Civil Discourse Now

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"Winner takes all" selection of electors violates Indiana's Constitution.

The Electoral College is a vestige of the “Great Compromise” of the 1787 Constitutional Convention, whereby States were apportioned seats in the House of Representatives based on population, but each State - even the smallest - had two (2) seats in the Senate. States in which slavery was allowed benefitted. “Each person in a State, regardless of her or his status, was counted for purposes of apportionment of seats in the House and electoral voes: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons...” U.S. Const., Art I, sec. 2.
The most important compromises at the Convention had to do with slavery, an evil institution or practice the effects of which still haunt us. Those compromises were discussed and made at night, after the delegates adjourned for the evening. Neither the word “slave” nor any derivative of it appears in the text of the Constitution as ratified by the States. Also, the phrase “Electoral College” appears nowhere.
The “winner takes all method of apportionment of electors - in use in 48 States - - immediately screws about half of the electorate. The votes of the people who voted for the candidate who received fewer votes IN THAT STATE amount to - crap, to say it nicely. 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 counted is a right both ‘individual and personal in nature. Reynolds v Sims, 377 U.S. 533, 561 (1963). The right of suffrage can be denied by a debasement or dilution of the right to vote just as effectively as by wholly prohibiting the free exercise of the franchise. Reynolds, 377 U.S. at 554.
“Winner-take-all” was not provided in the Constitution. In fact, as James Madison noted in a letter in 1823 to George Hay, a Washington lawyer and, later, a Federal judge, most of the delegates to the 1787 Convention opposed electors voting in blocs - a/k/a, winner-takes-all.
Early elections had various means by which electors were chosen.
The national elections of 1788 and 1792 were the first under the Constitution, the dominant figure was George Washington, and a dynamic of those elections was the nearly unanimous support he received as the choice for President. In 1788, he ran virtually unopposed and won one (1) vote from each of the electors of the Electoral College. In that election, Connecticut, New Jersey, Delaware, South Carolina, and Georgia appointed their electors via their legislatures. In New York, the effort to follow those fives States’ lead became mired in argument to the extent that New York missed the day for voting and its electors were not chosen. Because Rhode Island and North Carolina had yet to ratify the Constitution, those States did not participate in the election. In Maryland and Virginia, electors were selected by popular vote on a district-by-district basis. In the Commonwealth of Pennsylvania and the State of New Hampshire, electors were chosen by statewide popular vote by use of a general ticket. In Massachusetts, electors were chosen by popular vote district-by-district, with the Commonwealth’s legislature appointed two electors at-large. Peirce and Longley, “The People’s President: The Electoral College in American History and the Direct Vote Alternative,” 1981 ed., p. 33.
President Washington enjoyed similar success in his re-election in 1792, in which all thirteen (13) of the original States were able to vote. Vermont and Kentucky also had joined the Union. One Commonwealth, Pennsylvania, and one State, Maryland, cast popular votes for President. No other State cast popular votes for the Nation’s highest office. Those States restricted the vote via property requirements.
The election of 1800 exposed flaws in the means by which the President was elected, under Article II of the Constitution. Jefferson ran for President, with Aaron Burr. As one writer has noted: “.. .Burr was primarily responsible for Jefferson’s election. In the presidential campaign of 1800 Jefferson had once again been matched against Adams. ... In all states except New York, Adams actually matched or exceeded his electoral votes in the 1796 contest, by which [Adams] had won by a narrow margin. But New York had gone decisively for Jefferson, providing [Jefferson] his slim margin of victory. And the man who had delivered the electors of New York to Jefferson’s camp was the irrepressible Aaron Burr, whose price for this important contribution was a place on the ballot alongside Jefferson.” Ellis, “American Sphinx,” 1998, pp. 206-07. As Ellis goes on to describe, “because of a quirk in the electoral system that prevented electors from distinguishing between votes for president and vice president ... Jefferson and Burr had received the identical number of electoral votes. This threw the election into the House of Representatives, where the Federalists were able to block the majority necessary for Jefferson’s selection for six days and thirty-six ballots. Even though everyone acknowledged that the American electorate had intended to choose Jefferson as it president, Burr had done nothing to indicate his willingness to defer.” Id., p. 207.
As a consequence, the Twelfth Amendment was ratified.
Hamilton’s description of electors as “men chosen by the people for the special purpose at the particular conjuncture” to choose the President is not how we choose electors today. If that were the case, one may reasonably infer, the names of the electors would appear on our ballots and we would vote for those individuals. Instead, we vote for the team of candidates for President and Vice-President. One would also infer, again reasonably, that electors would not run as a “block.” If one is to trust in these men—the Constitution was written and ratified at a time when women did not have the right to vote although, ironically, women were eligible to run for the office of President—a voter could choose each as to that elector’s merits and wisdom.
“Winner takes all” might be defended on same bases, but not on the basis that it comports with equal protection of the law. Under Indiana’s Constitution, the “General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.” Ind. Const., Art. 1, § 23. Indiana statute provides for “winner take all,” not our Indiana Constitution.

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