JP Observer: Want a better president, better elections? States need to stop winner take all

September 28, 2018
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Questions: How can we increase the chances we get the president the majority of us vote for in 2020—unlike who we got in 2016 and 2000? And how can we also benefit from fairer election campaigns focused on enfranchised voters in every state?

Answer: Support Equal Votes efforts to throw out Massachusetts’ and 47 other individual states’ extremely flawed winner take all (WTA) method for determining how the states’ electors will vote at the Electoral College.

States’ WTA practices automatically give the presidential candidate who gets the majority of popular votes in a state all the Electoral College votes from that state. Contrary to popular belief, WTA was not established in the U.S. Constitution, so no amendment is needed to get rid of the overly simplistic apportionment system that came into existence gradually, state by state, over time.

WTA “dramatically increases the probability of our ending up with a president who loses the popular vote, yet wins in the Electoral College, as did Donald Trump,” according to Equal Citizens (EqualCitizens.us), a prestigious national group organizing a legal effort called Equal Votes that would replace WTA with a more realistic system. (Maine and Nebraska have wisely chosen not to practice WTA; they apportion votes according to actual results among the electors.)

Anyone wondering who or what is fundamentally to blame for the current disastrous presidency and/or is worried about having more bad ones in the future only needs to look at the 48 states that practice WTA.

Under that unbalanced system, as soon as the popular vote for president is tallied in a state, the electors for that state are all directed to vote for the candidate who got the most votes. Popular votes for all other candidates are thrown out.

Equal Citizens gives this example of direct voter disenfranchisement and what is unfairness to all voters, parties and candidates: “Hillary Clinton beat Donald Trump by just 45,000 votes in Minnesota, winning 46.4 percent to 44.9 percent. Yet she got 100 percent of Minnesota’s 10 Electoral College votes, while Trump got zero. In Michigan, Trump beat Clinton by just 10,000 votes, but he got every single one of their 16 Electoral College votes, while she got zero.”

The WTA approach causes this country all kinds of trouble. And it has no beneficial effect on anyone of any geography or political persuasion. The one exception may be math phobic state officials who want to stick to the overly simple WTA apportionment formula.

According to Equal Citizens and other historians, WTA was adopted initially by states wanting to give themselves more power than others in the Electoral College. Now that most states have adopted it, it doesn’t have that effect. WTA certainly doesn’t help small or less populated states either.

With WTA, the probability that a candidate will win the Electoral College who did not win the popular vote will likely increase over time, predicts Equal Citizens, which is currently suing Massachusetts and three other states—two red and two blue, total.            Plaintiffs here, including former Governor William Weld and two Republicans, are people whose votes didn’t count when all Massachusetts’ electoral votes were assigned to Hillary Clinton in 2016.

Harvard law professor Lawrence Lessig is leading the Equal Votes effort being carried out by a coalition of law firms in the four example states. Economist and Bill Clinton cabinet member Robert Reich is one of five members the board of Equal Citizens.

“In almost every state, if you don’t vote for the candidate who wins your state, your vote counts for nothing in the Electoral College,” the website says, and it’s true. The national group is challenging the WTA under both the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

Over 52 million votes were ignored in the 2016 election because of WTC. It’s not right on any level. These arcane rules motivated by attempted power grabs years ago toss our fundamental one-person, one-vote principles out the window.

“The current system effectively disenfranchises most of the voters in the country who live in states that tip one way or another,” JP resident Chuck Collins, a researcher at Institute for Policy Studies and co-editor of Inequality.org, said this week.

So-called battleground states are another unintended negative result of WTA. According to Equal Citizens, 99 percent of presidential campaign spending in 2016 was in the 14 swing states. Because of WTA (once again, not because of the Electoral College itself), voters in those most populous states are the only ones any candidate needs to persuade in order to win the presidency. Voters in the 14 states that have the most total electors get almost all the attention now.

Equal Citizens reports that in 2016:

“Two-thirds of campaign events happened in just six battleground states—Florida, North Carolina, Ohio, Pennsylvania, Virginia, and Michigan.

“Four battleground states—Florida, North Carolina, Ohio and Pennsylvania—saw 71 percent of campaign ad spending and 57 percent of candidate appearances.

“The 14 battleground states saw 99 percent of ad spending and 95 percent of candidate campaign stops.”

Replacing WTA “may also dilute the power of big-donor funded TV advertising by making presidential campaigns national again,” Collins pointed out.

To add to the drastic imbalance of power, “voters in battleground states tend to be whiter and older than Americans generally,” according to Equal Citizens, “so presidential platforms are skewed towards those populations. The issues that matter to younger Americans, and to people of color, are thus largely invisible (or hidden) in battleground campaigns. Winner-take-all in effect outsources the selection of the president to a fraction of America’s voters (35 percent in 2016)—a fraction that does not in any sense represent the majority of America.”

Equal Citizens filed suit in federal court in Massachusetts in February and arguments were heard last month from lead attorney David Boies, who represented Vice President Al Gore in Bush v. Gore, the 2000 Supreme Court case that gave the presidency to George W. Bush.

The Equal Votes lawsuits are helping attract attention to the WTA crisis and forcing states and federal courts to confront the negative effects of what the states have been doing to affect presidential elections. Equal Citizens is hoping to eventually take WTA to the Supreme Court.

Massachusetts Attorney General Maura Healey is fighting the Equal Votes lawsuit on behalf of Governor Charlie Baker and Secretary of State William F. Galvin, who have been named as defendants.

Healy’s defense of WTA seems quite weak, even half-hearted. She writes that WTA has always been the national practice and that it needs to stay because it is tradition. First, states didn’t start doing WTA until years after the first presidential election. Second, tradition isn’t very meaningful to the law. Just because something has always been some way is not considered to be a good legal argument for keeping it.

Healy, Baker, and Galvin would do Massachusetts a big favor if they stop wasting taxpayers’ time and money defending the horrible WTA in court. They should work instead with legislative and other leaders here to dump the shaky practice and develop a more accurate, fairer way to apportion votes to electors and also to get Massachusetts, not a swing state in the current system, more attention from presidential candidates.

Then our state leaders can spearhead a national effort to persuade other states to do the same.

Other reforms are certainly needed to our election system, including ending gerrymandering and Citizens United and supporting the National Popular Vote Project for president. Equal Citizens wants those reforms, too.

The beauty of Equal Votes is that changing how electors are chosen will provide the easiest and fastest way to get much needed, substantial change in our broken presidential election system.

Sandra Storey is founder and former publisher and editor of the Jamaica Plain Gazette.

 

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