CALGARY, Alta. Nov. 22, 2016/ Troy Media/ – The election of Donald Trump to the American presidency has put the U.S. electoral system and all its anti-democratic flaws on trial.
Among popular reactions after Trump’s surprising victory:
- Hillary Clinton should have won because she garnered more of the popular vote than Trump.
- The first-past-the-post electoral system (FPTP) is flawed and proportional representation would be better. Kelly Carmichael, executive director of FairVote Canada, said: “We’re going to watch Donald Trump rip apart everything that Barack Obama has put in place. That doesn’t happen with a proportional system. … There aren’t massive swings. You can vote people in and out, but a two per cent difference in the vote doesn’t mean a wholesale change in government, which is what you see under winner-take-all politics.”
- Fortunately, the 46 Democrats in the Senate can prevent much of Trump’s legislative agenda from being passed by filibustering Republican bills. Overriding a filibuster requires 60 of the 100 Senate votes and the Republicans have only 52 seats.
Let’s look at these reactions in order.
Popular vote should have been determinative
To elect the president, the U.S. constitution established an electoral college. States have electors based on their number of congressional districts and U.S. senators. Presidential candidates must win states rather than voters and that has allowed popular vote losers to become president five times.
The constitution does not say how electoral college votes are allocated; 48 states award electoral votes on a winner-take-all basis to the candidate with the highest vote count. Nebraska and Maine count the number of counties or districts won by each candidate and award the proportional share of electors.
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Abolishing the electoral college and holding a runoff of the two leading candidates would mean the victor would have a majority of votes. Third- or fourth-party fragments costing a plurality winner the election might be avoided. In 2000 election of George W. Bush, for example, Green Party candidate Ralph Nader got many more votes in Florida than the difference between Bush and Al Gore. Critics reasonably believe most of those Green voters would have preferred Gore to Bush.
(The ultimate decider was the highly-politicized U.S. Supreme Court, which stopped the count of ballots in Florida and almost certainly prevented Gore from becoming president.)
Proportional representation (PR)
Under first-past-the-post, the national vote totals would have given the election to Clinton (FPTP works fine when there are effectively two parties seeking one office).
The Maine-Nebraska system would endorse proportional allocation in the electoral college, but it makes no difference whether a county is won by one vote or a landslide, so a winner could still have less than a majority.
If all states allocated electors proportional to voter support, Clinton would have won in the college.
To ditch the electoral college entirely, the U. S. would have to pass a constitutional amendment (by two-thirds of the House and Senate and approved by 38 states). This seems unlikely.
Neither the constitution nor federal law obliges electors to vote according to the results of the popular vote in their states. About half the states do, although Maine and Nebraska show that they could change this.
Some would like to see college members vote with their consciences. According to Politifact Florida, “Ten states and the District of Columbia have already signed on to the National Popular Vote Interstate Compact, in which states agree to award all their electoral votes to the winner of the national popular vote. However, the compact only takes effect when states totalling 270 electoral votes sign on, and so far the effort still falls short of that.”
Salvation through filibusters?
Under U.S. Senate rules, senators may speak as long as necessary to prevent a vote on an issue. Filibusters have even involved senators reading endlessly from the phone book to kill a bill. By preventing passage of legislation, filibusters can force inter-party co-operation. As practised by the Republicans against President Barack Obama, however, filibusters brought about legislative gridlock that simply killed legislation.
The Senate’s filibuster rules could be abolished by simple majority vote, although recalcitrant members could try to claim the right to filibuster the abolition of filibusters. Surely presidents – and those who believe that the majority should prevail, subject to constitutional protection for minorities – would support this change. However, many Republicans shudder at the prospect of abolition.
Giving a minority veto power over the majority is dangerous and the Democrats should use it with restraint.
It’s just one more flaw in a system crippled by a set of rules that defy democracy.
Phil Elder is Emeritus Professor of Environmental and Planning Law with the Faculty of Environmental Design at the University of Calgary.
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