ARE WE STUCK WITH THE ELECTORAL COLLEGE?

Five times in our history, and twice during the past 20 years, the winner of a presidential election has lost the popular vote. In the election of 2000, George W. Bush managed to barely compile the mandatory 271 electoral votes necessary to win the election after being declared the controversial victor in Florida, winning that state by 537 votes. Al Gore, his opponent, actually won the national popular vote by 543,000. In the 2016 election, current president Donald Trump won in the electoral college by a count of 306 against 232 for Hillary Clinton, even though the latter amassed almost 3 million more votes nationally. Both results generated a popular outcry chastising our electoral college system, questioning why we would not use the popular vote tally to choose our president. In a 2018 survey, 65% of Americans indicated support to change the way we tabulate winners and losers during national presidential elections. Only 32% expressed their preference for our current system. However, when the survey wording included changing the Constitution to accomplish this, the popular vote preference dropped to 55%, significantly less, but still a majority. The questions remain: Why do we have an Electoral College? Why don't we change the system if that appears to be the popular preference? And what are the arguments that support the continuation of our current system? Our Founders feared factions and worried that voters wouldn't make informed decisions. They found themselves in a quandary. They did not want to tell the states how to conduct their elections. Many feared that the states with the largest voting population would essentially end up choosing the president. The Electoral College was a compromise. The compromise adopted at the Constitutional Convention in Philadelphia in 1787 allowed the popular election of the president, but on a state by state basis. Each state's citizens would vote for president, with the winner taking all the electoral votes for that state, based on the number of seats that state had in the Senate and the House combined. The tricky part of the equation was how to account for all the slaves when determining a state's total population, since that number would determine the state's number of seats in the House of Representatives. The compromise the convention came up with was to count only three out of every five slaves as people, giving the Southern states a third more seats in Congress. The U.S. Constitution adopted during the Convention included this three-fifth compromise, which was not superseded until passage of the Fourteenth Amendment in 1868. Section 2 of this Amendment gave former slaves equal protection and voting rights. It specified equality for male slaves. Female slaves and all women were excluded. Today's supporters of the Electoral College argue that we live in a constitutional republic rather than a democracy. They maintain that the process is integral to our federalist, state focused philosophy, and serves as a firewall against fraud. It prevents systematic fraud by diffusing fraudulent voting across multiple states. The suggestion is that a small number of fraudulent votes have no impact on the outcome of a presidential election. They also submit that the College encourages a national campaign, because the power of small states with at least three electoral votes can act as decisive voices in close presidential elections. Moreover they point at the mess the Florida recount created in 2000, and suggest an even greater problem if this were to occur on a national scale. Some white supremacist leaders also spread the believe that with a popular vote white people would have less influence. California, Texas and Florida would elect the president. Minorities would do the electing. Popular vote supporters predictably suggest that our votes would count the same wherever they were cast. Whoever gets the most should win. A national popular vote would eliminate the "battleground state," a key feature of post convention campaigning, leaving most Americans alienated from the decisive phase of presidential elections. Partisans supporting the popular route acknowledge that attempts at amending the Constitution won't likely succeed. Any amendment would require a 2/3 majority in the House and the Senate, and support from 3/4 of the 50 states. To bi-pass this cumbersome process, some states, 15 at current count, initiated an agreement to elect the president by national popular vote - the National Popular Vote Interstate Compact - guaranteeing the presidency to the candidate who receives the most popular votes across 50 states and the District of Columbia. The Compact ensures that every vote, in every state, will matter in every presidential election. However, the agreement won't take effect until its composite membership accounts for 270 electoral votes. Many questions remain concerning legal entanglements that need to be ironed out when this plan reaches fruition. In the mean time we appear to be stuck with what we have. Theo Wierdsma

IS IT TIME TO EXHALE?

For a few days this month, time stood still while the entire country, and , in some sense , much of the world anxiously held its collective breath waiting for the outcome of our, very consequential, presidential election. At this writing, the outcome is still in limbo. Our election was not just a choice between candidates, sandwiched between a confluence of multiple crises. Our country was asked to render a verdict on our role in the world, hold a referendum on the role of the presidency, the direction of our economy, our strategy to contain an ever escalating pandemic, and our ability to confront systemic racial inequity. The country wondered out loud if democracy would survive. Specifically, because our current president prematurely expressed his intention to challenge the legitimacy of the result if he lost. New York Times' columnist Thomas Friedman made it clear in one of his most recent publications when he questioned "Will 2020's election be the end of our democracy?" He suggested that a free and fair vote and the prospect of a peaceful transfer of power were both becoming contentious. Our president apparently resolved that there were only two outcomes on November 3rd, and electing Joe Biden was not one of them. Well before November 3rd, the rest of the world speculated about post-election international relationships and the future of traditional alliances. Many countries appeared less concerned with our ideological predisposition than they were with transactional considerations they had become used to with our current administration. Israel, Russia, Hungary, Turkey, Saudi Arabia, Egypt, North Korea and others have profited from their constructive interaction with President Trump, and feared losing cloud if he were to lose the election. The predominant sentiment in the European Union is "hoping for a change." A reelection of Donald Trump would confirm that the U.S. is giving up on its leadership role in the Western alliance. French defense analyst Francois Heisborg suggested that a Biden presidency would be welcomed as "a return to civilization." Meanwhile, in Canada, "the government and the overwhelming majority of Canadians [were] looking for Trump's defeat." (Nelson Wiseman, Political Science professor at the University of Toronto.) Historian Jon Meacham proposes that what we are really doing is searching for, what he calls, "the soul of America," what makes us tick, and what values we are willing to preserve. But we are exhausted. We are suffering from ESD (Election Stress Disorder) after continuous bombardments of election coverage, wedged in between hourly updates on the gruesome math of an uncontrolled pandemic and an intensifying economic disaster. It is tragically evident that the coronavirus will stick around for the indefinite future. Without congressional assistance, our economy will continue to face unrelenting challenges. Many businesses are unable to stay afloat and are closing, affecting ever growing unemployment and consequential hardships. However, the election will be behind us. This will take significant pressure off our psyche. Although for some of us the light at the end of the tunnel may appear extinguished, for others the nightmare is over. If President Trump is reelected, little may change for a while. If the Democrats pull it out, pundits caution that the current administration will still control 78 days between Nov 3 and Jan 20. Much can happen during that interregnum. In the mean time we should all be able to exhale for a while. Theo Wierdsma

ELECTION RESULTS DEMAND CRITICAL SCRUTINY

We are less than two weeks away from election night 2020. Many of us have lived in tense anticipation for this day to arrive. Others just want to get it over with. Regardless of outcome, and regardless of political preference, occupants in many homes, while nervously following results as they filter in from across the country, have champagne waiting in their coolers, ready to be popped open. As results begin to be spewed out by the media, the information can quickly become overwhelming. It behooves us to remain selective and stay focused on what is important. After all, in 2016 Donald Trump ran consistently behind Hillary Clinton in national vote totals. Ultimately, Clinton won the popular contest by just shy of 3 million votes. However, Trump squeezed out 306 electoral votes, winning the election. While national polls project that former Vice-President Biden is savoring a double digit advantage over President Trump, we need to recognize that it might not matter how many votes each candidate receives if they don't come from the right states. In 2016, a hand full of electoral votes coming from what have since been referred to as "battleground states," helped Mr. Trump to surpass the 270 electoral votes required, elevating him into the presidency. The pundits predict that for the president to duplicate that feat, he needs to win most of these states again. Consequently, rather than zooming in on national results to gradually anticipate the outcome of this election, we ought to concentrate on results coming out of Florida, Michigan, Wisconsin, Pennsylvania and a new battleground state, Arizona. With 29 electoral votes, Florida is key to Mr. Trump's re-election. In fact, experts suggest that there is no path for Trump to win the Electoral College without Florida. In 2016 candidate Trump won the state with a plurality of 49.0%, a 1.2% margin over Hillary Clinton. Recent polling suggests that Trump and Biden are tied in this all-important state. Four years ago Mr. Trump unexpectedly won Michigan's 16 electoral votes by a narrow margin of 0.23%, with 47,50% of the total votes over the 47,27% of Ms. Clinton. This year Joe Biden is well ahead in the polls in this state governed by Donald Trump's nemesis Democratic Governor Gretchen Whitmer. It may take some time before Michigan can release results, since mail-in ballots in this state can't be opened until the day before the election. In 2016 Donald Trump became the first Republican to win Wisconsin's 10 electoral votes since Ronald Reagan did this in 1984. His victory margin was significant, 22.748 votes or 0.8%. However, fortunes could be changing. Right now the state is leaning Democratic. Polls give Biden a 5% edge. We may not find out who wins until after election day, since mail-in ballots can't be counted until November 3rd. Pennsylvania has 20 electoral votes. Trump won the state with 48% of the vote in 2016. Biden currently polls ahead by 5%. Again, mail-in ballots won't be opened until election day. Arizona threatens to be a cliffhanger this election cycle. Mr. Trump won its 11 electoral votes by a comfortable margin of 3.5% during the previous general election. Biden is currently polling at +3%. No Democratic candidate for president has carried Arizona since Bill Clinton in 1996. What is supporting the Democratic cause is a contentious Senate race between Senator Martha McSally (R), who was appointed to fill Senator McCain's seat, and former astronaut Mark Kelly, a Democrat who, among likely voters, is polling a 49-40% advantage. Aside from keeping track of the main event, a few other senatorial contests are also worth following: Susan Collins (R) in Maine, Joni Ernst (R) in Iowa, Cori Gardner (R) in Colorado, and Doug Jones (D) in Alabama. These could still create some excitement to help liven up a nerve-filled evening. Win or lose, my expectation is that we all can find an excuse to open up that bottle of champagne. Theo Wierdsma

TARGETING TO REVERSE ELECTORAL DEFEAT

At the conclusion of the first presidential debate, moderator Chris Wallace asked President Trump if he would pledge to not declare victory until the election has been independently certified. His answer was illuminating: "If I see tens of thousands of ballots being manipulated, I can't go along with it." It is obvious that the president's campaign plans to aggressively challenge election results, especially in battleground states. As the 2020 presidential election is creeping closer, and as President Trump's poll numbers remain steadily well below those of his challenger, rumors about how the president intends to pull victory out of the jaws of defeat are everywhere. For most Americans contemplating disputing the results of a routine quadrennial election, an expression of our democratic traditions, appears unimaginable. For President Trump, losing an election appears equally unacceptable. It helps to comprehend how our system works to understand what is involved. While most of us believe that we vote to elect a president every four years, we actually select our chief executive indirectly. In reality, we vote for a slate of electors which ultimately decides who wins. The election of a president is essentially a two-step process. In each state voters cast ballots. In nearly every state, the candidate who gets the most votes wins the "electoral votes" for that state, which become part of the Electoral College. The president and vice president are ultimately elected by the Electoral College, consisting of 538 electors from the 50 states and Washington D,C.. Electors are nominated by a political party and pledged to vote for the candidate to which the elector is pledged. Most do. Since the election of 1824, when John Quincy Adams defeated Andrew Jackson by garnering more electoral votes through the House of Representatives, most states have appointed their electors winner-take-all, based on the popular vote on election day. Article II, section 1, clause 2 of our Constitution empowers the state legislature to determine the manner by which the state's electors are chosen. The number of electors each state is entitled to equals the combined total number of representatives the state has in the Senate and the House. Mr. Trump understands how the Electoral College can shift the outcome of an election in his favor. In 2016, he lost the popular vote by close to 3 million votes, but, with 270 needed to be victorious, he won the Electoral College by 304 to 227. There are essentially two ways President Trump can attempt to overthrow a win by former Vice President Biden. He can activate lawsuits challenging mail-in ballot results, something his campaign has already prepped the voting public for over the past six months. He can file a series of lawsuits aimed at blocking the counting or disqualifying of mailed-in ballots. In such a case, the Supreme Court will most likely end up deciding the outcome, not the voters. This process would be reminiscent of what happened during the 2000 election in Bush v. Gore, which many considered less an exercise in legal reasoning than in power, given the 5-4 Republican split on the Court. The second, more complicated, method would involve manipulating the electoral count in enough swing states to alter the national outcome. The idea is to target states with Republican legislatures that voted Democratic. Since the Constitution gives each state the power to certify its slate of electors, legislatures might be convinced to change the outcome of the election, override the vote count, and send Trump supporters to the Electoral College. According to one of Mr. Trump's advisors: "The state legislatures [could] say, "All right, we've been given this constitutional power. We don't think the results of our own state are accurate, so here's one slate of electors we think properly reflect the results of our state." Questions like: "How far is he willing to go to win?" and "Will he leave office if he loses?" were once seen as far-fetched hypotheticals pondered by experts and pundits. Now they have become mainstream concerns. Mr. Trump's often repeated exclamation that "the only way we're going to lose this election is if the election is rigged," can no longer be dismissed as pure bluster. Theo Wierdsma

FEAR FACTOR DOMINATES ELECTORAL STRATEGIES

"The only thing we have to fear is .... fear itself." Franklin Roosevelt's memorable proclamation, uttered during his first inauguration address on March 4, 1933, has been firmly entrenched in our political history. Short of the inauguration speech expected next January, both camps in the developing presidential election campaign seem thoroughly committed to employ the fear factor as well. President Trump aggressively cautions his political base that an electoral loss would unquestionably result in a radical socialist takeover of the country. Democratic candidate, former Vice President Biden, warns that four more years of Trump would lead to obliterating our democratic and constitutional values, thoroughly eliminating our country as we know it. In short, both candidates claim that their opponent would destroy our country's democratic framework. The fear of failure has become the most significant operative concept in either campaign. During the 2016 campaign, Mr. Trump ran as an outsider intent on shaking up the "deep state." His base of support cared little about his policy ideas. It enjoyed the president sticking it to an entrenched Washington elite. Ending up with a more conservative judiciary was a bonus. Almost four years later, the president goes to great lengths to defend his record in office, something unexpectedly made more difficult with the coronavirus pandemic, something the administration has been ill-equipped to come to grips with, and a tanking economy which still features 14 million unemployed, and a country $26 trillion in debt, $4.7 trillion more than the previous year. What was once a promising issue for the president, evaporated almost over night. No wonder that the Trump re-election strategy required significant re-engineering. Volatile, violent demonstrations, emanating from multiple "Black Lives Matter" flash points, provided the administration with what it felt it needed. Taking a page from a successful tactic employed by President Richard Nixon, it adopted the "law and order" mantra, focusing more on order than law. Infusing federal troops into cities experiencing significant unrest not only inflamed the demonstrations, it served to cement Mr. Trump's narrative that he was the defender of the fatherland. He quickly claimed: "I'm the only thing standing between the American Dream and total anarchy and chaos." "Do you want to be ruled by the radical left-wing mob, or do you ant to stand tall as free men and women in the greatest country on earth?" "We're going to have an election that is all about the survival of the nation." On the other hand, aside from heavily criticizing President Trump's handling of the ongoing pandemic, Democrats zoom in on his perceived affinity for autocratic leaders and dismissal of constitutional norms, are spreading fear of an impending Fascist dictatorship. Their playbook comes straight out of 20th century Europe, including: despotism of a single leader, suppression of the courts, (erasion of the independent judiciary), militarization of domestic life, and the merging of most economic life with governmental purposes. All of this obviously depends on a very liberal interpretation of facts on the ground. Mr. Biden now has the advantage of 3 1/2 years of history to work from. Whether either strategy will work is difficult to tell. Mr. Trump's base may not care what policy prescription the president is offering. Many of its members tend to favor style over substance. They like Trump because he fights the Washington elite in the way he does, no holds barred. Democrats essentially coalesce around an anti-Trump strategy, realizing hesitantly that so far their cause outpolls the president's in most states. One of their major fears is that, because of the expected influx of mail-in ballots, routinely declared suspect by the president, Mr. Trump could appear to have seized a decisive victory on election night, thanks to a delay in counting these ballots. Trump may declare himself the victor - crying foul as his lead evaporates as additional votes are counted, and challenge any loss based on the mail-in ballots, claiming the election was rigged. Our fear is that this spectacle could well turn into a serious constitutional crisis. Theo Wierdsma

DEBUNKING THE THREAT OF MARTIAL LAW

President trump's recent mantra defining himself as a "law and order" president, ordering hundreds of federal law enforcement agents into cities suffering from aggressive demonstrations, have renewed fears that he might declare a national emergency or impose martial law, potentially affecting the November 3rd election. Back in July, Mr. Trump already suggested that the November election be delayed "until people can properly and safely vote." And more recently, his head of Homeland Security was quoted responding to criticism of unasked for federal interference in cities like Portland and Chicago, stating: "I don't need invitations by the state mayors or state governors to do our job. We're going to do that whether they like us or not." Mr. Trump's continued slippage in the polls, and his continued attempts at changing the narrative from his mismanagement of the coronavirus pandemic to violence in cities demonstrating for "black lives matter" promoting himself aggressively as the antidote and savior of America as we know it, continues to feed the rumors. Although our president is known for breaking constitutional norms and acting outside of constitutional bounds, the short answer to these rumors is decidedly "No!" He absolutely does not have the power to declare martial law, or to change the timing and scope of our presidential election. Martial law, the displacement of civilian authorities by the military, is nowhere to be found in our Constitution, and no act of Congress defines it. The 10th Amendment to our Constitution stipulates that all powers not expressly relegated to the federal government are reserved for the states. This includes police powers. Thus far the administration has paid little attention to these legalities. However, states have already taken them to court, and the magnitude of recent incursions won't compare to what would need to happen on a national scale to potentially threaten the election. President Trump has made a point of hiding behind the Insurrection Act of 1807, which allows him to deploy federal troops against the will of local authorities in certain circumstances. State approval is not required when the president determines that a situation in a state makes it impossible to enforce U.S. laws, or when citizens' rights are threatened. However, the Insurrection Act only covers military assistance in localized situations, not the all encompassing military involvement martial law would allow. Under the latter provisions the president would be able to censor the press, enforce a curfew, detain civilians without charge, and, in Mr. Trump's mind, presumably allow him to affect he scope, content and timing of the upcoming election. Since World War II, we have only declared martial law nine times, five of which intended to counter resistance to federal desegregation decrees in the South. Among these, President Eisenhower sent the 101st Airborne Division to Little Rock to enforce high school integration against the wishes of Arkansas in 1957. And President Kennedy federalized the National Guard to force integration of the University of Alabama in 1962. Scholars are clear: Our president does not have the power to move the date of the election. Article II of the Constitution empowers Congress to choose the timing of the general election. An 1845 federal law fixed it as the first Tuesday after the first Monday in November. At the same time, the Constitution specifically stipulates that the new Congress be sworn in on January 3rd, and that the new president begins his or her term on January 20. Alan Dershowitz, a legal scholar and a staunch supporter of our current president, puts it this way: "Were the president to claim that both the violent disruptions and the spread of the coronavirus justified the use of the military or the suspension of certain basic rights, he would be embarking on unchartered waters, and so would the courts." Theo Wierdsma

SAFELY REOPENED SCHOOLS ELSEWHERE COULD BENEFIT U.S. PURSUITS

Recently, being curious about how people in other parts of the world are faring with the Covid-19 pandemic, I contacted my family in Europe. Almost all of them are either parents or grandparents of school-aged kids. Given our contentious discussion about how to educate these young people during the coming year, I wanted to find out how that subject was being approached over there. Whether their children should attend school again in person, or continue remote learning, has been controversial in most European countries as well. Parents expressed similar concerns about safety as our families do over here. An open letter, published and signed by more than 1,500 members of the United Kingdom’s Royal College of Pediatrics and Child Health sums it up, when it concluded that continued school closure risks “scarring the life chances of a generation of young people.” Many adults decided that their governments had addressed most of the salient issues and that it was time to bring children back to school. By early June, more than 20 countries had done just that. How did they do this and how did they manage to keep everyone safe? Sweden, Taiwan and Nicaragua never closed their schools. Denmark was the first country in Europe to reopen its schools. During the process the country’s number of new Covid cases remained flat or continued to decline. The Danish school system assigned students to small groups, pods, that would be allowed to congregate during recess. The Danes also found creative ways to give these groups as much space and fresh air as possible, even teaching classes in a graveyard. Belgium, taking a page from the Danish experience, proceeded to have some classes meet in churches. Kids in The Netherlands, Germany and Austria went back to school in April and early May. The Dutch cut class sizes in half. However, they did little to enforce social distancing among students under the age of 12, and they actually just announced that, come September, everyone under the age of 17 can attend using the same rules. Germany reopened its schools by employing a shift system, to allow more space for social distancing. None of these countries experienced spikes of new cases. In the mean time, Norway went back. Finland did the same, not cutting classes, but preventing classes from mixing with one another. Scotland successfully adopted the pod system. Italy and Spain plan the reopen schools in September. Curiously, few of these school systems make a big deal about face coverings. The thought process appears to be that the discomfort of wearing masks might make this requirement counter -productive. In China, South Korea, Japan and Vietnam masks are already widely accepted and worn by many during flu season. Schools require them for almost all students and teachers. Kids don’t take them off. They listen! European kids seem culturally more rebellious. Obviously, opening safely isn’t just about the adjustments schools make, it’s also about how much virus is circulating in the community, which affects the likelihood that students and staff will bring Covid-19 into their classrooms. By May or June most European countries had flattened the curve on Covid-19. A prime example, as of July 8, the 7-day average of new cases in Italy was 198. It’s stringent lockdown regimen early on proved extremely effective. In the U.S. during that same period that number was 52,636. (Italy’s population is roughly 1/5 of that of the U.S.). Germany “only” suffered 9,000 total deaths during the pandemic. Their disciplined pro-active approach had done the job as well. The point is that Europe has been successful in bringing kids back to school safely. No spikes or related infestations. Given our deplorable situation, we have a way to go before we can take advantage of the successful adjustments European schools have adopted. We seem to be operating in an entirely different universe. Even when we compare ourselves to Canada, we need to admit that they did their due diligence. Their 7-day average was “only” 423, and the Canadians complain about that. It’s no wonder that they plan to bring kids back in September, allowing them to socialize in groups of six. For many countries this is the new normal. We just need to begin working harder and smarter. Theo Wierdsma