Re: [pcp-discuss:] Probleming through Florida

From: Norman K. McPhail (norm@SOCAL.WANET.COM)
Date: Fri Dec 01 2000 - 23:02:02 GMT

  • Next message: Norman K. McPhail: "Re: [pcp-discuss:] Probleming through Florida"


    Interesting arguments, but probably way off topic for this list. Then
    again, what is politics if not a very complex adaptive system?

    My thoughts below:

    John J Kineman wrote:

    > >
    > > I like your points about trying to fit the Presidential election process
    > > into either a zero sum game model or a survey of voter preferences
    > > model. However, I don't think this should be viewed as an "either/or"
    > > choice. To my way of thinking, our Electoral College system has
    > > elements of both the models you are suggesting.
    > Yes, as presently formed it is statistically based on the game/contest
    > model, althought it is advertised as a survey model.
    > >
    > > I may be wrong, but I think that under the current set up, states do
    > > have the option to split their Electors in proportion to the popular
    > > vote. But I would estimate that there is practically no chance of
    > > getting two-thirds of the states to ratify a Constitutional amendment
    > > that would require a proportional split of a given state's Presidential
    > > Electors as opposed to the winner-take-all method currently in use.
    > Right. I have no idea of the feasibility of implementing the idea, just
    > its statistical correctness. A convincing argument would have to be
    > made. The fact that the issue itself wasn't even mentioned in the first
    > week following the election results indicates to me that there is a huge
    > educational hurtle to overcome.
    > >
    > > Keep in mind that the way the Presidential election system works now,
    > > the states themselves have a certain amount of power. But a
    > > proportional or popular election system would reduce the power of the
    > > states and increase the power of the federal or central government. To
    > > my way of thinking, this would tilt the balance of power too far towards
    > > the central government.
    > Well, it would indeed decrease the "power" of the State legislatures,
    > but it doesn't increase the Federal power at all.

    This makes no sense to me. It's a little like saying that the repeal of
    the federal Constitutional amendment authorizing the direct federal
    income tax increases the central government's power, but does not
    diminish the power of the states. I just don't buy it.

    > It could result in an
    > increase in power of the EC as a temporary representative body, but that
    > is not Federal, it is composed of State party members. Also, the "power"
    > of the State legislature may be limited anyway (we'll see today!) if the
    > courts eventually rule that the legal exercise of their authority
    > requires their decisions to correspond with the popular vote, as best it
    > can be determined.

    Certainly the courts have done things like this in the past, but I think
    it is highly unlikely that this U. S. Supreme Court will consider this
    kind of judicial activism. Are you arguing that the Supreme Court can,
    on its own initiative and under its own authority, make such a
    revolutionary change in our Constitution? Don't you think that this
    should go through the established process for amending the federal

    > That would leave their strong influence to operate
    > only during a very close election, such as this, where the argument can
    > be made that the vote was ambiguous. But in that case, I think most of
    > the public would prefer to see that ambiguity reflected in a more even
    > split of electors, rather than a either-or switch that ultimately gets
    > based on some factor of individual influence in the system that is
    > completely unrelated to the vote.

    I submit that if we use the standard of what "...most of the public
    would prefer..." to change the whole structure of our constitutional
    form of self governance, the social, political, economic and cultural
    fabric of the American experiment would quickly unravel. You seem to
    buy the Gore mantra that the supreme authority in this nation ought to
    be making sure all the votes are counted.

    Do you really think Mr. Gore cares that much about counting votes?
    Can't you see that the main thing he cares about is winning the
    presidency? To me, he seems to be willing to sacrifice anything that
    gets in his way including the clear and unambiguous U. S. Constitutional
    provisions for electing a president.
    > >
    > > Keep in mind that do not have a direct democracy. We have
    > > representative democracy through several overlapping and yet independent
    > > jurisdictions. These overlapping jurisdictions are self governing at
    > > the local and state levels. Then the states and the individuals within
    > > them combine to empower a central government. So we end up with a
    > > federation of local self governing units organized within and by states
    > > and a central government that has a Constitution that empowers and
    > > protects both in a balanced system. The tension between these competing
    > > levels of self governing entities helps ensure that our individual
    > > rights and sovereignty are protected.
    > Yes, I realize that. I think the model gets stretched beyond these
    > limits when we fall within this scale problem (the Zeno thing); which I
    > don't think anyone anticipated.

    I have no idea what this means. But you seem to be saying that the
    American form of constitutional self governance isn't flexible enough to
    meet the needs of changing conditions. I respectfully differ.

    > The States have authority to conduct and
    > resolve internally organized elections, then to represent their vote
    > results to the EC for a final decision. I believe (but am not certain -
    > again todays Supreme Court discussion may shed some light) that they are
    > legally bound to reflect their internal popular votes as accurately as
    > possible in their electoral decision.

    Again, I'm not sure what you're advocating here. But if you're saying
    that the U. S. Supreme Court may be legally bound to to rule that the
    prime directive of the U. S. Constitution is to count every vote, I
    would invite you to take the time to review the Constitution itself, the
    Federalist Papers along with the history and deliberations of the
    framers at the Constitutional Convention.

    > A State could not, for example,
    > assign its electors oppositely to a decisive popular vote.

    I beg to differ. The state legislators chose every U. S. President for
    the first 60+ years after the ratification of the Constitution. I'm not
    certain, but would guess that they made no effort to discern what the
    popular vote would be other than to perhaps reflect on their own popular
    mandates and party affiliation.

    > I think this
    > may have a legal basis, not just a political one -- again, I'll be
    > listening closely to the Supreme Court debate.
    > I think two states have proportional representation now.

    I think it's not exactly proportional representation but something
    loosely akin to it. As I recall, one state, Vermont?, awards Electors
    according to the popular vote in each of its two Congressional districts
    and then awards the two remaining votes according to the candidate that
    gets the most votes state wide.

    > I suspect, but
    > don't know, that a Federal law could require proportional representation
    > of electors.

    I don't think this would be Constitutional. Nowhere in the Constitution
    is Congress given the power to tell the state legislatures how to
    determine the way they select Electors. As I understand it, Congress
    did pass a law after the 1876 election saying how they would deal with
    counting Electors. In addition, they even went so far as to spell out
    in detail what rules they would use in the event of a controversy
    regarding the Electors sent by a given state. What leads you to suspect
    that Congress could require proportional representation of Electors?

    > Naturally it would have to be passed by Congress, and the
    > biggest implication is that it would instantly empower 3rd parties,
    > because in that model even someone getting 3% of the vote like Nader
    > would end up with an influencial number of votes in the EC.

    I agree. In fact, I think it would seriously weaken the two party
    system that has developed as an integral part of our national political
    processes. Many people object to the two party system and claim that a
    multiple party system similar to most parliamentary European models. I
    happen to like our model better and would argue that we ought not to
    tamper with the underlying structure.

    > I think that
    > would be the main issue of contention, not a States ability to overturn
    > its popular vote.

    Today it's not likely that any state legislature would reverse the clear
    and unambiguous results of a statewide vote for President of the U. S.
    > >
    > > I think the federal government already has too much power in this system
    > > of checks and balances. If we make the mistake of swinging the balance
    > > even further towards the central government, we run a risk of losing
    > > more and more of our individual sovereignty and human rights. So I for
    > > one would strongly oppose the proportional state Electoral voting you
    > > propose or any system of direct popular voting for the United States
    > > president.
    > >
    > Well, consider my argument that the EC is NOT Federal, but locally
    > composed and temporary so it can more easily reflect the immediate
    > issues surrounding the election.

    The presidential election provisions of the U. S. Constitution create
    the Electoral College. If the EC is the offspring of this supreme
    controlling federal document, how can it be anything but a national

    > In fact it would do just what you want,
    > keep it farther away from the federal government by keeping it out of
    > the Supreme Court, first of all, and by minimizing the chances of it
    > being thrown into Congress secondly.

    First of all, I think Congress, as a popularly elected political body,
    should be involved in resolving conflicts and counting the votes of
    Electors. I much prefer these decisions being made in the political
    arena as opposed to the legal or judicial arena. This is what we have
    now, and I would argue strongly that this is the way it should be.

    > Take an extreme case like Florida
    > (25 electors) or California (54 electors). If the State legislature,
    > which normally just certifies a vote, inherits the power due to a close
    > election to decide the entire outcome, then the Fed becomes very
    > concerned.

    First, I think that like Florida, in most cases, someone in the
    executive branch is authorized by the state legislatures to certify the
    Electoral College vote. So the state legislatures do not normally
    certify the votes for president.

    Second, the state legislatures don't inherit the power to certify a
    presidential slate of Electors, they are specifically delegated the
    power and authority to make this decision in their respective states.
    They can do this in almost any way they choose so long as the citizens
    and voters in a given state concur.

    Third, Congress has already passed laws to help guide the certification
    and counting of presidential electors when there is a controversy. This
    is exactly what may happen in this case. So please tell me why you
    think that the fed will become very concerned?

    > That's too much influence from too small a representative
    > base.

    If this is your answer to my last question, then I would point out that
    this is simply an argument why you think Article Two of the U. S.
    Constitution must be changed. Recall that it grants the state
    legislatures full authority, power and responsibility to determine the
    presidential Electors for their respective jurisdictions.


    Posting to from "Norman K. McPhail" <>

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