Winning at All Costs

Many countries with weak democracies have at least one political party willing to do anything to win, regardless of the harm to their country.  The latest developments surrounding our Electoral College process suggest more Americans are considering joining that club.

We hope they will change their minds.  The problem with being on a team willing to do anything to win is that the other team will be tempted to play just as low.  That puts the entire country into a downward spiral.

Want to learn more? Read on …

On December 7, 2020, the State of Texas filed a complaint with the Supreme Court of the United States. Texas asked that SCOTUS stop four states “from certifying their presidential electors or having them vote in the Electoral College.” Texas asked this on the allegation that those four states ran the absentee ballot and mail-in voting portions of their elections in ways that were unconstitutional and undermined electoral integrity.  

On December 9, all states had certified their electoral college votes after having checked carefully for any irregularities or fraud that might have changed outcomes.  They were able to do so only after proving scores of legal complaints about constitutionality and fraud were baseless.

On December 10, seventeen additional states and 106 congressional representatives have added their backing to the complaint from Texas.  Texas asked the justices to consider the case on an expedited basis in its December 11 conference.  Today.

One of the claims made by Texas is that the four states disenfranchised voters in all other states.  They make this assertion based on a 1983 Supreme Court case (Anderson v. Celebrezze). In that case, Presidential candidate John Anderson announced for the presidency after the State of Ohio cut-off date for filing. The Supreme Court ruled Ohio was too restrictive and allowed Anderson to proceed. Along the way, the court established that overly restrictive presidential election laws in one State could affect voters in other states.  Hypothetically, if Anderson would have won the Electoral College but for Ohio’s overly restrictive cut-off date, then Ohio would have disenfranchised all voters supporting Anderson, nation-wide.  Texas is now complaining that the four defendant states have not been restrictive enough, with the alleged result that the wrong presidential candidate won the Electoral College, thus allegedly disenfranchising millions of voters around the country.

If the Texas complaint is accepted and the court rules as requested, the state legislatures from the four states could choose their own electors to the Electoral College, independently of the popular vote established in their states so far.

Some commentators fear the outcome would mean a reversal of the electoral votes already certified by each State as of December 9.  If that were to happen, a new set of millions of voters would be disenfranchised instead of the alleged current of millions of voters disenfranchised today.  Is that an acceptable solution?  

Yet to be determined – would the State, county, and municipal election outcomes in those four states be rejected because they shared space on the same ballots used in the presidential election?

This case has the potential to be highly disruptive, regardless of whether the court takes it or not.

  • What happens to the millions of voters who believe they were cheated if the court declines to take up, or rejects, the Texas case?  Will they accept the rule of law? Will some lose all faith in the system and work to undermine it? 
  • The potential for trouble might be even greater if the Supreme Court does accept the arguments from Texas.  If that happens, then the court will have established two extremely divisive precedents:
    • Any state can interfere in the elections held in any other state. The implications go beyond words.
    • The Supreme Court can over-rule the votes of millions of Americans.  That, in turn, would convert today’s fights over court nominations into ultra-hyper-partisan battles.  Partisans from all ideologies would eventually suffer as the composition of the court shifts over time.

How do we climb down from this?  Is there a better outcome that would leave all Americans feeling better off? 

If there is, it will probably have to start with leaders deliberately lowering the presidential stakes. 

  • Part of that might involve rebalancing power between Congress and the Office of the President. (Our short courses on the presidency show how and why power has shifted.)
  • In the short-run, it would help if our state and federal officials would try the other way of earning votes – by problem-solving – instead of triggering new waves of outrage along urban/rural, religious, and racialized lines. 
  • We could help motivate our officials by going back to the old-fashioned idea of electing the best problem-solvers instead of tribal leaders.

Want to learn even more?  Read on:

  • Article 2, Section 1 of the U.S. Constitution assigns each State the power to choose Electoral College electors in a manner of their own choosing.  By 1828, however, most states required their electors to vote in accord with the popular vote in their states.  Since then, whether required or not, most electors have voted in accord with the popular vote in their states.
  • Article 4, Section of the Constitution, says that each State must respect the decisions taken by the other states. “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
  • The tenth amendment to the Constitution says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
  • The 1845 Presidential Election Day Act mandated all states to choose their electors on the Tuesday after the first Monday of November. There is a loophole: if a state fails to appoint electors by that day, then “the electors may be appointed on a subsequent day in such manner as the State shall by law provide.”
  • The 1887 Electoral Count Act sets out dates and procedures for administering the Electoral College.
  • The fifteenth amendment says, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

    Photo credit: Unknown.

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