National Popular Vote for president would stop election games

 

Gordon L. Weil

The 2020 election and its huge turnout are historic. President Trump gets the credit for bringing out more voters than any other American president.  

They defied Trump’s efforts to undermine confidence in voting. Determined to vote, the people also would not let Covid-19 cut off the breath of democracy.

Despite a well-run election, with special care taken because of his attacks on mail-in ballots, Trump has done his best to undermine confidence in the outcome.  There’s no doubt he has caused lasting damage and deepened the split between his supporters and the majority of voters.

The election revealed three serious weaknesses in how the U.S. deals with its most important election – too much influence by the polls and by pundits and too little respect for the will of the people.

Polls no longer work.  In the world of “fake news” and the social media that spreads it instantly, polls do not measure public sentiment well.  The mismatch between the forecasts and the results helped feed Trump’s attempt to undermine the election.

Polls are dangerously misleading and influence voters. The pollsters know polls have failed, but they keep feeding the addiction they promote for profit.  There’s a real desire to know what people think, but polls are obviously not the way to find out; elections are.

Pundits rely on polls. They speculate continuously on each day’s polling data. They offer what is supposed to be instant analyses, but are usually thinly disguised expressions of their own hopes for the result.   

The message is that we shouldn’t trust polls or pundits.  And we should eliminate the system that allows the kind of post-election crisis created by Trump. Elect the president by national popular vote. Knowing who won would be quicker and easier, reducing the chance for protests and the influence of polls.

Choosing presidential electors by states was a compromise among the 39 men who signed the draft Constitution in Philadelphia in 1787.  They wanted to entice the states to ratify it, and they didn’t fully trust a vote of the people.

This system gives voters in small states outsized influence on the choice of president. A single Wyoming voter counts the same as 3.8 California voters or 1.8 Mainers.  That’s not fair, because presidents can be elected by a majority of electoral votes while losing the popular vote.

That happened in 2000, thanks to a partisan Supreme Court, and 2016.  In the four cases since the Civil War, the beneficiary has been the Republican Party.  If Trump’s goal were reached this year, it would be the third time in the last six elections over a period of just 20 years.

Despite President-Elect Biden’s optimism, the partisan division among Americans runs deep with almost no room for compromise.  The right believes it is the victim of the political system. The left believes Trumpers would trash democracy for authoritarian rule.

It makes it worthwhile for the Republicans to “game the system” by trying to suppress or disqualify voters in states with close results. Partisanship has overwhelmed patriotism.

Times have changed. The Constitution itself has been amended five times to extend the franchise. States play a smaller role than in the 18^th Century. The U.S. has become one media market.

“Originalists” want the country to stick to the Constitution. But it has been badly bent out of shape, especially by Trump.

For example, the Framers of the Constitution believed that federal judges should serve for life, their terms insulating them from shifting, short-term political currents. 

But if presidents and compliant Senates pack the courts with political judges, the party in power can use them to protect and extend its control even if it lost an election. Trump was stunningly clear that getting help in any electoral dispute was why he rushed his Supreme Court appointment of Amy Coney Barrett.

Of course, we will always have the opinions of pundits. But they should be taken as just opinion not expertise.  We may also always have polls, but they should continue to fade.

A national popular election would reduce the influence of polls and pundits and make gaming the system almost impossible. If not, democracy could be killed by misuse of an outdated political deal. 

The problems are all about polls, pundits and people.  The country needs less influence from the first two and more by the people. The system can be simplified.

The National Popular Vote Compact does the job without amending the Constitution. States can agree to require their electoral votes go to the national winner.  The NPV is growing closer to being adopted, having been approved by both GOP and Democratic legislatures across the country. 

Only a few more states are needed. Maine should be one of them.

 

Biden’s bipartisan dreams may turn into partisan nightmare; Maine’s role

 

Gordon L. Weil

As news reports named Joe Biden as president-elect, Donald Trump denied his defeat and launched unsupported claims of fraud. 

Only a few Senate Republicans congratulated Biden, including an equivocal Susan Collins.  Most backed his pursuing unfounded complaints, preventing or delaying a smooth transition. 

Trump, the personal president, may be nothing more than a sore loser.  But the GOP signals that it will fight Biden, not cooperate. Voters who liked the idea of divided government were fooling themselves, because the election yielded more divisive government.

The result could look like this. When his term ended in 2017, Barack Obama left over 100 vacancies among the federal judges, more than 10 percent of the seats, including one on the Supreme Court.  GOP Majority Leader Mitch McConnell blocked his nominations.

After Trump became president, McConnell whipped through hundreds of his nominees, many without careful review by the Senate.

The confirmation of federal judges is just one example of the kind of control that McConnell, with the support of a bare majority of senators, would have over President Biden.

The only way McConnell could lose his grip would be the unlikely victory of both Democrats in the Georgia Senate run-offs in January.  Should that happen, the Democrats could control the Senate.  In effect, the presidential election ends in Georgia. Watch the campaign money flow.

The Supreme Court sits quietly with a majority of justices who have expressed their hostility to the positions favored by Biden. They are said to be conservatives, but they risk being partisan.  Or they can stay out of the fray.

Faced with a hostile Senate majority, Biden’s bipartisan dreams will die an early death.  That seems already to have happened.

Of course, as Trump is fond of saying, elections have consequences. That means that if you win, you gain the right to have things your way. No compromise; it’s “my way or the highway.”

Biden favors bipartisan cooperation to adopt national policy through compromise. Unreal. Maybe he just wants a basis for later blaming the Republicans for the failures of government. Or maybe he’s fooling himself.

If he is planning a national counterattack when McConnell does his thing, he may be unduly optimistic.  People may say they want compromise, but there are few moderates who can swing behind him.  The country is deeply divided; it’s not simply a matter of disagreeing on issues.

There is no reason for McConnell to compromise. Almost as good as being able to set policy and pick the judges is his ability to stop the other side from doing it.

Maine had a major role to play in this outcome through the Senate election.  The essential issue was either taking McConnell’s power away by electing a Democrat to tip the Senate balance or backing him by reelecting Susan Collins, who has been loyal to him on most key issues.

Many Maine voters were distracted by less important issues.  That was the Republican playbook.  The Democrats came up short in trying to make McConnell the issue. Joe Biden, confident he would carry the state, never came to Maine to say he needed a Democrat in the Senate.  He will pay the price.

Maine Democrats missed George Mitchell, a former Senate Majority Leader. Now ill, he might have taught voters the central importance of the Senate election in national affairs.

To govern, Biden will inevitably have to follow the rules of the presidency laid down by one of his predecessors – Donald Trump.  He must push executive power as far as he can to work around Congress.

He can restore America’s place in the world, although the absence of foreign policy in the campaign showed that voters hardly cared. If there is any aspects of the U.S. world role people care about, it is that this country should not pay other nations’ bills or buy their cheap products.

He can stop using the presidency to give aid and comfort to racists in return for their votes. In the end, it can prove better to be politically correct – avoiding giving offense to others – than to be politically expedient – using hatred to win elections.

Executive orders, the substitute for lawmaking by Congress, will flow like a great river just as they did under Trump.  Biden will reverse its direction, the feat of political engineering for which he was elected.  The environment, civil rights, immigration could all be affected.

The branches of government in open warfare with one another, the excessive use of executive power and turning neutral courts into partisan legislatures are not trivial political issues, easily compromised. Central to the American political system, they demand attention now.

A lot more is stake than who sits in the White House for the next four years.

 

Covid-19 was also on the ballot

 

Gordon L. Weil

The 2020 elections have taken place on two levels.  One can prove to be deadly.

Voters have been choosing the president, the Senate and the House.  The results of the voting also show that tens of millions place selfish interest above community welfare in dealing with Covid-19.

In selecting the nation’s leaders, voters have undoubtedly disappointed the Democrats and rewarded the Trump Republicans for their stance on the coronavirus.

There was no Democratic landslide. Whatever ultimately happens after all the votes are counted, the outcome reveals a deep split about the role of government established under President Franklin D. Roosevelt but also the health of the people.

President Trump saw his path to reelection based mainly on the strong economy in which unemployment was historically low and people had money in their pockets.  Surveys showed a majority feel better off under his presidency, but believe that the country is worse off.

Farmers provide a good example of his brand of politics. Though his trade policy cost them major markets, it brought in new import tariff revenues, collected from consumers through higher prices. Those funds were used to compensate the farmers.  Trump protected their incomes using funds raised from other Americans.

The farmers stuck with the president. Perhaps unwittingly, many of the contributing consumers paid the price of cutting cheap imports from China.  American agriculture suffered and retail prices rose a bit, both not good for the country. 

But the farmers’ incomes were protected.  They voted overwhelmingly for Trump and his party. His policy was good for them, if not for everybody else. 

This kind of trade-off is also happening on a far more important issue.

Covid-19 presented Trump with a problem he could not manage as easily. Instead, he would first try to convince people that it was far less harmful than it turned out to be. For him, minimizing its effects and dismissing strong health measures would allow the economy to resume its growth on which his reelection depended.

But the illness is real.  Trump failed to deal with its harmful effects.  According to polls, most Americans thought he had not handled the threat competently.  Joe Biden and the Democrats believed his failure would cost Trump Republicans the election, and they tried to make it the chief issue.

By minimizing the impact of the coronavirus, Trump created a new political reality that will survive the direct results of the election.  This column is written before the final outcome is settled, though Joe Biden looks like he will struggle to be a uniting president leading a divided nation.  That division will extend to public health.

In voting for Trump and his party, a huge segment of the electorate sent a message about the country.  In agreement with Trump, many believed that even if the price of economic growth were added illness and deaths, the price was worth paying.

Dr. Scott Atlas, Trump’s quack medical advisor, was selected because he provided the advice the president wanted. Let the economy reopen normally, he says, but offer special protection to the most vulnerable.  That way the human herd could protect itself, though inevitably there will be some deaths.

Doctors who had made their careers understanding viruses knew that without stopping the spread of the virus, you cannot protect the vulnerable. Many older Americans would die.  Under Trump’s growth-at-all-costs policy, they are expendable, sacrifices on the altar of prosperity.

A supporting message came from Trump’s backers: fighting the virus by trying to stop its spread by requiring masks and separation violates individual rights under the Constitution. 

The basic purpose of democratic government is to protect public health and safety. That duty exists with or without a formal constitution.  People create a government for their common protection.  A constitution determines the rules of government but not human rights.

Yet some have chosen to elevate the American Constitution to the level of the Ten Commandments. A document written in a few weeks by 39 men some 233 years ago merits respect equal to the tablets handed down to Moses.

Trump’s political allies elevated the right not to wear a mask, on the grounds that it violated personal freedom, into a wedge issue.  In return for his protecting this single “right,” they would allow him broad power to set all other national policies.

Protecting the right to dismiss health guidance became the ultimate political value. True believers selfishly choose to ignore the threat they pose to others by not wearing a mask.

Maine was fortunate in having elected a Legislature likely to support Gov. Mills, whose tough stance on Covid-19 has yielded more favorable results than in almost any other state. Maybe that’s a sign of the oldest state population protecting itself.

Ultimately what may matter most is the second election – the choice of self over community, made by tens of millions of Americans.  Perhaps that vote will one day be reversed, but at what price?

 

 

After the voting ends: “It ain’t over ’til it’s over”

 

“It’s déjà vu all over again,” said Yogi Berra, leading American philosopher and Hall of Fame baseball player.

The rushed appointment of Amy Coney Barrett to the U.S. Supreme Court shows that’s exactly what President Trump wants. In 2000, a partisan Supreme Court decided the election, picking Republican George W. Bush over Democrat Al Gore. Could it happen again?

In its 2000 decision, the Court implied that it would not routinely override state management of federal elections, as the Constitution provides.

That case involved constitutional violations in Florida’s ballot counting. Now the issue may be mail-in voting in many states. The Trump campaign must show more than the possibility that mail-in ballots permit fraud; it would have to show evidence of many actual cases of fraud.

In view of Bush v. Gore, most states have tightened their voting systems, making them less vulnerable to such complaints. This week, most justices said they would not displace state control, though Kavanaugh used Trump’s rhetoric against a lengthened count.

How could the post election play out?  Much depends on the exact outcome. If either candidate wins a landslide victory, there would be little incentive to challenge the results in multiple states.

Under the Constitution, the states run their own presidential elections. The first appeal from a state’s handling of the balloting would be to state election officials and state courts.

The U.S. Supreme Court would not be the court first used, because it must hear such cases on appeal. Bush v. Gore was decided on appeal from the Florida Supreme Court.

If no constitutional standard had been violated, the Supreme Court should not act as if it were a state court. Facing a dispute that could not be readily resolved, a state might struggle to choose its electors. That happened when the Court stepped or overstepped into the Florida case.

If the national result were nearly a tie, there might be challenges in several states not just one. The Trump campaign appears to believe that the outcome will be close, and it is prepared to challenge in a number of states. Presumably, the Biden campaign is also ready for a court war.

But courts need not determine the result. The Constitution contains rules for electing the president when neither ticket has the required 270 votes.

At noon on January 3, 2021, the new Congress is seated. At noon on January 20, the terms of Trump and Pence end. No exceptions are possible. The new Congress could try to adopt a law allowing for an acting president, but that’s highly unlikely.

The new House of Representatives would choose the president. After the 1824 and 1876 elections, the House fashioned political deals and elected the president.

In the House, each state has one vote. All 50 states are equal, and a state’s vote is determined by the state’s representatives, no matter how many or how few. Right now, there are more Republican than Democratic state delegations.

That may partly explain Trump’s focus on Maine’s Second District. If one representative were a Democrat and the other a Republican, the state would be deadlocked. Right now, both districts are represented by Democrats, which would yield a vote for Biden.

In 2000, the Court might have left the decision to the House (where Bush would have likely won), but it managed to find a constitutional question. What would happen now, if a partisan Court simply decided to substitute its judgment for the decisions of one or more states?

Its decision might be accepted by the loser, as Gore did. But, if there were a large popular majority nationally that the Court ignored, a crisis could result. Would the Court override a popular majority as it did in 2000? Maybe not, if it were big enough.

The House might ignore a Court ruling and proceed to its own vote if it produced a different result. President Andrew Jackson rejected a Supreme Court decision, stating it would not be enforced or obeyed. The Court’s decision, favorable to the Cherokee Indians, was ignored by the other two branches.

The House could have the last word. The Supreme Court would be damaged, and the country would be dangerously divided.

Though the three branches are supposedly equal, Congress can determine the Court’s jurisdiction. It could later strip the Court of the power to decide presidential elections. It could enlarge the Court to blunt the conservatives’ power. The justices will be aware of these possibilities.

The outcome may be uncertain unless the election produces a large majority for the winner, putting the result beyond debate. But the media might even find a way of projecting a winner right after the election.

Still, as Yogi famously said, “It ain’t over ’til it’s over.”