Friday, October 28, 2016

Maine’s split electoral votes in national focus

Maine has been unexpectedly featured on this year’s national political scene, thanks to its unusual way of voting for president.

Each state gets a number of electoral votes for president that adds together the number of senators (two per state) and the number of members of the House of Representatives (based on population). 
Maine has four votes.  Unlike almost all other states, each of its two congressional districts votes separately from the two statewide votes. 

Much attention has been focused on the Second District, where Donald Trump is thought to have a chance.  If he won there, he would be awarded one of Maine’s four electoral votes.

The situation results from a mistaken attempt at electoral reform.

In 1968, there were three major candidates for president – Republican Richard Nixon, Democrat Hubert Humphrey and Alabama Gov. George Wallace.  All of Maine’s electoral votes could have gone to a candidate winning as little as 34 percent of the popular vote.

That year, Maine Sen. Edmund Muskie ran for vice president on the Democratic ticket headed by Humphrey.  Humphrey-Muskie got 55 percent of the Maine vote, so the anticipated problem did not arise.

Still, the Maine Legislature was wary and set up the current system with both a statewide election and two congressional district elections.  The districts represent no particular regions, and their boundaries change every ten years as the result of the census.  The Maine vote has never been split.

The measure was designed to discourage third parties, like Wallace’s American Independent Party.  The theory was that even if he could have carried one district, he would not have carried the state.

All other states, except for Nebraska, continue to use a winner-take-all system for their electoral votes.  Since 1996, the cornhuskers have used the Maine system.  In 2008, Nebraska gave one vote to Democrat Barack Obama while its other four went to Republican Mitt Romney.

The Maine system has attracted little attention, because it would have had no real effect on the outcome in either the state or national result.

In the 2000 election, Democrat Al Gore beat Republican George W. Bush by half a million popular votes, but lost in electoral votes, leading some to urge using the popular vote.  Moving to the national popular vote in presidential elections would require amending the U.S. Constitution. 

The Maine system may give the impression of being closer to the popular vote than is the winner-take-all system.  Adopting it requires only state action.

But, no matter how much attention Maine’s Second District gets this year, it is unlikely that other states will be tempted to adopt it in an effort to better approximate the popular vote.

The reason?  The Maine system doesn’t work.

Take the last presidential election.  Obama defeated Romney by 332-206 electoral votes and carried a majority of states.  The Democrat also won 65.9 million total popular votes to 60.9 for the Republican.   Electoral vote tracked popular vote.

If the Maine system applied nationally, Romney would have won, having carried more congressional districts.  The sharply different result would have been 274-264 for the Republican.

Few people would have considered that a fair result, possibly tipping the balance in favor of amending the Constitution to allow for a national popular vote.

Electoral votes result from the compromise that made the Constitution possible.  To get small states to accept it, the Founders weighted each state’s vote by counting its senators as well as its population.  Without that deal, small states would have reduced effect on the presidential election.

If only Maine’s popular vote counted, its influence on the outcome could be cut in half.  To get rid of electoral votes would upset the basic founding deal that treated all states equally.  But perhaps a deal made two and half centuries ago needs to be updated.

The Maine system is clearly not the answer.  Not only does it weaken the influence of states by splitting their votes, its danger is in producing an undemocratic outcome quite different from the will of the voters.

Maine and Nebraska don’t cause much concern.  But the weakness of the Maine system becomes evident when it is applied nationally.  In both the country as a whole and in Maine, a candidate could get the most popular votes, but lose in the electoral vote count. 

The Maine system sounds better than it is.  It could undermine majority rule.

If nothing else, its inherent weakness, revealed when looked at closely, should serve as a warning that so-called “electoral reform” can produce unexpected and undesirable results. 

Ranked-choice voters, please note.

Friday, October 21, 2016

Dislike deadlock? Don't back divided government

This year’s elections could produce a Democratic president and Congress with one house or both controlled by the Republicans.

Many voters say that’s just what they want.  They believe that divided government prevents excess and promotes compromise.

But they have a good chance of being disappointed – again.  Here’s why.

On the night in January 2009 of Barack Obama’s first inaugural as president, Republican congressional leaders met and decided to maintain wall-to-wall opposition to anything he proposed.  They wanted to make sure his presidency would fail and he would not be reelected.

A couple of years into Obama’s first term, Senate GOP leader Mitch McConnell said, “The single most important thing we want to achieve is for President Obama to be a one-term president.” 

But he left Obama an out.  If the president would do a “backflip,” accepting Republican policies, they would work with him.  Of course, there would be no backflip by the GOP.

Obama got some of what he wanted – like the Affordable Care Act – without a single Republican vote.  Some of the responsibility was his, when he failed to master the congressional relations game.

Obama was reelected and continued to face GOP opposition.  That’s probably why he resorted to the extensive use of executive orders on major issues.  The Republicans attack his use of these orders, but allow him to act on his own rather than compromise with him.

Now comes Hillary Clinton, probably the next Democratic president.  It seems highly unlikely that she will be able to do any better than Obama.

She promises to seek compromises with Republicans, but they would have to be willing to deal with her.  Even if she were to back off some of her campaign positions, they are so committed to opposition that deals could be impossible.

To be sure, Clinton has faults and must continue to work on being more open.  She gives the impression that she thinks she’s better than the rest of us, not a recipe for success.

But she has been demonized to such an extent that many voters dismiss and distrust her.  That attitude would undoubtedly support a GOP attempt to block any of her policy initiatives or nominees to the courts or regulatory agencies.

The concept of bipartisan government makes sense, so long as both sides are willing to seek compromise.  A president proposes, but should accept some of the ideas of the opposition to arrive at a broadly acceptable policy.

That takes political courage.  Members of Congress and even the president must be willing to take heat from some of their own supporters to bring about compromises on major issues.

If the partisan divide among the voters is truly deep, as seems to be the case now, the degree of political courage needed is high.  Exercising that kind of commitment to public policy, instead of clinging to partisanship, is what constitutes leadership.

But the American system seems to have reached a point where policy differences are equated with moral differences.  Your opponent is not merely “wrong,” he or she is “bad.” 

The presidential campaign illustrates that point.  Many Clinton supporters think Donald Trump, the GOP candidate, is morally bankrupt.  Many Trump supporters think Clinton is criminal.  That’s not the path to compromise.

Perhaps it’s an argument for one-party government, not divided control between the two major parties.  Though many people want government to work through compromise, the U.S. government seems to be beyond the point where that’s possible.  (In passing, it’s worth noting that the Maine Legislature is much better at striking compromises.)

Given the big picture of national partisanship, a voter in federal elections should recognize he or she is not choosing between candidates so much as between parties.

Perhaps the most important action by a senator or member of Congress is who they support to control the Senate or House.  That single vote is far more important than their vote on any issue.

In the obvious absence of the chance for compromise, it’s possible that the only hope for the end of the federal government deadlock is single party government.

Thanks to Clinton’s big lead and her political “coattails,” the Democrats have a reasonable chance of taking control of the Senate and a slim chance of achieving a House of Representatives majority.

Few voters may have this big picture.  For example, in Maine’s Second District, the issues are not about economic or social policy.  That election, like many others across the country, boils down to which party will control the House –Emily Cain’s Democrats or Bruce Poliquin’s Republicans.

Wednesday, October 19, 2016

Three 2016 state referendums have legal, procedural defects

Things may not be what they seem.

Half of the six Maine state referendums have been drafted with legal or operational problems, according to the state Attorney-General, lawyers and past legislative practice.

They are likely to produce results differing from their sponsors’ intention.

The three at issue are marijuana legalization (Question 1), the special fund for education (2) and ranked-choice voting (5).

The marijuana bill is meant to allow possession of the substance by people 21 years of age and above.  To accomplish that result, the law completely repeals the ban on such possession by any persons of any age, except for limited purposes.

Because the proposal deals with people 21 and over and but is silent on those younger, it has the presumably unintentional effect of allowing unfettered possession by children and others under 21.  That’s the Attorney-General’s view.

If the proposal passes, it would be up the Legislature to move quickly to eliminate the under-age loophole.

The education proposal would place a surcharge on the state’s highest income taxpayers and places the revenue into a special account to be used only for education.

Whenever the Legislature fails to appropriate funds to cover 55 percent of the education cost, as required by an earlier referendum, it would use funds from the special account to boost outlays up toward the required level.

In practice, the Legislature has never appropriated sufficient funds to meet the 55 percent mandate.

The new proposal places no new requirement on the Legislature for the covering base education funding.  It could take advantage of the new special account to replace some of the outlays it might otherwise have supplied. 

If the Legislature chose to use dollars from the special account to displace other education funding, thus missing the 55 percent target, it would be following its own precedent.  In fact, it could choose to negate the current proposal entirely by cutting base education spending.

It’s difficult to find a way the Legislature could fix the situation and guarantee the voters’ intentions would be followed, having failed repeatedly to obey the earlier referendum.

On ranked-choice voting, the Maine Constitution now states clearly that a plurality of votes produces an election winner.  Passing ranked-choice voting won’t override that constitutional rule, according to the state Attorney-General.

To overcome that problem, the Constitution would have to be amended.  That requires a two-thirds vote of each house of the Legislature and a majority vote in a statewide referendum.

Some lawyers see another constitutional problem, this one under the U.S. Constitution.

If all of a voter’s ranked choice candidates were eliminated before the final round, only the votes of those who picked, by ranked choice, one of the surviving candidates would count in that last round.  They would vote at least one more time that voters who had picked only eliminated candidates.

The Fourteenth Amendment guarantees Americans “the equal protection of the laws.”  This equality could be undermined by allowing some people more votes than others.

The Legislature could not repair this problem even if the Maine Constitution were amended to allow ranked-choice voting.  Only some kind of run-off could replace plurality election with a majority vote.

A U.S. constitutional challenge to ranked-choice voting could create prolonged confusion.

In all three cases, the ballot question may seem simple, but the implications are complicated and potentially open to lengthy dispute.

Friday, October 14, 2016

Election this year for president, Congress – and Supreme Court

In picking a president and Congress this year, voters will also be picking a Supreme Court.

After the unexpected death of Justice Antonin Scalia, the Court consists of eight justices, four appointed by Democratic presidents and four by Republicans.  President Obama nominated a moderate lower court judge to fill the vacancy, but the GOP Senate leadership blocked consideration until after a new president takes office.

The Court was once seen as a non-partisan body, though hardly non-ideological.  For many years, there had been a split between conservatives and liberals, but that has become a division along party lines, between Republicans and Democrats.

Depending on which side dominates, the Court may lean one way or another.  With all nine justices, it might be influenced by a single swing-voting justice.

Congress is tied in partisan knots, so the Court has become the American super-legislature, creating some of the most important new laws of the past decade.

Since Scalia’s death, the Court has become as deadlocked as Congress itself.  The new president’s nominee will tip its balance.  It’s likely that Hillary Clinton will be elected, meaning the replacement of a conservative majority by a more liberal one.

One more step is required before that happens.  Her nominee would have to get the approval of a majority of senators.  Under Senate rules, 60 senators would have to agree to allow a vote on that approval.

When Republicans, then in the minority, denied the 60 votes to Obama’s federal judicial appointments, the majority Democrats changed the rules, eliminating the blocking vote for all federal judges except the Supreme Court.

If the Democrats control the Senate after the elections, they will be able to change the rule for the Supreme Court as well, clearing the way for a Clinton appointee.  If not, she and the GOP leadership would have to find a way to compromise on a new swing-voting justice.

A single decision by the Supreme Court illustrates both its legislative role and the importance of the election on its future.

In 1965, Congress passed the Voting Rights Act.  This law gave the Justice Department the power to halt discriminatory laws before they could be used to prevent voting by African-Americans.  In places where there had been a history of such discrimination, laws or rules would have to gain its advance approval.

As the law began to be applied, the number of African-Americans registered to vote, mainly in the South, increased.  Congress extended the law to stimulate and maintain this increase.

In 2006, it again voted an extension with strong support by both parties.  In the House of Representatives, the extension passed by a vote of 390-33.  In the Senate, the vote was 98-0.

In 2011, an Alabama county challenged the law, claiming that the high percentage of African-American registered voters showed that Justice Department pre-approval was no longer necessary.  The case made its way to the Supreme Court.

In 2013, by a 5-4 vote along party lines, the Court ended pre-approval, though the Justice Department could still bring lawsuits against discrimination.  While it recognized that “voting discrimination still exists,” it said that pre-approval could not “be justified by current needs.” 

In other words, with higher African-American voter registration, there were no longer “current needs.”

This was clearly a political judgment.  Suppose crime sweeps a city.  More police are added and crime subsides.  Can the city now cut the police force, because of reduced crime or is the presence of more police what keeps crime down?  In effect, the Court ruled the city should cut the cops.

Five justices, none of them holding elective office, overruled the huge majorities in both houses of Congress.  They substituted their political judgment for that of the elected members of Congress.  They said the Constitution required such a decision.

Right after the decision, North Carolina adopted discriminatory laws it had been blocked from passing.  One official reportedly said he understood that was the purpose of the Court’s decision.  Several other states took similar actions.

A different Supreme Court could take a new look at the 2006 congressional extension, based on the new set of facts resulting from the states’ discriminatory actions.

While this is not the only case where the Court made a legislative judgment, it highlights one of the most significant aspects of the presidential election.  But the candidates hardly mention it, though a questioner in the second debate raised it.

Blocking an Obama appointment, Senate Republican leaders wanted voters to “elect” the new Supreme Court justice.  They may do exactly that, without even realizing it.