Monday, November 21, 2016

Law Professor claims that part of the Constitution is unconstitutional

It could be satire, of course. That would be the best case scenario. For some reason, satire is notoriously hard to separate from mere stupidity on the Internet. In fact, satire seems to attract stupidity; thus, every now and then, the North Koreans or the Iranians mistake a yarn on the Onion for a serious news story.

The article in question here, "Is The Electoral College System For Choosing Our President Unconstitutional?" appeared in the Huffington Post. The Huffington Post is not the Onion. At least not intentionally, or all the time. So this makes the determination of whether this article is meant to be laughed at, instead of merely laughable, that much more difficult.

And there really is a Professor Leon Friedman who teaches Constitutional Law at Hofstra University, in Hempstead, New York. He is pictured at left. And he's no adjunct, either; Friedman is the Joseph Kushner Distinguished Professor of Civil Liberties Law. That sounds impressive. Tuition at the Maurice Deane School of Law at Hofstra University is a cool $54,250 a year, according to this U.S. News & World Report web page. This, too, sounds impressive. According to Wikipedia, only 57.7% of the 2014 graduates of the Deane Law School had found "full-time, long-term, JD-required employment nine months after graduation." This seems less impressive.

A possible partial explanation for this anemic statistic is suggested if the article was intended to be serious.

Of course, it could be a case of stolen identity. Some jokester may have bamboozled the Huffington Post into believing that the Professor Friedman who contributes articles is the real Professor Friedman who teaches at Hofstra. As FWIW recently reported, there have been some fairly sophisticated identity appropriations out here in the Ether. On the other hand, the bio of the Huffington Post's Professor Friedman lines up fairly well with that of the apparently real prof.

At the risk of foolishly mistaking satire for seriousness, let's get this out of the way: The Electoral College can't be unconstitutional, because it is expressly provided for in the Constitution. Twice. First by Article II, Section 1, and then again by the 12th Amendment. You know, the Amendment drafted after the Election of 1800 resulted in a tie between Thomas Jefferson and Aaron Burr? While constitutional law professors on Long Island may not have much working knowledge of the original document, one would think they'd be conversant with that musical still playing on Broadway, Hamilton.

Now, there might be an argument that the Electoral College has outlived its usefulness to the nation and should be abolished in the only way possible (for the benefit of any law professors in the audience, that would be by constitutional amendment). It's a bad argument, in my opinion, because the need to prevail in the Electoral College should force a candidate to seek support in a majority of the states, and not just seek majorities in the largest population centers. In this way a candidate must try and build a truly national consensus. This helps hold the nation together after a close national election. Also, properly functioning, the Electoral College serves as a mandate multiplier, which again serves the laudable purpose of bringing the nation together after a close national election.

Most national elections are close. A few million votes, and only a few percentage points, separate the winner and loser. But---usually---the Electoral College turns that close result into a seeming landslide for the popular vote winner.

No, that's not what happened this time. Or in 2000. Or in 1876. Or in 1824. But that's the whole list. And, in three of those four elections, third and/or fourth party candidates prevented the top vote-getter from achieving a majority of the votes case (the exception was Samuel Tilden in 1876; he had 50.9% of the vote).

But, writes, Professor Friedman---or whoever really wrote that Huffington Post piece---"each Presidential vote in Wyoming is worth 3.6 times more than each vote in California."

A graph depicting this same 'disparity' has been floating around Facebook of late.

It is a dishonest, emotional argument: Wicked voters in backward, barbarian Wyoming outweighed enlightened voters in sunny, sophisticated California.

Here's how the Electoral College is actually put together: All states start with two electoral votes -- one for each senator. Each state's additional electoral votes comes from the number of representatives it has in the House. Wyoming has one representative for its 584,000 population; thus, it gets one more electoral vote, for a total of three. At the other extreme, California has 55 electoral votes -- for its two senators and 53 representatives. Each of the 53 House members in California represents, according to the numbers in the graphic, about 735,000 people. This is a discrepancy, yes, but not as great as the graph would suggest. And the discrepancy has nothing to do with the Electoral College; this is, rather, a function of the House of Representatives choosing not to grow with the national population.

The size of the House is not a Constitutional problem. Article I, Section 2 of the Constitution provides only, "The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative." Although the House was regularly expanded during the 1800s (from the original 65 reps in 1789) the size of the House has been capped at 435 since 1911 -- and a lot has changed in the past century.

Texas is arguably even more shortchanged than California -- each of the 36 House districts in that state have a population of approximately 763,000. Montana has over a million people in its sole House district.

Rhode Island voters would have more electoral college clout than voters in either Wyoming or California, according to the reasoning of Professor Friedman or the Facebook graph. Rhode Island has two representatives (thus, four electoral votes) even though its two districts have populations of only about 528,149. By contrast, each of Idaho's two congressional districts contains roughly 827,000 persons. So, Idaho's four electoral votes are worth 'less' than Rhode Island's.

The Electoral College did not cause these discrepancies. These are caused entirely by the size of the House of Representatives. And all because of a law passed over a 100 years ago -- which, by the way, absolves both the Clintons and Donald Trump alike from responsibility.

Nor is the Electoral College responsible for the fact that, according to respectable polls from all shades of political opinion, the candidates of the major parties this year were the arguably the least popular national candidates of all time. Neither was particularly popular in their own party. Their presence at the top of their respective tickets suggests major flaws in the presidential primary process, but not in the Electoral College.

Certainly the primary process in both parties needs major, structural, fundamental reform. Maybe the size of the House of Representatives should be expanded while we're at it. But the Electoral College, whatever else its flaws may be, is not unconstitutional. If a 'distinguished' law professor was seriously arguing otherwise, we have a further illustration of why new law graduates, from any school, must take a bar review course to have any hope of passing any bar exam.

1 comment:

Albert said...

Don't shoot the messenger...but actually the graphic is entirely valid. Even if Wyoming had 735,000 people to match the average district size in California, then it would have 245,000 people per electoral vote and the ratio to California would be 288%--not quite the 362% in the graphic but still substantial.

Not trying to defend the law prof, only pointing out that most of the imbalance in clout is due to every state getting two votes at the outset.