Inequities In Our Electoral System - Part II

In my June 23 commentary, which can be found here, I discussed how the Constitution mandates a Senate in which the votes of some have far more weight than those of others. I pointed out that each voter or potential voter in Wyoming has his/her vote counted 69 times for each time a Californian voter gets his/her vote counted. I also pointed out that while the House has a better balance, a vote by a resident of Wyoming has almost twice the value of one in Montana.

The comments I received from Robert Malchman, Esq. and Leonard Levenson, Esq. tended to defend the present system even including the filibuster on the ground that these are checks and balances that prevent a temporary majority from running roughshod over a minority. There comments may be sound in theory, but in fact it has made Congress to a large extent impotent so that the President has become increasingly a power center with few effective checks. Furthermore, while theoretically it encourages compromise, the compromises that come out of the present system undermine the objectives of the majority and I believe the American people. Thus to get an increase in the minimum wage Democrats had to agree to undesirable tax cuts. On Iraq they were blocked by filibuster from even getting a bill voted on protecting our soldiers from excessive deployments, and any bill having timetables suffered a similar fate. If Democrats do not get at least a 60 vote majority in the Senate in the next election, and the unfairness of the electoral system, as discussed, makes this extremely difficult, it will be essentially impossible to pass Health Insurance legislation through the Senate, without agreeing to provisions that would undermine it.

But the unfairness of our elections does not stop in its Constitutional morass. It is controlled to a large extent by what has come to be called gerrymandering. Theoretically the voters are the arbiters of election results. But in fact the elections have traditionally been greatly dominated by the way congressional districts are laid out, known as gerrymandering.

To some extent the Supreme Court tried to limit this abuse, e.g. In Grey vs. Sanders, (1963) The Court in an 8 to 1 decision said, "How then can one person be given twice or ten times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote - whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of `we the people' under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions."

While this decision is well founded in logic it has not had the effect of stopping gerrymandering with legislators finding increasingly ingenious ways to get around the court decision, and of course the court does not have the power to correct the inequities that are enshrined in the Constitution.

But we need not stop there. For reasons that are hard to fathom the US is one of the few democratic countries in the world where elections do not depend on getting a majority of the vote. A plurality is all that is needed. Thus, if there are numerous candidates for particular position the one with the largest vote count wins. Multiple candidates are not uncommon in races at the local level as well as in primaries even for the Presidency of the US. Thus, e.g. Pat Buchanan won the New Hampshire primary in 1996 with 27% of the vote. There is no provision for run-off elections, as there is in most democratic countries and the result is that third party candidates can be decisive even in Presidential elections.

In our history we have had 16 Presidents elected with less than a majority of the popular vote, usually due to a third party candidate being on the ballot, but even more important is that various states give all their electors to one of the candidates who has not achieved a majority. In the 2000 election 8 states gave all their electoral votes to a candidate who did not get a majority of the vote. Thus in Florida the popular vote split 48% to 48% in the final official tally, Iowa’s tally was 49% to 48%, Maine 44% to 49%, Minnesota 46% to 48%, New Hampshire 48% 47%, New Mexico 48% to 48%, Oregon 47% to 47%, Wisconsin 48% to 48%, and the National vote split 47.87% to 48.38%. Thus where there is a third party candidate in the offing our system does not ask who their second choice would have been, as is true almost everywhere else in the world and to correct this the electoral college would not have to be abolished. We would only need a law that would require a majority to win the electoral votes of any state. No run-of would be required if the ballot where structured to allow the voters to list their second choice. This would also allow third party candidates to run without the spoiler effect, since voters inclined to vote for such a candidate, would know that their votes would not go to waste. It would give voters a chance to express their unhappiness with both candidates and still make sure that the greater of the evils is not elected. At the same time it would enable more voters to choose a third party candidate without having to worry about wasting their vote.

If an interstate compact among states were to be adopted under which state legislatures agree to appoint electors supporting the winner of the national vote, I would still advocate for a system where no President could be elected without gaining a majority of the popular vote. This would require the compact to also call for ballots that allow for voters to vote for their second choice, or it could be dealt with separately through an Act of Congress.

But I would not be satisfied with reform in the Presidential election. I would strongly advocate for a reform in the election of candidates for the Senate and the House and even in state elections by majorities rather than pluralities. Here too laws would have to be enacted allowing voters to set forth their second choice.

I will expand further on this topic, including the all-important aspect of the role of money in American politics, in a future commentary.