Market Mad House

In individuals, insanity is rare; but in groups, parties, nations and epochs, it is the rule. Friedrich Nietzsche


The Looming Constitutional Crisis we are Not Talking About

America could face a constitutional crisis that can rip the country apart next year and few people are talking about it.

The potential crisis is a president who does not represent a majority of the American people. We have that problem now and it could get far worse next year.

To explain, Hillary R. Clinton (D-New York) won a majority of the popular vote in 2016. In detail CNN estimates Clinton received 65.845 million votes; or 48.2% of the total. In contrast, President Donald J. Trump (R-New York) received 62,980 million, or 46.1% of the popular vote.

Trump is president because of his edge in Electoral College votes. The Electoral College is the unelected body that actually elected elects the U.S. president. In fact, under the US Constitution, America’s widely watched presidential election is nothing but political theater.

Historically, that bizarre system worked because the Electoral College vote usually matched the popular vote. However, that system could be breaking down setting the stage for a Constitutional Crisis.

The Looming Electoral College Crisis

We could face that Constitutional Crisis soon, because both Trump’s Electoral College majority and the Democrat’s popular vote majority could grow next year.

New York Times number cruncher Nate Cohn thinks Trump’s Electoral College vote could next year. In fact Cohn speculates; “it is even possible that Trump could win while losing the national vote by as much as five percentage points.”

Trump is already the most unpopular president in living memory; partially because of his lack of a popular mandate. For instance, a crowd at an October 27, 2019, World Series Game booed Trump and began chanting “lock him up” and “Impeach Trump.”

Likewise, the crowd at UFC (Ultimate Fighting Championship) 244 at Madison Square Garden booed Trump on 2 November 2019. Newsweek reports anti-Trump protesters greeted the President outside the building.

Large numbers of Americans now hold Trump and the presidency in total contempt. I think this occurs, partially because most Americans did not vote for the man. Many of them feel Trump is an illegitimate president because of his popular vote loss.

The President Who Lives Like a Dictator

The Washington Post notes Trump’s public appearances are rare and it is easy to see why.

Unless, he is in front of a handpicked crowd the President gets booed and worse. In fact, Trump has not made most of the traditional appearances Presidents are famous for. For example, Trump; who was once famous for his social life, has not thrown out a pitch at a Major League baseball game; attended events at the Kennedy Center, or eaten out a restaurant since his election.

Thus, America has a president who lives like a dictator. To explain, Trump lives in a fortress; only meets with handpicked supporters at carefully staged events, and rarely appears in public.

I think that situation is neither democratic; nor American, and it could get worse next year. Do we want to see tanks in front of the White House, or a President who lives in a secret bunker?

Or daily riots with mobs burning Trump properties and trying to storm the White House. Do we want pitched battles between the military and American citizens in the streets of our nation’s capital?

I think a 5% or 10% disconnect between the Popular Vote and the Electoral College could trigger such events. Note: this situation is not Trump’s fault; he did not invent the system. In fact, I consider Trump a victim here; he is trapped in an increasingly unpopular and ineffective presidency.

Is the Electoral College Broken?

The difference between the Electoral College and the Popular Vote exists because of the way we chose Electors.

To explain, they select one elector for each U.S. Representative and each U.S. Senator. Hence, each state gets at least three electors and there are 50 states.

However, most of those states are low-population, white, Christian, and largely rural. Thus they favor Republicans even though most of America’s population is now urban; increasingly post-Christian, multiracial, and concentrated in a few high-population states.

For instance, Trump received 309 Electoral College Votes to Clinton’s 229 in 2016, 270toWin estimates. Most of Trump’s votes came from rural states like Alabama, Kansas, and Idaho.

Meanwhile, most of Clinton’s votes came from high-population states like California and New York. Consequently, voters decided the election in a few contested high population states like Florida and Ohio.

Yes, the Electoral College is Broken

In fact, National Popular Vote estimates 94% of campaign events in the 2012 Presidential election were in 12 states. Candidates only went to those states because they needed their Electoral College votes.

I predict the situation could be worse next year because three states they contested in 2016; Colorado, Nevada, and Virginia might not be in play. Colorado, in particular is turning  Deep Blue, which could persuade Republicans to write it off.

Thus, we could have a presidential campaign waged in just nine or 10 states next year, with the nation’s highest-population areas Texas and California ignored. California is left out because Republicans can afford to ignore because of the Electoral College. Likewise Democrats can afford to ignore Texas because of the Electoral College.

The Crisis could be worse in 2024 and Beyond

Changes to Congress necessitated by the 2020 Census could make the situation worse in 2024, 270toWin predicts.

For instance, several states including New York will lose electors because of reapportionment; the elimination of U.S. House of Representatives seats as population falls States lose House seats because federal law keeps the House at 435 Representatives.

Hence, the disconnect between the popular vote and the Electoral College could become a permanent phenomenon. Things could get terrible in 2040 because most Americans will live in eight states, The Washington Post predicts. Those states are North Carolina, California, Illinois, Florida, Georgia, New York, Pennsylvania, and Texas.

Notably, three high population states; New York, Pennsylvania, and Illinois, could lose Electoral College Representation because of Congressional Reapportionment, 270toWin predicts. Moreover, those states could be majority nonwhite by 2045, The Brookings Institution predicts.

Hence, in 2045 we could have a rural, white, Christian, president trying to lead a Post-Christian, nonwhite, urban America. We already have a president who gets booed at public events in his own capitol. Do we want a President scared to go out in public because of fear of lynching?

How to Fix the Electoral College

Interestingly, there are several potential Electoral College fixes. However, I do think any of those fixes will be easy or popular.

Fix One: is the National Popular Vote Compact

The Compact is a model law that requires Electoral College members to vote according to the national popular vote. Currently, 15 states and the District of Columbia have passed the Compact law.

They will enact the Compact if states with 270 Electoral Votes; a majority of the Electoral College pass it. Currently, states with 196 Electoral Votes support the Compact.

But there is opposition to the Compact, including a Republican petition drive for a referendum repealing it in Colorado. Hence, the Compact is an imperfect solution. Notably, a state can pull out of the Compact any time the majority in the Legislature changes.

Fix two: is a Constitutional Amendment abolishing the Electoral College

Abolition makes sense because the conditions that prompted the Founding Fathers to write the Electoral College into the Constitution no longer exist. For instance, America settled the dispute over slavery 154 years ago. Therefore, America will join most countries in electing its President by popular vote.

The big advantage to Electoral College abolition is that it will force both major political parties to appeal to all Americans rather than tiny minorities in a few states. Hence, we could have Republican campaigning in California and Democrats on the stump in Texas.

However, passing such an amendment will be difficult because 38 state legislatures will need to ratify the Amendment. Personally, I cannot see smaller low-population states abandoning the political power the Electoral College gives them.

Fix Three: is to reform the Electoral College

For instance, we could add one elector for every one million Americans. Under that system, California could have 96 Electors instead of 56, and Texas could have 67 Electors instead of 38.

Adding electors by population could preserve the representation of big states with declining populations, like New York. In addition, adding Electors by population will benefit growing states like Florida, Texas, Georgia, and Arizona and help both parties. Another benefit to this system is that it could force both parties to start appealing to the majority rather than select groups.

However, such a reform will require a Constitutional Amendment and the approval of 38 state legislatures. My guess is it will be impossible to get high and low population states to agree on an Electoral College reform.

Fix Four: is the most radical of all

It is to shift America to a parliamentary system in which Congress will elect the President.

History shows that parliamentary systems are more stable and effective than presidential systems. Britain’s parliament has been ruling; and responding to popular demands, effectively, for 330 years, for instance. Moreover, most English-speaking nations including; The United Kingdom, India, Australia, and Canada have successful parliamentary systems.

The problem is Fix Four requires a total rewrite of the Constitution and a Second Constitutional Convention (Con-Con). A Second Con-Con could be a catastrophic event because America has not held one in 233 years.

The last time a major nation tried to rewrite its Constitution through a long-dormant legal process. The results were the French Revolution, the Reign of Terror and the Napoleonic Wars, I note elsewhere.

Fix Five: Ask Candidates to Obey the Popular Majority

We could ask presidential candidates to sign a pledge stating they will not take office if they receive a lower percentage of the popular vote than an opponent. The problem with Fix Five is that I think it is unenforceable.

Honestly, I cannot imagine a candidate who has invested hundreds of millions of dollars and years of blood, sweat, and tears in a presidential run to bow out so nobly. Plus, it is hard to picture a candidate disappointing millions of loyal supporters and donors by bowing out. Yet, such a pledge could get people thinking about the Electoral College and the dilemma it creates.

Theoretically, Congress could pass a law making Fix Five legally binding. Conversely, I’m not sure Fix Five is Constitutional. Remember, the Electoral College is in the Constitution.

Reforming or scrapping the Electoral College will be hard but we need to think about it. If we do not fix or scrap the Electoral College, I think we could soon face a far worse Constitutional Crisis than Impeachment.

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