Douglas Meagher

The Security of Civil Rights

Filed By Douglas Meagher | December 17, 2008 9:00 AM | comments

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My friend Jerame Davis once described himself as a member of the Schoolhouse Rock generation, which naturally made me think of the classic "I'm Just a Bill" cartoon explaining how a law is enacted. While his explanation is accurate and succinct, as we grow older we learn that there is more to the process than what scrolled-up Bill sang.

With some exceptions, the legislative process is tedious, cumbersome, frustrating and often ugly. It sometimes seems as though legislatures are reactive rather than proactive. Furthermore, when the Congress or the state legislature, the city council or even the local school board does act, administration by the appropriate executive is impeded or checked. Even the judicial process is time-consuming, drawn-out and endlessly confusing.

In an age of instant gratification many people wonder why it is so hard for government to take action. The answer, of course, is that our system is designed that way. It is supposed to be difficult for government to act. But why?

"In a free government the security for civil rights must be the same as that for religious rights."

-- James Madison, The Federalist

The same design is found in our presidential election system. It wasn't much of an issue this year, but there is always some discussion of eliminating the Electoral College system in favor of direct popular vote. On the surface, that argument seems logical and again begs the question why do we have such a screwy process.

The explanation is that the Electoral College is designed to increase the influence of small states and diminish the influence of the large in the presidential election process. Without the Electoral College, the states with the greatest population would dominate the election and, theoretically, the government. The wisdom and effectiveness of this design can be debated endlessly.

These and other checks and balances permeate our constitutional system to deliberately guard against the tyranny of the majority. James Madison also wrote that, "It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part."

The idea is that popular democracy would allow a majority of the population to run roughshod over the liberties and interests of any minority simply because it has the most votes. The founders foresaw the danger that a population, inflamed by the political passions of a moment, could direct the government on a mistaken course or deprive those who dissent from the majority of their property, position or even life.

LGBT people are and always will be a minority. Because of this status, we must remain ever mindful, grateful and protective of our civil liberties. Which leads me to California's Proposition Eight.

The whole disappointment comes about through initiative and referendum; processes that are largely an outgrowth of the progressive era of the early 20th Century and included in many state constitutions. Initiative is placing a question of public policy on a ballot by petition of the citizenry. Referendum is a vote of the citizenry on that issue. Indiana has a weak version of initiative and referendum. Basically, a question of public policy may be presented to the citizenry if the legislature allows it; and, the subsequent referendum is binding if the legislature allows it to be. In California, however, both the petition and the vote are binding.

This sort of direct democracy has a lot of appeal, but as clearly demonstrated on November 4th, it allows for the tyranny of the majority. The sound and accurate judgment of the California Supreme Court to protect an identifiable minority against the tyranny of the majority was nullified by a majority of voters apparently acting upon political passions instigated by interests seeking to overlay civil rights with religious precepts.

This is criticism of both the referendum results and the process itself. Direct democracy may be right for many governmental decisions but definition of civil liberties requires something more. Our system was not designed to recognize civil rights solely by popular vote. On the contrary, it was designed protect against the excesses of such political power.

There will be challenges to the legality of using initiative and referendum to undermine constitutional protections. That will be another discussion for another time. As this argument continues we must stress everyone's mutual interest in protecting minority enfranchisement. And, the argument will continue and again here in Indiana.

Our population is rapidly changing such that there soon will be no single dominant racial, ethnic or religious majority. We all have an interest in not being the minority selected for exclusion. If the referendum result must be accepted and all the state constitutional amendments are allowed to stand, the religious rights of a majority will eliminate the civil rights of a minority. It is still possible for us to argue the mutuality of interest against oppression described by Madison. Included in the same passages quoted above he wrote this:

Justice is the end of government . It is the end of civil society. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so will the more powerful factions or parties be gradually induced by a like motive, to wish for a government which will protect all parties, the weaker as well as the most powerful.

Protection of individual liberties is basic Reaganite republican orthodoxy. On this point, too many of our conservative friends have lost their philosophical bearings. As the party seeks to reinvigorate itself there is talk of it moving further to the right. I doubt that becoming even more conservative will lead to electoral success in the near future but it could lead to rediscovery of Mr. Madison.


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The major shortcoming of the current system of electing the President is that presidential candidates concentrate their attention on a handful of closely divided "battleground" states. In 2004 two-thirds of the visits and money were focused in just six states; 88% on 9 states, and 99% of the money went to just 16 states. Two-thirds of the states and people were merely spectators to the presidential election. Candidates have no reason to poll, visit, advertise, organize, campaign, or worry about the voter concerns in states where they are safely ahead or hopelessly behind. The reason for this is the winner-take-all rule enacted by 48 states, under which all of a state's electoral votes are awarded to the candidate who gets the most votes in each separate state.

Another shortcoming of the current system is that a candidate can win the Presidency without winning the most popular votes nationwide. This has occurred in one of every 14 presidential elections.

In the past six decades, there have been six presidential elections in which a shift of a relatively small number of votes in one or two states would have elected (and, of course, in 2000, did elect) a presidential candidate who lost the popular vote nationwide.

The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

Every vote would be politically relevant and equal in presidential elections.

The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes—that is, enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).

The bill is currently endorsed by 1,246 state legislators — 460 sponsors (in 47 states) and an additional 786 legislators who have cast recorded votes in favor of the bill.

The National Popular Vote bill has passed 22 state legislative chambers, including one house in Arkansas, Colorado, Maine, Michigan, North Carolina, and Washington, and both houses in California, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, Rhode Island, and Vermont. The bill has been enacted by Hawaii, Illinois, New Jersey, and Maryland. These four states possess 50 electoral votes — 19% of the 270 necessary to bring the law into effect.

See http://www.NationalPopularVote.com

The people vote for President now in all 50 states and have done so in most states for 200 years.

So, the issue raised by the National Popular Vote legislation is not about whether there will be "mob rule" in presidential elections, but whether the "mob" in a handful of closely divided battleground states, such as Florida, get disproportionate attention from presidential candidates, while the "mobs" of the vast majority of states are ignored. In 2004, candidates spent over two thirds of their visits and two-thirds of their money in just 6 states and 99% of their money in just 16 states, while ignoring the rest of the country.

The current system does NOT provide some kind of check on the "mobs." There have been 22,000 electoral votes cast since presidential elections became competitive (in 1796), and only 10 have been cast for someone other than the candidate nominated by the elector's own political party. The electors are dedicated party activists who meet briefly in mid-December to cast their totally predictable votes in accordance with their pre-announced pledges.

The small states are the most disadvantaged of all under the current system of electing the President. Political clout comes from being a closely divided battleground state, not the two-vote bonus.

Small states are almost invariably non-competitive in presidential election. Only 1 of the 13 smallest states are battleground states (and only 5 of the 25 smallest states are battlegrounds).

Of the 13 smallest states, Idaho, Montana, Wyoming, North Dakota, South Dakota, and Alaska regularly vote Republican, and Rhode Island, Delaware, Hawaii, Vermont, Maine, and DC regularly vote Democratic. These 12 states together contain 11 million people. Because of the two electoral-vote bonus that each state receives, the 12 non-competitive small states have 40 electoral votes. However, the two-vote bonus is an entirely illusory advantage to the small states. Ohio has 11 million people and has "only" 20 electoral votes. As we all know, the 11 million people in Ohio are the center of attention in presidential campaigns, while the 11 million people in the 12 non-competitive small states are utterly irrelevant. Nationwide election of the President would make each of the voters in the 12 smallest states as important as an Ohio voter.

The fact that the bonus of two electoral votes is an illusory benefit to the small states has been widely recognized by the small states for some time. In 1966, Delaware led a group of 12 predominantly low-population states (North Dakota, South Dakota, Wyoming, Utah, Arkansas, Kansas, Oklahoma, Iowa, Kentucky, Florida, Pennsylvania) in suing New York in the U.S. Supreme Court, arguing that New York's use of the winner-take-all effectively disenfranchised voters in their states. The Court declined to hear the case (presumably because of the well-established constitutional provision that the manner of awarding electoral votes is exclusively a state decision). Ironically, defendant New York is no longer a battleground state (as it was in the 1960s) and today suffers the very same disenfranchisement as the 12 non-competitive low-population states. A vote in New York is, today, equal to a vote in Wyoming--both are equally worthless and irrelevant in presidential elections.

The concept of a national popular vote for President is far from being politically “radioactive” in small states, because the small states recognize they are the most disadvantaged group of states under the current system.

As of 2008, the National Popular Vote bill has been approved by a total of seven state legislative chambers in small states, including one house in Maine and both houses in Hawaii, Rhode Island, and Vermont. It has been enacted by Hawaii.

The 11 most populous states contain 56% of the population of the United States and that a candidate would win the Presidency if 100% of the voters in these 11 states voted for one candidate. However, if anyone is concerned about the this theoretical possibility, it should be pointed out that, under the current system, a candidate could win the Presidency by winning a mere 51% of the vote in these same 11 states — that is, a mere 26% of the nation’s votes.

Of course, the political reality is that the 11 largest states rarely act in concert on any political question. In terms of recent presidential elections, the 11 largest states include five “red” states (Texas, Florida, Ohio, North Carolina, and Georgia) and six “blue” states (California, New York, Illinois, Pennsylvania, Michigan, and New Jersey). The fact is that the big states are just about as closely divided as the rest of the country. For example, among the four largest states, the two largest Republican states (Texas and Florida) generated a total margin of 2.1 million votes for Bush, while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry.

Moreover, the notion that any candidate could win 100% of the vote in one group of states and 0% in another group of states is far-fetched. Indeed, among the 11 most populous states, the highest levels of popular support were found in the following seven non-battleground states:
? Texas (62% Republican),
? New York (59% Democratic),
? Georgia (58% Republican),
? North Carolina (56% Republican),
? Illinois (55% Democratic),
? California (55% Democratic), and
? New Jersey (53% Democratic).

In addition, the margins generated by the nation’s largest states are hardly overwhelming in relation to the 122,000,000 votes cast nationally. Among the 11 most populous states, the highest margins were the following seven non-battleground states:
? Texas — 1,691,267 Republican
? New York — 1,192,436 Democratic
? Georgia — 544,634 Republican
? North Carolina — 426,778 Republican
? Illinois — 513,342 Democratic
? California — 1,023,560 Democratic
? New Jersey — 211,826 Democratic

To put these numbers in perspective, Oklahoma (7 electoral votes) alone generated a margin of 455,000 votes for Bush in 2004 — larger than the margin generated by the 9th and 10th largest states, namely New Jersey and North Carolina (each with 15 electoral votes). Utah (5 electoral votes) alone generated a margin of 385,000 votes for Bush in 2004.

Under a national popular vote, a Democratic presidential candidate could no longer write off Kansas (with four congressional districts) because it would matter if he lost Kansas with 37% of the vote, versus 35% or 40%. Similarly, a Republican presidential candidate could no longer take Kansas for granted, because it would matter if he won Kansas by 63% or 65% or 60%. A vote gained or lost in Kansas is just as important as a vote gained or lost anywhere else in the United States.

Although no one can predict exactly how a presidential campaign would be run if every vote were equal throughout the United States, it is clear that candidates could not ignore voters in any state. The result of a national popular vote would be a 50-state campaign for President. Any candidate ignoring any particular state would suffer a political penalty in that state.

Don Sherfick Don Sherfick | December 18, 2008 7:36 PM

Well said, Doug, and welcome to Bilerico. It looks as if Susan has used a piece of your discussion on civil rights and majorities generally to talk about the National Popular Vote bills in various state legislatures, but if you've been even a casual reader of Bilerico you know that sometimes the comments take a thread far from where it originally started. That's the nature of the beast.

But falling behind that diverted thread, I listened a couple of weeks ago to an NPR broadcast where a constitutional law professor said that in his opinion such state legislation ran afoul of the Constitution. Essentially he argued that although the Constitution left it to the states to determine how Electors would be chosen, it impliedly made such choices to reflect the views of "the State", and matters integral to it. For example, a state might decide not to go "winner takes all" based on the state's total popular vote, but rather award proportionately, or designate particular districts (as Maine and Nebraska do). He argues that the concept of the National Popular Vote movement makes the criteria tied to something extrinsic to the particular state, namely what the entire nation's popular vote is. In essence, the legislation would say: "We don't care if 100% of our citizens vote for Candidate A. If Candidate B gets 50.1% of the national popular vote, we'll give all of our votes to him/her."

He compared that to saying that a state deciding to give all of its electoral votes, regardless of its own popular vote, to whoever the New York Times thought was the best candidate.

I dunno. One could argue, I suppose, that it that's the criteria the people of a state through their elected representatives want to use, it complies with the U.S.Constitution.

I guess it's still superior to the outcome of Bush vs. Gore.