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The Colossal Misunderstanding of the Function of the Electoral College in the US Constitution

Emanuel L. Paparella, Ph.D.

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[yt_dropcap type=”square” font=”” size=”14″ color=”#000″ background=”#fff” ] T [/yt_dropcap]here exists abroad, and even here at home, a notion, a sort of assumed conventional wisdom, that the proper function of the Electoral College is that of rubber stamping the results of a popular vote computed state by state.

Winner, or the candidate that totals the most electoral colleges, takes all and gets automatically elevated to the presidency, despite the fact that he/she might have received a couple of millions less votes in the popular vote. This is an erroneous notion which dishonors the intentions of the founding fathers and the framers of our Constitution.

I suggest to all those who hold such a view, to reject it. It is erroneous. The view is compelled by nothing in the US Constitution and represents a misunderstanding, in part propagated by a misinformed media, the so called pundits, who persist in spreading confusion on the elucidation of our democratic traditions. As the most important framers of US federalism in the Constitution, Alexander Hamilton, states: “the sense of the people should operate in the choice of the president.” It couldn’t be more clear. The will of the people should not be cavalierly infringed upon.

So, why the creation of an Electoral College? Given that this was a rather novel idea at the time, i.e., the idea of a representative democracy in the hands of the people (still imperfect to be sure, given that women, Blacks and white men with no property had no right to vote yet), the framers devised a safety valve, or a circuit breaker if you will, on the people’s choice. Some have imputed this to elitism pure and simple, to mistrust of the judgment of the people but that is equivalent to impugning the framers’ intentions. The Constitution begins with the very words “We the People.” Let’s focus, rather, on what the Constitution itself says in the matter.

In the American criminal justice system a judge has the right to review a jury verdict where the people have voted and reached a consensus to make sure that it’s all done according to the stipulations of the law. Similarly, the electoral college confirms, or abstains from confirming, the people’s choice. There is a choice to be made on its part, not an automatic rubber stamping. It is rare, but a judge can obviate the judgment of a jury if clearly the law and common sense has not been followed.

The Constitution says nothing about “winner take all.” An election is not a Las Vegas gambling casino. To quote Hamilton again: “electors are to apply a judicious combination of all the reasons and inducements which are proper to govern their choice.” Nowhere does it speak of automatic verdict or constraint; it speaks of free choice. Their wisdom on whether or not to overrule the people’s choice, was to remain free of political control and guided by democratic values. That is to say, they are not rubber stampers, or cogs in a machine, but free citizens exercising a judgment.

And what is that judgment to be exercised upon? Well, in the rare case that a proven child molester or a mentally deranged, or a renegade, gets elected by the people; or if there is evidence of massive fraud in a close election. But, before proceeding with what amounts to a veto of the people’s choice the evidence needs to be compelling and the judgment reflective.

Let’s now briefly look at the historical record. Only four times in US history has the electoral college selected a president against the will of the people —three times in the 19thcentury and once at the end of the 20th. In 1824, it was Congress that decided the election for John Quincy Adams; likewise in 1876, it was Congress that gave disputed electoral college votes to Rutherford B. Hayes. In 1888, Benjamin Harrison lost the popular vote to Grover Cleveland but won in the electoral college, only because Boss Tweed’s Tammany Hall turned New York away from the reformer Cleveland (by fewer than 15,000 votes). In 2000, George W. Bush lost the popular vote by a tiny fraction — half a percent — and beat Al Gore in the electoral college by an equally small margin — less than 1 percent.

In those four cases the result violated what has become one of the most important principles governing our democracy— one person, one vote. Some argue that this violates the fundamental value of representative democracy but nothing in the Constitution compels this result, and besides, the Constitution can legally be amended.

Back to our initial inquiry: what is the precise purpose of the electoral college? It is certainly not to deny a reasonable judgment by all the people by an elitist minority, at least not overtly so; but it is to function as a sort of circuit breaker just in case the people go crazy and elect an Adolf Hitler (as in fact happened in Germany in 1932, albeit not directly). So, should we decide to amend the Constitution and eliminate the electoral college we also be eliminating the function of circuit breaker.

Did the people go crazy in 2016? Not really, two million more of them voted for what they considered a qualified president, although her opponents may have considered her corrupt and devious. But, vice-versa, the candidate on the other side was no saint either offering the people a clear-cut alternative. Thus, the majority of the people rendered a reasonable judgment by a margin of two million votes.

So the electors, before casting their ballots, must now weigh the question of whether or not there is a good enough reason to veto the people’s choice before ignoring the fundamental principle of one person one vote and the equality of our citizenship. Thus the electors should respect the will of the majority of the people and ratify it on December 19. On that day the question before the electors’ conscience will be this: which precedent should govern; that of Tammany Hall and Bush v. Gore, or one person one vote, as has been the case most of the times elections have taken place? They are free to choose of course, as the Constitution provides. If they decide to leave the election as the people decided, then they will vote in Clinton’s favor. We will soon know if reason or Machiavellian politics-as-usual will prevail.

Professor Paparella has earned a Ph.D. in Italian Humanism, with a dissertation on the philosopher of history Giambattista Vico, from Yale University. He is a scholar interested in current relevant philosophical, political and cultural issues; the author of numerous essays and books on the EU cultural identity among which A New Europe in search of its Soul, and Europa: An Idea and a Journey. Presently he teaches philosophy and humanities at Barry University, Miami, Florida. He is a prolific writer and has written hundreds of essays for both traditional academic and on-line magazines among which Metanexus and Ovi. One of his current works in progress is a book dealing with the issue of cultural identity within the phenomenon of “the neo-immigrant” exhibited by an international global economy strong on positivism and utilitarianism and weak on humanism and ideals.

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Americas

Trump’s New Wall? Mexico’s Southern Border

Lisdey Espinoza Pedraza

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For much of modern history, Mexico defined itself in opposition to the United States. In recent years, the two countries stepped up cooperation on almost all relevant issues, and the two nations are now deeply intertwined politically, economically and culturally. This is bound to change. After months of ignoring Donald Trump’s provocations, López Obrador reacted rapidly to Trump’s shakedown and agreed to a number of resolutions of extraordinary scope and urgency: the new Mexican administration agreed to deploy the country’s federal police to its southern border to crack down on immigration; and opened the door to the controversial “Remain in Mexico” policy that would turn Mexico into a Third Safe Country in less than a month from now.

As stated in the agreement, Mexico would take in all the refugees that the US decides to send back to Mexico to await resolution of their asylum process. This could take years, given the substantial immigration backlog in American courts. The agreement goes further: Mexico is responsible for the provision of education, health care and employment for such refugees. This could easily lead to a serious humanitarian crisis that Mexican institutions will be unable to deal with.

This approach contradicts previous Mexican presidential vows for regional development and humanitarian relief rather than confrontation and enforcement. Conditions on the ground in Mexico are far harsher than the Mexican Foreign Affairs Minister, Marcelo Ebrard and the President, Andrés Manuel López Obrador, would like to admit, and this is partly due to the current administration’s miscalculations: López Obrador has dramatically cut the budget for governmental agencies responsible for managing refugees and processing removals. Mexican border towns are also ill-equipped for handling transient migrant populations; and Mexico also faces other more systematic challenges, such as corruption and lack of rule of law enforcement. The new policy agreed with the American government is likely to result in a significant increase in claims filed for asylum in Mexico. Mexico’s immigration bureaucracies are utterly overwhelmed, and López Obrador’s misguided budget cuts have exacerbated their failings.

Mexico’s immigration policy is now bound by an immoral and unacceptable deal that will effectively turn Mexico into Trump’s border wall. The global system for the protection of refugees is based on the notion of shared responsibility among countries. It is very dangerous for the US to use Mexico as a pawn to set an example and ignore its international responsibility. This agreement also violates international law on refugees: Mexico is a life-threatening country for undocumented migrants. Human trafficking, recruitment for organised criminal organisations, abduction, extortion, sexual violence, and disappearances are some of the issues migrants face in Mexico. Finally, Mexico’s National Guard, the agency that will be in charge of monitoring the southern border, was created by López Obrador to tackle domestic crime. Its members have no training nor knowledge on immigration matters. It is an untested new military force that could end up creating more problems than the ones it is trying to solve.  Deploying agents to the border could also have a high political cost for the president.

The agreement with Trump gives López Obrador 45 days to show progress. If Mexico fails, Mexico will be forced to set in motion some version of Safe Third Country agreement, or face further tariff bullying from the US. This deal has been sold by the new Mexican administration as a victory over the US. More migrants, less money, extreme violence and a recalcitrant, unpredictable northern neighbour are the ingredients for a potential, impending refugee crisis, not a diplomatic victory.

Could Mexico have taken a different approach? Yes. Trump’s decision to impose tariffs would exacerbate the underlying causes of immigration in the region and do nothing to address it. His bullying to force Mexico to crack down on immigration was a cheap electoral ploy to mobilise its base with a view to winning the 2020 elections. This is nothing new. Trump is not seeking a solution; he is seeking a political gain. He built his first presidential campaign on an anti-Mexico and an anti-immigrant rhetoric. It worked in 2016, and he is planning to repeat the same formula.

The Mexican administration lack of knowledge on diplomatic matters, and their inability to play politics let a golden opportunity go. Using trade to bludgeon Mexico into compliance with an immigration crack down makes no sense: Mexico is not responsible for the increase in migratory flows. Central America’s poverty and violence trace back to American policies in the 1980s. Mexico is not responsible either for America’s famously dysfunctional immigration system. Trump’s economic threats against Mexico may not even have been legal: both the North American Free Trade Agreement (NAFTA), and the newly agreed US-Mexico-Canada Agreement (USMCA) require most trade between members to be tariff free.

Mexico could also have hit back with by levying tariffs that would have hurt swing-state voters, and in turn hurt Trump. This was the golden opportunity Mexico let slip from its hands. Mexico could have responded by hitting Trump where it hurts: Tariffs on American goods heading south. Mexico responded in a similar manner in June last year in response to the steel and aluminium tariffs. Mexico could have raised those tariffs each month in tandem with American levels.

This retaliation would have highlighted the gap between Trump’s anti-Mexican rhetoric and the underlying interdependence of the US and Mexico with stark consequences for the US presidential elections of 2020. Many of the biggest exporters to Mexico such as Arizona. Florida. California, Michigan and Illinois are swing states. New tariffs could have thrown Texas into recession and put its 38 electoral votes into play. It is all too late now, Mexico could have inadvertently helped Trump to get re-elected. Mexico has less than a month left to show some backbone and demand real American cooperation on the region’s shared challenges and rejecting Trump’s threats once and for all. The relationship between Mexico and the US could have been an example of cooperation under difficult conditions, but that would have required different American and Mexican presidents.

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Scandinavia Veers Left plus D-Day Reflections as Trump Storms Europe

Dr. Arshad M. Khan

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Mette Frederiksen of the five-party Social Democrat bloc won 91 of the 169 seats in the Danish parliament ending the rule of the right-wing Liberal Party group that had governed for 14 of the last 18 years.  The election issues centered on climate change, immigration and Denmark’s generous social welfare policies.  All parties favored tighter immigration rules thereby taking away the central issue dominating the far-right Democrat Freedom Party which has seen its support halved since the last election in 2015.

Ms Frederiksen promised more spending to bolster the much loved social welfare model and increased taxes on businesses and the wealthy.  A left wave is sweeping Scandinavia as Denmark becomes the third country, after Sweden and Finland, to move left within a year.  Mette Frederiksen will also be, at 41, the youngest prime minister Denmark has ever had.

Donald Trump has used the 75th anniversary of D-Day commemorations to garner positive publicity.  The supreme promoter has managed to tie it in with a “classy” (his oft-chosen word) state visit to the UK spending a day with royals.  It was also a farewell to the prime minister as her resignation is effective from June 7.  Add a D-Day remembrance ceremony at Portsmouth and he was off to his golf course in Ireland for a couple of days of relaxation disguised as a visit to the country for talks — he has little in common with the prime minister, Leo Varadkar, who is half-Indian and gay.

Onward to France where leaders gathered for ceremonies at several places.  It is easy to forget the extent of that carnage:  over 20,000 French civilians were killed in Normandy alone mostly from aerial bombing and artillery fire.  The Normandy American cemetery holds over 9600 soldiers.  All in all, France lost in the neighborhood of 390,000 civilian dead during the whole war.  Estimates of total deaths across the world range from 70 to 85 million or about 3 percent of the then global population (estimated at 2.3 billion).

Much has been written about conflict resolutions generally from a cold rational perspective.  Emotions like greed, fear and a sense of injustice when unresolved lead only in one direction.  There was a time when individual disputes were given the ultimate resolution through single combat.  Now legal rights and courts are available — not always perfect, not always fair, but neither are humans.

It does not take a genius to extrapolate such legal measures to nations and international courts … which already exist.  Just one problem:  the mighty simply ignore them.  So we wait, and we honor the dead of wars that in retrospect appear idiotic and insane.  Worse is the attempt to justify such insanity through times like the “good war”, a monstrous absurdity.

It usually takes a while.  Then we get leaders who have never seen the horror of war — some have assiduously avoided it — and the cycle starts again.

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Americas

To Impeach Or Not To Impeach? That Is The Question

Dr. Arshad M. Khan

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Robert Mueller let loose a thunderbolt midweek.  Donald Trump had not been charged, he said, because it was Department of Justice policy not to charge a sitting president.  Dumping the issue firmly into Speaker Nancy Pelosi’s lap, he reminded us of the purpose of the impeachment process.  According to Mueller there are ten instances where there are serious issues with the president obstructing justice adding that his report never concludes that Trump is innocent.

So here is a simple question:  If Mueller thought the president is not innocent but he did not charge him because of Justice Department policy, and he appears also to favor impeachment, then why in heaven’s name did he not simply state in his report that the preponderance of evidence indicated Trump was guilty?

Nancy Pelosi is wary of impeachment.  According to the rules, the House initiates it and when/if  it finds sufficient grounds, it forwards the case to the Senate for a formal trial.  The Senate at present is controlled by Republicans, who have been saying it’s time to move on, often adding that after two years of investigation and a 448-page report, what is the point of re-litigating the issue?  They have a point and again it leads to the question:  if Special Counsel Mueller thinks Trump is guilty as he now implies, why did he not actually say so?

Never one to miss any opportunity , Trump labels Mueller, highly conflicted, and blasts impeachment as ‘a dirty, filthy, disgusting word’,  He has also stopped Don McGahn, a special counsel at the White House from testifying before Congress invoking ‘executive privilege’ — a doctrine designed to keep private the president’s consultations with his advisors.  While not cited anywhere in the Constitution, the Supreme Court has held it to be ‘fundamental to the operation of government and inextricably rooted in the Separation of Powers under the Constitution.’  Separation of powers keeps apart the executive branch, the legislature and the judiciary, meaning each one cannot interfere with the other.

Nancy Pelosi is under increasing pressure from the young firebrands.  Rep Alexandra Ocasio-Cortez has already expressed the view that it is time to open an impeachment inquiry against Trump given the obstruction of lawmakers’ oversight duty.

Speaker Pelosi is a long-time politician with political blood running through her veins — her father was Mayor of Baltimore and like herself also a US Representative.  To her the situation as is, is quite appealing.  Trump’s behavior fires up Democrats across the country and they respond by emptying their pockets to defeat the Republicans in 2020.  Democratic coffers benefit so why harm this golden goose — a bogeyman they have an excellent chance of defeating — also evident from the numbers lining up to contest the Democratic presidential primaries, currently at 24. 

Will Trump be impeached?  Time will tell but at present it sure doesn’t look likely.

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