The Consequences of Design
The convergence of design flaws in the constitution and a flawed leader have brought us to brink of an electoral crisis.
I know that a lot of my writings over the years here at OTB have come across as an academic tilting at windmills with an OCD-like obsession the design of US governing institutions. I have frequently tried to link many of our political maladies to our electoral system specifically, but the main theme has been the flawed way in which the system represents the broader public.
I fear that the coming election could be one of those crisis points driven by antiquated institutions, poor election infrastructure, and a president willing to undermine public faith. I am not predicting it, and in fact, think we will avoid it, but there is a nontrivial chance we are about to have a serious crisis.
I expect I could spend the rest of the day curating links, but the following references give anyone who is interested a gateway back to previous arguments, as well as demonstrating that my concerns in these areas are not new nor are they simply reactions to Trump. Some of the above are a decade old and if I did more digging, I could find even older concerns about lack of representativeness in our politics and the fact that it could, one day, lead to a crisis.
Some posts in the genre of House elections and the problems of adequate representation are here:
- There is Something Fundamentally Wrong with Congress (2011)
- Institutions Matter: Just Look at the Congress (2012)
- Unopposed in House Elections (2014)
In regards to the Electoral College, here is a very limited selection:
- Against the Electoral College I: Disparity Amongst Citizens (2010)
- Against the Electoral College II: Not As Framers Intended (2010)
- Against the Electoral College III: Policy Implications
- A Reminder that Institutions Matter (2019)
Other relevant posts include:
- Party Change is Hard: On Rules, Incentives, and Identity (and the #NeverTrump Question) (2019)
- The (still unfinished) series on Democracy and Institutional Design (2017-2018).
- Dozens of other posts.
On the topic of representativeness, consider that (as I have noted a lot of late) from 1988 to 2016, the Republican Party has won the plurality of the popular vote for president (i.e., the most votes in the election) only twice: 1988 and 2004. So, eight electoral cycles over roughly three decades and only twice winning the popular vote. Yet, they have held the presidency for half of the eight terms in question. That is a representative deficit of some significance.
Then consider the degree to which the Republican presidents have been able to shape long-term policy via just the courts and the Federal Reserve via appointments over the span of time in question without having to win even plurality-level popular support on a consistent basis (supported in the advise and consent process by the Senate, also an institution with a representativeness problem).
Not only does that translate, by definition, into a significant representativeness deficit, it also means that the party has not had to adapt to change to better compete for votes. An essential part of legitimate electoral politics is the idea that parties/politicians have to compete for votes to convince the electorate to choose them. The GOP has been playing football with 12 men on the field, and the Democrats with 11.
Why adapt when you have an advantage like that? And note, that advantage is baked into the EC, the Senate, and even House elections because of geographic sorting without ever getting into the gerrymandering issue, which just makes it worse.
Further, while I think most citizens don’t think about all of these issues or are convinced that our constitution is near-perfect, they feel the deficit in representation over time. The worse it gets, the more likely there will be an explosion of those feelings.
When we throw in voter suppression maneuvers on top of all of this, whether it be voter ID laws, felon disenfranchisement, or the current manipulation of the post office, we have a truly problematic situation if one values competitive, fair elections.
Rather straightforwardly the current dysfunction in the executive branch is allowed to fester and grow because of either the complicity of the legislative branch (especially the Senate) and/or the inability of the legislature to act together (again, mostly because of the Senate).
You can also throw in all my myriad posts about partisanship into this mix because the extreme polarization of the country at the moment means that those who identify as a D will acutely feel the representational problems I am talking about here while those who identify as R are motivated to think that everything is functioning “as the Founders intended” and that Democrats are being sore losers.
A simple Rorschach Test: show a Democrat a pile of mailboxes and they will likely see voter suppression in action, but show a Republican that photo and they will see simply a response to less mail flow and, therefore, an attempt at efficiency. And if we are honest, the photo itself would provide evidence for neither, but it is very likely that we will know, in our bones, what the right answer is when we see the photo. And setting aside who is right and who is wrong for a moment, think about the real emotions generated by the different interpretations.
Then remember that everyone is sorting all the images they see through those filters: Portland, Chicago, masks, Dr. Fauci, Brett Kavanaugh, Gretchen Whitmer, Kamala Harris, Mitch McConnell and on and on and on.
These emotions plus bad institutional design are bad enough. Throw in a pandemic and a severe economic downturn (that we are not fully feeling yet) and a president and governing party willing to gaslight the public about the integrity of the election (even to the point of taking concrete actions to disrupt the ability of votes to be counted) and we have the ingredients of a truly catastrophic crisis in November.
Let me hop back on my OCD-driven hobby horse and note just three key examples of how poorly representative institutions have gotten us into this mess:
- A deeply flawed nomination process produced Trump.
- A deeply flawed electoral system allowed a man who won almost three million fewer votes than his opponent to become president.
- A legislative body that is not representative of the nation (the Senate) allowed him to enter office with a SCOTUS pick and has actively worked to stack the judicial branch in their party’s favor while at the same time making serious investigation of Trump toothless.
That leaves aside the more complex analysis of the flaws in representativeness in the House as well as a broader discussion of voter suppression and the role of partisanship.
All of this is to say, and somewhat in contradistinction to James Joyner‘s post yesterday, I fear we are flirting with a situation that may, in fact, be worse than it has been before.
I don’t think this is inevitable. I think it is possible for it just to be bad and not catastrophic. And this is solely because we have a president who is willing to actively undermine public confidence in the process (and he has willing media actors to help him). He is doing it right now, and of course, he is going to keep doing it. Indeed, it is going to get worse as we get closer to November 3rd. As a result, no matter what happens, a substantial number of voters are going to come out of this with diminished trust in the process, and that is damaging to our democracy. That damage will belong to Donald J. Trump, his allies in government, and his willing agents on TV, the radio, and on the internet, who value their viewers, listeners, and clicks more than they do American democracy (and they will do it wrapped in the flag singing patriot songs, and spouting jingoist slogans).
There are, I think, three basic scenarios that should be noted (these are not exhaustive):
- Biden landslide that is obvious on election night. If on election night Biden wins states like PA and FL outright and, say, flips AZ, in a way in which 270 are obvious by the wee hours of the morning, or that the pathway is obvious, I think we avoid a major crisis, although I think that damage via Trump and company I noted above still comes into play.
- Biden wins, but vote-counting drags on. In this scenario, final vote tallies in key states take days, if not weeks, to be settled. Trump will use this to further undermine public trust in the system. I would expect some street protests and counter-protests.
- Trump again manages an EV/popular vote inversion. This is unlikely, for a variety of reasons, but if it happened naturally (i.e., without all of this post-office chicanery) that would be bad enough (and I think would lead to protests). But if it happens because mail-in ballots weren’t properly counter in PA because of action by the Trump administration, we are going to have a massive crisis on our hands that I think will dwarf even the recent BLM protests.
The obvious x-factors are: pandemic effects on face-to-face voting (both turnout and poll workers to man the polls) and the ability to process, in a timely manner, mail-in ballots.
My brain tells me that all indications are a result somewhere between #1 and #2, but I cannot help but be concerned that the x-factors in question lead to something between #2 and #3.
And apart from all of this, we are reaping the whirlwind of poor investment in electoral infrastructure and governance of the elections process.
We can keep telling ourselves that we are the greatest, most advanced country in the world, but the evidence says otherwise. Greatness requires things like strong institutions, investment, and skilled leadership. We are lacking in all of these areas at the moment.
I have seen some political science types bandy about the question of whether we have a failed state in the US. The answer is, no, we don’t have a failed state. We have a failure of governance that has failed to develop and deploy needed state capacity.
To be continued no doubt, but the bottom line remains: a major root of our current problems is the lack of a truly representative government in Washington.
Tilt away, you Quixotic bastard!
Unfortunately, we live in interesting times.
The Constitution is like the B-52. Brilliant design – for its era. With a great deal of effort and talent and money we can keep B-52’s flying, but patches and retrofits and work-arounds have their limits. We can’t fix fundamental issues, for example, we can’t make the B-52 really stealthy. We can’t make it fly higher or maneuver more efficiently. Sooner or later, despite our best efforts, the B-52s will be beyond patching and will no longer serve its purpose.
The US Constitution has muddled through with various patches and retrofits, (and a small civil war) but its flaws have grown from theoretical to dangerous to suicidal in the hands of a malicious clown. It’s a clumsy, outdated machine. Unfortunately there appears to be no realistic way to fix it. With even the best pilot and the best engineers, the damn thing is still destined to crash. Is crashing.
I just re-read “Not as the Framers Intended.”
What the Framers envisaged was a ranked choice/instant runoff/preferential voting system within the EC. Just take that vision and apply it to the election itself.
Imagine 2016. Assume Jill Stein votes went to Hillary and Gary Johnson votes went to Trump. Probably would have tipped Hillary over the top in the key swing states that gave Trump the EC victory.
Democrats happy, and as it turns out the country would have dodged the bullet it has since taken, but in terms of fundamental institutional impact, I say “Meh.”
But in reality the impact would have been more dynamic, breaking the two party monopoly.
A few weeks out, Johnson was polling 8% and end up with 2 or 3 % as voters moved mostly to Trump for fear of “wasting their vote.” Now imagine those voters who thought “Trump’s a clown but I hate Hillary.” Now they can vote Johnson 1, Trump 2, Hillary 3. Possibly others who reluctantly voted for Hillary might have voted Johnson 1, Hillary 2, Trump 3. No guarantee, but conceivable that Trump is the first candidate eliminated making it a Johnson/Hillary race.
The argument in favor of the EC appears to be, as best I can tell: The EC favors smaller states and that’s good, otherwise the big states would bully the small states.
Of course, this argument is almost always made by people who live in small states. Also, it’s not clear why states should come into this at all.
Which is more or less, a defense of, “If we changed it, I’d lose”. But that sort of thing is shot through politics.
Feeling optimistic this afternoon, between 1&2 it is.
Knowing the the Constitution is unamendable, so we won’t be dealing with neither the senate nor electoral college in that manner, what are the options? Quickest, easiest and likely to face the least resistance would be doubling the size of the House. It can be done through legislation, eliminating the need for an amendment. Every state is a winner in that they will receive more representation, so the bumper sticker campaign in places like Montana and Wyoming is the argument for rather than against.
The major side benefit will it will reduce small state advantage in the electoral college, with a smaller benefits being that it will be more difficult gerrymander and lobby.
The other day I was trying to find an answer to the following question and wasn’t able to get a clear answer. Can Congress, through legislation change the electoral college from winner take all to proportional distribution of EC votes?
I know that states have the power to do this (or at least by congressional district), but could the US Congress?
The allocation of electors is wholly in the hands of the states, as per Article II:
@Jay L Gischer: And the reality is: a) a lot of small blue states would give up their EC advantage (evidence here), and b) the system does not favor small states, it favors swing states in terms of political attenion (see here).
@Daniel Hill: I would be exceptionally happy if we adopted IRV to elect the president. I would disagree with your assessment that that is what the Framers had in mind, however. I would argue that they thought they were creating a system of regional nominations that would result in the House picking the president on a regualr basis.
Slate has an article listing ten ways Republicans could ratfrack the election. One is what you suggest, TX or FL switching from winner take all to allocation of Electors by Congressional district like, NE and ME, thereby denying Biden roughly half of the state EC delegation. They rate this as “practically impossible” as it would require a compelling projection of a Biden win in the state early enough to react.
They rank the ten in order of probability up to the already happening, sabotage of the USPS.
And I get tired of hearing the thud of that whip on that dead horse when 90% of what you want (and I want) can be accomplished at the state level–without having to touch the Constitution at all.
* Fair maps: Take the creation of electoral districts out of the hands of partisans and put them in the hands of mathematicians and GIS experts. Gerrymandering will disappear, and districts will more accurately represent who lives there.
* Equal apportionment. Every House seat should reflect roughly the same number of residents. A 10% variance would be fair, I think.
* Elector by District: get rid of the “winner takes all” system. Each elector speaks based on the popular vote in their district. [i]This pretty much makes every state a “swing state”.[/i] Edit to that last sentence: This [i]eliminates[/i] the idea that states are monolithic and makes candidates campaign to far more districts (at the district level) and not just the half-dozen “swing states”.
A more accurate representation of the public voice. No Constitutional amendment required.
@Steven L. Taylor:
I knew I should have just gone back and read the Constitution… 🙂
@Mu Yixiao:..No Constitutional amendment required.
>Take the creation of electoral districts out of the hands of partisans and put them in the hands of mathematicians and GIS experts.
>Elector by District.
I believe this would require identical legislation by all 50 State Legislatures or some sort of Federal Election Law removing States from the process of electing President USA.
Constitutional Amendments only require:
Which is more 2/3, 3/4 or all 50 (nifty United States..)
That song, by the way, is why I favor statehood for DC, Puerto Rico, Guam and the US Virgin Islands. That song must die.
Why do you think we will avoid it? Rank incompetence in the execution of Trump’s plans, or something else?
Also scenario 3 seems rosy. I offer scenario 4: Trump wins popular counted vote while successfully depressing and disenfranchising voters, and suing to prevent mail-in ballots from being counted. The Supreme Court weighs in, citing Bush v. Gore to stop the counting, while saying this new decision cannot be used for precedent, just to twist the knife a little.
It’s what Trump seems to be planning. Why assume he doesn’t pull it off? I mean, sure, incompetence, but why assume it so much it’s not a scenario?
This is why I have always detested the Scalia-type pseudo-originalism.
The main reason the US constitution survived is that the supreme court has always managed to bend it just enough to make it fit new circumstances without breaking it.
Even discounting my different preferences and the frequent hypocrisy, the originalists basically handcuffed the plane mechanics and told them not to interfere with the brilliance of those 1950s designers and most of all, not to add all that unnecessary electronic stuff.
As a philosophy it’s credible but quaint. As a practical judicial approach to a document relying so much on patching up its vagaries, originalism borders on active sabotage.
@Gustopher:..That song must die.
These kids are killing it for you.
Which is more likely: shifting the paradigm one state at a time (see: gay marriage, marijuana, ranked voting, and by-district electors) or amending the Constitution?
The notion that “change must come from above” is false and needs to go.
@gVOR08: Keep in mind that assigning EVs by congressional district is not, actually, “proportional” (although we have a terrible habit of calling it that in the US). Assigning EVs by district is a horrible idea as it means you can gerrymander the EC.
Actually allocating the EVs proportionally would look like this.
You don’t have to read.
I think Trump has less of plan than he has a lot of rhetoric. I also think that a lot of that rhetoric is going to drive a lot of anti-Trump voter turnout (even in the face of the pandemic). I think his support is sufficiently low that there is a chance of enough state providing a clear path to vitocry for Biden that really perpetrating fraud is going to be very difficult.
I think that take a lot of moving parts working in his favor. I would predict, in fact, that even with possible delays in mail-in voting that at worst the election night popular totals will be close if not pro-Biden. If Trump is able to mount any kind of argument, even rhetorically or legally, it will take 1) close states that have EC implications, and 2) legally challengeable problems with counting the mail-in ballots.
I also think Roberts will be very cautious about letting the SC be the decider in this election.
Let me note, because it is important: single-seat districts are part of the problem, no matter who draws them. There is no such thing as a fully “fair” set of districts. It is fantasy and a fallacy that many Americans buy into. Yes, if we are going to have them it would be better for them to be drawn by nonpartisan entities, but if the goal is actually fair competition, you have to have multi-seat districts. That eliminates not only gerrymandering but also the problems of geographic sorting. The idea that the right commission will fix these problems is a unicorn.
One could improve, to a degree, single seats districts by increasing the size of the House, but that requires a change in federal law.
And, to reiterate what I said above, linking EVs to single seat districts would be a terrible idea.
We can pretend like all of this can be solved at the state level, but we would be wrong to do so.
@Steven L. Taylor:
Historically, vote by mail doesn’t affect the outcomes, but that doesn’t mean that doesn’t mean that if you throw out 20% of the mail in ballots that it won’t have an effect on the outcome.
In Washington State, we are very used to the later ballot drops being more liberal. Not just statewide, as King County takes longer to count, but even within King County. Lefties tend to vote later — historically, that is, although this year may be different. That breaks in Trumps favor if he can stop the counting.
What else will be different this year is that crowded polling places in more dense communities will be worse with fewer poll workers. Old people aren’t turning out to help at the polls because they don’t want the Covid exposure. Again, this breaks in Trumps favor.
Rural communities have fewer people and less crowded polling places. It’s easier to vote in person there. That breaks in Trump’s favor.
Convince Republicans to vote in person, and then attack the mechanism of mail in ballots — slow down the mail and ballots don’t arrive before deadlines. Again, that breaks in Trump’s favor.
Find a poll breaking down who plans on voting by mail this year.
I’m pretty sure that this Level of divide is new this cycle.
The impact of attacking vote by mail will not be even. Unless Trump is going down by a massive, massive landslide, Election Day numbers are likely to have him ahead, and then it becomes a fight to get votes counted or not. A fight that Trump is already fighting.
@Steven L. Taylor:
I don’t know how he could avoid it. Is the Supreme Court not going to hear the cases?
If it comes down to states wanting to count ballots postmarked by N-days before Election Day, which arrive after because of postal slowdowns (Let’s say, oh, there are layoffs in the post office), what do they rule? Protect the right to vote, or follow state law to the letter? What if the states want to interpret the law as “would have been received by election days if the post office wasn’t fucked up”? As they balance rights, whose rights will come out on top?
And that, in turn, could decide the election.
@Mu Yixiao:..Which is more likely: shifting the paradigm one state at a time (see: gay marriage, marijuana, ranked voting, and by-district electors) or amending the Constitution?
How about you post up a draft of the legislation that you want all 50 state legislatures (that would be 99 state legislative chambers) to pass to be signed by 50 state Governors that will accomplish:
*Elector by District.
I want to see what that looks like.
SCOTUS did not have to be the decider in 2000. It could have ruled in a way that allowed Florida to keep counting and that, therefore Bush v. Gore would not have basically decided the outcome.
@Steven L. Taylor: Amen and Hallelujah!
@Michael Reynolds: The b52 does what it was intended to do very well (drop lots of bombs). Stealth is generally over rated on the modern battlefield. Seriously it doesn’t matter if you make a plane have a radar cross section the size of a marble (from only certain tiny angle ranges) because a marble isn’t going to be flying at +500 mph in a straight line for hours. Lower frequency radar is better at picking them up AND they still have heat emissions which can be easily detected. /stealthrant
It seems a lot of the problems stem from political parties which George Washington warned us about. So to me at least it seems that even back when it was being created some foresaw at least somewhat the problems we’re dealing with.
@Gustopher: To go anecdotal for a minute, I would have answered that I was likely to vote by mail when that poll was taken (I printed out applications for an absentee ballot earlier this week), now I am less sure after Trump’s shenanigans). I can guarantee that if I lived in a swing state that I would be back to likely voting in person.
All of this is going to effect mass behavior.
Emphasis mine. There’s the problem. Not “going forward”; not “in the 2022 elections”; “this November” with an implication of just this once. I’m a registered Democrat in a vote-by-mail state and have been saying for months that you can’t just scale up a traditional absentee ballot system and expect good results. Even w/o the administration screwing with mail delivery, there was a near certainty that more than one state was going to have a disaster with mail ballots.
The SCOTUS has indicated that they’re not going to let the federal courts rewrite state election laws willy-nilly. I’m not sure if they’ve been explicit, but they clearly expect states to take Nevada’s approach. Call a special session, rewrite the election laws if only for this year, set things up using the proven track record of the vote-by-mail states. Nevada may still have some problems, but they’ve already avoided some of the most obvious ones.
@Matt: And the obvious modern mission is long loiter time in the vicinity of an opponent that lacks contemporary air defense systems and kick the proper smart munitions from the large on-board stock out the door on demand. B-52s are very, very good for that.
@Steven L. Taylor: Yep. If I lived in a state where I had to apply for the vote-by-mail ballot on a paper application, I’d be planning on voting in person. The process will simply be crushed if there’s a high volume of people voting by mail. Per my 18:44 comment, some number of states are going to do something half-assed and some of those will have a disaster.
A fact missed by a lot of pundits who wrote columns either making fun GOPs for a stupid ratfrack or of Ds for worrying about it. That included some people I respect, but you can’t be right all the time. But I suspect that deep in the bowels of the Kochtopus somebody gamed this out months ago. They’re encouraging their own voters to ignore the risks of voting in-person in the time of COVID. Which is to say they’re happy to literally kill some of their voters to maintain their hold on power.
@Michael Cain: The AF is talking about what you describe as an “Arsenal plane”, a plane that would loiter outside air defenses and be able to launch on demand from a menu of various munitions. The B-52 would seem to be a natural.
I think this is a legitimate concern.
I live in a swing state. Wife and I will vote in person so we don’t have to worry about mail in votes getting “lost”.
Than why do you even come here? Didn’t you complain a while back that this place is like an echo chamber where dissenting views aren’t accepted? Like libertarian views that you favor? How exhausting it must be for you to read anything on this site…
At the same time, there are literally so many moving parts…like how discussing the different scenarios in the Slate article gVOR08 linked to, the one scenario is completely unlikely because it would require knowing well ahead of time how many votes Biden would receive in certain states, it still remains to be seen how many D votes and how many R votes will be in person and how many will be through the mail, Trump and his lackeys may try to do things that won’t even benefit him depending on how the votes spread out…
Exactly right. It is the responsibility of the person casting the ballot to assure that their vote arrives in a timely manner. Go ahead and tell me that there are voters who don’t decide who to vote for until the night before the election if you want. My heart bleeds red, white, and blue for them, but the fact that their ballots don’t arrive on time is on them no matter how Trump fuks with the postal system. People who want to vote by mail have to plan to do so.
The US Constitution was meant to safeguard the rights of wealthy property owners, the very same people who wrote it and ratified it.
Also, keep in mind it is one of the earliest constitutions in modern times. It is more a good prototype than a good finished product. It’s idolized in a way it doesn’t deserve. Imagine if the Wright Brothers had produced an ultra-efficient hypersonic plane on their very first attempt, rather than something that was more like a box kite with propellers, which could fly for a few meters under its own power. That’s how Constitution fetishist talk about it.
I’m not saying it should be repealed and replaced, but it certainly needs adaptation to the modern age.
Even in a more normal, less divisive age, that would be an impossible undertaking. So don’t hold your breath. America may need to fall before it can be reformed.
We’re no longer in a swing state, one of the western states that has gone from nearly solid red to swing to nearly reliably blue over 16 years. We’re a vote-by-mail state, and I have no concerns about my ballot arriving in plenty of time, our ability to return them via drop box, online checking that the ballots have been processed without problems, and adequate time to correct any problems. Screwing things up via USPS requires not just slowing it down, but rendering it unusable for any purposes. Not. Going. To. Happen.
@Kathy: Good analogy! I may have to steal that.
I’m a pessimist on the subject. I’m willing to argue that no significant structural changes can be adopted by way of amendment unless they include a relatively easy exit clause. And that clause would be used quite soon.
No argument there.
Indeed and indeed.
And they knew it, so being sensible people they made provision for amending it, expecting that to be routine. But that too has not worked out as planned.
@gVOR08: In my view, they made an error about how hard they made it to amend (which is a function of basically going first).
@Just nutha ignint cracker:
IMO, we’re so used to products refined after decades, if not centuries, of steady advances in engineering and science, that we forget new development have to start at the beginning and be refined over many years.
Amendments are more like patches and additions, kind of like using soles or paper on shoes that don’t fit right.
What’s needed is what many countries have done over the past two centuries: set up a nationwide convention to write a new constitution. Which I guess does mean repeal and replace, only having the replacement first.
As I said, though, even in a less divisive time, this would have been next to impossible. Largely because it’s unthinkable. With the current Constitution seen as a quasi-religious, sacred document, it’s not going to happen.
@Kathy: It’s not just that the Constitution is sacred, it’s that holding a constitutional convention in the age of Koch scares the spit out of me.
@Steven L. Taylor:
In hindsight, that may have been the better choice. At the time, though, the Florida Supreme Court basically changed the rules of the game after the fact, knowing who benefitted from so doing. This was in contravention of Federal law (although, granted, extremely old Federal law written decades before radio, much less the modern American political system) and Florida law. The problem with Bush v Gore wasn’t so much the outcome as with the fact that the court couldn’t come up with a cohorent ruling. It was the kind of case that needed to be 9-0, not decided on the basis of plurality opinions.
The fact that one of the two rulings was 5-4 is a huge problem (even the 7-2 on the other is a problem).