2016-01-10 – Most people who voted in the 2000 presidential election know that George W. Bush was declared the winner in spite of the fact that Al Gore had more votes. We all got so taken up in the dispute over “hanging chads” in Florida ballots that it pays to stress the following fact.
Bush’s own version of the vote count never gave him a majority nationally. Al Gore won that. He didn’t need a majority nationally. He had enough electoral votes so that winning in Florida would put him over the top. The Supreme Court case that gave Bush the presidency did not consider the national vote. It only considered the Florida vote.
George W. Bush wasn’t the only president to take office without winning the popular vote. Three others did as well: John Quincy Adams, Rutherford B. Hayes, and Benjamin Harrison. Urban legend says that John Kennedy beat Richard Nixon because of Florida-style shenanigans in Illinois. There may have been shenanigans in Illinois, but Kennedy would have won without Illinois. Kennedy won the popular vote. If Nixon had succeeded in flipping Illinois, he would have been a minority president like George W. Bush.
Why do we have minority presidents?
It’s because of the Electoral College, of course. If every state’s voting percentage were the same, the victor in the Electoral College would also be a winner of the popular vote. But regional differences skew this, generally in favor of smaller states—frequently in favor of smaller states in the South and the West.
That’s the way it is supposed to work under the Constitution. It is a result of the Great Compromise of 1787.
Tiny states like Delaware were concerned that big states like Virginia could trample their rights if the national legislature was structured to give representation based on population. The compromise was to give every state equal representation in the Senate regardless of population. This gives states with small populations an extra say. Since representation in the House is based on population. This extra oomph in the Senate isn’t enough to pass legislation. But it is enough to stop legislation originating in the population-based House.
Since representation in the Electoral College is equal to the sum of a state’s senators and representatives, this imbalance is carried over into presidential elections.
Conservatives generally benefit from these imbalances.
In recent years, conservatives have worked hard to increase the imbalance. They have done this through heavy gerrymandering of districts, through efforts to prevent likely Democrats from voting, and through voting rules in the House and Senate that can have the support of large majorities.
Now they want to amend the Constitution to increase the imbalance. They say they want to “restore the rule of law.” But, if their remedy is to amend the Constitution, it is clear that they are simply unhappy with the current law.
Their proposals, on the surface, may seem “fair and balanced,” but they largely depend on increasing the imbalance that came to us in the Great Compromise of 1787.
When they say “states’ rights,” this is what they mean: that states can nullify the wishes of the voters. They don’t like voters. Because voters don’t like them.
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One of the conservative proposed constitutional amendments gives a procedure to overrule a decision of the Supreme Court. I once proposed something similar in a laundry list of constitutional changes I was advocating. I’m now having second thoughts about that point. I didn’t do the math.
The problem is the Supreme Court. It is inherently undemocratic. Sometimes this is good. It can protect powerless minorities from tyranny. This occurred when, nearly 100 years after its adoption, the Court recognized that the equal protection clause of the fourteenth amendment actually applies to African-Americans. You might say, “duh, wasn’t that the whole point!” But it took almost a century for this to happen. Finally, they did right. On the other hand, the Supreme Court has upheld the right of wealthy and powerful corporations to buy elections.
Both ends of the political spectrum have grievances against the Supreme Court.
Overruling a bad decision with only a two-thirds vote as I proposed and as conservatives now propose ignores the math that makes the Electoral College a problem. Even a two-thirds vote (in Congress, as I proposed, or in the states, as conservatives propose) may not reflect the will of a majority of the population. It is too subject to manipulation.