Wednesday, November 23, 2016

To Get Rid of the Electoral College Is to Let San Francisco Elect POTUS

       A Coup in the “College.” To some the three most depressing words in the English language are Hillary Rodham Clinton. Others are hoping against hope for a coup in the Electoral College that will make her President. One bitterly disappointed die hard, Senator Barbara Boxer (D-CA), introduced a bill to abolish the Electoral College.

If the popular vote determined the Presidency, candidates would stay in California, Texas, and New York; in Florida, Illinois, and Pennsylvania; and in Ohio, Georgia, North Carolina, and Michigan. Their combined population (174,000,000) far exceeds the population of the other 40 states put together, and accounts for more than half the population of the  country: 321,418,820. President-elect Donald J. Trump recognized this, tweeting on November 15th that if the popular vote decided the Presidency, he would have spent more time in California, New York and Florida and, he added, he would have won by an even greater margin. (But for California, Trump would have won the popular vote, and won it big. More on that below.)

Please Meet the Electoral College. Our President is not elected by direct vote of the citizens, and never has been. The Electoral College was established in 1790 by Article II of the Constitution of the United States. Although the ballot identifies the candidates by name and political party, the vote is actually for a pre-determined slate of Electors who are pledged to support the candidate of their party.

Electors are appointed in each state in the manner provided for by the state legislature. The political parties establish their slates of Electors at a convention or at a meeting of a central committee. Electors tend to be deeply-committed party loyalists and they pledge to vote for their party’s presidential candidate. The number of Electors in any given state equals the size of its Congressional delegation. Illinois has 20 members in Congress (two senators and 18 representative) and 20 Electors. In all, there are 538 Electors, including three for the District of Columbia.

Because Mrs. Clinton won the popular vote in Illinois, the Electors pledged to her will meet in the Capitol in Springfield on December 19th for a vote that presumably will be unanimous. The results will be tallied, certified and sent to Washington D.C. to be counted by the Senate. (In case of a tie vote in the Electoral College, the President would be elected by the House of Representatives.)

It Takes a Coup. It would take a coup in the Electoral College to make Hillary Clinton President of the United States, and a coup is possible, though only in theory. That theory presupposes that each Elector is a “free agent,” which is true only in the loosest sense of that term. But to pull ii off, job one would be to hang on to the 232 electoral votes Mrs. Clinton won on Election Day. Then it would be necessary to induce 37 of the 306 electoral votes won by Mr. Trump to turn coat and vote for Mrs. Clinton.

The Coup Won’t Happen. Here’s Why. Laws in 29 states and the District of Columbia bind Electors to vote for the candidate who wins the popular vote in their state. An indispensable premise of those who cling to the fairy tale that Mrs. Clinton could pull out a win in the Electoral College is that Electors bound to Trump would vote for Clinton instead because the legal penalties for disobedience are trivial  (e.g., small fines), and so they would risk little by defying the law and voting for Mrs. C.

However, a far greater force is at work upon all Electors than the risk of a fine or penalty for violating a statute, namely, peer pressure. Picture this: At the upcoming meeting of the slate of Illinois Electors for Mrs. Clinton, a so-called faithless elector casts a vote for Donald Trump. The life expectancy of that poor soul, from the time she got found out to the time she almost made it out the door, would be about six seconds. And in any case, the reaction of her fellows would likely evoke the old Hollywood threat: “You’ll never work in this town again.”

If ever a coup in the Electoral College were to happen, the year 2000 would have been the year for it: the year of Bush and Gore, when Mr. Gore asked the courts to settle the matter of who would be President and the courts obliged him. On that occasion, Mr. Bush lost the popular vote and had only a slim lead in electoral votes: 271 to 266. (If you’re counting, that comes to 537 electoral votes. What about number 538? A “faithless elector” from the District of Columbia abstained in protest of the lack of voting representation in Congress. The District has one representative in the House but she has no vote.)

Another obstacle to a coup in the Electoral College of 2016 is the sheer force of history. There have been only 157 “faithless electors” in the history of the Republic and only 17 in the last 119 years.

More About Abolition. As for efforts to abolish the Electoral College, the quixotic bill introduced by the soon-to-retire Senator Boxer is set up to do it the old fashioned way: by amending the Constitution. That requires (i) a vote of two-thirds of the House of Representatives; (ii) a vote of two-thirds of the Senate; and (iii) a vote of three-fourths of the States. (U.S. CONST. Art. V). Senator Boxer does not have the votes for her bill in the current Congress, and she will be retiring from the Senate in a few weeks.

Other efforts are afoot as well, notably the National Popular Vote Interstate Compact (“NPVIC”). It proposes to do away with the Electoral College without amending the Constitution on the theory that the very article which created the Electoral College in the first place contains the seeds of its demise, to wit: “Each State shall appoint (Electors), in such Manner as the Legislature thereof may direct.” (U.S. CONST. Art. II) (parenthetical added). Proponents of this so-called compact locate in the quoted part of Article II a way to get rid of the Electoral College without undergoing the arduous process of amending the Constitution.

Only eight states have signed on for this compact so far, and it should come as no surprise that all eight are deep “blue” states with sizeable populations: California, New York, Illinois, New Jersey, Washington, Oregon, Pennsylvania, and Virginia. (True, Pennsylvania voted “red” in 2016, but it has historically voted “blue,” and it is too soon to tell whether 2016 is a one-off.)

San Francisco Picks Our Presidents Forevermore. What Could Go Wrong? The impetus to scrap the Electoral College for a straight popular vote comes from “blue” states with big populations – the biggest and bluest of which is California, of course (population: 39 million). The current year (2016) makes the point. Mr. Trump won the electoral vote by a landslide: 306 to 232. He also won the popular vote in 30 states. But Mrs. Clinton won the popular vote countrywide (63.6 million to 61.9 million), and she won it only because of California. More to the point, her margin of victory countrywide practically matched her margin of victory in and near San Francisco (1.7 million votes, give or take). (But for California, Trump would have won the popular vote countrywide by more than 1.6 million votes, and won in the Electoral College by 306 to 177).

Were we to switch to straight popular voting, then from that time till God knows when the President of the United States -- of all 321.5 million of us in all 50 of the “united” states --  would be selected by a relative handful in and near San Francisco. If you think that’s a good thing, you’ll want to work for the abolition of the Electoral College. Better hurry, though. There has been talk out of California since Election Day of its seceding from the Union.


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