Making Every Vote Count in Presidential Elections

      As hard to believe as it may seem, the Framers of the Constitution took great pride in the method they devised for electing the president of the United States. Writing in Federalist No. 68, Alexander Hamilton went so far as to say that “if it be not perfect, it is at least excellent.”
      Today, Americans are less than enamored of what has come to be called the Electoral College — a term that actually does not appear in the Constitution. Gallup polls dating back to the 1940s have consistently found majority support for direct popular election of the president. The most recent survey, in October 2011, found 62 percent of those responding in favor of direct popular election. Changing the system had majority support from Republicans (53 percent) for the first time since 2000 as well as stronger support from independents (61 percent) and Democrats (75 percent).
      Despite public sentiment, the Electoral College has proven stubbornly resistant to change. A constitutional amendment for direct popular election came tantalizingly close in Congress in 1970. But it failed in the Senate when small-state senators, Republicans and Democrats, filibustered it to death.
      Since then, there has been nothing by way of serious effort to change. But perhaps the 2012 campaign can give new life to the issue by demonstrating to Americans in a majority of states that Electoral College math makes them largely irrelevant in a presidential contest. Instead, the candidates focus their attention on a handful of “battleground” states — think Ohio — whose issues assume disproportionate importance in determining the outcome.
      The flaws of the Electoral College system could have been recognized from the start. Hamilton saw two main virtues in the system, but neither actually materialized. Hamilton reasoned that the electors would be “men [sic] most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation. . . .” In addition, the electors, barred from holding any other position in the national government, would be immune from “cabal, intrigue, or corruption.”
      The electors never deliberated as such. The Constitution prevented deliberation by requiring the electors to meet in their respective state capitals: thus, there never has been an Electoral College as such. Today, the electors are mere placeholders in a system that is in large part popular election. Presidential electors typically are not even listed on the ballot and cast their votes as pledged for their party’s candidate except for the very occasional “faithless” elector.
      The emergence of political parties rendered the Framers’ fear of intrigue by foreign powers irrelevant. Instead, it set the stage for the emergence over time of a political system susceptible to corruption of other kinds: the “spoils system” of Jacksonian politics and the dominant role of financial interests in paying for campaigns since the late 19th century.
      The emergence of political parties also quickly demonstrated the absurdity of the Framers’ idea of choosing the runner-up as vice president. The first contested election, in 1796, produced a Federalist president, John Adams, and his Anti-Federalist foe Thomas Jefferson as vice president. The Twelfth Amendment, ratified in 1804, tied the two offices together. But the amendment left unchanged another original flaw: the decision to throw the election into the House of Representatives if no candidate received a majority of electoral votes.
      That system worked badly in 1800, the only time it has been used. If it were to be used today — say, in the mathematically possible result of a 269-269 electoral vote tie — the one-vote per state rule would give outsized influence to sparsely populated states that happen to be predominantly Republican. But the selection of a vice president would fall to the Senate, which happens to have a Democratic majority today. Thus, political reporters have conjured up the possibility of a President Romney and Vice President Biden — or, in the event of a deadlock in the House, President Biden!
      Apart from this unlikely scenario, the Electoral College seems inconsistent with modern democratic theory simply because it does not guarantee victory to the popular vote winner. Indeed, four men were elected president after losing the popular vote: John Quincy Adams (1824), Rutherford B. Hayes (1876), Benjamin Harrison (1888), and George W. Bush (2000). Tellingly, Adams, Hayes, and Harrison are not regarded as successful presidents; and Bush’s legacy seems likely to be clouded at best.
      Supporters of the Electoral College have a new answer to this issue. They argue that counting electoral votes by states “compartmentalizes” the risk of popular vote-counting fraud or mistakes. A few hundred or even thousand votes wrong here and there typically has no effect on a statewide outcome, they reason. But if every vote counts, bad vote-counting would matter everywhere. In effect, a Florida-style recount, with disputes over butterfly ballots and hanging chads, could be played out all across the country, and the final result lastingly subject to mathematical doubt.
      The notion that the United States cannot count votes accurately sells the country’s electoral system quite short. But, if true, it only underlines the need to reform the voting system, a need underscored by the wrenching debates over voter ID laws in the past few years. In that sense, replacing the Electoral College with direct popular election of the president could serve a valuable purpose by forcing the adoption of national standards to make more real the fundamental democratic premise of one person, one vote — and every vote counts.

Striking Down the Offense Against Marriage Act

      The federal Defense of Marriage Act (DOMA) is all but dead. Seven federal courts have ruled it unconstitutional, and Supreme Court watchers have a growing consensus that at least five justices will agree before the court’s current term ends next June.
      Yet Congress passed this anti-gay marriage law by overwhelming, bipartisan majorities in 1996, and a Democratic president who had support from many gay leaders and gay rights advocates signed it into law. Back then, opponents raised constitutional doubts mainly about the provision — section 2 — that no state was required to recognize same-sex marriages from another state. Some of the opponents said merely that the provision was unnecessary since states have historically had the discretion to determine whether to recognize marriages from other states.
      Far less attention was paid to the provision, section 3, that defined marriage for purposes of federal law as the union of one man and one woman. The federal government had never before established a national definition for marriage, but to many people it seemed unsurprising that the government would have that authority. And the provision seemed to have no immediate impact since no state at the time granted marriage rights to gay or lesbian couples.
      Things are different today. The harm that the law imposes is now tangible and concrete. Thousands of same-sex couples are legally married in the United States. Six states and the District of Columbia allow same-sex couples to marry; so do Canada, the United States’ neighbor to the north, and nine other countries at latest count. At least one state, Maryland, recognizes same-sex marriages from other jurisdictions; and Maryland is one of three states — Maine and Washington are the others — that have measures on the Nov. 6 ballot to legalize same-sex marriages.
      These legal developments unmask the federal law for what it is: not a defense of marriage, but an offense against marriage. Congress approved the law in 1996 for reasons that seemed self-evident: preserving traditional marriages, protecting kids and promoting morality. Today, the law is recognized as denying legally married gay and lesbian couples benefits — financial and otherwise — matter-of-factly extended to opposite-sex couples living in the same state, even on the same block.
      Edith Windsor, the DOMA victim in the most recent federal court decision, was hit with a $363,000 estate tax bill after her wife, Thea Spyer, died in 2009. Windsor and Spyer, New York residents, had married in Canada two years earlier; New York recognized same-sex marriages from other jurisdictions even before the state legislature voted to approve gay marriage in June 2011.
      In opposite-sex marriages, a spouse’s estate passes to his or her surviving spouse without incurring federal tax liability. But under DOMA, Windsor was not eligible for that same, uncontroversial tax benefit. The plaintiffs in other DOMA challenges have suffered similar, if less dramatic, financial disadvantages. The widower of former congressman Gerry Studds was denied Social Security survivors benefits. Several current or former federal employees have been prevented from extending health insurance or retirement to their spouses.
      In ruling for Windsor last week [Oct. 18], the New York-based Second U.S. Circuit Court of Appeals held that laws that single gays and lesbians out for unfavorable treatment are subject to heightened constitutional scrutiny. The majority in the 2-1 decision cited the history of discrimination against gays and their lack of political power to prevent legally sanctioned discrimination.
      Having raised the bar a bit, the court then rejected all of the rationales offered by lawyers for House Republicans to uphold the law. (The Obama administration no longer defends the law.) The court said the law did not help maintain a uniform definition of marriage, protect the federal treasury, preserve a traditional understanding of marriage or encourage responsible procreation.
      The case, Windsor v. United States, is viewed as the best of four cases pending before the Supreme Court for the justices to use to resolve the issue. One reason: Justice Elena Kagan, the former solicitor general, may be disqualified from the other cases, but not from this one. The justices have the cases ready for conference early next month. The Second Circuit must have been aware of that schedule as it rushed its decision out only three weeks after argument.
      When the case is argued, the challengers will certainly face combative questions from Justice Antonin Scalia. The court’s guardian of constitutional originalism will undoubtedly contend that a provision adopted in 1868 — the Fourteenth Amendment’s Equal Protection Clause — was not intended or understood to say anything about gay marriage.
      Scalia will be right on that point, but irrelevant. Despite Scalia’s protests, the Constitution is in fact a living document for an ever-changing country and its people. None of the Fourteenth Amendment’s framers would have understood it to prohibit discrimination on the basis of sex, but the Supreme Court decisions from the 1970s applying the Equal Protection Clause for that purpose are now well established.
      The pivotal vote in the DOMA case likely rests with Justice Anthony M. Kennedy. When he led the court in striking down anti-sodomy laws in 2003, Kennedy made clear his view that the Constitution protects gay and straight people alike. “As the Constitution endures,” Kennedy wrote, “persons in every generation can invoke its principles in their search for greater freedom.” Weighed against those principles, DOMA seems doomed.

Supreme Court Showdown on Affirmative Action

      When the Supreme Court pulled the plug on an ambitious school desegregation plan for Kansas City in 1995, Justice Ruth Bader Ginsburg complained in dissent that the retreat was both “too swift and too soon” (Missouri v. Jenkins). Much the same could be said about the growing discontent among the American public and among many experts about the efforts to use race-conscious admissions policies in order to increase racial and ethnic diversity in U.S. colleges and graduate schools.
      The latest manifestation of this supposed re-examination of racial preferences came last week [Oct. 4] in a report by the Century Foundation written by Richard Kahlenberg, a longtime advocate of using socioeconomic status instead of race or ethnicity to increase diversity in higher education. In presenting the report at the progressive think tank’s Washington office, Kahlenberg bluntly warned that race-based affirmative action “is likely on its way out” — unpopular with the public and under challenge in legislatures, at the ballot box, and in the courts.
      The discontent is fed further by the new book, Mismatch: How Affirmative Action Hurts Student It’s Intended to Help, and Why Universities Won’t Admit It, by UCLA law professor Richard Sander and legal affairs journalist Stuart Taylor Jr. The book elaborates on Sander’s empirical research over the past decade that he says shows many beneficiaries of racial preferences fare badly in college or law school, doomed to failure because they are competing with academically superior classmates.
      The publication of the report and the book were both timed to coincide with the Supreme Court’s oral arguments on Wednesday [Oct. 10] in the latest showdown on affirmative action, Fisher v. University of Texas. The justices are being asked to invalidate UT’s use of race as part of what administrators describe as a “holistic” evaluation of applicants for about one-fifth of the slots in each year’s entering first-year class.
      The Fifth U.S. Circuit Court of Appeals upheld UT’s policies, saying that they conformed to the criteria set out by the court nine years ago in a University of Michigan case, Grutter v. Bollinger (2003). Attorneys representing Abigail Fisher, an unsuccessful white applicant for admission in 2008, argue that UT’s policies go beyond the limited use of race allowed under Grutter. Alternatively, they urge the court to overrule Grutter and severely limit or completely prohibit consideration of race in college and university admissions.
      The case can be handicapped easily: Justice Sandra Day O’Connor, who authored the majority opinion in Grutter, has been succeeded by Samuel A. Alito Jr., a hard-edged conservative who has cast decisive votes against race-conscious policies in two major decisions since his appointment in 2006. For many court-watchers, the only question in the case is not whether but how far the court will go in limiting race-conscious admissions policies.
      Institutionally, however, the court is not supposed to change course simply because of a change in personnel. So the justices need to closely examine UT’s policies, as they have evolved during two decades’ worth of litigation, along with the densely statistical debate waged in friend-of-the-court briefs about the overall impact of racial preferences. On both counts, the evidence is less than clear-cut and the interpretations by opposing sides in sharp conflict.
      For UT, the pivotal question will be whether the university had good reason to re-introduce some consideration of race after Grutter since it was already using an ostensibly race-neutral mechanism to boost enrollment of African American and Hispanic applicants. The state’s “Top Ten Percent” law, passed in 1997, guarantees students in the top 10 percent of their high school graduating classes a slot at UT’s flagship campus in Austin. With black and Latino students concentrated in racially identifiable schools, the law increases their enrollment, but not enough to satisfy the school. Today, blacks comprise about 4.5 percent of UT’s student body, Hispanics 16.9 percent; both figures are below the proportions for the state’s population overall.
      Justices on both sides may cite the broader policy debate to help make their case. Conservatives will surely cite the supposed costs of racial preferences — stereotyping and stigmatizing minority students — along with Sander’s claimed proof of “mismatch.” The statistical argument goes far beyond what can be elaborated in a weekly column, but it can be said at least that Sander’s conclusion is disputed and, if valid, merely shows the need for universities to follow through with well designed and well resourced academic support for affirmative-action admits.
      As for the alleged stigmatization, Sander and Taylor are selective in quoting prominent African Americans as critics of racial preferences, including Supreme Court Justice Clarence Thomas, who has famously described his indignation at bearing “the taint of racial preference.” They do not note that the court’s only Hispanic justice, Sonia Sotomayor, proudly counts herself as “an affirmative action baby,” apparently unaware of any taint due to her status.
      The University of Texas admitted its first African American student in 1950, only after a unanimous Supreme Court decision forced it to do so (Sweatt v. Painter). Sixty years later, the Austin campus is by no means a model of racial harmony, as seen in a recent report of “bleach ballooning” incidents directed at African American students and fraternity parties with anti-immigrant themes. Admissions policies aimed at making the campus more diverse, on paper and in practice, deserve respectful consideration from a Supreme Court dedicated to equal justice under law.