Civil Discourse Now

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Nearly 66 million voters were disenfranchised in 2016's election for Pres

One of my opponents in the May 5 primary for U.S. House in Indiana’s 5th Congressional District (INCD5), Andrew Bales, posted - and I think has removed the statement - on the home page of his campaign website that the “Impeachment fiasco” “potentially disenfranchises 64 million Americans.”
One may reasonably infer that Mr Bales refers to the people who voted for the individual who currently occupies the Oval Office. The Federal Election Commission (FEC) official final tally in the popular vote shows that ticket with 62,984,825.
To “disenfranchise” means to “deprive (someone) of a right, esp. the right to vote; to prevent (a person or group of people) from having the right to vote.” Black’s Law Dictionary, 10th ed., 2014, p. 567.
The right to cast a vote and the right to have one’s vote counted are both constitutionally protected. U.S. v Classic, 313 U.S. 299, 315 (1941). A person’s interest in participating in the political process through voting and having her or his vote count is a right both individual and personal in nature. Reynolds v Sims, 377 U.S. 533, 561 (1963).
The right to vote is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. Bush v. Gore, 531 U.S. 98, 104 (2000).
Secretary Clinton, according to the FEC, won 65,853,516, or a margin of victory in the popular vote of nearly three million. Mr. Bales is more concerned about the (nearly) 63 million people who might be, instead of the (nearly) 66 million who actually were, disenfranchised.
"It is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried, unless he or it receives a majority or a plurality of the legal votes cast in the election." 29 C.J.S., Elections, § 243, p. 353. Oviatt v. Behme, 238 Ind. 69, 78 (1958).
Oviatt was a case handed down by the Supreme Court of Indiana in 1958, hardly a hotbed of left-wing polemics even today.
Of several problems with the system of electors - called by some, but not The Constitution, the “electoral college” - is all but two States apportion their electors on a winner-take-all basis. This was not part of the Constitution.
There is no specific body chosen to select a president. Each State determines the way in which its “Electors” are selected. U.S. Const., Art. II, sec. 1. Electors “shall meet in their respective states, and vote by ballot for President and Vice-President...” Amend. XII.
Indiana, like most States, requires that an elector named by a political party must take an oath that she or he will vote for that party’s Pres/VP candidates. Ind. Code § 3-10-4-1.7. Indiana apportions its 11 electors by “winner-take-all”: the winner of a plurality of the popular vote gets all 11 electors’ votes.
There is no indication the Framers intended the electors to vote as a “block”—or “winner take all”—committed or locked to a single candidate. The concept of such a commitment is antithetical to the concept of the electoral college as intended by the Framers, particularly if that “lock” or commitment is tied in any way to political parties or “factions.”
Early elections for President and Vice President did not employ “winner-take-all.” The national elections of 1788 and 1792 were the first under the Constitution. In 1788, the legislatures of Connecticut, New Jersey, Delaware, South Carolina, and Georgia appointed their electors. Peirce and Longley, “The People’s President: The Electoral College in American History and the Direct Vote Alternative,” 1981 ed., p. 33.
New York missed the day for voting and its electors were not chosen. Rhode Island and North Carolina had not yet ratified the Constitution and did not participate in the election. In Maryland and Virginia, electors were selected by popular vote on a district-by-district basis. Id.
Pennsylvania and New Hampshire chose their electors by statewide popular vote. Massachusetts chose its electors by popular vote district-by-district, and the legislature appointed two electors at-large. Id.
In 1792 all 13 of the original States plus newly-admitted Vermont and Kentucky were able to vote. Pennsylvania, and Maryland cast popular votes for President.
The election of 1800 exposed flaws in Article II of the Constitution. Thomas Jefferson ran for President, with Aaron Burr as VP. Because of a quirk, electors could not distinguish between votes for president and vice president and so Jefferson and Burr tied in number of electoral votes. This threw the vote to the House of Representatives, where Federalists blocked the majority necessary for Jefferson’s selection for six days and thirty-six ballots. Even though everyone acknowledged the electorate had intended to choose Jefferson as its president, Burr did nothing to indicate his willingness to defer. Ellis, American Sphinx, p. 207.
As a consequence of this kerfuffle, the Twelfth Amendment to the Constitution was drafted and ratified. Winner-take-all was not established as the predominant means of apportioning electors until after the election of 1824, when the winner of the popular vote - the slave-holding, genocidal populist Andrew Jackson - won the popular vote, but no candidate had a majority of electors.
At no time - let me repeat, just to be clear: at no time - was the idea that a minority SHOULD choose the President. As Alexander Hamilton wrote in Federalist 68, the system of electors was created to afford “a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confident of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.”
The “winner-take-all” system effectively disenfranchises those who vote for the other ticket or tickets. The way in which the system of electors has developed effectively disenfranchised the people who voted for the actual winner of the 2016 election.
We need to protect our voting system to ensure that, in the future, a mentally defective, incompetent, corrupt individual who is a puppet for a hostile foreign power cannot occupy the Oval Office.
We also need to act so as to ensure that the majority is not disenfranchised. Of course The Constitution was written by wealthy white, male landowners in 1787, when black people were sold as chattel, women could not vote, and indigenous peoples were slaughtered to make way for white settlement of lands to the west.
I am Mark Small, a candidate for U.S. House in Indiana’s 5th Congressional District in the May 5 GOP primary. I am proud to be a progressive. I approve of this blog. Hell, I wrote it.

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