Founding Fathers
The United States Constitution is hailed at the greatest “democratic” document in world history. It even begins with the fateful words, “We The People”. But that’s not really true. The Constitution, especially the original seven Articles, were not particularly “democratic” at all.
Many of the Founding Fathers were dubious about “democracy”. They expressed as much worry about “mob rule” as they did for the autocratic rule they experienced under England’s King George III. And while history teachers talk a lot about Jeffersonian “yeoman farmers”, in the end the Founding Fathers were members of the establishment of the colonies, and their own economic interests were just as important.
Competing Interests
The question was how to balance all of the competing interests: the need for a national government, the demands for individual state autonomy, protecting the wealth of the “establishment” (including those who enslaved people), and advancing the democratic principles they believed in as Enlightenment scholars. So they developed a system that included all of those ideas. The national government gained significant powers, particularly when it came to raising and spending money.
And the Constitutional Convention recognized that the nation they were creating was vast. Roads were often rough, and it took months for information to journey from the capital in New York to the hinterlands. So it made perfect sense to diffuse powers for certain actions to the states. The states were closer to the people, with the state capitals days versus weeks or months away. So functions like education and elections were placed in the state government’s hands.
Democracy
The Constitution assumes two areas of “democracy”: the state legislatures, and the federal House of Representatives. Those were the only two original bodies where representatives were directly chosen by the people. Until the 17th Amendment in 1913 Senators were chosen by the state legislatures rather than by direct election, though many states held elections and honored the choice.
And the President of the United States famously is not directly chosen “by the people”. Instead, the people vote for a “slate of electors” pledged to vote for their candidate in the electoral college. So when an Ohio voter selected Biden for President, they were actually voting for eighteen electors pledged to Biden. Since Trump won the majority of Ohio’s vote, the eighteen electors pledged to him were actually certified to the Congress as Ohio’s choice.
Legal Precedent
But there’s a deeper secret here. In Article II of the Constitution, the “people” voting for President actually isn’t mentioned at all. The wording is: “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors…” So the way that electors are chosen is a matter for the state legislature, not a Constitutional guarantee.
That means it seems Constitutionally possible for a state legislature to ignore the popular vote, and select the electors “they” want. But that’s a “radical” interpretation of the Constitution. There’s two hundred and thirty-five years of legal precedence recognizing the role of the popular vote in selecting electors for President. If a state decided to ignore the popular outcome and choose the “losing” electors as their representatives, it’s likely that Congress would refuse to recognize them, and Courts might intervene. As Harvard Law Professor Laurence Lessig puts it: “…the constitutional duty that the legislatures have is, like the electors, to respect the vote of their people (USA Today).”
Muddy the Count
But there’s a more insidious movement afoot in today’s America. State legislatures aren’t likely to ignore the clear outcome of an election, but they are “muddying” the results to confuse the final conclusion. Many states are passing laws allowing the legislatures to meddle in the count, determine which votes to accept and reject, and, if necessary, change the vote counters to gain a “better” outcome. So while those states may still be endorsing “the will of the people” when they certify Presidential elections, they are also attempting to control whar “will” they receive.
How can a state legislature, elected by the people, then take away the people’s power to make electoral decisions? That answer is relatively simple. State legislatures have the power to determine their own legislative districts. By gerrymandering districts, one political view can gain power disproportionate to their actual numbers. For example, here in Ohio the lower house is Republican 64 to 35, a super-majority of 66%. But in polling, 42% of Ohioans claim to be or lean towards Republican, 40% Democrat, and 18% Independent (Pew). In the 2020 Presidential election, Trump won by 53% while Biden got 45%.
Who Counts
Ohio is not two-thirds Republican, but our legislature is. That’s true in several other “swing” states throughout the nation. And those legislatures don’t feel bound to “the will of the people”, as they have managed to gerrymander the opposing party’s vote to a small minority. It’s not really much of a step then, to “manage” the outcome of a Presidential election as well. Nine states already have enacted restrictive laws, including key Presidential states. Proposals are in the works in many other states.
All of this is being done under the guise of “election security” and restoring “the people’s trust” in elections. But, despite the continuing cries of a defeated President, there was no election fraud, just sour grapes. The distrust he managed to sow has created fertile ground for subverting the electoral process, and the state legislatures are leading the way.
So who will defend the “will of the people” in 2024? If not the state legislatures, then what about the Congress?
That’s what makes the Congressional elections of 2022 so important.
