Sore Loser

With few exceptions the results of our presidential elections have been pretty straightforward in modern times. Around 40 states lean so far one way or the other that it usually isn't necessary to wait until all the votes are counted to see who the winner is. Even in the so-called swing states, it generally doesn't require that every single vote be counted before we know who the winner is. If candidate "A" is 20,000 votes ahead and there are 10,000 votes left to count, then mathematically there is no way candidate "B" can win. Media outlets receive voting information from the states and report this information. Most of them will "call" an election based on their analysis of the numbers. They don't always agree, but the "calls" by the media are not official and no one thinks that they are. The media is reporting information that they have received from official sources. In most cases, especially this year. In addition to reporting the apparent winner, they report how many votes were cast for each candidate any how many ballots (if any) are left to tabulate. No one is making anything up. "The media" isn't deciding who the winner is. They are reporting who the winner is. This year is no different in that respect than any other election. 

Sometimes a state's votes are very close. Not only do we have to wait for all ballots to be counted, but in some cases there will be a recount to verify the count. This is not unusual. It happens sometimes. Very seldom does a recount change the winner, and the swing is hardly ever more than a few hundred votes. This year is no different in that respect than any other election. 

There are often isolated problems. Voting machine software crashes, ballots get lost, people try to vote more than once, ballots are misprinted, registered voters are purged from voter lists. It's not a huge system, it's a huge collection of systems. Not only does every state have its own election laws, but often individual counties and municipalities have their own systems. There's going to be problems. This year is no different in that respect than any other election. 

What's different this year is that we are in the midst of a pandemic where many people felt uncomfortable about voting in person, so existing mail-in and absentee voting overwhelmed the systems in many areas. The party in power worked overtime to prevent localities from making it easier to vote remotely, including slowing down the mail and blocking local changes to when mail-in ballots could be counted. Voting in person was frustrated in many jurisdictions as polling places were eliminated and additional hoops to jump through were instituted. 

What's different this year is that the President of the United States has been spending months convincing his supporters without evidence that the system was unreliable, that it was rigged against him and that any result that differed from him winning in a landslide was illegitimate. 

No surprise that once enough votes were counted to make it indisputable that the president did not win re-election, it was disputed. 

It was widely predicted that in some states the day-of votes would trend toward Trump, since his supporters were more likely to vote in person and that the mail-in ballots would trend toward Biden, since Democrats were more likely to be concerned about distancing on Election Day and therefore would vote early or by mail in greater numbers. And since in most cases early votes and mail-in ballots would not be counted until after the day-of votes were tabulated, that is exactly what happened. States that had Trump slightly ahead on Election Day evening, like Pennsylvania, little by little gave way to a Biden lead as all the votes were counted. One of Trump's propaganda points was that we should know the winner on the evening of Election Day, and of course since he knew how things would go in the swing states, attempted to get voting stopped in Pennsylvania, Michigan and Wisconsin where he was initially ahead. In the states where he was slightly behind, like Arizona and Nevada, he pushed for all the ballots to be counted. 

Once Biden drew ahead in these key states, his legal team went to work filing lawsuits to get wide swaths of votes invalidated while taking to Twitter to make unsubstantiated claims (i.e. lies) about alleged election irregularities. In most cases what he was telling his supporters on Twitter was different than what his lawyers were claiming in court. Virtually every case was thrown out of court. The few cases that weren't dismissed involve vanishingly small numbers of ballots that will not change the result. 

Republicans in general are parroting Trump's line, claiming to only be concerned about election integrity, even though they were never concerned about it before and there is no evidence of a coordinated, or even significant effort to rig the election. What Trump and the Republicans are doing is an attempt, not to protect the integrity of the election, but to overturn it.   
 

Election Fraud

No one is surprised. Trump was asked several times in 2016 whether he would accept the results of the election. His answers included "We'll see" and "If I win". In 2016 it was a moot point because he did win. Russian interference did not extend to actually changing any votes, just spreading disinformation to our easily fooled electorate. The popular vote in our system of selecting a president is irrelevant, as much as we wish it wasn't. He could complain all he wanted about the imaginary 3 million undocumented immigrants whom he said voted for Clinton - it didn't matter.

In 2020 it matters.

Trump has been asked repeatedly if he would respect the results of the election, if there would be an orderly transition if he lost, and he repeatedly declined to unequivocally answer, proclaiming that he would win, or that he would only accept a legitimate result and suggesting that the only legitimate result was a win for him. 

For once, he told the truth. 

For months Trump has been working steadily to undermine faith in our electoral system. He has, without a scintilla of proof, alleged that the voting system was rigged, that it was rife with fraud, and invented all manner of bizarre scenarios. He and his Republican enablers, meanwhile, have been working overtime to make it harder for people to vote. Republicans in Florida effectively nullified a vote by the majority of Floridians to give felons who had served their sentences the right to vote. Republicans in Texas limited ballot drop boxes to one per county, even in counties with millions of voters, Republicans in Georgia closed many polling places. Republicans throughout the country refused to expand voting by mail for people concerned about voting in person during a pandemic and when the rules were loosened, went to court to prevent it. Republicans attempted to invalidate votes postmarked by election day but received afterward. I'm sure that I'm overlooking some of these moves. 

Despite all of these roadblocks, people found ways to cast their vote. People took advantage of early voting options, waiting in line for hours in order to exercise the franchise. Due to the likelihood that early voting would be done predominantly by people concerned about Covid-19, it was predicted that mail ballot and early ballots would lean Democratic. In many states, including several of the swing states, state law required that day-of ballot be counted first. The entirely predictable (and predicted) result was that several states would show Trump leads until the mail-in and early ballots were counted. This is what happened. Trump and the Republicans tried to get counting stopped while he was still ahead. 

Now Trump and his cultish enablers are claiming that the results are tainted. They are throwing around accusations and allegations that are based on nothing more substantial than a belief that Trump couldn't have lost, so any numbers showing that he lost must be rigged. 

The fact that Biden conducted no massive rallies and very few small ones is not proof that the numbers are wrong

Disbelief that Biden could have received more votes than Obama did in 2008 or 2012 is not proof of fraud

The fact that Trump rallies attract huge crowds does not translate into invalid polling results for Biden

Mainstream media outlets "calling" the election just means that they think the numbers warrant it; it is not proof that the media is manipulating the numbers. 

There is no real evidence other than "there must be fraud" scenarios that Trumpists are looking for any scrap of "proof" for.

The Republican post election talking points try to make it look like questioning every opposition vote and letting the courts decide is normal. It's not. It's a desperation move by a desperate man and his desperate enablers. 
 

The Electoral College Must Die

As I write this I have no idea who will win the presidential election or which party will control the Senate. I don't know which candidate will end up with more actual votes (no one "wins" the popular vote because it's not a contest) but however it turns out, the Electoral College is a bad idea. 

"But the genius of the founders!"

Please.

The Electoral College was compromise piled on top of compromise. 

Keep in mind that the founders were not supporters of democracy. They did not believe that "the people" were capable of making decisions. They did want national policy to be determined by those who were already in power, and this decision-making included who would be the president. The participants at the Constitutional convention debated several different scenarios for selecting a president. One solution was to have the legislature choose the president, this, as well as a suggestion for direct election, was rejected. The former due to separation of powers considerations and the latter because they simply didn't trust "the people". Keep in mind that each state set its own standards for who would be able to vote, and that in general the franchise was limited to white male landowners. The legislatures of each state, often a self-selected collection of oligarchs that were representatives in name only, determined who the electors would be and who they would vote for. 

So the one compromise was to set up a system where the will of the voters, even though they were a small percentage of the actual people, could be circumvented if those people made the "wrong choice".

The second compromise relates to how the legislature was set up. At the time of the writing of the Constitution the ruling class of each of the states viewed each state as a sovereign nation (what "state" used to mean) and were keen to maintain their own power and influence. The governments of the states with smaller populations did not want a legislature with membership based on population, since that would put them at a disadvantage. The leaders of the larger states did not want to give up the advantage that greater population gave them. The compromise was a two-chamber legislature, with one chamber's members elected according to population and the other, the Senate, with two senators from each state. Initially the senators were selected by each state's legislature, not elected. 

This compromise made sense when each state viewed themselves as separate and unique, and only associated with the others in a glorified alliance, and not subdivisions of a federal nation. This is hardly the case anymore. 

A compromise within a compromise was made in order to entice the slave states to enter the union. A huge percentage of the people in the salve states were enslaved people. The Southerners wanted to count them in the census, as this would give them more influence in Congress, the Northerners did not want to count enslaved people at all, since they could not vote. What we ended up with was the infamous 3/5 Compromise, whereby enslaved people, for the purposes of representation in Congress, were counted as 0.6 of a person.

The total number of members of Congress from each state would equal the number of electoral votes they would have. 

How did we get to the point where we have had several recent elections where the candidate who won, received fewer votes? 

The main reason is that early in hour history it became the norm for states to award all of their electoral votes to the candidate who received the most votes. If there were more than two candidates, this could mean that the winning candidate received less than 50%. A losing candidate with 49.9% would receive no electoral votes from that state. Another reason is that many states have become predominantly either rural or urban, and the two major parties appeal predominantly to one or the other. The predominantly rural states tend to be lower in population. Since every state most receive a minimum of 3 electoral votes, the smaller states have proportionally more influence than the larger, more urban states. 

Advocates of the Electoral College will claim that this is exactly what the founders planned for, except that they didn't. For many years the size of the House of Representatives, and hence the Electoral College, increased as states were added and population grew. In 1929 the Permanent Apportionment Act was passed, limiting the size of the House of Representatives to 435. The US population increased from 123 million in 1930 to 309 million as of the 2020 census. Two states were added. The result was that not only were the number of people represented by each Congressman steadily increasing, but the relative clout of the smaller states was increasing as well. 

Due to the above, we have a situation where, in any state where one party is dominant, those who vote for the minority party are effectively disenfranchised. 

Supporters of continuing the Electoral College claim that if we switched to a popular vote system, California and New York (or sometimes a collection of big cities) would call all the shots and that the voters in the small states would be ignored. This is wrong for several reasons, and why I often say that if you're for the Electoral College, you're just bad at math. California and New York, combined, have around 18.9% of the US population as of the last census. That sounds like a lot and it is, but it's not so scary as it seems. In the Electoral College, the two states combined control 15.5% of the total. So there would be an increase, but they are already throwing their weight around, not too mention that the counterweight is Texas and Florida with a combined 12.4% of the Electoral votes (16.5% of the total population). EC cheerleading usually doesn't take into account that not everybody in California and New York votes for Democrats. There are substantial minorities of Republicans in both states (as there are Democrats in Texas and Florida) whose votes would count in a popular vote setup. The thinking that small states would lose their influence assumes that they have any influence now. How often do campaigns visit Vermont, or Wyoming or Alaska? Hardly ever, because they are each safely in the orbit of one political party. The states that get the most attention have two qualities: (1) They are medium-to-large and or (2) They are "swing" states, whose voters are close to equally divided between the two major parties or (3) Both. 

The problem with discussing eliminating the Electoral College is that it is enshrined in the Constitution and it is difficult to change it, especially when one party owes much of their power to it. 

So, how can we address the worst problems of the Electoral College while still keeping its shell?

1. Repeal the Permanent Apportionment Act and increase the size of the House of Representatives. Designate the population of the smallest state (currently Wyoming at around 500,000) as the size of a Congressional district. I recently calculated that this would increase the size of the House from 435 to 565. Smaller to medium states' delegations would remain the same while the larger ones would increase. This would make the House of Representatives more proportional to population and by extension, the Electoral College.

2. Require that electoral votes be awarded by each state proportionally. This would differ slightly from the system that Nebraska and Maine use (they award 2 electoral votes to the statewide winner and 1 vote each to the Congressional district winner). This system would require states that are now swing states, to award the relevant percentages to the second place candidate. For example in Wisconsin, with 10 electoral votes, saw Trump and Biden almost equally divided. They would split the electoral votes 5-5 (or 6-4 if you wanted to give the winner an advantage). Nationwide the electoral votes would closely match the popular vote.

This system would eliminate the disproportionate influence of small, rural states, and enfranchise minority party voters in the "safe" states. Large population centers would probably have as much influence as they do now, but would be balanced by the rural populations in the smaller states. Urban areas in otherwise rural states would also be heard for the first time.

The Electoral College was not engraved in stone and handed down from on high. It was born of a series of compromises by people who didn't trust "the people" and disliked giving them any power. We have changed over the decades to a country that values our leaders being chosen by "the people"...at least that's what we say. 

(Ranked choice voting deserves its own article...coming soon)

Donald J. Trump is a Serial Liar

Some people feel that they are making an informed choice to support Donald Trump. I regularly engage with people on social media regarding politics. While there are definitely the name-callers and the conspiracy followers, there is also a large number of people who adopt a rational tone and present information in a calm reasonable manner.

The problem is that the information that they are presenting ultimately comes from what Donald Trump is telling them. 

And Donald Trump is a serial liar.

I'm not going to wear down my typing fingers (especially since there only two fingers that I use to type) listing all the lies Donald Trump has told over the last four years. There's plenty of sources enumerating them. Now Trumpists and Trump himself will point the finger at "Fake News" and claim that the reporting on the lies are themselves lies. But you don't have to depend on traditional mainstream media for your facts. Virtually all of Trump's lies can be checked against publically available websites, including U.S. government websites. An early lie that Trump told was that his Electoral College win was historic, or unprecedented, except that a Google search of Electoral College results of  every presidential election shows that his winning margin was more like the 45^th best. Trump's claims about the economy are also based on lies. He claims that our economy, including job creation, the stock market and unemployment numbers are "the best ever", when even a cursory look at economic trends indicate that all the positive numbers are simply a continuation of the trends that started during the previous administration. It goes on and on. The information is out there and easily accessed. 

Donald Trump likes to claim that he has gotten more done "in 47 months than Joe Biden got done in 47 years" and that Biden is "all talk and no action". Biden's legislative accomplishments easily discovered, and he was by all accounts an active Vice President and a trusted advisor to President Obama. Trump, for all his bragging and boasting, has had only one significant legislative achievement, the tax change that was a giveaway to corporations and the rich; his numerous executive orders are empty barrels. 

So take a look, Trumpists, at the facts. Facts, not Trumpian assertions. Because if you're basing your support of Trump on what Trump says he has accomplished, then in all likelihood, you're basing your support on a lie. 

Russia, Russia, Russia (and a l'il bit o' Ukraine)

This is a reminder.

This is a reminder that if you aspire to express an opinion of the Mueller Report, or the alleged collusion of the 2016 Trump campaign with Russian Intelligence, or the Justice Department's Inspector General's Report, you should have already actually read the Mueller Report and the Inspector General's Report. 

I read them both. 

The whole damn thing. 

And the other whole damn thing. 

It took about a week to get through each of them. 

What The Mueller Report didn't do was determine that there was (or wasn't) collusion. Not because there wasn't any, but because that's not what they were looking for. They were looking for actions that fit the legal definition of conspiracy. That's a pretty high bar. It's pretty hard to prove. The report, however, was very clear that Russian Intelligence was undertaking a program intended to influence the election in favor of Trump, that Trump and his campaign staff knew about it, that they didn't report that Russians approached campaign staff with offers of cooperation, and that the campaign was perfectly cool with accepting this assistance. The only thing that got them off the hook for conspiracy charges was that they were too lazy to do any actual coordination with the Russians. 

The second part of The Mueller Report addressed obstruction of justice. The report was quite clear that there was obstruction of the investigation by the president himself. Mueller made no recommendation regarding charges due to Justice Department policy stating that a sitting president cannot be indicted short of impeachment. 

No sooner had the report been issued and a follow up testimony to Congress by Mueller when Trump actively solicited another foreign government to interfere in our election by asking the president of Ukraine to investigate former Vice President Biden and his son. The only reason that Trump is still the president is that a Republican majority Senate, pathetically tied to Trump's rise or fall, voted to not remove him from office after he was impeached.  

He was not exonerated. 

But our serial liar president tells his followers that it was a hoax and that in effect none of what clearly happened, happened. 

In addition, he and his followers are attempting to smear Vice President Biden and his family with charges of corruption that have been looked into and debunked. 

Trump is corrupt. 

Originalism

With a battle, or at least a battle of words, going on in the Senate Judiciary Committee hearing room about Judge Amy Coney Barrett, I thought I'd look at the concept of originalism as it pertains to the interpretation of the Constitution. Originalists, sometimes called textualists, rely solely, or at least primarily, on the actual words in the Constitution. This sounds like it's common sense. Of course you'd rely on the words of the Constitution to determine what the Constitution says. But even a cursory examination of the words of the Constitution reveals that the words are often fuzzy. For example, what does "cruel and unusual" mean? We can, as originalists do when the words themselves are unclear, look to the milieu in which they were written to determine context. When the Constitution and it's first ten amendments were penned, punishments included whipping, branding, being confined in stocks, cutting off ears, and of course public hanging. These punishments could be inflicted for crimes ranging from petty theft or even giving birth out-of-wedlock. These were all perfectly normal in Colonial times, but our mores have changed drastically since then. Courts have progressively moved the bar regarding what "cruel and unusual" consisted of. It is unreasonable to expect that the founders would have anticipated all circumstances to which the Constitution would be applied. 

Another example is the 1954 Brown vs. Board of Education decision, in which it was ruled that the separate but (theoretically) equal standard that was set forth in the 1896 Plessy vs. Ferguson did not in fact satisfy the equal protection clause of the Fourteenth Amendment. Not only do attitudes changes, but the facts upon which cases are based change as well. The legality upon which the "separate" part of "separate but equal" was based derived from the prevailing view that Black people were not only inferior to white people, but that it was natural that they be kept separate. 

I don't support "legislating from the bench", where judges make the law. But courts must not only rule on guilt and innocence but must adjudicate between different interpretation of the laws as written and take into account evolving attitudes, culture and circumstances. Times change, as so does the lens through which we view the Constitution. 

Electoral College, What's It Good For? (Absolutely Nothin'?)

The election is around 3 weeks away, which means it's time to talk about the Electoral College again. I wanted to post this before the election, because I want to make it clear that my opinion about the Electoral College (EC) isn't based on who wins on Election day. 

The EC came about die to several compromises during the Constitutional Convention. The first thing to understand is how the people of the individual states viewed the concept of a "state" in those days. After over 200 years we tend to automatically think of a state as a subdivision of a country, and that's what it has come to mean, however a secondary definition of "state" is: "a nation or territory considered as an organized political community under one government, e.g. Germany, Italy and other European states". The second definition was the prevailing one in 1787 - the thirteen states viewed themselves as functionally independent nations held together in a confederation or alliance. This view didn't really go away until well after the Civil War. So, during the Constitutional Convention, rather than thinking of themselves as "Americans", they held themselves as "Virginians", "New Yorkers" or "Marylanders" and were very jealous of their rights as individual states in relation to other states. The states with lower populations were concerned that they would be consistently outvoted by the more populous states in the Congress, so the compromise that gave us a population-based House of Representatives and an equal representation Senate was arrived at. In addition, the notorious "three-fifths" compromise allowed enslaved people to be counted as three-fifths of a person for census purposes. The Southern slave states had actually wanted to fully count the enslaved people to increase their voting power while the non-slave states did not want to count them at all. When it came time to decide how the president would be elected, the system was based partially on this legislative compromise. 

The writers of the Constitution did not trust "the people". In fact, "the people" in general couldn't vote - only white, male, landowners could. But even within that group, the founders wanted a fail-safe against voters who might make the 'wrong' choices. The "people" wouldn't really be the ones who would vote for president, but a group of electors who would theoretically cast their votes for whoever received the most votes within their states, but in practical terms, could vote for whoever they wanted to. The number of electors from each state was based upon the total of members of Congress, including the two senators, so the proportion of electors would tilt somewhat toward the smaller states. 

A provision not found in the Constitution, but nevertheless followed in every state except Maine and Nebraska, is to award all of a state's electoral votes to the winner of the most votes in that state, effectively disenfranchising voters for the minority party candidate in states where the voters overwhelmingly support one party. 

One of the things that EC proponents bring up is that without it, the voters in the smaller states would have no voice and that elections would be decided either by New York and California or by a dozen or so big cities. This is not a strong argument: 

* The states no longer view themselves as sovereign nations with unique rights that need to be protected. While there are regional differences, most issues that come before a president are common issues to all Americans. 

* With the current system small states already are ignored in an election campaign. Also ignored  are voters in "safe" states like California and New York, which vote reliably Democratic and most of the states of the Deep South which vote reliably Republican. The states that get attention are the so-called wing states, states that are so evenly split between Republican and Democratic that they could go either way in an election. 

* The above argument ignores the fact that the more populous states do not vote as a block, and neither do the big cities. Arguing that California and New York would decide elections assumes that everyone in those states would vote the same way when in reality there are many conservative Republicans in upstate New York and northern California, just as there are liberal Democrats in Lincoln and Omaha Nebraska and in Atlanta Georgia, even though those states usually vote for and award all their electoral votes to Republicans. 

A weird non sequitur-ish argument is "We're a Republic". This is a variation on the recurring right-wing insistence that we're not a Democracy, conflating direct democracy (i.e. "mob rule") with what our government is: a Democratic Republic, or a Republican Democracy. Democracy is perfectly accurate as a shorthand description. The "We're a Republic" crowd has gotten it into their heads that a necessary feature of a republican form of government (which boils down to "not a monarchy") is something like an electoral college and equal representation to political subdivisions. The writers of the Constitution decided it would be a feature of our government, but there's plenty of republics that don't use any such system. 

Another non-argument rests on the belief that the founders were infallibly wise in the way they set up the framework of our government and that we shouldn't question it. This ignores history. Originally senators were chosen, not by a vote of the people, but by state governments. This was changed. Originally the president and vice-president were not tied together as "running mates". The person with the second-most electoral votes became the Vice President. This was changed after several deadlocked elections ended up being decided by the House of Representatives. The "wisdom" of the founders was subject to change when it didn't work out as envisioned. 

In the real world there's no way that the EC will be done away with. It would take a Constitutional amendment, and a party whose candidate won would have no motivation to support such a change. What can change is how electors are allocated. Nebraska and Maine both award two electoral votes to the statewide winner and one vote each to the winners within a Congressional district. There's no reason that this couldn't work nationwide. States could also apportion their electoral votes on a percentage basis, although I don't know of there's any provision for fractional votes. Several states are even now part of a "popular vote compact" where they agree to award all of their electoral votes to the winner of the national popular vote once the electoral votes of the compact states reach a certain threshold (270 electoral votes). 

Changing the way electoral votes are awarded within the states would still address the concern that small states not be overwhelmed by the more populous states, but would eliminate (or at least minimize) the possibility that the runner-up be declared the winner in a presidential election.