Immediately following Justice Scalia’s death, Senators McConnell and Grassley suggested “the American people . . . should be afforded the opportunity to replace Justice Scalia.” Their gambit that the election would produce both a Republican president and Senate has paid off. Their choice of words, however, serves to demonstrate both the hypocrisy inherent in political rhetoric and in the American political system.
Had they been true to their word, the opportunity to replace Scalia would have been given to Hillary Clinton. She was the choice of the American people, though not that of the presidential electors. At a minimum, the Senate should have taken up the nomination of Merrick Garland, the nominee-in-waiting. Of course, McConnell and Grassley glossed over that inconvenient truth and didn't skip a beat in equating the election outcome as representing the will of the American people.
More significant than the rhetorical gymnastics of politicians is the sad irony that a nation that touts itself as a democracy, that fights wars in the name of democracy, that implores other nations to give voice to the people in democratic elections has shown that it is not itself a democracy. For the second time in the past five elections and for the second of only three presidents in this century, the candidate approved by the people has been pushed aside, and the loser was inaugurated as our new president. The one rejected in a vote by the American people became the spokesperson for the American people, the Chief Executive, the Commander-in-Chief. That’s what passes for democracy in America.
Despite calls over the years for the direct election of the president, the system of electors chiseled in Constitutional stone will surely never be changed. The necessary two-thirds of Congress to propose and three-fourths of the states to approve any amendment is an insurmountable barrier. One of the compromises effected by the framers of the Constitution to entice small states into the union provided each state with the number of electors equivalent to its representation in the Congress. While the House obtains representation roughly proportional to the population of the state, large and small states alike have two senators and, consequently, two additional electors for however many they have based on the size of their House delegation. The resulting disproportionality is considerable and stands in stark defiance of the basic one person-one vote principle of democracy we require of our states. Wyoming, for example, has roughly one elector for each 195,000 residents; California has one for every 712,000 residents.
What America needs is exactly what it has supported around the world, a pro-democracy movement. Protests in opposition to specific actions and policies need to have a positive focus to bring about desired change. Demonstrations against actions of Donald Trump are important but there’s a more important principle at stake. The structural defects in our democracy must be set right. Everyone’s vote must be counted equally. That involves eliminating political gerrymandering, insuring proper registration of all potential voters, and, most importantly, allowing the people's choice for president to become the president.
There are workable fixes not requiring an amendment to the Constitution. Perhaps the one with the most traction at the moment is an interstate compact in which a state’s electors will be mandated to vote for the presidential candidate receiving the most votes nationwide regardless of the outcome of the vote in that particular state. This initiative, National Popular Vote, claims 11 states with 165 electoral votes have joined the compact with another 12 states and 96 electoral votes having had the resolution to join passed in at least one house of the legislature. The compact takes effect after enough states join to reach the 270 vote threshold.
Is this feasible? Initiated more than a decade ago, the results so far are underwhelming, though promising. But perhaps its time has come. The discrepancy between the popular vote and the electoral vote was stark, made all the more so by the rollback in policies as if most voters approved of these changes. But they do not, and the fact that America is not truly a democracy has never been more evident. While the Electoral College is the most glaring deficiency, political gerrymandering and voter registration problems are other issues. Poll after poll across states red and blue reveal support for the popular vote to determine the presidency. The time is ripe to harness the discontent with the electoral system and its aftermath, channeling it into a nationwide pro-democracy movement.
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