First Amendment Friday: January 20, 2017

January 19, 2017 Civil Rights, Featured, First Amendment Fridays, Gay and Lesbian Comments (1) 359

Happy Friday! It’s January 20, spring is two months away, and I’ve been 38 for three whole days. There’s something else happening today, too, but damned if I can remember what it is. Still, some unnamed impulse has inspired me to bring back the old Friday First Amendment Roundup, which I haven’t written since I worked for the ACLU. That same feeling tells me I’ll try to keep at it for the next four years.

So… Let’s all dust off our vintage Louis Brandeis decoder rings and see what’s happening with the Constitutional Amendment that’s First in all our hearts.

The Slants, the Supreme Court, and the NFL

The Slants, an Oregon-based band whose members are all Asian-American, appeared before the Supreme Court this week. Why? The US Trademark office says a 70-year old law forbids them from registering racially offensive names. The Slants (whose name comes partly from a derogatory term for Asian-Americans) say the law violates their freedom of speech.

Watching with great interest is the NFL’s Washington-based football team, whose name will not appear here. In 2014, the Trademark Office stripped said team of their trademark rights, costing them major profits. They are definitely rooting for the Slants; no word yet on any SCOTUS-related face painting.

Curb Your Rights

DAPL Protesters, photo by Flickr user Fibonacci Blue

Photo: Flickr user Fibonacci Blue.

As the nation prepares for a protest that may be one of the largest in our history, five separate states have introduced legislation to crack down on peaceful protests. Oh, excuse me. That should read Republican legislators in five separate states.

Especially targeted are highway protests, popular with Black Lives Matter and Dakota Access protesters. Minnesota and Iowa seek to make such protests illegal, while in North Dakota lawmakers think motorists should be able to kill protesters with impunity. Provided they claim it was an accident, of course.

Washington state and Michigan are also looking at criminalizing protests. A number of these legislators, by the way, consider themselves members of the Tea Party Caucus. I seem to recall something there to do with protest… but let’s move on.

A Big, Beautiful Problem with the First Amendment. Just Huge.

It says here that some guy named… Donald Trump(?) is taking over as President. Trump has shown himself to be no friend to the First Amendment, and the Nation does a good job of breaking down the biggest issues, from his relationship with the press and his abuse of libel laws to his endorsement of laws against flag-burning.

The Nation doesn’t mention much about the religious freedom provisions of the First Amendment. This Atlantic article from late December covers the bases: Anti-Muslim discrimination, mosque surveillance, and attempts to legalize discrimination against LGBTQ+ people and religious minorities. It’s morning in America, people.

Did I say morning? Sorry, I meant mourning. Damn homophones.

Hey, trivia: A “homophone” is the reason Mike Pence currently lets all his calls to go voice mail. And speaking of the midwest…

Priority of Zion

The ACLU is currently fighting a new law in Ohio that forbids the state from contracting with any business that boycotts Israel. Similar laws have recently passed or been introduced in about half of US states, including New York. The ACLU warns that such legislation not only punishes legal political action, but risks punishing businesses that divest from Israel for apolitical reasons, like new tarriffs.

Writing in Slate last April, Columbia Law Professor Katherine Franke and attorney Michael Ratner pointed out the irony of Zionist crackdowns on boycotts, observing that the Jewish community had long used boycotts as effective political tools. The two also expressed concern that such anti-boycott initiatives could be deployed against the LGBTQ+ population, which has deployed high-profile boycotts against anti-equality legislation in states like Indiana and North Carolina.

Anti-equality legislation? Hey, that brings us back to Mike Pence! So why not…

The No-Pence Party

In what has to be my favorite political protest… I don’t know, ever? LGBTQ+ activists staged a massive queer dance party outside Mike Pence’s DC-area home, just days before Pence was sworn in as Vice President. Protesters in hot pants and various rainbow garments sang, gyrated, and called for “Daddy Pence” to come out and join in the festivities.

Which goes to show: When it comes to American political protest, eventually it always comes back to tea bags.

Yeah… Sorry.


Top Photo: Wikimedia Commons

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The Electoral College Must Go

November 29, 2016 Featured, Politics / Religion Comments (0) 389

(This is a long essay that originally appeared as a five-part series. This version has updated figures where appropriate, as well as minor revisions for clarity.)

Back when they thought they were losing, Donald Trump and his supporters were fond of calling the 2016 US Presidential Election rigged. At rallies around the country, Trump advised conservative voters to keep an eye out for voter fraud: “Because you know what, that’s a big, big problem in this country and nobody wants to talk about it.” Voter fraud is incredibly rare, of course, far too rare to have any meaningful impact on election outcomes.

Then came Election Night, the night cable news likes to brand “America Decides,” and America did decide. A large majority of Americans, more than voted for any candidate in history except Barack Obama, cast ballots for one candidate. And the other candidate won.

Because it turns out the system is rigged, tipping the scales in a way even widespread voter fraud never could; rigged so effectively that twice in the last 16 years it has denied American voters the President they favored. While Trump and his partisans fretted about voter impersonation, an antiquated system, created by racists who believed only wealthy white men should vote, meant that some voters effectively voted more than three times each.

America’s electoral system is rigged by the Electoral College, an antiquated and broken system that stopped serving its intended purpose a mere decade after its invention.

This essay will demonstrate why the Electoral College, which survived 240 years as a vestigial and generally harmless remnant of a bygone era, must be abolished. It will show how the Electoral College is on its face racist and antidemocratic, how it is incompatible with the reality of modern American life, how many arguments in its defense contradict history, and why abandoning the Electoral College will not harm the American electoral process in the manner many Americans fear.

Part One: The Electoral College is Anti-Democratic


The Electoral College gives some voters multiple ballots.

“One person, one vote.” It’s a simple phrase often associated with American democracy. So how does a candidate elected by at least 2.3 million more Americans than her opponent (a margin credible estimates predict will grow to more than 2.5 million) lose the Presidency?

Put simply, the Electoral College makes some votes worth more than others. Because of the formula by which electors are awarded to states, the ratio of actual, ballot-casting American voters to elector varies by as much as 2/3 from its average of around 422,000:1. The impact is that individual voters in small states, like Wyoming and Vermont, have much more influence over the Electoral College, and therefore the election, than those in more populated states.

Of all the 50 states (and Washington DC) it’s the voters in Florida who are most harmed by this system, with 29 electoral votes and 14.6 million eligible voters. A Florida voter can therefore be treated as a baseline by which to measure the impact of the Electoral College. Voters in Wyoming, with 3 electoral votes and only 431,000 eligible voters, make out the best in this system: Thanks to the Electoral College, a single voter in Wyoming is worth 3.5 Florida voters.

The national average is about 1.19 Florida Votes per voter — if you’re curious, that’s the exact value of a single vote in Louisiana. Voters in 21 states are worth less than the average, while those in 28 states (and DC) are worth more. Among the winners are voters in Vermont, also worth more than three Florida voters, while those in Alaska, North Dakota, Rhode Island, South Dakota, Delaware, and Washington DC are all worth between two and three Florida voters each.

Among the losers are voters in New York and California, as most would expect, but interestingly the bottom four also include Pennsylvania, Ohio, and North Carolina: All three perennial swing states, as well as a state newly considered a swing in 2016.

In fact, of the 13 states considered “purple states” in 2016 or expected to become so in the near future, voters in only four (New Hampshire, New Mexico, Nevada, and Iowa) exercise better than average influence on the Electoral College outcome. The other nine (the aforementioned plus Virginia, Arizona, Georgia, Texas, and Michigan) all fall within the bottom fourteen — which suggests that swing states may be less a product of centrist populations, as conventional wisdom holds, than of a fluke in Electoral College math.

Voter Turnout Intensifies Electoral College Impact.

The numbers presented so far are based on electoral votes and eligible voters, but the effect is further intensified by disparities in voter turnout; the number of actual votes shrinks, but electoral votes stay the same, further tipping the scales.

In the 2016 election, for example, those voters in Wyoming wound up being worth 3.83 Florida voters each, thanks to 60 percent turnout (Florida voters were still worth the least, by the way, even with 66% turnout taken into account). Voters in Hawaii, Utah, West Virginia, Tennessee, Texas, and Oklahoma all picked up 1/5 or more of a Florida voter thanks to low turnout, while voters in Minnesota, where 74% of those eligible cast ballots, each voter lost 13% of a Florida vote in influence.

Astute readers might pick up on a disturbing trend: If swing states are those where individual voter influence on the Electoral College is lowest, then it follows that state legislatures can “shore up” a majority for their party by reducing the population of eligible voters and increasing influence per voter. In other words, the Electoral College incentivizes voter suppression and disenfranchisement more than would a nationwide popular vote.

In fact, the two states where felony disenfranchisement has the greatest impact on electoral influence (Georgia and Texas) are among the most recent to “turn purple.” In both states, the number of voters disenfranchised by felony convictions was greater than the differential between Trump and Clinton; when one considers the disparity in racial makeup among felons, and the tendency of minority voters to support Democrats, disenfranchised felons alone likely could have swung both states for Clinton. Notably, the percentage of voters suppressed due to felony convictions was more than twice as high in states Trump won (1.6%) as in states Clinton won (0.7%).

The Electoral College has a disproportionate racial effect, and does incentivize voter suppression and disenfranchisement, all of which will be explored in greater depth in Part Four.

The Electoral College Makes Half of All Votes Meaningless.

One might assume the disparity in vote value created by the Electoral College is its greatest harm, and the solution is therefore to adjust electoral apportionment to the states. But even though Trump benefitted more from disproportionate impact of individual votes, it wasn’t enough to win the election. Converting all individual votes nationwide into “Florida votes,” Hillary still comes out ahead, albeit by a smaller margin.

How can this be? Because the greater evil of the Electoral College is not the disproportionate weight of votes alone. It’s that the Electoral College functions as a nationwide gerrymander, effectively erasing more than half of American voters by adding them onto, or burying them beneath, arbitrary regional majorities.

To illustrate this point, imagine for a moment that instead of 51 electoral bodies with discrete majority votes, we divided the nation into three: The East Coast, the West Coast (to include Alaska and Hawaii) and the Heartland. It’s easy to see the problem — with the majority of Republican voters condensed in one single district, the Democrats would have a lock on the Presidency without contest in every election.

Now back to reality. Consider that California and New York, undisputed Democratic powerhouses, were home to the third- and sixth-most votes for Donald Trump. A total of nearly 7 million votes, more than eleven percent of all votes for Trump, came from two states he never had a chance at winning. Meanwhile, 8.4 million votes for Clinton, nearly 13 percent of her total, came from voters in Texas and Florida.

In fact, roughly half of ballots cast by Americans for Hillary Clinton came from voters in states where she lost; the same is true of a third of ballots cast for Donald Trump. Both candidates received about 30% of their votes in states traditionally considered a lock for the other side. These are “lost” votes.

Next consider “meaningless” votes; meaningless because they pile on to large majorities in states where a candidate was expected to win. Meaningless votes consumed 14 percent of all votes for Donald Trump, and 16 percent of those for Hillary Clinton.

Adding the lost and meaningless votes together, 71.4 million American votes were erased by the Electoral College — more than half of all votes cast in the 2016 election.

If more than half of all votes are lost or meaningless, then does it follow that the Electoral College suppresses turnout? There is some evidence: Turnout is notably higher in swing states (64%) than non-swing states (57%). Consider that 35.5 million voters cast ballots for a candidate they knew couldn’t possibly win their state — and 70 million Americans outside of swing states didn’t bother to vote.

Note that these numbers are now outdated (both popular vote counts have since grown) but the principle holds true.

In the end, the most important figure is this: Hillary Clinton won the popular vote by at least 2.3 million votes, 64.8 million to Trump’s 62.5 million. However, when that is adjusted for votes lost and rendered meaningless by the Electoral College, she loses — by more than 11 million votes.

Part Two: The Electoral College is antiquated, and was never intended to work as it does today.


The Electoral College is anti-democratic, erasing half of all voters and allowing those who do count to stuff multiple ballots each election. But that’s how it was intended, right? The Framers meant the Electoral College to give more weight to small states, and encourage Presidents to campaign more broadly. Right?

In a word, no. The Electoral College was never intended to work the way it does now. Not only that, it stopped functioning as intended only a decade after it was implemented.

The Electoral College was not meant to encourage candidates to campaign in small states, because the Framers didn’t want Presidents to campaign at all.

For starters, the Electoral College was certainly never meant to encourage Presidents to campaign in small states–because according to the people who designed it, Presidents were not supposed to campaign and voters were not supposed to vote for President. As any Hamilton listener will know, campaigning for President was considered vulgar by the Founders. A candidate was to be nominated and elected by his peers, and expected to act as if he didn’t want the office. Meanwhile, individual voters cast ballots for only one national office: Representative. Senators and the President (or, more properly, Presidential electors) were named by state legislatures.

In fact, the federal government looked completely different to the men who designed the Electoral College. The Presidency was designed as an administrative and diplomatic office, the weakest of the three branches of government. There were no federal agencies, no national tax policy, and no standing military. Today, the Presidency is arguably the most powerful of the three branches, with powers unanticipated — or, where anticipated, feared — by the men who created the office.

The Electoral College is a vestigial remnant of a bygone era, one that lingered for centuries primarily because it was harmless, and did not change election outcomes. However, twice in the last five elections it has awarded the Presidency to the less popular candidate. It has to go.

What was the Electoral College Really For?

To understand the impetus for the Electoral College, one must remember that the Constitution was a second attempt at national unity, after the first (the Articles of Confederation) failed. The Constitution’s framers, the Federalists, believed the solution was a stronger central government, but met opposition from the Democratic Republicans, who envisioned the United States as a loose affiliation of independent state governments.

The entire structure of American government is designed as a compromise between the Federalists and the Democratic Republicans, especially around one specific issue: slavery. Among the Federalists were several outspoken abolitionists, and southern states refused to join a union that threatened their way of life. So the Constitution sought to protect state sovereignty through several mechanisms.

The right to name Senators and Presidential electors was reserved to state legislatures, which were free to use any process they chose. Only members of the House were elected directly by voters–who, at the time, included only white male property owners.

Every state had equal representation in the Senate, but slave-owners in the largely agrarian South feared larger populations in the north would give abolitionists the advantage in the House. The result was the 3/5 Compromise, in which slaves (who, like American Indians, were not counted as residents for census purposes) were counted as 3/5 of a person for Congressional apportionment.

In the Electoral College, this inflated the voting power of southern states (and the legislators who controlled them) because the number of electors is equal to the sum of senators and representatives in Congress. This would have been a relatively minor concern at the time, however, since the President wielded little domestic authority compared with Congress.

In the election of 1792, only two states (Pennsylvania and Maryland) held popular elections. In all others, electors were named by state legislatures.

Instead, the Electoral College served another important function, named by Alexander Hamilton in the Federalist Papers, Number 68: To reserve the powers of President to a handful of elite individuals seen as “fit” for the office, while protecting against corruption and collusion. State legislatures would name their nominees, but it was up to the electors–who were barred from holding state elected office, and barred from collaborating with electors from outside their state–to make the final decision; or nearly final, anyway. If the electors came to a tie, the choice of President fell to the House of Representatives.

That has happened twice. The first time, in 1800, there were 138 state electors and 17 Representatives in the House. Today, those numbers are 538 and 435, respectively.

More importantly, however, the Electoral College never once served the purpose of protecting the people from their choice. From the beginning, convention held that electors in states that held a popular vote would respect the choice of the people. Only once in history have so-called “faithless electors” threatened to change an election, and that was for the office of Vice President. Today, the majority of states have laws requiring electors to vote according to the popular result, but such laws have never once been enforced. Convention alone has been powerful enough.

1911: The Math Changes.

By basing the number of electors on total representation in Congress, the framers gave a small boost to very small states; though their population might not warrant two Representatives in the House, they were guaranteed two Senators and therefore at least three electoral votes. Beyond that (and the 3/5 Compromise), however, apportionment was relatively equal nationwide.

In the Election of 1792, which followed the new nation’s first-ever census in 1790, the House featured approximately one Representative for every 34,000 “persons,” with little deviation. Only two states, Delaware and Vermont, deviated by more than four percent from that ratio — because both had joined as states after the 1970 census.

If the House had continued to grow at a constant rate, the most powerful state vote would be worth only 25% more than the weakest.

Compare that with 2016. Today, Montana sends just one Representative to Congress, representing nearly one million state residents. That is nearly double the ratio of residents to Representatives in Rhode Island, where the ratio is smallest.

Why has that variance grown so? Because the Apportionment Act of 1911 fixed the number of House seats permanently at 435, where it still stands today (it was increased briefly when Alaska and Hawaii became states, before Congress reduced it back in 1962). In 1911, the population of the United states stood at 94 million, less than a third of the 309 million Americans counted in the 2010 census.

Certainly, to let the House of Representatives continue growing would be unwieldy–with its 435 members, many say the House already is–but by fixing that number as the country grew, the Apportionment Act of 1911 set the Electoral College to move further and further from the popular vote.

If, hypothetically, the House had continued to grow at a constant rate of one Representative for every 35,000 residents, as in 1790, we would currently have an 8,833-member House and 8,952 Electoral Votes. The most powerful individual vote (in Missouri) would be worth only 25% more than the weakest, in South Carolina.

Even if the House had kept growing at 1911’s pace, one Representative for every 216,000 people, while the number of Representatives would still be unmanageable, the value of a Wyoming vote would be only 1.75 times the value of a Florida vote, instead of 3.5 times as much.

The Nature of the Presidency has Changed.

The Framers of the Constitution saw the President as a primarily administrative office, overseeing the work assigned to him by Congress. Both the Senate and the President were to be elected by state legislatures, because the vision of the Framers was that most legislating would happen within the states, and the federal government would oversee mainly foreign affairs, and a handful of domestic issues.

What made sense then does not make sense now. In the 1790s, the life of an everyday American was most impacted by the laws passed in the state legislature. Over 240 years, however, the role of the federal government, and especially the Presidency, has greatly evolved.

To the Framers of the Constitution, the idea of a national military was almost offensive. The Continental Army had been disbanded immediately following victory over England, because the Framers feared the tyranny that might rise from a strong central military. Instead, military defense was left to the individual state militias.

Today the United States Government is the largest employer on Earth, with the Department of Defense alone employing 3.2 million people. The President as Commander in Chief holds the fates not only of the military and military families, but all Americans. The Electoral College predates the very concept of “total war,” in which all of a nation’s citizens and resources are mobilized in warfare, as well as the kind of military weaponry and tactics that pose an existential threat to a nation. To the Framers of the Constitution, war was something that might threaten the a few strategic cities that might be blockaded and occupied, not something where a single atomic weapon can end millions of lives.

The Electoral College predates most of the powers of the Executive Branch, including all federal agencies. It predates the very concept of federal preemption, which says laws passed by the federal government supersede those in the states. In fact, the Executive Branch predates the very idea that the Supreme Court has the authority to review and strike down any laws, let alone state laws.

The Electoral College predates not only political parties but the concept of the gerrymander, which secures party power in state legislatures and the House of Representatives. At the time the Constitution was ratified, states elected Representatives at-large. It wasn’t until 1967 that every state sent Representatives from single-member districts.

The Electoral College predates federal regulation of business, federal income tax, combined presidential/vice-presidential tickets, and state primary elections. In short, the federal government and the office of President today look almost nothing like they did when the Electoral College was instituted. Senators, once named by state legislatures, have been elected by popular vote since the Seventeenth Amendment passed in 1913, and yet the President is still elected by the same method designed in 1789.

Part Three: The Electoral College is incompatible with modern American life, and makes it easier to buy or steal an election.


The Electoral College survived as long as it did because it generally didn’t alter election outcomes. As American culture has shifted, however, the Electoral College has become more dangerous, and made it easier to manipulate the outcome of our elections.

Our Population is Growing More Urban.

As a nationwide gerrymander, the Electoral College erases more than half of all ballots cast in the United States by lumping them into statewide elections. Residents in all but a handful of swing states see their votes either lumped onto an existing majority and made meaningless or buried beneath a majority for the other party.

This was never the design of the Electoral College; rather it is a product of the way American culture has shaped our geography. For years now, the United States has been growing more urban. More than 80 percent of Americans currently live in urban centers, and that number is increasing. The 2010 Census revealed that urban populations were growing well ahead of the national average (12.1 percent over ten years, vs 9.7 percent nationwide) while rural areas were growing at a much lower rate.

Moving is directly and consciously related to politics. In a 2014 article for the Washington Post, Aaron Blake examined the way Americans “self-gerrymander” by moving into communities that share their politics. Blake cites a Pew study that found 77% of liberals preferred to live in urban communities, while 75% of conservatives preferred rural living. This effect was more pronounced among people who said politics was important to them — and notably, both liberals and conservatives who identified as strongly political said they felt it was important to live among people who were politically like-minded.

As Americans condense into cities, the Electoral College will put more and more relative power in the hands of a small number of older, whiter, and more conservative voters.

The implication here is that liberal voters are likely to move into major cities, most of which are in blue states where their votes will be condensed into an existing and irrelevant majority, while conservative voters will do the opposite. Pew found that Republicans are actually more likely to move in the interest of politics.

However the migration of Americans to urban areas is not solely a choice. The reason the majority of Americans give for moving is to find a job, and unemployment in rural regions of the country far outpaces that in urban centers. As we have grown more urban, the United States has also famously moved from an industrial, manufacturing economy to a service and technology economy — and jobs in those sectors are most often in major cities.

This illustration, from the Bureau of Labor Statistics, shows the change in state GDP in the first quarter of 2016. Note how “red states” generally fared worse than “blue states.”

Not only that, but many Republican political initiatives are associated with greater unemployment — as in Kansas, where governor Sam Brownback promised to use his power in office to fix unemployment, and instead decimated the state’s job numbers, or in Wisconsin, where Scott Walker brags about a job rate that has increased at a slower pace than the national average. These kinds of policies would intensify the exodus of young, more liberal voters from the state as they seek jobs elsewhere, and ensure a solid voting base for the same politicians who drove jobs away.

As our population continues to condense into major urban centers, the Electoral College will put more and more relative power in the hands of the voters — older, whiter, and more conservative than most — who chose to remain in rural states.

In theory, shifts in American culture would be reflected in our politics — but this is not the case. In every recent election, Democrats have claimed a majority of votes, and yet the House, Senate, and Presidency all belong to the Republicans. Why? Because that majority of Democratic votes come from a handful of densely populated states and counties. In the Senate, intended by the Framers to be the least democratic house of government, this is almost intentional. In the House, the GOP majority originates with the gerrymander. In the Oval Office, it is the Electoral College we have to thank.

Is it possible that the growth of urban centers within red states will flip them and undo the harm of the Electoral College? Conceivably. The fastest growing urban centers in the country are in Charlotte, Austin, and Las Vegas. Nevada, once considered a purple state, now appears to be solidly blue; North Carolina and Texas are expected to turn purple in the near future.

The trouble is that the Electoral College also makes it easier to tamper with election outcomes through nefarious means like Voter ID and felony disenfranchisement, and to swing election results through investments in advertising.

The Electoral College Makes it Easier to Buy an Election.

If it wipes out half of all voters, who does the Electoral College actually benefit? Candidates and donors, that’s who.

Imagine a United States where the President was elected by popular vote. Imagine a GOP candidate campaigning in upstate New York and California’s Central Valley, and a Democratic candidate venturing into urban counties in Alabama and Kentucky.

By making the contest smaller, the Electoral College allows candidates to effectively ignore voters in the majority of US states and invest their time and money in just a handful of “swing states” where the election outcome is not already decided.

It’s true that rigging a US election by hacking or voter fraud is very difficult–but thanks to the Electoral College, rigging an election by keeping certain voters away from the polls is disturbingly easy.

In the 2016 general campaign, Donald Trump made 14 visits to North Carolina, 12 to New Hampshire, and 12 to Ohio. He received around 5.5 million votes from those three states combined; meanwhile in California, New York, and New Jersey he got just short of 8 million.

It’s not just the candidates who save time — those Super PACs everyone has been angry at since the Citizens United ruling can make their dollars stretch further by targeting ad buys in just a small number of counties within those swing states. Instead of spreading a message to her millions of supporters distributed across the nation, Hillary Clinton could gather celebrities for a multiple-night get-out-the-vote effort in Philadelphia.

In an era when wealth is more uneven than any other in our history, and most Americans agree that big money should get out of politics, the Electoral College makes it easier to buy an election.

The Electoral College Makes it Easier to Steal an Election.

During the pre-election controversy about voter fraud, many experts remarked that America’s state-by-state election system makes it difficult, almost impossible, for any single entity to rig an election outcome.

This is true in the given context: to rig an election by stuffing ballot boxes or hacking voting machines is borderline impossible. Thanks to the Electoral College, however, rigging an election by keeping voters away from the polls is disturbingly easy. All you need is a complete lack of integrity, party control of a state legislature, and cynical contempt for the right to vote.

Take Michigan, for example, where Donald Trump won by a mere 10,704 votes. Ahead of the election, activists in Michigan sued the state over new voting regulations they said disenfranchised 300,000 or more voters, disproportionately minority voters who were likely to cast ballots for the Democrats. If you’ve any doubt that party politics motivates voter ID laws, one need only look at Texas or North Carolina, where courts found that voter ID laws were clearly racially motivated — or take it from Mike Turzai, Pennsylvania legislator and architect of that state’s failed voter ID attempt, who openly stated that it was intended to help the GOP win.

To illustrate the way the Electoral College makes voter suppression immeasurably more effective at stealing an election, we need not suppose that Michigan’s voter suppression tactics erased 300,000 votes. We only need to suppose that it kept away 10,705 more votes for Hillary Clinton than Donald Trump. Clinton received (at time of writing) 2.27 million votes in the state of Michigan, and in an nationwide popular election every one of those votes would count toward her majority, as would Donald Trump’s 2.28 million. Instead, because of the Electoral College, it is possible that suppression of less than 11,000 voters erased all of Hillary’s support in the state.

Voter ID laws, and reports of related irregularities, factored in other states including North Carolina, Alabama, Florida, Ohio, and Pennsylvania. But one need not look only at Voter ID — the actual impact of which can be difficult or impossible to measure — to see how states keep voters away from the polls. Felony disenfranchisement has a demonstrated impact on US election results.

The Electoral College incentivizes voter suppression and disenfranchisement.

Imagine for a moment that you are a person convicted of a felony. It doesn’t have to be a murder or robbery — let’s say you got caught with a beer when you were 19, or got in a fistfight outside a bar after a football game and a drink too many. Each of these is a felony offense, and depending on what state you live in, you may never get to vote again.

According to the Sentencing Project, more than 6 million Americans have lost their right to vote because of a felony conviction — and states are wildly different in how they treat voting rights for convicts. Two states (Vermont and Maine) bring ballots into their prisons so that convicts can vote even while serving time. Eleven states strip felons of all voting rights, for life. The majority of states fall somewhere in between, denying felons the right to vote while incarcerated, while on probation, and/or while on parole.

Felony disenfranchisement has been shown to have dramatic racial disparities: The Sentencing Project says one in 13 African-American voters has lost their voting rights to felony disenfranchisement, compared with one in 56 non-black voters. In the context of the Electoral College, the impact becomes even more stark: The list of states with the harshest felony disenfranchisement laws includes Wyoming, Delaware, Nebraska, and others where individual votes are weighted most heavily.

Florida has by far the worst felony disenfranchisement laws in the nation, with more than a million and a half voters (including nearly a quarter of all African-Americans) denied their right to vote based on felony convictions.

After the 2000 election, in which Al Gore won the popular vote but lost the Electoral College, researchers at Northwestern University conducted a study that showed Gore would have won Florida if felons had been allowed to vote. Florida is not alone; based on actual 2016 results, the number of felons denied the right to vote exceeded Donald Trump’s margin of victory in three states Trump won (Wisconsin, Florida, and Georgia) and two won by Clinton (New Hampshire and Nevada) as well as Michigan, where Trump holds a small lead. In Florida, Wisconsin, and Michigan the number of disenfranchised felons is double or more Trump’s margin of victory.

Because African-Americans are disproportionately represented among Americans convicted of felonies, and overwhelmingly voted for Clinton in 2016, it’s entirely reasonable to suppose that different laws would mean different results in those states, and therefore in the Electoral College.

Wisconsin, Florida, and Georgia all have Republican-controlled legislatures. In fact, harsher felony disenfranchisement laws are generally associated with Republican lawmakers, notable when one considers that left-leaning voters are dramatically overrepresented among felons. One need not make a leap to suppose that at least some of the motive for such laws is partisan in nature.

And yet, in a nationwide popular vote such efforts would fall short of delivering reliable results. It is only thanks to the Electoral College, which makes it possible to negate the will of millions of voters across a state by suppressing only a few hundred thousand — or less — that such tactics are effective. It might still be difficult to steal a US election, but the Electoral College makes it much, much easier.

Part Four: The Electoral College is Racist.


Shocking, right, that an institution built into our Constitution to placate slave states would have a disproportionate racial impact? But that is in fact the case.

So far we have established that the Electoral College:

  1. Is anti-democratic, weighing some individual votes far heavier than others to the extent that some voters are effectively casting almost four ballots each;
  2. Is antiquated, and never intended to function the way it does today; and
  3. Is incompatible with modern elections, and actually makes it much easier to buy or steal a US election.

In each of those effects on US elections, the Electoral College currently favors white voters over non-white voters. Recently, Vox published an analysis in which they concluded the Electoral College shifted the balance considerably in favor of white voters — and they left out several ways in which the Electoral College harms non-white voters.

White Voters have more powerful votes and are more likely to count.

I remind you of our “Florida vote,” a base unit by which we can measure the impact of any one voter on the Electoral College. In 29 states, individual votes get a boost. In 21, the impact of a single vote is diminished. Guess where non-white voters are more likely to live!

Of approximately 69 million non-white people who live in the United States, 52.8 million (three quarters) live in states where the value of an individual vote is lessened by the Electoral College. Collectively, non-white voters lose about one percent of their electoral impact through this phenomenon alone, while white voters gain around one percent–which may not sound like much, but in the 2016 election it was equivalent to about 2.7 million votes.

We also established that the Electoral College, by functioning as a nationwide gerrymander, erases more than half of all ballots cast in any American election. Non-white Americans are more likely to see their vote erased, by about half a percent.

In the eleven “swing states,” on which the Electoral College effectively bases nationwide results, non-white voters are underrepresented: Non-white voters make up about 20% of the population in swing states, versus 23% of the population in non-swing states. Once again, 3 percent may not sound like much, but that’s 6.8 million eligible voters, and based on 2016 turnout, about 4 million actual votes.

Those figures, however, are based on population demographics, and assume that white and non-white voters are equally likely to be eligible voters. As you will see in a moment, that is most definitely not the case.

White Voters are less likely to lose their right to vote.

As we covered in part three, the Electoral College makes it much easier to steal an election, not by stuffing ballot boxes but by turning certain voters away from the polls, and that a go-to technique for doing so is felony disenfranchisement. It’s likely no other phenomenon harms non-white voters as much as this one.

It’s a fairly well-reported fact that non-white Americans are over-represented in our criminal justice system. White Americans make up about 78% of the US population, and yet only 59% of felony convictions. According to the NAACP, Black Americans are six times as likely as White Americans to be incarcerated, and Black and Hispanic Americans make up nearly 60% of the current prison population, while less than a quarter of the overall population.

If every state had laws like Vermont and Maine, it is likely the United States would not have had a Republican President since 1996.

In part three we discussed the range of state laws pertaining to the right of felons to vote. In Vermont and Maine, all people can vote regardless of felony status, even including people currently incarcerated. In 11 other states, meanwhile, felons lose the right to vote for life, regardless of what the felony was; 19 percent of all non-white Americans live in these states, versus 18 percent of white voters.

Add in the 19 states where felons lose voting rights as long as they are incarcerated, on probation, or on parole (the second strictest type of felony disenfranchisement) and you’ve covered more than 56% of the non-white population, versus less than 54% of White Americans.

So non-white voters are dramatically more likely to be convicted of a felony, and significantly more likely to live in a state where that felony will strip them of their right to vote. Do the math, and you begin to understand why the NAACP, Sentencing Project, ACLU, and other organizations view felony disenfranchisement as a civil rights crisis. The Sentencing Project estimates that 1 out of 13 African American voters has lost their voting rights to felony disenfranchisement, compared with 1 in 56 non-black voters. Again, in Florida, nearly a quarter of all African-Americans have permanently lost their right to vote.

In general, felony disenfranchisement laws are harshest in Republican-controlled states. 22 of 30 states with the harshest laws went for Trump in 2016. When one considers that non-white voters, and especially Black voters, tend overwhelmingly to vote Democrat, it’s not hard to see how such laws might have a partisan motive. That becomes even clearer when one considers that three states Trump won (Georgia, Florida, and Wisconsin) would likely have gone to Clinton if people convicted of felonies were permitted to vote. In fact, if no states denied convicted felons the right to vote (ie, if everyone followed the laws in Maine and Vermont) it is likely the United States would not have had a Republican President since 1996.

As a reminder, the only reason such voter suppression efforts are impactful in Presidential elections is that the Electoral College divides the nation into 51 separate elections, most of which can be won or lost based on a small margin of votes. If not for the Electoral College, it would be much more difficult for voter suppression to alter the election outcome — especially when the losing candidate received 2.3 million more votes.

Felony disenfranchisement is far from the only method by which non-white voters are denied their right to vote. That tendency to vote Democrat has made non-whites, and especially African-Americans, a prime target of voter suppression efforts in many GOP-controlled states, whether through Voter ID laws with disproportionate impacts, targeted purging of voter rolls, the end of Sunday voting (very popular with Black voters in recent years) in many states, the closing of more than 800 polling places across predominantly Black precincts in the South, intimidation at polling places, or other techniques.

The Electoral College is racist in its impact, and adds incentive for states to employ racist voter suppression tactics. It has to go.

Part Five: Ending the Electoral College will not break American elections the way many people predict.


In parts one through four, we covered the many reasons the Electoral College must go: It’s anti-democratic, outdated, doesn’t serve the purpose it was designed to serve, makes it easier to buy or steal a U.S. election, disproportionately lessens the electoral power of non-white voters, and incentivizes voter suppression efforts like felony disenfranchisement and “voter ID” laws.

But what about the arguments in favor of the Electoral College? Any time the debate arises, there’s always someone eager to argue that only the Electoral College keeps voters in small states relevant, and without it our President would be chosen by New York and California. These arguments are false, based on myth and stereotype. In fact, ending the Electoral College would only be good for American democracy. Here’s why:

In a nationwide popular election, state lines are irrelevant.

The most common argument in favor of the Electoral College says that New York and California have huge populations, and because they vote Democrat a national popular election would mean a permanent Democratic lock on elections, rendering the concerns of small, rural states irrelevant.

In a popular vote, instead of a handful of battleground states, elections would be decided by voters with similar views on the issues.

There’s a huge problem with this logic: It misses the fact that state borders are irrelevant to a nationwide popular vote.

With the nationwide gerrymander that is the Electoral College ended, votes that have traditionally been erased would suddenly matter: Large blocks of Republican voters in places like Upstate New York and Long Island, the farmland if Illinois, and rural California could help elect their candidate. Liberals in Texas, Oklahoma, and Alabama would actually have an impact on the Presidency, and never again would we see a candidate preferred by more than 2 million Americans lose the Presidency simply because those Americans live too close to one another.

In a nationwide popular vote, instead of elections being decided by a handful of battleground states where the outcome is in doubt, they would be decided by coalitions of voters with similar views on the issues. Candidates would be forced to message in a way that appealed to like-minded voters across the nation: Republicans would have to speak to coal miners in West Virginia, out-of-work manufacturers in the Rust Belt, and rural and suburban voters in New York and Pennsylvania.

Instead of arbitrarily grouped by state borders, voters would be grouped by issues and lifestyles, and a state like California — with the third most Republican votes in 2016 — could no longer erase a huge portion of the electorate because a majority of its residents disagree.

Without the Electoral College, candidates would visit more states.

After the 2016 Election, Donald Trump tweeted that without the Electoral College, he would have campaigned in New York and California and won an even larger majority. This is an oft-repeated talking point by those who defend the Electoral College: Without it, candidates would only visit states with huge populations, and smaller states would never see a candidate in person.

Let’s begin by taking that apart: First, we’ve already covered that state lines would be irrelevant, so it’s not an issue of candidates appearing in states. Frankly, that’s not been true in some time anyway; if one reviews the history of candidate appearances, they are often strategically located in border areas where voters from several states can attend. It’s not as if a candidate appearing in Cleveland is solely campaigning to voters from Ohio; voters from nearby states will travel to attend — which shows that the US is already divided more regionally than by state borders.

Secondly, it’s worth pausing to question the value of personal appearances in a modern election environment. Yes, the “ground game,” as it’s called, is often cited as a key in driving turnout within battleground states — but remember that battleground states are a phenomenon of the Electoral College, which renders more than half of all American votes meaningless. Certainly the vast majority of votes for any candidate come from people who have never seen the candidate in person.

Also bear in mind that this was never a design feature of the Electoral College, which was designed during an era when Presidents were expected *not* to campaign.

Lastly, it’s already the case that only a small handful of states ever see candidates in person. Appearances are focused on battleground states where the outcome is in question; appearances in other states are generally confined to high-dollar fundraising events.

There is some logic to say that candidates in a nationwide popular election would be inclined to focus on high-population regions like large Northeastern cities or Los Angeles, but there is no reason to think they would ONLY appear there. In fact, we have a long-standing example to show how false that suspicion is: Senate races.

Senators already run in popular elections, only they’re statewide instead of national. Many states offer examples of populations divided between densely populated urban areas and larger rural regions: New York and California, certainly, but also Texas, Colorado, Illinois, Pennsylvania, and many other states with both large cities and large rural populations. In none of these cases do Senate candidates limit their appearances to urban regions alone, because they understand the need to reach voters in both regions.

The fact is, candidates will design a strategy that allows them to reach undecided voters and drive turnout among supporters. This approach will not lead to a focus solely on a handful of urban regions, where turnout is often higher than average and voters’ minds are already made up.

The Electoral College creates and reinforces stereotypes about states.

Quick: What’s the biggest agricultural state in the country? Kansas? Iowa? Nebraska?

The answer is California. Of course, under our current system California is viewed as a massive liberal paradise, a “blue state” where everyone drives electric cars and insists on green energy alone.

Likewise, New York is full of liberals, and Texans are all conservative. Right?

Well, in a word, no. Nor are states like Alabama and Oklahoma made up solely of hardcore right-wingers. The fact is all of our states contain voters from all lifestyles and interests. Many so-called “blue states,” which come to be defined by their large urban areas, are also the nation’s largest agricultural producers: New York, Washington, and Illinois are all counted among the larger farming states in the nation.

The arbitrary lines around state borders (which date back as far as the 1600’s, drawn by the English monarchy when the states were still US colonies) for the most part don’t relate in any way to the perspectives, lifestyles, or opinions of individual residents. The Electoral College has created a simplified narrative in which divisive stereotypes drive antipathy between states.

It’s not unreasonable to suppose that a nationwide popular election would improve national unity, by bringing together voters with similar priorities from separate parts of the nation.

Ending the Electoral College would increase voter engagement and turnout.

It is demonstrably true that turnout is significantly higher in swing states than in states that are “solid red” or “solid blue,” and there is ample reason to believe that without the Electoral College, voter turnout nationwide would increase.

Never again would we hear “I don’t need to vote, I already know who’s winning my state,” or the opposite “there’s no reason for me to vote, there’s no way my candidate wins this state.” Every vote would count, and count equally.

More than that, though, without the Electoral College there is less opportunity for state legislatures to turn the result of an election through voter suppression. It would be naive to suggest that voter suppression would disappear — indeed, initially at least the nation may see an increased effort to keep people away from the polls — but when states can no longer guarantee a win for their candidate by, say, keeping a quarter of African-American voters from voting, it stands to reason that there may be less motivation to attempt suppression.

Ending the Electoral College might improve party messaging.

Might a nationwide popular election actually improve our politics? It’s possible — one might even say likely — when one considers the current approach relies on turning out the more extreme voters in a handful of swing states.

A nationwide election would put many more voters in play: Again, Republican candidates have long known they could ignore the concerns of voters in Upstate New York, Central California, and most of New England, just as Democratic candidates have not tailored their message to left-leaning residents of Kansas, Alabama, Mississippi or New Orleans.

With all voters in play, the parties and candidates would need to craft messages that appeal to all people who lean to their side. It’s logical to expect that this would push both candidates to a more reasoned, broad approach instead of the relatively extreme views we hear today. Instead of trying to carve a relatively small majority from the tiny portion of American votes that counts (ie, only those within swing states who will actually come to the polls) candidates would for the first time benefit from appealing to the widest possible cross-section of eligible American voters.

It is probably fair to suspect that some of these arguments are idealistic, and at no point in this series have I ventured into the question of how America might go about ending the Electoral College. It does not seem likely under the current system, in which the party that most benefits from the Electoral College also controls all federal branches of government and most state legislatures. That’s a topic I’ve set aside for now, in favor of the many arguments that prove one thesis:

The Electoral College is bad. It’s harmful, it’s outdated and anti-democratic, racially biased, and it wrecks American elections — even when it doesn’t run counter to the popular vote.

It’s time for the Electoral College to go.

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First Amendment Friday: Nov 14 2014

November 14, 2014 First Amendment Fridays Comments (11) 4027

I haven’t done one of these in a while, but if Europe can land a robot on a comet then by God I can read my Google alerts and present my little Constitutional digest. As we end a week in which TIME magazine suggests banning the word “feminist” and a celebrated emerging sci-fi author is revealed as one of the Internet’s most nefarious trolls, it seems appropriate to take a look at what’s happening worldwide with the rights to speech, assembly, and expression:

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Government Prayer and the Supreme Court

May 6, 2014 ACLU, In The News, Politics / Religion Comments (0) 156

I took to video to share my thoughts about the Supreme Court’s recent ruling in Town of Greece v Galloway. It’s a terrible ruling that opens the door for towns across America to essentially endorse unofficially-official religions.

I spent some time on Twitter yesterday talking to people who think the ruling is a good idea, but I think most of them misunderstand the questions in this case–if they don’t suffer more systemic misunderstandings about the history of the United States and the Constitution. Continue Reading

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