A Rigged System and its Dark Root

This Week:

A "Rigged" System
and Its Dark Roots

Rod J. Howard
December 12, 2016

To My European Friends:

When I lived in Germany in the 1980s, you would often ask me what was going on in America, what “my” government was doing, and why. I would try my best to explain, but sometimes I couldn’t, because what was happening didn’t make sense to me or I didn’t agree with what “my” government was doing.

If I were living in Europe today, I imagine you would be asking me, with similar puzzlement, what happened last month in America, how the candidate who won the most votes – nearly 3 million more votes than the next candidate – could lose and a candidate with nearly 3 million fewer votes could win. I will try to explain, but a lot of people here are asking the same question.

Let me start with the system we have to elect our presidents and where it comes from. It’s a uniquely American system. It’s also a profoundly un-American system, a "rigged” system, a crazy, convoluted, and profoundly un- and anti-democratic anachronism, an artifact of the 18th century that runs against the most deeply held democratic values of America and Americans today. Worse, it’s deliberately undemocratic and antidemocratic.

“One person, one vote”

In a democracy, each citizen is supposed to have a vote, and each vote is supposed to count the same as every other vote. “One person, one vote.” That bedrock principle is embedded in our law and enshrined in constitutional decisions of our Supreme Court. It’s at the heart of our democratic ideals. It’s at the heart of all democratic ideals everywhere. But you know that. Democracy is a European concept. You invented it.

Unfortunately, when we in the U.S think about our system, we forget first principles. We miss the elephant in the room. We miss the great truth staring us in the face, because we take our system as a given and don’t step back to view the big picture. We trade dry, detailed and legalistic critiques, make strained excuses and overlook the fundamental flaw in our system. We do this precisely because it’s our system and because we have told ourselves for 200-plus years that we live in a democracy. But the truth is we don’t have a democracy when it comes to electing our presidents.

One person, one vote. In American presidential elections, that democratic principle is a bright, shining lie – a lie that, like many of the bright shining lies of American history, goes back to the bargains of our beginnings and the darkest of our dark bargains, slavery.

How We Really Vote

We think we voted for Clinton or Trump on November 8, but actually we don’t actually vote for our presidents, not directly. We also don’t vote in a single national election. Instead, we vote in 51 separate elections – one in each of the 50 states and one in the national capital (the “District of Columbia”).

In those 51 simultaneous but separate elections, we don’t actually vote for the president. We vote for slates

Distrust of “We the People”

Despite the soaring references of our Declaration of Independence to the “rights of the people” and the stirring opening words of our Constitution, written in the name of “We the people,” the men we revere as the “Founding Fathers” had a deep distrust of the people and direct popular democracy. The people, the founders feared, would be easily inflamed and misled. (And this was at a time when the people who voted were white male property owners. Go figure.)

So the founders, in their distrust of democracy, allowed the people to elect only one chamber of Congress, the House of Representatives. Senators were chosen by state legislatures. (It took until 1913 for a constitutional amendment to require direct popular election of senators.) The president was elected in an even more indirect way: by an Electoral College, not by the people directly, with the Electors chosen by the states’ legislatures, not (again) by the people directly.

Not very democratic, you say? No, it isn’t. Not at all.

But there's one more deeply undemocratic detail. If no candidate wins an Electoral College majority, the House of Representatives chooses the president. And in that vote, the vote is by state, and each state has one vote. So Wyoming with a little over a half million people would have the same one vote as California with nearly 40 million people.

Not democratic? Not democratic at all. In fact, to call this system democratic is Orwellian.

Reforms over the last 200 years have eliminated some of the anti-democratic layers of this system. The people, not state legislatures, now elect senators and presidential electors. Slavery is gone. But the system still gives small states more weight in the election of the president, out of proportion to population, and it gives an advantage to winning more states, regardless of size and national popular vote.

The edge is significant. In 2016, the combination of state-by-state voting and winner-take-all rules gave Trump 20 extra electoral votes from the number of states he won, and about half of those extra electoral votes were from states with small populations. The result: Hillary Clinton’s nearly 3 million vote victory in the national popular vote didn’t matter.

Twice in 16 Years

I started this letter to explain how our system works and where it comes from. But the fact is, it doesn’t work, and explaining it only shows it makes no sense. We tolerated and made excuses for this system when it worked “well enough”, when the outcome followed the national popular vote outcome “most of the time” and the last exceptions were a century old.

But it’s not working “most of the time” any more. Twice in 16 years, in half of the elections of my daughters’ lives, the system has put the loser of the national popular vote into the White House. That's just wrong. It's also unsustainable.

In another letter, I will talk about some of the arguments that are made for the Electoral College, and how we might move toward presidential elections by national direct popular vote. I will also try to answer other questions you probably have: what the message in the 2016 election really was, how it relates to right-wing populism in Europe, and what's next. But that's all for another day.

Till then, be well, keep safe. RJH

of presidential “electors” proposed by the candidates – 55 in California, 29 in New York and Florida, 3 in Wyoming, and 538 in all. The electors are pledged (but not forced) to support a certain candidate. (The electors vote later this month. More on that in another letter.)

In most of the 50 states, electoral votes go to the winner in that state on a winner-takes-all basis, not in proportion to the popular vote split in that state or nationally. A handful of small-population states allocate electors more proportionately (as by congressional district), but these exceptions affect only a small handful of electoral votes.

The winning vote in a state can be a plurality, and there is no minimum plurality threshold. In a closely split 3-way race, 34% could win 100% of a state’s electors.

Not very democratic, you say? Wait. There's more.

Under the constitutional counting rules, set in 1790 and extended without much thought for 225 years despite fundamental changes in circumstance, the 538 electoral votes are not allocated among the states in proportion to population. States with small populations have disproportionately more electors. In 2016, Trump won more states than Clinton and most of the small states – some by a majority, others by pluralities. Nationally he lost the popular vote, by a large margin (nearly 3 million votes nationally), but he won the most electors.

Make sense? If you think it does, you’re not paying attention. Because it makes no sense at all today.

To use a phrase that Trump used a lot in his campaign, it’s a “rigged system” – rigged to favor the candidate that wins the most states instead of the most votes.

It’s a profoundly undemocratic system. Even worse, it’s intentionally undemocratic, by deliberate design – a design rooted in 18th century elitist distrust of ordinary voters and in bargains dating to the founding of the United States, when 13 new nation-states cut deals to maximize small state power and protect the slave system as the price for agreeing to become the “United States”.

The 13 original states were separate colonies before their War of Independence from the British crown. After the war they were independent nation-states. To get those nation-states to join in a union, to become the “United States”, compromises and inducements were necessary. The small states needed extra representation, so they would feel less at risk of having their interests outvoted and ignored. Result? The federal legislature was split into two chambers. In the Senate, each state got equal representation, two senators per state, no matter how small or large.

The slave states, to ensure their power to preserve slavery, insisted that slaves count in apportioning Congress. Non-slave states of course objected. The result was a compromise, the infamous “three fifths” compromise, which counted each slave as three fifths of a person. It was a shameful bargain, based on a lie – not a bright shining lie, but a dark lie. Slaves – otherwise treated as property, with no rights and no vote – gave the slavers more seats and votes in the House of Representatives, votes used to keep slaves in bondage.

But that’s Congress, you may say. What, you may ask, does that have to do with electing the president?

Actually, everything. In the Electoral College, each state’s voting power equals the total number of its senators and representatives. The result: small states and slave states got a disproportionate number of votes in the election of the president.

But it gets worse, because this tangled system has another, even more anti-democratic root.