Category: Legal

Legal, Politics, Prediction

No, The Republicans Aren’t Stupid…Probably

pollywannamath

The Republican Party has been plagued with misstep after misstep. From a press conference at a landscaping firm, a top lawyer having his license suspended, to multiple impeachments and a lie about election results, the Republican party leads have appeared to have blundered its way through the last couple of years.

The press has not overlooked the frequency of these blunders; nor has it let the GOP off the hook for them. It’s easy to find articles with headlines that emphasize the Republican Party’s “disasters,” rather than report events. I’ve added one such headline below:

POLITICO Playbook: Graham: Biden made GOP look like ‘f—ing idiots’

Politico Blog 6/25/2021

Is it the case that the Republican Party elites are f—ing idiots? Or is there a reason for the series of blunders and scandals, even when the Democrats control the White House? I’d like to offer an alternative reason for many of the more obviously comical blunders of the GOP–rational and mercenary political strategy.

In 2018, GOP party outlook was bleak. Only 44% of registered voters approved of Trump, international approval was almost nonexistent, and lost ground in Congress, Gubernatorial elections and state legislatures. Republican elites tried and proved they could not control Trump’s Twitter or press conference antics. In that desolate time, a few positive trends appeared:

You’re a highly-paid political consultant to the GOP after the 2018 midterms. It’s clear that the Party cannot control Trump and dissent in the ranks will only benefit the Democrats. What plan will you provide to Party leads to strengthen the short-term outlook of the party?

Let me provide a hypothetical plan that I might have suggested, and may not be far from the truth:

  1. Limit access to voting for populations who are likely to vote “blue”
  2. Avoid introducing policy positions where possible
  3. Keep news coverage from the left dismissive and intense. Increase the amount and intensity of fearmongering from conservative news sources.
  4. Build a party by opposition.
  5. Govern from the Court.

Within this framework, the bulk of Republican party missteps start to look intentional and strategic. Before looking at some of those missteps, I’ll build a short case that each of the bullets above are part of the current Republican Party strategy.

  1. Limit access to voting for populations who are likely to vote “blue”

On July 1, 2021, Justice Sam Alito released the 6-3 majority opinion for Brnovich v. Democratic National Committee. The case evaluated whether changes to early voting laws and out of precinct ballot counting violated Section 2 of the Voting Rights Act. The facts of the case indicated that no history of fraud was associated with out-of-precinct ballots and that these changes invalidated minority ballots at twice the rate they invalidated majority voters. The majority opinion found that the state was within its rights to enact these restrictive laws because the impact to minorities was small in absolute terms and none of the restrictions imposes a burden greater than the usual burden of voting on voters. The ruling is significant because it enables states to continue to impose barriers to voting that will likely benefit Republicans.

The aim of these laws was made clear by the state’s lawyer, Michael Carvin, during oral argument:

Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero sum game. And every extra vote they get through unlawful interpretations of Section 2 hurts us. It’s the difference between winning an election 50-49 and losing an election.

Carvin describing the need for these laws

2. Avoid introducing policy positions where possible

During the 2020 Republican National Convention, the Republican Party declined to produce a party platform. The 2016 Platform was 66 pages and included party stances on cybersecurity, human trafficking, crony capitalism, healthcare, Human Rights, and Government Reform. A party platform directs the party for the next four years and informs voters of what it means to be a member of the party. Not having a platform is an aberration for a political organization.

Rather than a platform, the Republican Convention of 2020 released a statement that includes:

…The media has outrageously misrepresented the implications of the RNC not
adopting a new platform in 2020 and continues to engage in misleading advocacy for the failed policies of the Obama-Biden Administration, rather than providing the public with unbiased reporting of facts; and WHEREAS, The RNC enthusiastically supports President Trump and continues to reject the policy positions of the Obama-Biden Administration, as well as those espoused by the Democratic National Committee today; therefore, be it RESOLVED, That the Republican Party has and will continue to enthusiastically support the President’s America-first agenda.

3. Keep news coverage from the left dismissive and intense. Increase the amount and intensity of fearmongering from conservative news sources.

The headlines linked in the first paragraph are evidence that, even mainstream, news organizations are editorializing headlines. In 2016, Jim Rutenburg wrote a piece for the New York Times (gated) where he wrote, “You have to throw out the textbook [of] American journalism…. You would move closer than you’ve ever been to being oppositional. That’s uncomfortable and uncharted territory for every mainstream, non-opinion journalist… by normal standards, untenable.” Oppositional media strengthens the doubt sowed by Republican elites in the last few years. The opposition of main stream news has been a major help in isolating and insolating Republicans from thoughts or perspectives that might harm party alignment.

Similarly conservative media has focused on demonizing the liberal media and Democrats in general. Tucker, the highest rated cable news show, wins viewers with a mix of vitriolic, bombastic, and fearmongering rhetoric. It might not be fair to point to a single news outlet as the totality of conservative news, but if I were to point to a single source Tucker is by far the most emblematic. During the Trump presidency, Trump keyed into Tucker to determine where his followers were leaning and Tucker was the highest rated cable news show in history. Hard to pick a better representation of conservative media in the Trump era.

4. Build a party by opposition

I’ve established that the GOP did not produce a platform with any policy stances during the 2020 convention. In lieu of the platform, GOP produced a survey in 2021 to pull members about party stances. I invite you to review the questions here. The Republicans have built a coalition by opposition, the only policy outlined in the 2020 platform was the rejection of policies led by the Democratic Party (see above). The areas where the party is aligned on policy are covered in the other bullets: attacking media/social media, tightening voting policy, and preventing changes to the Supreme Court.

5. Govern from the Court

Despite the coverage that the Court was largely bipartisan or centrist in 2020-2021, the Court managed to make significant conservative inroads. When the Shadow Docket is taken into account, the Court’s actions leaned strongly toward forwarding the conservative agenda (33 cases decided along political lines). During the 2020-2021 term, the Court held that Philadelphia wronged Catholic Social Services by denying it a contract based on the agency’s refusal to comply with the city’s nondiscrimination policy (refusing to allow gay couples to adopt kids), struck down or stayed COVID restrictions, sanctioned limits on voting access (see above), strengthened employer rights over unions, invalidated financial disclosure requirements for individual donors to political organizations.

The Supreme Court currently holds a 6-3 majority after the Senate blocked the nomination of Merrick Garland in 2016 and the death of Ruth Bader Ginsburg in 2020. At the federal level, Republicans have a 52% majority on judge appointments. These majorities make it possible for the court system to bound the possibilities of a Democratic-controlled legislature and aid the five list items above and advance the traditional policies of the Republican party.

In October, the Court will hear a challenge to Roe and a few police-powers cases. I will watch closely to see how aligned the rulings in these cases are to traditional conservative policy stances.

How do the “Blunders” fit in?

Let’s review a few of the higher profile blunders of the Republican leadership over the last few months:

I will not dive into the strategy of lying to millions about the outcome of an election. It clearly aligns with policy points 1, 3, and 4, and has by covered by myriad sources.

It is possible that Giuliani, a lawyer who used to be called America’s mayor for his 9/11 response, and Trump a mogul who has avoided numerous scandals in his life forgot how to build a competent team or prevent self-incriminating. However, I struggle to believe that is the case. I think it is likely that the party recognized a post-Trump era as a threat to the manufactured fear and hate of anyone on the left-side of the political aisle.

Since Biden took office, media ratings on all sides have fallen significantly. The Republican strategy requires abstracting their voters from specific policy discussions. A continued drip of scandal, blunder, and missteps will cause the liberal media to continue to editorialize headlines and push conservative listeners/readers to conservative sources. In the short term, these scandals have not damaged Republican odds. The Republican party outperformed in 2020 in relation to president Trump’s favorability ratings.

I’ve attempted to produce a set of strategies that both explain the direction of the GOP since 2018 along with some of its recent blunders. If I am near the mark, I anticipate seeing a continued drip of blunders within the Trump camp and Trump-associated Congress people and continued efforts to limit voting access and govern from the bench.

Business, Legal, Prediction, Technology

Why I won’t take a genetic test

pollywannamath

I am the third of my name. The concept of heritage and genealogy were important aspects of my childhood. My last name is derived from the word armor-maker in French. The spelling and pronunciation changed with each new location and set of cultural influences my forefathers faced. We tell many stories within my family about our history and for the first time have the ability to add to, or in some cases disprove, the stories that shape my family’s self-conception.

Genetic testing solutions allow consumers to learn more about themselves and identify unknown relatives. The vendors that provide these tests, such as 23&Me or Ancestry promise to provide recipients with information about their health predisposition, their family tree, their physical traits, and their ancestry data. These promises present a compelling sales pitch to a person so enveloped by the stories passed down from generation to generation.

But I will not participate in genetic testing. At least not now. While learning about my past is important to me, it is the future that will prevent me from participating in any of the genetic testing services.

My genetic information is not just my own. If I am fortunate enough to have any children, they will inherit 50% of my DNA. My DNA belongs to them as well, and they cannot consent to having their genetic data shared with a 3rd party service. If there are consequences to my decision to receive genetic testing services, they would be powerless to combat them and likely just as vulnerable to those consequences as I am.

The United States has long realized the value of protecting an individuals personally-identifying health information. This information, covered as protected health information (PHI) is regulated under federal law (HIPAA) to prevent healthcare organizations from misusing or inappropriately distributing health data. Secure health information is critically important to a person’s safety, psychological and physical.

Let us consider a world without these protections. Imagine an elderly man who is suffering from a disease that may prove fatal previously had his health records distributed. Big Pharma buys those records and targets him with personalize adds that push unproven medication at high cost. Does that man have the presence of mind to consider those treatments rationally? Or does this predatory advertisement scheme, made possible by the release of health data, place this person facing his death in a psychological space that will result in overspending and potentially accepting treatment that lowers his quality of life. Consider a young gay consultant that travels internationally for work. Professionally, she keeps her sexuality private. Due to her medical records being sold, her clients based in a conservative country find out her sexual orientation and fire her.

These DNA test companies are not covered under HIPAA. The United States does not have a legal structure to suitably regulate what these companies do with their data. When these companies promise to provide reports on the recipients genetic indicators, physical traits, and medical predispositions, they are promising they have data that make the above scenarios possible.

The described scenarios are not only conspiracy fodder. DNA is not sufficiently protected and some of the privacy concerns have been proven valid. One of the DNA testing companies had a DNA breech in 2019 that revealed genetic and demographic data for 3,000 individuals. Law enforcement officers can require arrestees to take a DNA test without a warrant. In April 2018, US law enforcement legally used an online DNA match to catch a suspect, judges compelled the testing provider to open their database to a police search.

If US law enforcement’s use of DNA or a small leak are not sufficiently compelling, 60 Minutes ran an interview with Bill Evanina, the former director of the National Counterintelligence and Security Center, about China’s desire to collect American DNA data. I’ve added an excerpt below:

Current estimates are that 80% of American adults have had all of their personally identifiable information stolen by the Communist Party of China. The concern is that the Chinese regime is taking all that information about us – what we eat, how we live, when we exercise and sleep – and then combining it with our DNA data…

…Part of the social control includes the forced collection of DNA. Under the guise of free physicals for Uyghurs, Richardson says China is actually collecting DNA and other biometric data that’s then used specifically to identify people, target other family members and refine facial recognition software. And those, national security officials say, are just the uses we know about.  

60 Minutes–CBS News

Currently, both Ancestory.com and 23andMe (the two biggest vendors in this space) claim strong privacy policies, and even allow users to delete some of their data (at the expense of future updates) that are designed to give their customers confidence that their data will be used responsibly and held securely.

That may be true.

But without a regulatory system that enforces genetic privacy, ensures total transparency on the transfer of genetic and demographic data and levies harsh punishment on data breeches, the risk of misuse is too high for me.

A final consideration. In 2018, U.K pharmacy giant GlaxoSmithKline invested $300 million in 23andMe, which included some exclusive access to 23andMe’s database. In December 2020, Blackstone Group, a global investment firm, bought Ancestry.com for $4.7 billion. In both cases users who purchased genetic tests prior to the investment/purchase now have their data managed or available to a corporation they may not trust as much as the company they purchased the test from. And given the sums invested, would it be rational to expect that these investors plan to maintain this store of priceless data without capitalizing on it?

Legal, Observations

How to think about the DC Events

pollywannamath

If Men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and the next place, oblige it to control itself.

James Madison:  Federalist No. 51

On Tuesday, January 6, the nation’s Capitol was overrun by a few thousand pro-Trump extremists. Their actions were treasonous, and it would be a disservice to our Democracy to call the events in the Capitol anything less than an insurrection.

Summary of events:

Is our democracy at risk?

The cornerstone of American democracy has been the peaceful transition of power from president to president. As Ronald Reagan observed in 1981:

“To a few of us here today this is a solemn and most momentous occasion, and yet in the history of our nation it is a commonplace occurrence. The orderly transfer of authority as called for in the Constitution routinely takes place, as it has for almost two centuries, and few of us stop to think how unique we really are. In the eyes of many in the world, this every-four-year ceremony we accept as normal is nothing less than a miracle.”

Ronald Reagan

Reagan would not be pleased with the state of affairs. Throughout the last year, president Trump refused to commit to a peaceful transfer of power to president-elect Biden:

Do watch the full thing

President Trump refused to acknowledge a legitimate loss of the election (both in popular vote and through the Electoral College. He actively encouraged electoral fraud in Georgia (one could argue that encouraged is too soft a word). Through a disinformation campaign, Trump convinced hundreds of thousands of Americans that the result of the election is fraudulent. Committing to a peaceful transition of power on January 8, does not absolve him of his previous anti-democratic actions.

The Trump presidency tested the mettle of the United States. This post started with a passage from the Federalist Papers about the principal struggle in establishing government. The structure and institution of government proved that the Constitution of the United States continues to be sufficient to limit the power of man throughout the Trump presidency.

Trump’s most extreme policies have not survived the Supreme Court of the United States. The Supreme Court allowed New York to subpoena Trump’s financial records, prevented the president from adding an additional question to the US Census, prevented the president from eliminating DACA, and upheld environmental protection against governmental action. The Court has not been a perfect shield from extreme policies, transgendered individuals cannot enlist in the military, and versions of Trump’s travel bans remain in law, after challenges in the courts failed. However, Trump was unsuccessful when using the Court to undermine democratic process. President Trump’s campaign filed 62 lawsuits in state and federal courts in a series of attempts to overturn election results. 61 of those challenges failed. The only successful legal challenge from his campaign, which required identification by November 9 for mail-in ballots, did not change the result of the state’s election.

Congress has not been as successful as the Court in limiting presidential overreach. However, Congress too was able to redress illegal action. Congress impeached president Trump in 2019, after the president attempted to barter military aid in exchange for Ukrainian investigations into Joe and Hunter Biden.

The framers aimed to put into place an executive with enough checks-and-balances, and sufficiently limited power, to ensure that the president of the United States would never become a king. The structures of government proved to be a resilient enough bulwark against tyranny to ensure democracy.

The will of the people may not be so resilient. Trump encouraged millions to distrust the results of a national election, he encouraged the 74 million Americans that voted for him to reject Biden as president-elect. Distrust of both the government and the press are at historic lows. Conducting democracy in an environment where citizens trust neither the government nor the press is a futile exercise.

The insurrection of January 6 highlighted the lack of will in government and citizenry to moderate extreme action. Allowing entry to the capitol was a choice. If a similar-sized crowd attempts to disrupt the inauguration of president Biden, they will not find the same success. Pentagon officials sent memos on January 4 and January 5 banning DC guardsmen from receiving ammo and riot gear, engaging with protesters (except for self-defense), sharing equipment with local police, or using surveillance or air assets without explicit approval from Trump’s acting Defense Secretary, Christopher Miller.

Only 53% of registered Republicans believe there should be a smooth transition of power to the Biden administration in January. Even reactions to the storming of the Capitol itself are mixed. The will of the people to perpetuate democracy is not strong.

Is it wrong to compare these actions with the Black Lives Matter protests of the last couple of years?

It is not fair to compare the actions of extremists with the actions of peaceful protestors. And those that compare the entirety of the BLM movement with the actions of rioters on January 6, are making an unfair comparison. However, those that compare the state of the East Precinct in Seattle to the entirety of Trump’s supporters are no better. The ability to protest peacefully must be protected in a democracy for all positions (within reason).

The language for reporting protests must be standardized. Not everyone that attended Trump’s address on the morning of the 6th is a rioter. Most didn’t take part in an insurrection, they protested peacefully. The vast majority of those who attend a Black Lives Matter rally are not rioters. They protest peacefully.

The storming and abandonment CHOP in Seattle and the Capitol in Washington DC are examples of insurrection and should be reported as such. Similarly riots that destroy property, result in violence, or encourage lawless action, should be reported as such.

In even the extreme cases of insurrection, protestors exist. Attending a rally should not be reported as proto-criminal activity.

Comparing any two political movements is appropriate. It isn’t unfair or morally wrong to compare a pro-Trump movement with the Black Lives Matter movement. However, it is unfair to turn one example into a strawman to bolster another movement. In valuing democracy we must allow space for all opinions, especially unsavory ones, unless they incite imminent lawless action.

Putting it all together

We do not yet know how much the actions of a few thousand people on January 6 threatened the United States. During the insurrection, rioters gained access to strategic IT and physical resources that could easily be used in future threats against the US by foreign or domestic actors. The political will of the United States to respond to lawless action is weak. Trust in government institutions and the press is low.

Ironically, the institutions of government themselves have proven resilient to both the president and the number of citizens that wish to halt democratic process. At present, trust in institutions, especially the Court, should be much higher. The levees held.

There are other reasons to be optimistic as well. The election of 2020 was referendum against Trump the candidate. Down ballot Republicans significantly outperformed the president. The Georgia Senate race was trending toward a GOP victory in the polls before Trump asked the Secretary of State for more votes. The tides within his party appear to be shifting away from Trump.

Legal, Observations, Prediction

An Inflection Point: How to Heal the Wound

pollywannamath

I planned to write and publish this post on November 3; but wanted to respect the political climate that surrounded the election and wait until America was certain. From the start of the day, I listened to coverage of the vote turnout and it was clear that Biden was going to be president of the United States on January 20, 2021.

It is easy on November 8, to claim that it was obvious that Biden would be the winner of the election. based on news from November 3. But I contend that it was obvious.

On the morning of November 3, FiveThirtyEight modeled an 89% chance of a Biden win. 89% is not 100%, but it would require shockingly low turnout on election day or a last minute shock to be considered a likely outcome. As an exercise, FiveThirtyEight ran a simulation on November 2 where they recreated the polling error from 2016 and determined who would win the election. In that scenario, Biden won. FiveThirtyEight took the simulation further and awarded the electors from the next two likely states to Trump. In that scenario, Biden narrowly won the presidency.

Not all pollsters forecasted the same outcome as FiveThirtyEight, and I understand that not everybody follows the same news; however, FiveThirtyEight is a modeling institution that considers all mainstream pollsters in their forecast, weighted by historical accuracy. I’m using FiveThirtyEight as a proxy for an average historically-accurate forecast.

Looking at the news on November 3, it was clear to all that the United States was on pace for record voter turnout. Increased turnout has favored the Democratic party over the last few decades. Republicans win mid-terms, largely as a result of smaller turnout.

But the news the night of November 3 conflicted with the observations above. Trump was leading in many states early in the night that he would ultimately lose to Biden. The New York Times identified Michigan as a state that would likely go to Trump during the coverage (Biden ended up winning it by > 150,000 votes).

The reason for the misleading and dramatic counting of the election is twofold:

Instead, news organizations sparked increased concern about the election. Most mainstream media organizations spend election night sowing discontent by expressing their hope that Biden won the election and outlining how Trump might have won. While far-right organizations decried “late surge” of ballot counts for Biden as fraudulent. I will not post a link to that type of reporting; it does not deserve increased attention.

News organizations spent the night forecasting something that happened in the past (voting) and expressing their hope that Trump did not pull off another “miracle.” As an example of news organizations displaying partisan leanings, noted Democrat, George Stephanopoulos moderated ABC News’s bipartisan election coverage; at more than one occasion during the night he asked to see more blue (democratic wins) on the map.

He would see more blue; as soon as the mail-in ballots were counted. These organizations that spent days forecasting an event that previously occurred remind me of a scene from Mean Girls. We, as a nation should have taken them as seriously:

Forecasting past events

To this point, I’ve been pretty critical of the news (although I’ve stopped short of calling it F**e N**s). It comes with good reason. The national push to replace president Trump added to the polarization of the country. News diversity shrunk from 2016-2020 meaning that more news focused on the most polarizing issue: Trump’s presidency.

Traditional news organizations did more to gain trust with liberal-leaning readers than conservatives in 2020. Some may think that is a positive considering the propensity of the Republican president to lie. But liberals do not have a monopoly on the truth; Trump lies frequently, but his critics are not always honest.

Glenn Greenwald recently published an article about a story that was spiked by his editors at The Intercept. The article covered concerns that Hunter Biden leveraged his father’s position to secure lucrative positions with foreign governments and firms. The article falls short of accusing president-elect Biden of personally profiting or advocating policies that would aid the institutions that sponsor Hunter; but clearly and accurately identifies the open questions about the president-elect’s involvement. Greenwald alleges that the article was killed because it was too critical of president-elect Biden.

Similarly, The New York Times refused to publish Op-Eds that were deemed insensitive or objectionable more than once this year. These internal clashes on what should be published made national news.

Preventing the publication of an opinion is not censorship, nor is it a restriction of free speech. News organizations are corporations and are not required to give all writers an equal platform.

However, when mainstream media organizations make consistent editorial decisions that amplifies criticism of one party and restricts criticism of another, it fails the responsibility that it holds as the Fourth Estate. Mainstream media can no longer be an democracy maintaining institution; it becomes another source of division.

The two examples above are not outliers. The mainstream media overwhelmingly favored policies and politicians supported by Democrats.

2020 may prove to be a significant inflection point in American politics. As the level of political polarization in the United States reaches record levels, Joe Biden continues to state his desire to be a president for all Americans: “I don’t see blue or red states, but United States.”

Its time for the mainstream news to do the same. Media bias will always exist, and I am not asking for the solution for general bias. What I ask is that news organizations from Fox News to MSNBC recognize that the election is over and that the 2020 political ratings bump should not be sustained in 2021. Both sides must be willing to praise and criticize president Biden in 2021.

President Biden will not be able to be the president of all Americans, if all Americans live in a news echo chamber. In that world, only the most extreme news organizations will prosper and Biden’s message will be irrelevant.

Legal, Observations, Prediction

A Defense of the Electoral College

pollywannamath

Everybody hates the Electoral College. Vox claims to have found the ‘Definitive Case against the Electoral College‘. The institution is undemocratic. Five times, the Electoral College prevented the candidate who won the popular vote from ascending to the presidency.

Nate Silver’s presidential forecast estimates a greater than 10% chance of Donald Trump losing the popular vote for a second time, but winning the election over Joe Biden. In fact, a scenario where Biden wins the popular vote by 2-3%, Trump is favored to win the election. The Electoral College may, for the second consecutive election, award the presidency to a candidate who did not win the popular vote.

Attacks on the Electoral College traditionally fall into one of a few categories:

  • The Electoral College is an antidemocratic institution
  • The Electoral College favors Republicans and enables a form of Gerrymandering
  • The Electoral College disenfranchises all but the “battleground states”

There is an obvious element of truth to each claim (at least when applied to recent elections). However, none are compelling enough to warrant abolishing the institution.

The Electoral College is a body of 538 electors who directly elect the president of the United States. Each state, and the District of Columbia, are awarded an allocation of voters based on population recorded in the last Census. The allocation of voters for the 2020 election are based on the 2010 Census, the allocation of voters for the 2024 election will be based on the 2020 Census. A candidate must win a majority of votes from the College to win the presidency. If no candidate wins a majority, the Congress will choose the president and vice-president.

Too often, the word democracy is used as a value positive term. When we say something is “democratic” we mean to say that it is just; conversely, when we label something as “antidemocratic”, we mean to say that it is corrupt or communist. The critique that the Electoral College is antidemocratic, is not a critique, its a fact. It, like the Senate or Supreme Court, was designed to protect the country from direct democracy. The political parties of our founding fathers were Federalists and Democratic-Republicans, not Direct-Democrats:

The second and third common critiques of the Electoral College center on disenfranchisement and the value of a single vote. It is true that the Electoral College values individual votes differently. A single Electoral College vote in Washington DC contains half as many citizens as a single vote in Texas. This means that each Texas voter is half as important as a voter in Washington DC (Wyoming/California has the widest gap).

However, the inequality of Electoral College simply mirrors that of Congress (1 voter per Senator/Representative) and I don’t hear the same concerns with Congressional allocation. Surely, there is something worse than the Electoral College vote allocation that causes the level of disenfranchisement in US presidential elections. Or is it that the Electoral College always benefits one party? In the case above, I presented a scenario that generally benefits Democratic candidates (D.C is blue and Texas is generally red) over their Republican opposition. Because the elector allocation is based off of Census population, the bias changes over time. In ’92, ’96 and ’04 the Electoral College favored the Democratic candidate.

The Electoral College only determines how votes are allocated and the process for directly electing the president. States determine how elections are conducted by their populations. Currently, 48 of 50 states and the District of Columbia require that all Electoral College votes go to the candidate that won the state or act as a “faithless Elector” (where allowed).

If 3 million people vote for the Republican candidate in Pennsylvania and 2.9 million vote for the Democratic candidate, the Republican wins 20 votes and the Democrat wins 0. The Electoral College, as an institution, does not create this outcome, the state of Pennsylvania does. When only Maine and Nebraska allow for split votes, voting for the US president begins to feel like an exercise in futility.

Abolishing the Electoral College and moving to a national popular vote would resolve the problems in the winner-take-all nature of presidential elections, the national popular vote loses some of the Electoral College benefits. Additionally, abolishing the Electoral College isn’t politically viable.

Abolishing the Electoral College requires an amendment to the Constitution that both abolishes the institution and sets a new standard for electing the US president. The last amendment added to the Constitution, a single line preventing Congress from passing their own pay increase, was ratified in 1992. Nothing has been ratified in the 25+ years since.

A policy compromise is in order. The state legislatures should form a pact to abolish their own winner-take-all rules. Asking the states to undo these laws is not unprecedented, nor is it naïve. Sixteen states, and the District of Columbia have already signed a compact to award their Electoral College votes to the winner of the national popular vote, once the compact has over 270 votes in its constituency. If 36% of the Electoral Votes are already pledged to this contract (which violates the promise of both the Electoral College and local elections), it is not unthinkable that 50% of entities would agree to abolish their winner-take-all elections.

I’ve labelled this post “A defense of the Electoral College,” and so far have not defended it. The Electoral College is an institution, like many in the US government, designed to protect smaller interests and add efficiency to an inefficient process. Allow me to provide a few scenarios where the Electoral College is beneficial:

  • The candidate who wins the popular vote falls ill, or dies, between the election and inauguration.
  • The candidate who wins the popular vote falls victim to scandal that leaves her unfit for the office of the presidency
  • Election tampering or voting error in one state prevents the national election from being able to record the popular vote in that state through November.

None of these cases are particularly far-fetched. Especially when looking at an election rife with scandal of two septuagenarians. The Electoral College’s 538 voters are able to vote closer to the inauguration (because their votes can be easily counted and they cannot be tampered with) and react to critical changes without looking to millions of people (where allowed by their state). If one state cannot determine the popular vote (cough…..cough Florida), the Electoral College can still elect a president.

In a typical election the Electoral College helps protect diverse interests. Often this is phased as the Electoral College bolsters small states at the expense of larger ones. I content that the more densely populated an area, the more similar their needs from a national government. The Electoral College overvalues areas with sparse populations (with the exception of DC) who have more individualistic needs of a national government in terms of infrastructure, educational policy, financial incentives, environmental policy). While a few cities would not control the national popular vote, states such as Wyoming, Montana, Hawaii, and Alaska who have diverse needs, would be irrelevant.

The president has unilateral authority in certain arenas. To prevent Congress from being dominated by a minority of states, the Constitution awards Senate votes equally. Why should the president, who also has some unilateral governing authority, be exempt from the same voting concerns?