. Increasing access to democracy might seem scary if you already are in the in-group, but increased diversity always benefits everyone.) The thing though, is that by increasing access to the polls for people of color who pretty predictably, consistently, and loyally vote Democrat* not only do Democrats win more states and more Electoral Votes, but Republicans lose harder and faster. The Electoral College is only advantageous to the Republican party if they can suppress the Democratic vote sufficiently to take more populous states which have a higher vote share. Once that path to victory is barred it will be in the GOP’s best interest to nullify the Electoral College.

So, if you want a fair and free election you have to have fair and free elections. Eliminate voter suppression and you will within a few elections, have also eliminated the Electoral College.

*It should be noted that the link I provided only looks at black voters and is more about diversity of that demographics’ political ideology. I have provided a previous link which explored the relation between the suppression of Native American voters and the defeat of Democratic Sen. Heidi Heitkamp. Hispanic voters tend to swing a little and were almost certainly the reason for Obama’s Executive Memo on DACA in the face of a stalled Dream Act right before his 2012 re-election. He did need to actively court that demographic and while African Americans and Native Americans are clearly ideologically diverse Hispanics tend to be even moreso. I have in this story conflated views probably more than is safe or reasonable to do and when considering these voting blocs in virtually all other contexts, one should be more nuanced than I have been here.

Doctor of Palaeopathology, rage-prone optimist, stealth berserker, opera enthusiast, and insatiable consumer of academic journals.