Abraham Lincoln

Electoral Reform Fantasies

It’s been a particularly divisive…month? year? presidency? Maybe you could even argue this last decade or so has been increasingly polarizing. Last election cycle specifically was unlike anything we’ve seen in the modern political era in terms of highly unpopular candidates running against each other, just look at the numbers:

Trump won with the lowest popular vote percentage of any president since Bill Clinton in 1992, when Ross Perot ran as a third party candidate getting 19% of the vote. In fact, Trump won the lowest percentage of any president in US history when no third party got more than 5% of the vote. Actually, we can go further; every case in which a US president was elected with less than Trump’s 46.1% had a third party getting over 8% of the vote that year. Except 2016.

Thus, we should first acknowledge that political frustration with political parties is nothing new in American politics. The only difference is that this time, there are no other parties to turn to.

This is a problem. Organizations acquire rules and absorb ideas over time. Sometimes those ideas are toxic to the organization, and it is out-competed. I’m mostly imagining the creative destruction of the market, but the same logic can apply to religions, non-profits, and political parties. However, the Republican and Democratic parties have constructed excellent barriers to entry, helped along by American electoral rules. Perhaps these barriers to entry have always existed, but they seem particularly effective at present.

I believe this lack of competition has resulted in two parties that are having difficulty providing a platform for new political ideas or approaches. Without competitive pressures, there is a lack of popular outlet and political advocacy, resulting in frustration. With only two political parties to work with, the idea of a political dichotomy seems inescapable, with every single culture battle melding together to become one gargantuan struggle between two fiercely divided tribes.

This is by no means the only problem we face: sluggish postindustrial economic growth, cost disease, shrinking populations, etc, are all issues. However, it’s quite possible our outdated political system may be stifling any solutions. Thus, I’d like to provide some ideas to fix the way we run our democracy.

Primaries

Presidential primaries seem to be the toughest to fix, but primaries themselves would become much less important with other reforms. Primaries today tend to favor more extremist candidates, while general elections (and, by definition, most people) favor more centrist ones.

One way to solve this is with an open primary, which some states have. California even has an “open blanket” primary, where the top two vote-getters in the primary are on the ballot in the general election, regardless of party. Of course, California does not use such a system for president (Donald Trump would have likely not been on the ballot if they had). There are drawbacks here, as theoretically several centrist candidates could split the “centrist” vote and leave two extremists running in the general election.

One possible way to help improve the presidential primaries might be to rotate the order in which states are the “first” primary. Iowa has often been the first state, but New Hampshire actually has a law that it must be the first presidential primary by a week (Iowa has caucuses, so New Hampshire has decided those don’t count). New Hampshire isn’t a great bellwether: going back to 1980, in election years where a candidate won a competitive primary and then won the presidency (i.e. not 2012, 2004, 1996, 1984 when a sitting president was re-elected), New Hampshire got Donald Trump in 2016, George H. W. Bush in 1988, and Ronald Reagan in 1980. It wrongly selected Hillary Clinton over Obama in 2008, John McCain over George W. Bush in 2000, and Paul Tsongas over Bill Clinton in 1992.

Iowa isn’t any better. It selected Obama in 2008 and George W. Bush in 2000. And it wrongly selected Ted Cruz over Donald Trump in 2016, Tom Harkin over Bill Clinton in 1992 (Harkin was from Iowa, but Paul Tsongas came in second, not Clinton), Bob Dole over George H. W. Bush in 1988, and George H. W. Bush over Reagan in 1980.

So in our first two primary states over the last 30+ years are 3/6 and 2/6 respectively when picking a president from a competitive field. Not great.

There’s some merit to simply holding a national primary all at once. The argument against it is that this may bias the primary system against discovering good lesser known candidates who can campaign in small states more easily than a national stage. However, there’s no evidence indicating such a system of candidate discovery functions with the small states at present. Maybe we need other states that better represent a microcosm of the country. Maybe such states don’t exist.

Ballot Access

Did you wonder why there wasn’t a well-known centrist Republican candidate running as a third party in the race last year? It seemed to be the perfect storm. A significant minority of Republicans were not a fan of the party’s nominee; the party’s previous nominee had called out Trump in an aggressive speech earlier in the year, and the Democrats had nominated a fairly progressive, well known candidate that most conservatives disliked.

Well, it turns out there was one, Evan McMullin, but he was only on the ballot in 11 states, accounting for 84 possible electoral votes. Why? Because it costs hundreds of thousands of dollars to get onto the ballot in most states. The Libertarian Party candidate Gary Johnson was the only third party candidate on the ballot in all 50 states. In fact, he was the first third party nominee to be on all 50 ballots since 1996. Johnson did better than previous Libertarian Party candidates, and so the LP will not have to spend as much money for ballot access in the coming cycle…yet they are still looking to raise $130,000 this year just for ballot access costs.

This needs to change. There can be no serious competition to the current parties without fixing the ballot access problem.

Take a look at the Wikipedia article on the topic for a good overview. One problem is that major political parties are often exempted from ballot access requirements entirely. Other times, parties that get over a certain percentage of the vote are not required to gather signatures. The signatures are often rejected, so in reality the signature requirements are really 20-30% higher than actually stated. Ohio is an interesting example, as it requires a candidate to file in March, before they are actually nominated at their party’s convention. To get around this, the LP of Ohio filed a placeholder candidate in 2016, and then changed it to Gary Johnson later in the year. Of course, he had to file as an independent candidate since Ohio’s independent requirements are much less burdensome than trying to get the Libertarian Party be recognized as a state political party.

A possible solution would be to at least even the playing field by having a federal law forcing all qualification rules to apply to all parties running for federal office, including the Republican and Democratic parties. This would require them to waste resources on gathering signatures as well. Of course, the major parties could handle large numbers of signatures more easily since they have more resources available, but it still might be difficult enough to push them to reduce the total number of signatures to more practical levels.

More direct reductions in the ballot access requirements would be great as well, but perhaps not as directives from the federal government for the sake of federalism. Of course, none of this will happen, as there are no third party members in office at the national level, and thus no interest in reforming third party access at the state level.

House of Representatives – Single Transferable Vote

This one is totally crazy I know. It would definitely require a change in law, as it’s currently against the rules to have more than one representative from a district. However, I don’t suspect it would be unconstitutional, as each state creates their own districts and runs their own elections.

An STV system is unambiguously better than our current system. Single Transferable Vote is a voting system where you rank several candidates in a multi-member district. The candidates that reach a threshold of support (something like 33% for a three seat district, 25% for a four seat district, etc) are elected. If not enough candidates reach the threshold, unpopular candidates are eliminated with voters’ next choices receiving their votes instead, until all seats are filled. This helps achieve a proportional representation while maintaining local legislators. Currently all Representatives are elected in single member plurality elections, also known as First Past The Post (FPTP). For an easily digestible explanation of STV, watch CGP Grey’s video on the system.

STV systems do well when there are many seats available in a single district. Ireland has used as many as six seats in a single district, Tasmania has used as many as seven. Given the US population of 320 million, the average congressman represents over 700,000 people, with the median being even higher. However, many Americans live in cities much larger than 700,000, and so there are many cities that could support single citywide districts with five or ten congressional seats filled by STV. These could much better reflect the diverse viewpoints of those living in cities. Of course, cities wouldn’t be the only ones who benefit from this, as gerrymandering can also be done to disenfranchise rural voters depending on who’s drawing the boundaries.

Gerrymandering is itself much harder with STV multi-member districts. This itself is an indication that an STV system is better than what we have now. Even if STV is poorly implemented with districts that only have three or four seats, it would be a vast improvement in representation and political competition than what we have today.

This reform is certainly the most important reform for third parties. I don’t think third parties will solve all our problems; other countries have plenty of third parties with little to show. But it’s certainly a necessary step in providing alternatives to the duopoly people are obviously very sick of. Moreover, even if third parties aren’t super successful, the threat of competition will force the two major parties to react. We need a diversity of opinions and new ideas, and without third parties, everything has to be filtered through a party system with vested interests and previous baggage.

President – Approval Voting

The electoral college system is supposed to select a candidate from a wide range of possible candidates, with the college of electors itself imagined as acting as a bulwark against the excesses of democracy. This didn’t really pan out the way the founders of the United States might have hoped. Instead, several elections have resulted in presidents being elected despite other candidates actually receiving a plurality of the popular vote.

Those were:

1824, when Andrew Jackson won 41% of the vote in a split election that was thrown to the House of Representatives since no one had an electoral college majority. The House picked John Quincy Adams, who lost in 1828 to Andrew Jackson. This one is less concerning because there was no clear majority, so while Jackson didn’t like it, the system “worked”.
1876, when Samuel Tilden handily won an outright majority of the popular vote, and probably won the electoral college, but a “bipartisan” commission gave 15 “disputed” electoral votes to Rutherford Hayes instead. I’m still bitter.
1888, when sitting President Grover Cleveland won a close popular vote victory, but lost in the electoral college to Benjamin Harrison. Cleveland would win the rematch (both popular vote and electoral college) in 1892.
2000, when Al Gore won a plurality of the vote, but lost Florida by a few hundred votes, and so George W. Bush became president.
2016, when Hillary Clinton won a plurality of the popular vote, but Donald Trump won the electoral college.

If we set aside 1824, which I think is reasonable, we have 4 elections out of 58 total in American history in which the electoral college has selected against the popular vote winner, despite only two major candidates in those elections. This is an error rate of 6.9%.

But how to fix this? There have been several times when the electoral college was helpful in sorting out a multi-candidate election. In 1860, Lincoln won a plurality with only 39.8% of the vote, but the electoral college gave him a majority. From a voting system perspective, this may not be seen as a victory, as Lincoln’s election was so divisive, it precipitated southern secession. However, in 1912, Woodrow Wilson won the electoral college with only 41.8% of the vote in a three way race. 1968 and 1992 may also be considered elections where the electoral college helped establish a winner when the plurality winner only had vote totals in the low 40s.

Moreover, any debate about the electoral college, especially after this most recent election must necessarily have political implications. Nonetheless, I believe I have a system that is strictly better than our current system, preserving any usefulness it has. The proposal is as follows.

Ballots for president will ask two questions, one asking the voter to select all candidates which they will be ok with being president (approval voting) and one asking voters to select their single favorite candidate (first past the post/ our current voting system).

The president will be chosen based on who receives the highest percentage in the approval voting ballots, as long as the percent total is above a threshold. Here I’m recommending 55%. In the case of no candidate receiving above 55% of the vote, the system simply defaults back to the electoral college system using the second, first past the post / favorite candidate vote.

I suspect this would encourage much more positive campaigns, as candidates try to attract as many voters as possible rather than scare voters away from voting from their opponents. It would also make third party campaigns much more useful, as there is less strategic voting with approval voting. If a popular centrist party had a candidate with broad appeal across the spectrum, they could get votes without causing right or left wing voters to fear their votes are “wasted”. Moreover any candidate that wins the approval vote would have a strong mandate with a super-majority of voters supporting them. This is what the electoral college was supposed to bring us, a wide base of support for the president, but this system will guarantee it outright.

In the worst case scenario, if I am wrong about these predictions, the system is simply what we have right now, today. There is no way for it to do worse than our current system since it’s fall back is our current system. In this way, it is also conservative and gradual in its reform, in ways other voting systems are not.

Conclusion

These reforms are likely long shots, but I think it’s undeniable that our current system of government is deeply flawed. These are just my current best ideas, so if you read this and have some voting systems that you think would be more politically palatable or mathematically accurate, be sure to let me know on Twitter, Reddit, or email.

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Picture Credit: Vote here, vote aqui. Erik Hersman. Licensed under CC BY 2.0.

Only One President Has Defied the Courts

It’s not Trump.

Or, I should say, it’s not Trump yet. However, given this administration’s…broad view of executive power, it’s worth looking at how past presidents have interacted with a court system that opposed them. Most presidents, as you would expect, reacted to an unfavorable court ruling by obeying the courts’ directive, with only a few real exceptions.

From history class, I recalled that Chief Justice John Marshall had ruled against Andrew Jackson’s interest in dealing with the Native American populations. But upon further inspection, it appears that despite the famous quote of Jackson’s “John Marshall has made his decision; now let him enforce it!”, the ruling in Worcester v Georgia was actually not a constitutional crisis. The quote itself seems apocryphal.

Marshall ruled that Georgia did not have the ability to regulate the interaction between Georgians and the Cherokee; instead, only the federal government has that power. Georgia complied and they freed the plaintiff, Worcester, eventually, but Andrew Jackson had nothing to enforce, since the federal government was not a party to the suit. Moreover, the Indian Removal Act had already been passed, and so the removal of native tribes on the Trail of Tears continued, with Marshall’s ruling changing nothing.

In 1942, German sabateurs were captured on American soil. President Franklin Delano Roosevelt issued an executive order declaring they would be tried by a military tribunal, and they appealed that the President could not try them under a military tribunal, and they petitioned for a writ of habeas corpus under the 1866 decision Ex parte Milligan which stated that civilians in the U.S. could not be denied habeas corpus and their right to trial. In Ex parte Quirin, the Supreme Court ruled against the Germans, siding with the President. Pretty straightforward, except according to Newt Gingrich (couldn’t find it anywhere else), Roosevelt threatened the Court that he would ignore their ruling and refuse to issue a writ of habeas corpus if the justices decided against him. So not a constitutional crisis, just the threat of one.

In 1952 there was a famous case of Truman seizing control of steel mills during the Korean War. In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court ruled against Truman, stating that the powers the president claimed to have under the Taft-Hartley Act were not present. One of the concurring opinions was that of Justice Robert Jackson who divided presidential power into three categories: (1) Powers explicitly granted or implied by Congress, (2) Powers that Congress has not stated a position on, and (3) Powers that Congress has explicitly or implicitly rejected from giving to the president. This has become the standard way of analyzing presidential versus congressional power. Of course, at the conclusion of the case, Truman immediately returned control of the steel mills to their owners. Again, the Court’s decision was respected.

Perhaps the most famous case of executive action gone overboard is the Watergate scandal. A special prosecutor obtained a subpoena ordering Nixon to turn over certain conversations he had recorded. Nixon argued that the special prosecutor had not proven the tapes were important to the investigation, that the courts did not have jurisdiction over this “internal” executive branch matter, and that the President has absolute executive privilege of communications between high government officials. The Supreme Court ruled unanimously against him on all three counts. However, in United States v Nixon, Nixon did comply and turn over the tapes, despite it likely ending his presidency. This was a major moment, as I detailed in “Against Trump“, several months ago. If he had refused, would the court have been able to hold him in contempt and have U.S. Marshals arrest him? Technically, the marshals are part of the Justice Department, so that seems problematic, as the Justice Department answers to the President. Regardless, we have gone through almost all the famous cases, and the President has basically never gone against an explicit court decision.

Going further back than any of these presidents, it’s possible that Jefferson was the first to have actually defied the courts. In 1807, Thomas Jefferson signed the Embargo Act which was meant to punish Britain and France during the Napoleonic Wars for their attacks on American shipping. It was a pretty miserable failure, and apparently in Gilchrist vs Collector of Charleston, Justice William Johnson ruled against the government’s authority (although this was a congressional action, not just executive action). The New Yorker says that despite this ruling, the policy remained in place until 1809, but it was so early on in American history that I’m having trouble finding any sources to validate that claim.

But we can do better than an alleged delayed repeal of an unconstitutional act of Congress from 200 years ago! The best example of defiance on record belongs to Abraham Lincoln in the aftermath of Ex parte Merryman, and it is quite unrepentant.

In 1861, Chief Justice Taney (in the capacity of a Circuit Court) ruled that President Abraham Lincoln had unconstitutionally suspended the right to the writ of habeas corpus during the Civil War. The court ruled only Congress has that power. Lincoln and the army defied the order. Their argument was hilariously reminiscent of Trump, stating that Taney had not actually ordered them to release Merryman. Of course, they didn’t stop there as several newspaper owners and editors were also detained by the federal government, as well as eventually the Baltimore police chief, the Baltimore mayor, and even 30 members of the state legislature! A Maryland state judge was not only arrested, but beaten unconscious by federal troops, and then held without being charged for six months.

Even after the judge’s ruling, Congress did not vote to authorize Lincoln’s suspension of habeas corpus, until two years later, in the 1863 Habeas Corpus Suspension Act.

So what are the takeaways? One is that it’s fairly common for presidents to claim they have more power than they do. Obama, for example, lost in the Supreme Court more often than any modern president. It is, however, highly uncommon for presidents to actually defy the courts and continue to use their claimed powers when the courts have ruled against them. If Trump were to do so, by my estimate he would be the only person to do so not during a civil war.

Another interesting point is that in terms of abuse of power and constitutional crises, Trump has done nothing in comparison to Lincoln. Certainly President Lincoln faced extenuating circumstances and a secession crisis that may have made further constitutional crises seem minuscule in comparison. Nonetheless, it seems clear in hindsight that suspending habeas corpus did not improve support for the Union in Maryland, nor was jailing critical members of the press really necessary for victory. Interestingly, according to author Marc Neely, Lincoln was able to get away with these civil liberties abuses because they were largely aimed at three groups with little political power: residents of southern states who had been stuck on the wrong side of the border when war broke out, residents of border states where Lincoln had little political backing anyway, and foreigners.

Of course, if anyone was justified in taking extreme actions on civil liberties, it would be the president during the civil war, but unfortunately, every executive targets politically vulnerable groups and justifies it under national security reasoning (Adams, Wilson, FDR, Nixon, George W. Bush). And as you’d expect, Lincoln’s actions have become a precedent for other abuses. This essay from the Heritage Foundation in 2004 cites Lincoln’s actions in justifying President Bush’s holding of “enemy combatants” without a trial, equating the war on terror with the dangers of the Civil War. Trump has used related ~~rhetoric~~ words to describe threats from immigration. Were he to ignore a court order in the future, it’s virtually certain to be under national security justifications.

Finally, regardless of Lincoln’s accomplishments, we should be very concerned with any presidents who cite Lincoln’s extreme wartime actions as justification for their policies. Lincoln’s circumstances were extreme, and even then I would argue his defiance of court rulings was questionable. Any test for when it is acceptable to suspend civil liberties should be equally extreme in rigor. For example, unless states have actually seceded and there currently exists a newly elected second president of those seceded states, Congress should not even consider curtailing civil liberties, much less the President alone. Nonetheless, the long history of executive overreach by American presidents is likely to continue under Trump. We can only hope it never reaches the unprecedented event of peacetime court defiance.

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