Politics in the U.S.
The craziness of the U.S. 2016
2016-NOV: Trump, the U.S. Supreme
Court, & Congress.
How the Electoral
College, not the public, decides which
candidate is to
Part 6 of fifteen parts
Trump's future nomination of Justices on the U.S. Supreme Court:
President-elect Trump's greatest impact on American culture may be caused by his future nominations of new Justices to the U.S. Supreme Court. With the death of Justice Antonin Scalia during 2016-FEB, the number of active justices dropped from the normal complement of nine to eight: four liberal and four conservatives. This means that many decisions will be split 4:4, causing the lower court's ruling to be implemented -- as if the High Court did not exist.
Justices differ greatly how they interpret the U.S. Constitution:
- Strict constructionist Justices view the meaning and interpretation of laws and the federal constitution as fixed for all time. They are to be interpreted according to the intents of the its original authors.
- Liberal Justices view them as living documents whose meanings change as the culture evolves and values change.
Four major decisions by the U.S. Supreme Court demonstrate this difference clearly:
- 1967: Loving v. Virginia repealed 16 state anti-miscegenation laws that prohibited interracial marriage.
- 1973: Roe v. Wade established abortion access on request across the U.S., at least for the early stages of pregnancy.
- 2003: Lawrence v. Texas decriminalized consensual same-gender sexual behavior.
- 2015: Obergefell v. Hodges legalized gay marriages across the U.S.
In each case, the views of the authors of state and federal laws were overturned in favor of evolving public opinion involving interracial marriage, abortion, gay sex and gay marriage.
President-elect Trump has promised to nominate new Justices who are strict constructionists. This could conceivably result in the reversal any of the above rulings, and others as well. On the other hand, when rulings by the High Court have been in place for a few decade, they tend to become part of the accepted culture and are rarely overturned. Only time will tell.
Effects on Congress:
Prior to the election, there was a large majority of Republicans controlling the House. Their majority is expected to be reduced slightly.
The Republicans are expected to retain their slim majority in the Senate. 1
Button with sticker attached.
2016-NOV-08: Why the U.S. lacks one of the most fundamental features of a democracy: voting for candidates by the general public:
The main purposes of governments are to create laws, enforce laws, and protect the people. One of the main principles of a democracy is that the vast majority of its adults are eligible to vote, and a simple majority (or plurality) vote elects the people who will do the governing.
The U.S. made a major advance during the early 19th center towards democracy. In 1920, the percentage of adults that were permitted to vote went from slightly less than 50% to almost 100%. This was when the 19th Amendment to the U.S. Constitution was passed, and women were first allowed to vote. Today, about 97.5% of the population who are 18 years of age or older are permitted to vote. About half exercise this right. The minority who are disenfranchised, and are prohibited from voting, include:
- All prison inmates in the U.S., except for those in Maine and Vermont.
- Some parolees, probationers and ex-felons in the remaining 48 states. This disenfranchises up to 13% of African American men in the U.S. According to :
"Given current rates of incarceration, three in ten of the next generation of black men can expect to be disenfranchised at some point in their lifetime. In states that disenfranchise ex-offenders, as many as 40% of black men may permanently lose their right to vote." 2
In the United States, candidates for public school boards, municipal councilor; for state governor, state Senate, and House; as well federal Senate and House can "throw their hat into the ring" and register as candidates for political office. On election day, the candidate with the largest number of votes wins. However, candidates for President of the United States are handled differently. The public does not directly select which candidate is to become president-elect. Instead, that task is handled by the United States Electoral College.
How the U.S. Electoral College decides which candidate will become the president-elect:
The existence and powers of the Electoral College are defined by the Twelfth Amendment to the U.S. Constitution. 3 It was ratified and came into effect in 1804.
Kahil Reed Amar wrote in Time magazine:
"Some claim that the founding fathers chose the Electoral College over direct election in order to balance the interests of high-population and low-population states. But the deepest political divisions in America have always run not between big and small states, but between the north and the south, and between the coasts and the interior. ..."
"Standard civics-class accounts of the Electoral College rarely mention the real demon dooming direct national election...: slavery. ..."
"... in a direct election system, the North would outnumber the South, whose many slaves (more than half a million in all) of course could not vote. But the Electoral College ... instead let each southern state count its slaves, albeit with a two-fifths discount, in computing its share of the overall count." 4
Slavery was abolished in 1865 by the 13th amendment to the U.S. Constitution, 5 but the Electoral College lives on.
The "College" is an actual group of 538 persons across the U.S. who are called electors. This number is currently defined by the sum of:
- 100, the number of Senators in the federal Senate -- two from each state -- plus
- 435, the number of Representatives in the federal House, and
- 3, which is the lesser of two numbers: the number of senators and representatives that the District of Columbia would have if it were a state, or the number of senators and representatives that the least populous state has. The seven states with the smallest populations all have three electors: two senators and one representative.
In 48 of the 50 states, and the District of Columbia, the electors are pledged to vote for whichever presidential and vice presidential candidate receives the largest number of public votes in their state or district. This is known as the "winner-take-all" or "general ticket system." 6 Theoretically, an elector could violate this pledge, but that has almost never happened.
The states of Maine and Nebraska use a different system, called a "congressional district method." Here, one elector is pledged to vote according to the national popular vote and the remaining electors in the state vote according for whomever won that state's popular vote.
A mismatch between the Electoral College and national public vote can occur if:
- One candidate wins some large states by very narrow margins, and thereby obtains all the electoral votes from those states, and
- The other candidate wins some large states by wider margins.
In essence, every vote in these latter states that is in excess of 50% of the total votes in the state don't really matter to the electors. Once a majority is reached in a state, the candidate gets all of that state's electoral college votes. However, the excess votes that have no impact on the Electoral College vote are included in the national public vote.
The result is that a mismatch can occur: One candidate from a major party wins the Electoral College vote and thus the presidency. The other major party candidate may have won the national public vote.
- During the year 2000-NOV, Al Gore (D), George W. Bush (R), and some individuals representing minor parties, ran for the presidency. Gore received over a half million votes more than Bush did, but Bush became president.
- During 2016-NOV, Hillary Clinton (D), Donald Trump (R), and some small party candidates ran for the presidency. Trump was declared the president-elect by the media on the evening of election day, NOV-08, as a result of the Electoral College results. However, Clinton received more than 2.8 million more votes than Trump! The precise numbers were not known until 2016-DEC-08 because some states allow votes to be mailed in, and do not certify a final count until about one month after voting day. This gives time for all the ballots that were mailed on or before voting day to be delivered and counted.
- If all electors vote according to the rules on DEC-19, then Donald Trump will receive 306 votes to Hillary Clinton's 232.
However, there is considerable public pressure for the electors to break with tradition and base their decision on the public vote, and elect Clinton.
I see little chance for Hillary Clinton, who won the popular vote by almost 3 million votes, being selected to be president.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "GOP Keeps Both House and Senate Control as Democrats Fall Short," NBC News, 2016-NOV-08, at: http://www.nbcphiladelphia.com/
- "Felony disenfranchisement laws in the United States," The Sentencing Project, Moritz College of Law, Ohio State University, undated, at: http://moritzlaw.osu.edu/
- "12th Amendment to the United States Constitution," Open Access Database of Academic Journals, 2015, at: http://gejl.info/
- Kahil Reed Amar, "The Troubling Reason the Electoral College Exists," Time, 2016-NOV-08, at: http://time.com/
- "13th Amendment to the U.S. Constitution: Abolition of Slavery (1865)," Our Documents Initiative, undated, at: https://www.ourdocuments.gov/
- "The Electoral College: How It Works in Contemporary Presidential Elections," Congressional Research Service, 2016-APR-13, at: http://www.fas.org/ This is a PDF file.
- Fred Lucas, "4 Ways Congress Sought to Change or Scrap the Electoral College," Daily Signal, 2016-DEC-18, at: http://dailysignal.com/
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Copyright © 2016 by Ontario Consultants on
Original posting: 2016-NOV-11
Latest update : 2016-DEC-19
Author: B.A. Robinson