HISTORY 102 ESSAYS ON HISTORICAL DOCUMENTS

You will be required to submit two (2) minimum four page typewritten essays (double- spaced) during the semester, based on your reading and interpretation of historic primary and secondary source documents. Essays less than the minimum four pages will receive a lower grade.

The first involves analyzing and comparing and contrasting primary source documents and placing them within an historical context, using both the textbook and class lectures to support your work.

The second requires you to support a thesis based on relevant primary and secondary source documents, including the textbook and class lectures.

You may also consult other sources beside the textbook and class lectures if you feel it necessary. If you do, please be sure and cite them in the body of your essay.

Essays will be submitted to turnitin.com (Please read syllabus for more detailed information).

Your essays should be written clearly and concisely, and developed logically. Assistance with the mechanics of writing your essay may be found on a drop-in basis at the Writing Center (Humanities 122). Bring this handout to the Writing Center and your work in progress.

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ESSAY #1 COMPARE AND CONTRAST Immigrant groups have faced discrimination since the establishment of the thirteen English colonies. In the 18th century German and French immigrants found themselves unwelcome and the subject of prejudice, stereotypes, and discrimination. In the 19th century the Irish, the Italians, Poles, and Jews suffered severe discrimination as they came to the United States in large numbers. Asian-Americans did not come to the United States in significant numbers until the California Gold Rush, when there was a large immigration of Chinese. This immigration was followed by an influx of Japanese and Indians from the Subcontinent. In recent decades the United States has also seen large waves of immigration` from the Philippines, Korea, Vietnam, and elsewhere in Asia and the South Pacific.

In 1882 anti-Asian animus was made manifest by the Chinese Exclusion Act and in 1907 the United States and Japan agreed to a “Gentlemen’s Agreement” to discourage Japanese citizens from emigrating to the United States.

After the bombing of Pearl Harbor on December 7, 1941, Japanese-born residents and American-born citizens of Japanese descent found themselves under suspicion as possible enemies and traitors. Hysteria and fear of a Japanese invasion of the Pacific Coast led President Franklin D. Roosevelt to issue Executive Order 9066 on February 19, 1942 giving the Secretary of War and the armed forces the authority to remove people of Japanese ancestry from what they designated as military areas and surrounding communities in the United States. These areas were legally off limits to Japanese aliens and Japanese- American citizens.

Military Order 34, promulgated in April and May, 1942, under the authority of Executive Order 9066, set in motion the mass transportation and forced relocation of more than 120,000 Japanese people to sites the government called detention camps that were set up and occupied in about 14 weeks. Most of the people who were relocated lived on the West Coast and two-thirds were American citizens. In accordance with the order, the military transported these people to some 26 sites in seven western states, including remote locations in Washington, Idaho, Utah, and Arizona.

Fred Toyasaburo Korematsu, 23, was born in the United States and did not comply with the order to leave his home and job, despite the fact that his parents had abandoned their home and their flower-nursery business in preparation for reporting to a camp. Korematsu decided to stay behind. He had plastic surgery on his eyes to alter his appearance; changed his name to Clyde Sarah; and claimed that he was of Spanish and Hawaiian descent.

On May 30, 1942, the FBI arrested Korematsu for failure to report to a relocation center. After his arrest, while waiting in jail, he decided to allow the American Civil Liberties Union to represent him and make his case a test case to challenge the constitutionality of

2 the government’s order. Korematsu was tried in federal court in San Francisco, convicted of violating military orders issued under Executive Order 9066, given five years on probation, and sent to an Assembly Center in San Bruno, CA.

Korematsu’s attorneys appealed the trial court’s decision to the U.S. Court of Appeals, which agreed with the trial court that he had violated military orders. Korematsu asked the Supreme Court of the United States to hear his case. On December 18, 1944, a divided Supreme Court ruled, in a 6-3 decision, that the detention was a “military necessity” not based on race.

In 1983, a pro bono legal team with new evidence re-opened the 40- year-old case in a federal district court on the basis of government misconduct. They showed that the government’s legal team had intentionally suppressed or destroyed evidence from government intelligence agencies reporting that Japanese Americans posed no military threat to the U.S. The official reports, including those from the FBI under J. Edgar Hoover, were not presented in court. On November 10, 1983, a federal judge overturned Korematsu’s conviction in the same San Francisco courthouse where he had been convicted as a young man.

In 1988, President Ronald Reagan signed the Civil Liberties Act to compensate more than 100,000 people of Japanese descent who were incarcerated in internment camps during World War II. In 1991 President George H.W. Bush signed a letter of formal apology accompanied by a check in the amount of $20,000 as compensation to each surviving victim.

Below you will find the following documents:

1) Executive Order #9066, signed by President Franklin D. Roosevelt, authorizing the military to establish exclusion zones as it deemed necessary. 2) Military Order 34 (Evacuation Order) for Alameda County, CA, signed by General J. L. Dewitt 3) Excerpts from the Majority Report of the United States Supreme Court, authored by Justice Hugo Black, in Korematsu vs United States, December 18, 1944. 4) Excerpts from the Dissenting Report of the United States Supreme Court, authored by Justice Robert H. Jackson, in Korematsu vs United States, December 18, 1944.

PLEASE READ THESE DOCUMENTS AND COMPARE AND CONTRAST THE ARGUMENTS OF JUSTICES BLACK AND JACKSON.

Some QUESTIONS TO CONSIDER as you read these decisions:

1) Did Black argue that it was appropriate to remove Korematsu because he was deemed disloyal to the United States? What did Jackson say about Korematsu’s presumed loyalty?

3 2) What did Black say about the constitutionality of implementing a law aimed at a specific racial group? When would such a law be supportable? Did Black accept at all that the government’s actions were racially based? What did Jackson have to say about the constitutionality of a law aimed at a specific racial group , and whether a law can be aimed at a group, rather than individuals? 3) What previous decision did Black use to support the Court’s ruling in Korematsu and on what grounds, and why did Jackson reject Black’s argument? 4) What linkage did Black argue existed between removal and national security? What did Jackson say on such a linkage? 5) What did Jackson say about the Court uniformly approving military decisions even in time of war? What did he fear would occur if the Court blindly declares military decisions as being constitutional rather than short-term expedient measures? 6) What issues did Black refuse to rule on the Court’s narrow decision? What other issues besides failure to comply with Military Order 34 did Jackson say had to be considered by the Court? 7) What did Jackson have to say about the disparate treatment of those of Japanese descent as opposed to those whose descent was that of other belligerent nations at war with the United States at the time? 8) What did Jackson argue was the responsibility of the judiciary when there is a conflict between the military and the Constitution? 9) Can you think of any other examples of government animus towards a racial, ethnic, or religious group that have existed since World War II and what, if any, constitutional questions did/do they raise?

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PRESIDENT FRANKLIN D. ROOSEVELT EXECUTIVE ORDER 9066 FEBRUARY 19, 1942

Executive Order Authorizing the Secretary of War to Prescribe Military Areas Whereas the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (U.S.C., Title 50, Sec. 104); Now, therefore, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave

4 shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. The designation of military areas in any region or locality shall supersede designations of prohibited and restricted areas by the Attorney General under the Proclamations of December 7 and 8, 1941, and shall supersede the responsibility and authority of the Attorney General under the said Proclamations in respect of such prohibited and restricted areas. I hereby further authorize and direct the Secretary of War and the said Military Commanders to take such other steps as he or the appropriate Military Commander may deem advisable to enforce compliance with the restrictions applicable to each Military area hereinabove authorized to be designated, including the use of Federal troops and other Federal Agencies, with authority to accept assistance of state and local agencies. I hereby further authorize and direct all Executive Departments, independent establishments and other Federal Agencies, to assist the Secretary of War or the said Military Commanders in carrying out this Executive Order, including the furnishing of medical aid, hospitalization, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities, and services. This order shall not be construed as modifying or limiting in any way the authority heretofore granted under Executive Order No. 8972, dated December 12, 1941, nor shall it be construed as limiting or modifying the duty and responsibility of the Federal Bureau of Investigation, with respect to the investigation of alleged acts of sabotage or the duty and responsibility of the Attorney General and the Department of Justice under the Proclamations of December 7 and 8, 1941, prescribing regulations for the conduct and control of alien enemies, except as such duty and responsibility is superseded by the designation of military areas hereunder. ************************************************************************

MILITARY ORDER #34: EVACUATION ORDER FOR ALAMEDA COUNTY, CALIFORNIA

INSTRUCTIONS TO ALL PERSONS OF JAPANESE ANCESTRY

Western Defense Command and Fourth Army Wartime Civil Control Administration, Presidio of San Francisco, California

May 3, 1942

Instructions to All Persons of Japanese Ancestry Living in the Following Area: All of that portion of the County of Alameda, State of California, within the boundary beginning at the point where the

5 southerly limits of the City of Oakland meet San Francisco Bay; thence easterly and following the southerly limits of said city to U.S. Highway No. 50; thence southerly and easterly on said Highway No. 50 to its intersection with California State Highway No. 21; thence southerly on said Highway No. 21 to its intersection, at or near Warm Springs, with California State Highway No. 17; thence southerly on said Highway No. 17 to the Alameda-Santa Clara County line; thence westerly and following said county line to San Francisco Bay; thence northerly, and following the shoreline of San Francisco Bay to the point of Beginning.

Pursuant to the provisions of Civilian Exclusion Order No. 34, this Headquarters, dated May 3, 1942, all persons of Japanese ancestry, both alien and non-alien, will be evacuated from the above area by 12 o'clock noon, P. W. T., Sunday, May 9, 1942.

No Japanese person living in the above area will be permitted to change residence after 12 o'clock noon, P. W. T., Sunday, May 3, 1942, without obtaining special permission from the representative of the Commanding General, Northern California Sector, at the Civil Control Station located at: 920 "C" Street, Hayward, California.

Such permits will only be granted for the purpose of uniting members of a family, or in cases of grave emergency.

The Civil Control Station is equipped to assist the Japanese population affected by this evacuation in the following ways: 1. Give advice and instructions on the evacuation. 2. Provide services with respect to the management, leasing, sale, storage or other disposition of most kinds of property, such as real estate, business and professional equipment, household goods, boats, automobiles and livestock. 3. Provide temporary residence elsewhere for all Japanese in family groups. 4. Transport persons and a limited amount of clothing and equipment to their new residence.

The Following Instructions Must Be Observed: 1. A responsible member of each family, preferably the head of the family, or the person in whose name most of the property is held, and each individual living alone, will report to the Civil Control Station to receive further instructions. This must be done between 8:00 A. M. and 5:00 P. M. on Monday, May 4, 1942, or between 9:00 A. M. and 5:00 P. M. on Tuesday, May 5, 1942.

2. Evacuees must carry with them on departure for the Assembly Center, the following property:

(a) Bedding and linens (no mattress) for each member of the family; (b) Toilet articles for each member of the family; (c) Extra clothing for each member of the family; (d) Sufficient knives, forks, spoons, plates, bowls and cups for each member of the family; (e) Essential personal effects for each member of the family.

All items carried will be securely packaged, tied and plainly marked with the name of the owner and numbered in accordance with instructions obtained at the Civil Control Station. The size and number of packages is limited to that which can be carried by the individual or family group. 3. No pets of any kind will be permitted. 4. No personal items and no household goods will be shipped to the Assembly Center. 5. The United States Government through its agencies will provide for the storage, at the sole risk of the owner, of the more

6 substantial household items, such as iceboxes, washing machines, pianos and other heavy furniture. Cooking utensils and other small items will be accepted for storage if crated, packed and plainly marked with the name and address of the owner. Only one name and address will be used by a given family. 6. Each family, and individual living alone, will be furnished transportation to the Assembly Center or will be authorized to travel by private automobile in a supervised group. All instructions pertaining to the movement will be obtained at the Civil Control Station.

Go to the Civil Control Station between the hours of 8:00 A. M. and 5:00 P. M., Monday, May 4, 1942, or between the hours of 8:00 A.M.and 5:00 P. M., Tuesday, May 5, 1942, to receive further instructions.

J. L. DeWITT Lieutenant General, U.S. Army Commanding

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JUSTICE HUGO BLACK WRITING FOR THE MAJORITY, KOREMATSU VS UNITED STATES DECEMBER 18, 1944

The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a 'Military Area', contrary to Civilian Exclusion Order No. 34 of the Commanding General [323 U.S. 214, 216] of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals affirmed, and the importance of the constitutional question involved caused us to grant certiorari.

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.

In the instant case prosecution of the petitioner was begun by information charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173, 18 U.S.C.A. 97a, which provides that

... whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.'

Exclusion Order No. 34, which the petitioner knowingly and admittedly violated was one of a number of military orders and proclamations, all of which were substantially based upon Executive Order No. 9066, 7 Fed.Reg. 1407. That order, issued after we were at war with Japan, declared that 'the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national- defense utilities. ...'

7 One of the series of orders and proclamations, a curfew order, which like the exclusion order here was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a 'protection against espionage and against sabotage.' In Kiyoshi Hirabayashi v. United States,we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage.

The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities and of the President, as Commander in Chief of the Army; and finally that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.

In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did. True, exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas.

In this case the petitioner challenges the assumptions upon which we rested our conclusions in the Hirabayashi case. He also urges that by May 1942, when Order No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared. After careful consideration of these contentions we are compelled to reject them. Here, as in the Hirabayashi case, supra, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.

Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan. 2

We uphold the exclusion order as of the time it was made and when the petitioner violated it. In doing so, we are not

8 unmindful of the hardships imposed by it upon a large group of American citizens. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.

We are … being asked to pass at this time upon the whole subsequent detention program in both assembly and relocation centers, although the only issues framed at the trial related to petitioner's remaining in the prohibited area in violation of the exclusion order. Had petitioner here left the prohibited area and gone to an assembly center we cannot say either as a matter of fact or law, that his presence in that center would have resulted in his detention in a relocation center. Some who did report to the assembly center were not sent to relocation centers but were released upon condition that they remain outside the prohibited zone until the military orders were modified or lifted. This illustrates that they pose different problems and may be governed by different principles. The lawfulness of one does not necessarily determine the lawfulness of the others. …Since the petitioner has not been convicted of failing to report or to remain in an assembly or relocation center, we cannot in this case determine the validity of those separate provisions of the order. It is sufficient here for us to pass upon the order which petitioner violated. To do more would be to go beyond the issues raised, and to decide momentous questions not contained within the framework of the pleadings or the evidence in this case. It will be time enough to decide the serious constitutional issues which petitioner seeks to raise when an assembly or relocation order is applied or is certain to be applied to him, and we have its terms before us.

Some of the members of the Court are of the view that evacuation and detention in an Assembly Center were inseparable. After May 3, 1942, the date of Exclusion Order No. 34, Korematsu was under compulsion to leave the area not as he would choose but via an Assembly Center. The Assembly Center was conceived as a part of the machinery for group evacuation. The power to exclude includes the power to do it by force if necessary. And any forcible measure must necessarily entail some degree of detention or restraint whatever method of removal is selected. But whichever view is taken, it results in holding that the order under which petitioner was convicted was valid.

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers-and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies-we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders-as inevitably it must-determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot-by availing ourselves of the calm perspective of hindsight-now say that at that time these actions were unjustified.

AFFIRMED.

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JUSTICE ROBERT H. JACKSON, DISSENTING OPINION, KOREMATSU VS UNITED STATES, DECEMBER 18, 1944

Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law- abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.

Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps.

A citizen's presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four-the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole- only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock.

Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that 'no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.' Article 3, 3, cl. 2. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace- time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it.

But the 'law' which this prisoner is convicted of disregarding is not found in an act of Congress, but in a military order. Neither the Act of Congress nor the Executive Order of the President, nor both together, would afford a basis for this conviction. It rests on the orders of General DeWitt. And it is said that if the military commander had reasonable military grounds for promulgating the orders, they are constitutional and become law, and the Court is required to enforce them. There are several reasons why I cannot subscribe to this doctrine.

It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. The armed services must protect a society, not merely its Constitution. The very essence of the military job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage. Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be. But a commander in temporarily focusing the life of a community on defense is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands,

10 although they may be very bad as constitutional law.

But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. This is what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it.

The limitation under which courts always will labor in examining the necessity for a military order are illustrated by this case. How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court. There is sharp controversy as to the credibility of the DeWitt report. So the Court, having no real evidence before it, has no choice but to accept General DeWitt's own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable.

And thus it will always be when courts try to look into the reasonableness of a military order.

In the very nature of things military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as 'the tendency of a principle to expand itself to the limit of its logic.' A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case.

It argues that we are bound to uphold the conviction of Korematsu because we upheld one in Kiyshi Hirabayashi v. United States, when we sustained these orders in so far as they applied a curfew requirement to a citizen of Japanese ancestry. I think we should learn something from that experience.

In that case we were urged to consider only that curfew feature, that being all that technically was involved, because it was the only count necessary to sustain Hirabayashi's conviction and sentence. We yielded, and the Chief Justice guarded the opinion as carefully as language will do. He said: 'Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew. We decide only the issue as we have defined it-we

11 decide only that the curfew order as applied, and at the time it was applied, was within the boundaries of the war power.'. And again: 'It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order.' However, in spite of our limiting words we did validate a discrimination of the basis of ancestry for mild and temporary deprivation of liberty. Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones. And the precedent which it is said requires us to do so is Hirabayashi. The Court is now saying that in Hirabayashi we did decide the very things we there said we were not deciding. Because we said that these citizens could be made to stay in their homes during the hours of dark, it is said we must require them to leave home entirely; and if that, we are told they may also be taken into custody for deportation; and if that, it is argued they may also be held for some undetermined time in detention camps. How far the principle of this case would be extended before plausible reasons would play out, I do not know.

I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy. Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.

My duties as a justice as I see them do not require me to make a military judgment as to whether General DeWitt's evacuation and detention program was a reasonable military necessity. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution I would reverse the judgment and discharge the prisoner.

12 ESSAY #2 SUPPORTING A THESIS

In 1787 the Founding Fathers who wrote the Constitution established a unique way to select the chief Executive Officer of the new federal government of the United States, the President.

Article II Section 1 reads in part as follows:

Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State nay be entitled in the Congress…. The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

The Twelfth Amendment (1804) refined the process of electing the President and Vice President and reads in part as follows:

The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote….

Clearly, the Founding Fathers gave no thought to the American people directly voting for the President, leaving the selection of Electors to each state Legislature. By the1830’s most states had implemented direct popular voting for the president and vice president. And, over time, each state passed legislation granting all of its electoral votes to the candidate receiving the most votes in that state. (Maine and Nebraska have slightly different selection processes).

As a result, while the American people vote for the presidency in each state, the electoral college process has resulted in fifty-one (the states and the District of Columbia) distinct, separate elections, the goal of which is to win enough electoral votes to reach a majority. At this time that total is 270.

Throughout our history there has usually not been a discrepancy between the electoral college and popular vote, as most winning candidates have carried both.

However, problematical elections have included the following:

In both 1800 and 1824 no candidate received a majority of the electoral vote and the President was ultimately chosen by the House of Representatives.

In 1876 there was a dispute as to who actually won the electoral vote in four states; these

13 votes were ultimately given per decision of a Congressionally-appointed Commission to the Republican candidate, Rutherford B. Hayes, notwithstanding that his Democratic opponent, Samuel Tilden, had received more popular votes nation-wide.

In 1888 Benjamin Harrison won a majority of the electoral college votes and became President, notwithstanding that his Democratic opponent, President Grover Cleveland, had received more popular votes nation-wide.

In 2000 there was also a dispute over who won the popular and thus electoral vote in the state of Florida, with the Supreme Court ultimately stopping a mandated recount and granting that state’s electoral votes to George W. Bush. This decision gave Bush a majority of electoral college votes and the presidency, notwithstanding that his Democratic opponent, Al Gore, had received more than half a million more popular votes nation-wide.

And in 2016 the nation witnessed a presidential election with the greatest disparity in our history between the electoral and popular vote. Donald J. Trump won enough electoral votes to defeat his Democratic opponent, Hillary Clinton by an Electoral College vote of 306-232, notwithstanding that Clinton received some 2.8 million more popular votes nation-wide.

Equally jarring in 2016 and highlighting the nature of the electoral college was the fact that seven electors refused to honor the vote of the majority in their states. Two electors from states carried by Trump refused to vote for him and cast their electoral vote for others. Five electors from states carried by Clinton refused to vote for her and also cast their electoral vote for others. While these actions did not change the final, official result, they put into glaring focus the fact that electors are not obligated to vote for the candidate that wins their state, and signaled that such defections could potentially change the outcome in a future presidential election.

The final official electoral vote tally in 2016 was 304-227.

The last presidential election once more has revived the issue of the appropriateness of the electoral college , with many defending it and many urging its revision or complete abolition.

Below you will find several documents reflecting on the 2000, 2012, and 2016 presidential elections. Please read then in detail.

MAINTAINING THE ELECTORAL COLLEGE

*John Samples, “In Defense of the Electoral College,”2001

*Tara Ross, “The Case for the Electoral College,” 2004

*Allen Guelzo and James Hulme “In Defense of the Electoral College,” 2016

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ABOLISHING OR REVISING THE ELECTORAL COLLEGE

*Timothy Noah “Why is the Electoral College Still There?”, 2001

* Eric Black “10 Reasons Why the Electoral College is a Problem,” 2012

*Taylor Brodarick “It’s Time to Abolish the Electoral College,” 2012

*New York Times Editorial “Time to End the Electoral College,” 2016

*Nina Agrawal “All the Times in U.S. History that Members of the Electoral College Voted Their Own Way,” 2016

Please write on one of the two following theses:

THESES

The Electoral College should remain as it is because it carries out the intent of the Founding Fathers, is beneficial the nation, and supports the validity of elections and the elected President.

OR

The Electoral College should be revised or abolished because it is both undemocratic, is not beneficial to the nation, and may weaken the validity of elections and the elected President.

SOME QUESTIONS TO CONSIDER as you support your thesis are:

1. What arguments related to federalism and the intentions of the Founding Fathers do the supporters of the electoral college utilize? 2. How do supporters of the electoral college respond to allegations that the current system is undemocratic? 3. Who does each side argue is currently advantaged or disadvantaged by the system in place and why is this either a good or a bad thing? 4. How does each side argue that the current system may strengthen or weaken the legitimacy of elections and the elected president? 5. How does each side argue that the electoral college enhances or diminishes moderation, compromise, and potential electoral disputes? 6. Who does each side believe would gain or lose from the popular election of the president? 7. What benefits or drawbacks would result if the system were revised to a district or proportional system of election? 8. How do faithless electors support the arguments of opponents of the current electoral system? 9. How do past presidential elections, especially those of 2000, 2012, and 2016

15 support or weaken the arguments of each side?

______IN SUPPORT OF RETAINING THE ELECTORAL COLLEGE

JOHN SAMPLES : “IN DEFENSE OF THE ELECTORAL COLLEGE, “ CATO INSTITUTE, NOVMBER 10, 2000 Critics have long derided the Electoral College as a fusty relic of a bygone era, an unnecessary institution that one day might undermine democracy by electing a minority president. That day has arrived, assuming Gov. Bush wins the Florida recount as seems likely.

The fact that Bush is poised to become president without a plurality of the vote contravenes neither the letter nor the spirit of the Constitution. The wording of our basic law is clear: The winner in the Electoral College takes office as president. But what of the spirit of our institutions? Are we not a democracy that honors the will of the people? The very question indicates a misunderstanding of our Constitution.

James Madison’s famous Federalist No. 10 makes clear that the Founders fashioned a republic, not a pure democracy. To be sure, they knew that the consent of the governed was the ultimate basis of government, but the Founders denied that such consent could be reduced to simple majority or plurality rule. In fact, nothing could be more alien to the spirit of American constitutionalism than equating democracy will the direct, unrefined will of the people.

Recall the ways our constitution puts limits on any unchecked power, including the arbitrary will of the people. Power at the national level is divided among the three branches, each reflecting a different constituency. Power is divided yet again between the national government and the states. Madison noted that these twofold divisions — the

16 separation of powers and federalism — provided a “double security” for the rights of the people.

What about the democratic principle of one person, one vote? Isn’t that principle essential to our form of government? The Founders’ handiwork says otherwise. Neither the Senate, nor the Supreme Court, nor the president is elected on the basis of one person, one vote. That’s why a state like Montana, with 883,000 residents, gets the same number of Senators as California, with 33 million people. Consistency would require that if we abolish the Electoral College, we rid ourselves of the Senate as well. Are we ready to do that?

The filtering of the popular will through the Electoral College is an affirmation, rather than a betrayal, of the American republic. Doing away with the Electoral College would breach our fidelity to the spirit of the Constitution, a document expressly written to thwart the excesses of majoritarianism. Nonetheless, such fidelity will strike some as blind adherence to the past. For those skeptics, I would point out two other advantages the Electoral College offers.

First, we must keep in mind the likely effects of direct popular election of the president. We would probably see elections dominated by the most populous regions of the country or by several large metropolitan areas. In the 2000 election, for example, Vice President Gore could have put together a plurality or majority in the Northeast, parts of the Midwest, and California.

The victims in such elections would be those regions too sparsely populated to merit the attention of presidential candidates. Pure democrats would hardly regret that diminished status, but I wonder if a large and diverse nation should write off whole parts of its territory. We should keep in mind the regional conflicts that have plagued large and diverse nations like India, China, and Russia. The Electoral College is a good antidote to the poison of regionalism because it forces presidential candidates to seek support throughout the nation. By making sure no state will be left behind, it provides a measure of coherence to our nation.

17 Second, the Electoral College makes sure that the states count in presidential elections. As such, it is an important part of our federalist system — a system worth preserving. Historically, federalism is central to our grand constitutional effort to restrain power, but even in our own time we have found that devolving power to the states leads to important policy innovations (welfare reform).

If the Founders had wished to create a pure democracy, they would have done so. Those who now wish to do away with the Electoral College are welcome to amend the Constitution, but if they succeed, they will be taking America further away from its roots as a constitutional republic.

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TARA ROSS: “THE CASE FOR THE ELECTORAL COLLEGE,” HERITAGE FOUNDATION, 2004

The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system . . . which has escaped without severe censure. . . . I venture somewhat further, and hesitate not to affirm that if the manner of it be not perfect, it is at least excellent. n Alexander Hamilton

The United States is quickly approaching its first presidential election since the eventful election of 2000. The story of that election is still fresh in our memory. George W. Bush won the presidency, but only after weeks of controversy in Florida. His win made him the first President in more than 100 years to attain the White House despite a popular vote loss, and it led to renewed calls for abolition of America's unique presidential election system, colloquially referred to as the Electoral College.

Some academics have criticized the Electoral College for years. It has been called an "anachronism" that "thwarts" democratic principles, "constitutional stupidity, "or even a "dangerous game" with "many built-in pitfalls" that are "bound to destroy us." In 1967, the American Bar Association blasted the system, calling it "archaic, undemocratic, complex, ambiguous, indirect, and dangerous."

The negative views of today's academics are starkly at odds with the universal admiration for the system at the time it was created. Alexander Hamilton, for instance, publicly deemed the Electoral College "excellent. Other delegates at the Constitutional Convention agreed with him: They viewed the Electoral College as one of the new Constitution's great achievements. Today's unenthusiastic views would almost certainly

18 surprise these early patriots.

The Constitution's Election Process Modern-day American presidential elections are governed by the 12th Amendment to the U.S. Constitution, which was adopted and ratified by the states in 1804. The 12th Amendment modified the Constitution's original Article II election procedure to provide for the current system of one-ticket voting for the President and Vice President. It is perhaps easiest to think of the current election procedure in two phases: first, the Electoral College vote, and second, the contingent election procedure, which is used only if no candidate wins a majority of electoral votes.

The Electoral College Vote. The Constitution provides for a presidential election among the states, rather than among individuals. In this election, each state is granted a certain number of representatives, called electors, to cast votes on its behalf. This national vote among the states is often referred to as the vote of the Electoral College. States are allocated one elector for each of their representatives in Congress. Each state therefore automatically receives a minimum of three votes, as it is entitled to at least two Senators and one Congressman, regardless of population. Adoption of the 23rd Amendment in 1961 provided the District of Columbia with at least three electoral votes, as if it were a state. There are currently 538 total electors. Following the 2000 census, California has the most electors (55), while seven states plus the District of Columbia have the minimum number of electors (3).

State legislatures decide how to appoint electors for this national election, and it is generally agreed that the legislatures may appoint electors in any manner that they choose. Each state except Maine and Nebraska currently uses a "winner-take-all" system, whereby the presidential candidate winning the state's popular vote is awarded the state's entire slate of electors. Maine and Nebraska each give two electoral votes to the winner of the state's popular vote and select the remaining electors by congressional district. The Electoral Count Act of 1887, as updated through the years, currently provides an election timeline: Election Day is the Tuesday following the first Monday in November in any given presidential election year. Each state certifies a slate of electors based upon the outcome of its popular vote. These electors assemble in their state on the first Monday after the second Wednesday in December. On this day, the electors cast the votes that officially determine who will be the next President of the United States. Congress meets in joint session to count these votes on the following January 6.

To be elected President, a candidate needs a majority of these states' electoral votes, which are cast in December. He does not need a majority of the direct popular vote cast on Election Day. At this time, 270 votes constitute a majority of the Electoral College and will win the presidency for a candidate.

The Contingent Election. If no candidate wins a majority of the Electoral College vote, the Constitution provides a backup method for presidential selection. This procedure is often referred to as the Constitution's contingent election procedure. In this secondary election, the House selects a President and the Senate selects a Vice President.

19 In the House vote for President, each state delegation is granted one vote. If a state's delegation is evenly divided, that state cannot vote until and unless the tie is broken. A President is elected when one candidate wins a majority of the votes of state delegations (currently 26). State delegations may vote for any one of the top three presidential candidates in the electoral vote, and re-votes are taken until a majority is achieved. A similar procedure is employed for election of the Vice President, except that each Senator is granted one vote and only the top two vice presidential candidates from the electoral vote are candidates in the Senate vote.

The Founders spent months of extensive deliberation on the topic of presidential election: They deemed it one of the most difficult issues facing the Convention. When the Electoral College proposal was completed, they viewed it as a unique and commendable solution that would satisfy the many -- apparently contradictory -- goals of the new republic.

Origins of the Electoral College Contrary to modern perceptions, the founding generation did not intend to create a direct democracy. To the contrary, the Founders deliberately created a republic -- or, arguably, a republican democracy -- that would incorporate a spirit of compromise and deliberation into decision-making. Such a form of government, the Founders believed, would allow them to achieve two potentially conflicting objectives: avoiding the "tyranny of the majority" inherent in pure democratic systems, while allowing the "sense of the people" to be reflected in the new American government. Moreover, a republican government, organized on federalist principles, would allow the delegates to achieve the most difficult of their tasks: enabling large and small sovereign states to live peacefully alongside each other.

The authors of the Constitution had studied the history of many failed democratic systems, and they strove to create a different form of government. Indeed, James Madison, delegate from Virginia, argued that unfettered majorities such as those found in pure democracies tend toward tyranny. Madison stated it this way:

[In a pure democracy], [a] common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert results from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.

Alexander Hamilton agreed that "[t]he ancient democracies, in which the people themselves deliberated, never possessed one feature of good government. Their very character was tyranny; their figure, deformity." Other early Americans concurred. John Adams, who signed the Declaration of Independence and later became President, declared, "[D]emocracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide." Another signatory to the

20 Declaration of Independence, Benjamin Rush, stated, "A simple democracy . . . is one of the greatest of evils."

Despite these strong statements against democracy, the Founders were also strong advocates for self-government, and they often spoke of the need to allow the will of the people to operate in the new government that they were crafting. "Notwithstanding the oppressions & injustice experienced among us from democracy," Virginia delegate George Mason declared, "the genius of the people must be consulted." James Madison agreed, speaking of the "honorable determination which animates every votary of freedom to rest all our political experiments on the capacity of mankind for self- government."

The delegates, then, faced a dilemma. Their fierce opposition to simple democracy ran headlong into their determination to allow the people to govern themselves -- and they knew that voters in small states would need to be free to govern themselves, just as would citizens in large states. The Founders reconciled these seemingly conflicting needs by creating a republican government, organized on federalist principles, in which minorities would be given many opportunities to make themselves heard.

The Electoral College was considered to fit perfectly within this republican, federalist government that had been created. The system would allow majorities to rule, but only while they were reasonable, broad-based, and not tyrannical. The election process was seen as a clever solution to the seemingly unsolvable problem facing the Convention -- finding a fair method of selecting the Executive for a nation composed of both large and small states that have ceded some, but not all, of their sovereignty to a central government. "`[T]he genius of the present [Electoral College] system,'" a 1970 Senate report concluded, "`is the genius of a popular democracy organized on the federal principle.”

An 18th Century Solution in 21st Century America

Much has changed since 1787. The Founders could not have foreseen the rapid technological advancements, massive federal bureaucracy, and increasingly populist attitudes that characterize American life today. Could it be that the Electoral College, although once an ingenious solution to many 18th century problems, has today become merely an anachronism -- and a potentially dangerous one at that?

The Electoral College undoubtedly operates in a different society from the one that existed in 1787. Yet the Electoral College has shown an amazing ability to adapt to modern-day America. It may sometimes operate differently than expected, but it still serves the political goals it was intended to serve. In truth, its operation in modern times may be even more valuable.

The Benefits of Federalism. Critics of the Electoral College allege that the country's presidential election process does more to trample the rights of individuals than to protect federalism. In this context, they often cite the "winner-take-all" method employed by

21 most states, claiming that it causes the votes of some individuals to be "wasted." As this argument goes, a Texan who voted for Al Gore in the 2000 election wasted his vote because George W. Bush was awarded the state's entire slate of electors under the winner-take-all method. Gore did not win so much as one electoral vote from Texas, despite winning nearly 2.5 million of that state's popular votes during the election. In a direct popular election, critics note, these votes would not have been "wasted" -- they could have instead been included in the final national tally for Gore.

Such arguments, however, are a bit disingenuous. These votes were not wasted. They were simply cast on the losing side of a popular vote within the state. If the 2000 election had been conducted based on nationwide popular vote totals only, would people claim that any vote for George W. Bush was "wasted" because Al Gore won the popular vote? Of course not. The votes for Bush were cast in an effort to win. In the event of a loss, they would simply have been votes for the losing candidate -- just as in any other election (such as an election for Governor or Senator).

The primary effect of America's federalist presidential election process is to protect the freedom of individuals -- particularly those in small states and sparsely populated areas. Perhaps the best method of demonstrating the benefits of federalism is to expose the evils suffered without it.

As the system stands today, presidential candidates have no incentive to poll large margins in any one state. Winning 50.1 percent of the votes in a state is as effective as winning 100 percent of the votes. Presidential candidates therefore tour the nation, campaigning in all states and seeking to build a national coalition that will enable them to win a majority of states' electoral votes. Direct popular elections, by contrast, would present different incentives. Suddenly, winning 100 percent of the votes is better than winning 50.1 percent of the votes. In fact, it may be easier to rack up votes in a friendly state than to gain 50.1 percent of votes in each of two states of similar size, although the payoff would be essentially the same.

The result? Democrats would almost certainly spend most of their time in the large population centers in California and New York. Republicans would campaign in the South and Midwest. Large cities would be focused on almost exclusively as the candidates seek to turn out as many votes as possible in "their" region of the country. Small states, rural areas, and sparsely populated regions would find themselves with little to no voice in presidential selection. In this scenario, a handful of states (or heavily populated cities) win, while the remaining states and less-populated areas suffer significantly.

Many critics dispute this description of the two types of elections. They contend that the current system does not encourage presidential candidates to tour the nation, but instead encourages a focus on mid-sized "swing" states. "Safe" states and small states, they allege, do not receive nearly as much attention on this national tour.

There is an element of truth in this observation. Yet to the degree that safe states do not

22 receive a proportionate amount of attention during campaigns, the logical conclusion is that those states, by and large, must already feel that one of the two presidential candidates represents their interests fairly well. When a candidate ceases to adequately understand and represent one of "his" state's interests, the discontent in that state is usually expressed pretty quickly.

A second argument made by critics is similarly flawed. Although the winner-take-all system causes large states (especially large swing states) to elicit more attention than small states, these critics erroneously compare the amount of campaigning in small versus large states under the current system. They should instead compare the treatment of small states under the current system against the treatment they would receive under a new one. Today, small states undoubtedly receive less attention than large states (unless, of course, the large state is considered a safe state). However, a direct vote system would magnify, not improve, this problem because it would encourage a focus on highly populated areas. Small states would likely never receive as much attention as their larger neighbors. The goal is not to eliminate this disparity, but to minimize its severity. Under the Electoral College system, the states are as evenly represented as possible, given that they are not all the same size.

In sum, the nation conducts democratic, popular elections -- but they are conducted at the state level, rather than the national level. Professor Charles R. Kesler of Claremont McKenna College explains: "In truth, the issue is democracy with federalism (the Electoral College) versus democracy without federalism (a national popular vote). Either is democratic. Only the Electoral College preserves federalism, moderates ideological differences, and promotes national consensus in our choice of a chief executive."

Moderation and Compromise . Presidential candidates must build a national base among the states before they can be elected. They cannot target any one interest group or regional minority. Instead, they must achieve a consensus among enough groups, spread out over many states, to create a broad-based following among the voters. Any other course of action will prevent a candidate from gaining the strong base needed to win the election. The necessity of building such a national base has led to moderation and a strong two-party system in American politics.

Some see this trend toward moderation and a two-party system as a liability. They argue that certain points of view on the far left or far right do not have representation. Some voters do identify with a third party more than they identify with one of the two major parties. Democratic theories try to satisfy the choices of all voters, but not to the point of destabilizing democratic majorities and democratic government itself. A system that favors a stable two-party system, but allows minority parties to vie for control, has a definite benefit over a system that favors many minority parties: Hand in hand with the Electoral College, it tends to prevent the rise to power of extremist groups and radical minorities. Instead, American public policy tends to remain in the middle -- not too far left, not too far right.

Consider the election of 1992. One of the primary factors that prevented some people

23 from voting for Perot was that they felt their vote would be "wasted." A vote for Ross Perot is a vote for Bill Clinton, voters were told. Now imagine the 1992 election without an Electoral College. Suddenly, the incentives change. Clinton no longer has to be beaten; he just needs to be held under some pre-determined percentage (40% in most proposals for change). To get in the runoff, Perot voters do not need to win; they simply need to overtake George H.W. Bush. A vote for Perot is no longer wasted. The Reform Party has a specific, achievable goal with which to motivate its supporters.

Direct popular election proponents sound plausible when they argue for election of the President by a "majority" of the people. In reality, however, a President elected by the majority of citizens will rarely be achievable. A majority, after all, will never agree on an ideal candidate. Given an open choice, individuals would fracture their votes across many candidates. Runoffs would proliferate, and Presidents would essentially be elected by the initial 20 or 25 percent of voters who got them into the runoff. Presidents would always know that at least 75 to 80 percent of the people originally voted for someone else.

Given the general inability to obtain majority consensus, the Electoral College provides the country with the next best alternative. Electing Presidents by states' votes, rather than individuals' votes, creates a method of electing a President who is a good compromise candidate for the majority of Americans. The Electoral College requires moderation, compromise, and coalition building from any candidate before he can be successful. Direct elections and a system of runoffs discourage such behavior.

Stability and Certainty in Elections. Historically, most elections have not been close in the Electoral College, even when the popular vote is close. The Electoral College system, when combined with the winner-take-all rule, tends to magnify the margin of victory, giving the victor a certain and demonstrable election outcome. The magnification of the electoral vote can work to solidify the country behind the new President by bestowing an aura of legitimacy.

The election of 1960 was one such close election. John Kennedy won only 49.7 percent of the popular vote, compared to Nixon's 49.5 percent. However, Kennedy won 56.4 percent of the electoral vote, compared to Nixon's 40.8 percent. Eight years later, this magnification effect worked in favor of Nixon. Although he won the popular vote by less than one percent, he won 55.9 percent of the electoral vote to Hubert Humphrey's 35.5 percent. This magnification effect increases dramatically as popular vote totals spread apart. For instance, in 1952, the winning candidate won 55.1 percent of the popular vote, but a much larger 83.2 percent of the Electoral College vote. In 1956, the difference was 57.4 percent (popular vote) to 86.1 percent (electoral vote). In 1964, it was 61.1 percent (popular vote) to 90.3 percent (electoral vote).

Presidential elections since 1804 have generally seen wide margins of victory in the Electoral College. These margins have gotten wider, on average, through the years as the winner-take-all rule has been adopted by more states and the two-party system has solidified. Since 1804, only two elections -- those in 1876 and 2000 -- were won by fewer than 20 electoral votes. Six elections were won by fewer than 50 electoral votes: Four of

24 these were held in the 1800s. Of the 26 elections held between 1900 and 2000, 17 Presidents have been elected after winning the electoral vote by a margin of 200 votes or more.

These consistently wide margins of victory in the Electoral College have come about despite the fact that the margin between the top two candidates in the popular vote was less than 10 percent in 14 of the 26 elections held since 1900. This margin exceeded 20 percent only five times since 1900.

A direct popular election, by contrast, would not grant certainty nearly as often. Close popular votes, such as those discussed above, could easily result in demands for recounts on a national scale. America rarely has close electoral votes. It does, however, have close popular votes fairly consistently. Do Americans really want a presidential election system that could result in hotly contested recounts nearly every election?

The Electoral College provides yet another benefit: It reduces the incidence of fraud and error. Obviously, no system can completely eliminate the element of human error. Neither can any system eradicate the tendency of some dishonest individuals to cheat. An election system can, however, minimize the extent to which these factors affect elections. The Electoral College defends against fraudulent behavior and human error in two ways: First, the system makes it difficult to predict where stolen votes will make a difference. Second, to the degree that fraud and errors do occur, the Electoral College makes it possible to isolate the problem to one state or a handful of states. The country is given a clear set of problems to resolve one way or another before moving on to a definitive election outcome -- much as it knew in 2000 that the election would be certain once Florida's disputes were resolved.

Today, both the electoral and the popular votes must be extremely close before voting disputes and recounts are threatened. By contrast, a direct popular election would require only a close popular vote before these scenarios became possible. National recounts and legal challenges would be a constant possibility, particularly because of the increasing likelihood of multiple candidacies, lower individual vote totals, and smaller margins among candidates.

Addressing Alternative Proposals

Direct popular election is not the only alternative to the Electoral College that has been proposed. Two other proposals are also worthy of discussion: (1) The "District Plan" would award electoral votes by congressional district, rather than by state; and (2) The "Proportional Plan" would divide states' electoral votes proportionally, according to the popular vote outcome within the state. Individual legislatures are free to adopt most such plans now. It is telling that so few have done so.

District Plan. The District Plan would award electoral votes based upon congressional district. The candidate with the most votes in any congressional district would win that district's one electoral vote. The two Senate "add-on" votes in each state would then be

25 treated as "at-large" votes and awarded to the state's popular vote winner. Maine and Nebraska already operate under this system. The proposal would require other states to join them. Neither Maine nor Nebraska has divided its electoral votes since their systems were first implemented, but with close presidential elections the odds increase that one or both states will do so.

Proponents of the District Plan argue that the system preserves the small-state advantage, while allowing diversity within the states to be reflected in the national election totals. Moreover, they add, candidates would be encouraged to campaign in states previously considered "safe." Greater voter participation would result, they argue, because every voter would feel that his vote counts. Other Electoral College critics dismiss the District Plan, arguing that the plan fails to address the "problem" of a popular vote winner failing to win the presidency. Indeed, Bush's margin of victory in the Electoral College would have been greater under the District Plan, despite his popular vote loss.

The District Plan retains some of the advantages of the current Electoral College arrangement. America's presidential election system should encourage national coalition building, and campaigning by districts would certainly work toward this goal. However, many of the other benefits envisioned by District Plan proponents are unlikely to come to pass. Greater voter participation is improbable, particularly in lopsided or "safe" congressional districts -- and most congressional districts are safe. This so-called reform may actually have the opposite effect from what was intended in states that are close overall but have congressional districts that are not.

Proportional Plan. Under the Proportional Plan, the Electoral College would be retained, but the electoral votes in each state would be allocated based upon the percentage of the popular vote won. Some versions of this plan call for whole electoral votes to be divided in the interest of accuracy. Others also propose that the total number of electoral votes needed to win should be lowered to a 40 percent threshold.

Proponents argue that the plan would preserve the states' Electoral College strength, but that the results would be closer to the national popular vote outcome. They further argue that the voices of minority voting groups would be reflected in the final election tally because even ballots cast for third-party candidates could be reflected in the national results. Presidents could be elected without winning the popular vote, but such an outcome would be less likely than under the current system. Other Electoral College opponents deem even the small remaining possibility of a "popular vote loser" President to be unacceptable.

The Proportional Plan is yet another option that sounds good on the surface, but that creates problems in practice. First, constant fighting would erupt over election tallies. Worse, because this type of election is so similar to a direct popular election system, it contains many of the same downfalls: multiple candidacies, close elections, runoffs, greater potential for fraud, and greater incentives for extremist candidates to join the fray. Definitive election outcomes are discouraged. Close vote totals and challenges to election outcomes would become the norm.

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Conclusion America's election systems have operated smoothly for more than 200 years because the Electoral College accomplishes its intended purposes. America's presidential election process preserves federalism, prevents chaos, grants definitive electoral outcomes, and prevents tyrannical or unreasonable rule. The Founding Fathers created a stable, well- planned and carefully designed system -- and it works. Past elections, even the elections of Presidents who lost the popular vote, are testaments to the ingenuity of the Founding Fathers. In each case, the victor was able to succeed only because his opponent did not build the national coalition that is required by the Electoral College. In each case, smaller states were protected from their larger neighbors. In each case, the presidential election system functioned effectively to give the country a President with broad-based support. Alexander Hamilton was right when he described the Electoral College in The Federalist No. 68. Perhaps the Electoral College is imperfect -- but a perfect solution is doubtless unachievable. Nevertheless, the presidential election process devised by the Framers is certainly excellent.

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ALLEN GUELZO AND JAMES HULME, “IN DEFENSE OF THE ELECTORAL COLLEGE,” WASHINGTON POST, NOVEMBER 15, 2016

There is hardly anything in the Constitution harder to explain, or easier to misunderstand, than the electoral college. And when a presidential election hands the palm to a candidate who comes in second in the popular vote but first in the electoral college tally, something deep in our democratic viscera balks and asks why the electoral college shouldn’t be dumped as a useless relic of 18th century white, gentry privilege.

Actually, there have been only five occasions when a closely divided popular vote and the electoral vote have failed to point in the same direction. No matter. After last week’s results, we’re hearing a litany of complaints: the electoral college is undemocratic, the electoral college is unnecessary, the electoral college was invented to protect slavery— and the demand to push it down the memory hole.

All of which is strange because the electoral college is at the core of our system of federalism. The Founders who sat in the 1787 Constitutional Convention lavished an extraordinary amount of argument on the electoral college, and it was by no means one- sided. The great Pennsylvania jurist James Wilson believed that “if we are to establish a national Government,” the president should be chosen by a direct, national vote of the people. But wise old Roger Sherman of Connecticut replied that the president ought to be elected by Congress, since he feared that direct election of presidents by the people

27 would lead to the creation of a monarchy. “An independence of the Executive [from] the supreme Legislature, was in his opinion the very essence of tyranny if there was any such thing.” Sherman was not trying to undermine the popular will, but to keep it from being distorted by a president who mistook popular election as a mandate for dictatorship.

Quarrels like this flared all through the convention, until, at almost the last minute, James Madison “took out a Pen and Paper, and sketched out a mode of Electing the President” by a “college” of “Electors … chosen by those of the people in each State, who shall have the Qualifications requisite.” The Founders also designed the operation of the electoral college with unusual care. The portion of Article 2, Section 1, describing the electoral college is longer and descends to more detail than any other single issue the Constitution addresses. More than the federal judiciary — more than the war powers — more than taxation and representation. It prescribes in precise detail how “Each State shall appoint … a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress”; how these electors “shall vote by Ballot” for a president and vice president; how they “shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate” the results of their balloting; how a tie vote must be resolved; what schedule the balloting should follow; and on and on.

Above all, the electoral college had nothing to do with slavery. Some historians have branded the electoral college this way because each state’s electoral votes are based on that “whole Number of Senators and Representatives” from each State, and in 1787 the number of those representatives was calculated on the basis of the infamous 3/5ths clause. But the electoral college merely reflected the numbers, not any bias about slavery (and in any case, the 3/5ths clause was not quite as proslavery a compromise as it seems, since Southern slaveholders wanted their slaves counted as 5/5ths for determining representation in Congress, and had to settle for a whittled-down fraction).

As much as the abolitionists before the Civil War liked to talk about the “proslavery Constitution,” this was more of a rhetorical posture than a serious historical argument. And the simple fact remains, from the record of the Constitutional Convention’s proceedings (James Madison’s famous Notes), that the discussions of the electoral college and the method of electing a president never occur in the context of any of the convention’s two climactic debates over slavery.

If anything, it was the electoral college that made it possible to end slavery, since Abraham Lincoln earned only 39 percent of the popular vote in the election of 1860, but won a crushing victory in the electoral college. This, in large measure, was why Southern slaveholders stampeded to secession in 1860-61. They could do the numbers as well as

28 anyone, and realized that the electoral college would only produce more anti-slavery Northern presidents.

Yet, even on those terms, it is hard for Americans to escape the uncomfortable sense that, by inserting an extra layer of “electors” between the people and the president, the electoral college is something less than democratic. But even if we are a democratic nation, that is not all we are. The Constitution also makes us a federal union, and the electoral college is pre-eminently both the symbol and a practical implementation of that federalism.

The states of the union existed before the Constitution, and in a practical sense, existed long before the revolution. Nothing guaranteed that, in 1776, the states would all act together, and nothing that guaranteed that after the Revolution they might not go their separate and quarrelsome ways, much like the German states of the 18th century or the South American republics in the 19th century. The genius of the Constitutional Convention was its ability to entice the American states into a “more perfect union.” But it was still a union of states, and we probably wouldn’t have had a constitution or a country at all unless the route we took was federalism.

The electoral college was an integral part of that federal plan. It made a place for the states as well as the people in electing the president by giving them a say at different points in a federal process and preventing big-city populations from dominating the election of a president.

Abolishing the electoral college now might satisfy an irritated yearning for direct democracy, but it would also mean dismantling federalism. After that, there would be no sense in having a Senate (which, after all, represents the interests of the states), and further along, no sense even in having states, except as administrative departments of the central government. Those who wish to abolish the electoral college ought to go the distance, and do away with the entire federal system and perhaps even retire the Constitution, since the federalism it was designed to embody would have disappeared. None of that, ironically, is liable to produce a more democratic election system. There are plenty of democracies, like Great Britain, where no one ever votes directly for a head of the government.

But more important, the electoral college actually keeps presidential elections from going undemocratically awry because it makes unlikely the possibility that third-party candidates will garner enough votes to make it onto the electoral scoreboard Without the electoral college, there would be no effective brake on the number of “viable”

29 presidential candidates. Abolish it, and it would not be difficult to imagine a scenario where, in a field of a dozen micro-candidates, the “winner” only needs 10 percent of the vote, and represents less than 5 percent of the electorate. And presidents elected with smaller and smaller pluralities will only aggravate the sense that an elected president is governing without a real electoral mandate.

The electoral college has been a major, even if poorly comprehended, mechanism for stability in a democracy, something which democracies are sometimes too flighty to appreciate. It may appear inefficient. But the Founders were not interested in efficiency; they were interested in securing “the blessings of liberty.” The electoral college is, in the end, not a bad device for securing that.

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IN SUPPORT OF REVISING OR ABOLISHING THE ELECTORAL COLLEGE

TIMOTHY NOAH “WHY IS THE ELECTORAL COLLEGE STILL THERE?” SLATE, NOVEMBER 12, 2001

Chatterbox never took much interest in the Great Chad Debates that followed the whisker-close presidential election of 2000. Now that apathy has been vindicated by the results of a yearlong study by a media consortium, and various other members of the cabal) in conjunction with the University of Chicago's National Opinion Research Center. That study found that, under most plausible scenarios, a Florida recount would still probably have found George W. Bush to be the winner, albeit by a teensy margin. Chad buffs may continue to find issues to obsess about (for example, an "over-vote" recount that Gore never sought could have made him the winner), but good-government arguments about the legitimacy of this versus that variety of chad semi-perforation are bound to lose most of their interest once the partisan reasons for waging them have withered away. By midday today a plane crash had pushed the Florida recount story to the periphery of news consciousness.

Does that mean George W. Bush is the rightful winner of the 2000 election? No. To be sure, Dubya's occupation of the Oval Office is consistent with the U.S. Constitution, and Chatterbox certainly recognizes Bush as his president (a courtesy Dick Armey famously failed to extend to Bush's predecessor, Bill Clinton). Bush is certainly welcome to stay in

30 the White House through 2004. As a matter of democratic principle, though, Chatterbox thinks the president of the United States ought to be whoever wins a plurality of the popular vote. In this instance, that would be Al Gore.

For Chatterbox, the bitterest disappointment of the year following the Bush-Gore Long Count is the absence of serious discussion about abolishing the Electoral College. After 1976, the mere (and unrealized) possibility that Gerald Ford might have won re-election based solely on an Electoral College majority spooked the country into a serious national discussion about getting rid of the Electoral College. Even Ford's running mate, Bob Dole, was ready to give it the heave-ho, possibly because he was ashamed of a tentative effort by the Ford campaign to shop for "faithless" electors who would agree not to support their candidate. In 2000, by contrast, George W. Bush really did win the presidency based solely on an Electoral College majority. The collective will of the voters was ignored. Yet this time, not even Democrats, who would have won had there been no Electoral College, showed much interest in abolishing it. Journalists and political scientists have tended to give the issue ridiculously short shrift as well.

What possible arguments could there be for denying the presidency to the guy who gets the most votes? Since almost no debate has occurred, Chatterbox must imagine these arguments before answering them. Here are a few.

If you nationalize the presidential vote, you might create a Florida-type dispute where there would be a hue and cry for a national recount.

Chatterbox finds this pretty unlikely, because when you vastly enlarge the pool of votes you're counting in the first place, the likelihood of a near-tie (on a numeric basis) is greatly diminished. Slate's "Do the Math" columnist, Jordan Ellenberg, informs Chatterbox that percentagewise you'd be more likely to get near-ties, thanks to the Law of Large Numbers. But the larger numerical differences would make these near-ties seem a lot less dramatic.

In Chatterbox's view, the sheer impracticality of conducting a nationwide recount would actually avert more difficulty than it caused, since one would need to have a very good reason—probably evidence of large-scale fraud—to recount every last ballot. Overall, there would probably be less reason to doubt the integrity of the vote count. For one thing, the sort of small-scale fraud that bedevils local elections today would have significantly less impact within a much larger pool of voters. Also, Rob Richie, executive director of the Center for Voting and Democracy, points out that states with sloppy vote- counting procedures would likely come under a great deal more pressure from other states to clean up their act. Right now, Florida is on the hot seat for the obvious reason that its system's shortcomings (especially Palm Beach's butterfly ballot) may have changed the national election's outcome. But other states with even shakier ballot- counting procedures (but which did not affect the outcome) are under much less pressure to change.

If there were no Electoral College, presidential candidates would spend all their time in big states.

31 If your object is to get presidential candidates to come into contact with as many voters as possible, don't you want them to spend a lot of time in the states where they'll find the most people? During the last election, Al Gore spent very little time in Texas, and George W. Bush spent very little time in New York, even though these are two very big states. The reason was that Gore knew he'd lose in Texas, and Bush knew he'd lose in New York. Had the winner been determined by popular vote, Republicans in New York and Democrats in Texas would have been courted much more enthusiastically.

On the related question of whether abolishing the Electoral College would make the votes of people in small states count less, that's true. But it's rarely noted that, because most states award electors on a winner-take-all basis, the advantage the Electoral College gives voters in large states is even greater. It's voters in middle-sized states that tend to get screwed by the Electoral College.

If you abolish the Electoral College, the political fringe will gain more influence.

The idea here is that it's hard for a third-party candidate to win any individual state. By contrast, a third-party candidate with a significant minority of the vote nationwide could conceivably set himself up as a power broker. In practice, though, it's usually hard for a candidate who departs a race to exert much influence on the people who intended to vote for him. It would be easier for a third-party candidate who won a few states under the Electoral College system to play kingmaker by throwing his electors to one rival candidate or another. The novelist James Michener, a Humphrey elector in 1968, spent a lot of time that year worrying that George Wallace would do just that.

Under our federal system, "one man, one vote" isn't everything. If you want to abolish the Electoral College, you have to also want to abolish the U.S. Senate, because states with large populations get just as many senators as states with tiny ones.

In a perfect world, we would abolish the Senate for this very reason. Thomas Geoghegan makes a powerful argument along these lines in his book The Secret Lives of Citizens. If someone wants to pass around a petition, Chatterbox will sign it. Meanwhile, we can start by getting rid of the fillibuster.

*********************************************************************** ERIC BLACK “10 REASONS WHY THE ELECTORAL COLLEGE IS A PROBLEM” MINNESOTA POST OCTOBER 16, 2012

Sticking with the Electoral College system, but not yet plunging into the surprising too- little-discussed history of why the Framers put it in the Constitution, I want first to dash off a quick list of ten problems and potential problems with the Electoral College system:

Problem No. 1 It creates the possibility for the loser of the popular vote to win the electoral vote. This is more than a theoretical possibility. It has happened at least four times out of the 56 presidential elections, or more than 7 percent of the time, which is not such a small

32 percentage, and it created a hideous mess every time. The most recent occurrence was 2000.

Problem No. 2 It distorts the presidential campaign by incentivizing the parties to write off the more than 40 states (plus the District of Columbia) that they know they either can’t win or can’t lose. Among the states that, in recent history, don’t get campaign visits (other than for fundraising) or TV ads (which is most of what all that fundraising pays for and the main method by which the campaign and their “independent,” “uncoordinated” allies seek to persuade the persuadable voters in the persuadable states) are the three most populous states (California, Texas and New York, which among them make up more than 25 percent of the U.S. population), the geographically biggest state (Alaska) and the best state (Minnesota, which, despite missing out on the ads and the campaign visits, usually leads the nation in voter turnout anyway, so there).

Problem No. 3 The Electoral College system further distorts the presidential campaign by causing the candidates to grant extra weight to the parochial needs of the swing states. If you have to carry Florida to win, it elevates the already ever-present need candidates feel to pander to elderly voters, Cuban-Americans, orange-growers and any other group that can deliver a bloc of Floridians. The same thing with Iowa and ethanol subsidies and other agriculture- friendly policies, except even more so because Iowa is not only a swing state over recent cycles but has become since 1976 the key first state in the presidential nominating process. . (But that last bit about the nominating process, of course, is not rooted in the Constitution.)

Since the selection of Paul Ryan as Mitt Romney’s running-mate, how many stories have you read that said Ryan’s controversial plan to change Medicare could be especially costly to the ticket because so many of the swing states have above-average portions of senior voters? Pandering to large groups of voters is not a pretty aspect of democracy, but pandering to groups just because they happen to be concentrated in “swing states” is even uglier. Who can explain how this can be a good thing?

Problem No. 4 For the same reason, it distorts governance. A first-term president who expects to have a tough reelection fight (as they all at least expect to) but who wanted to establish diplomatic and trade relations with Cuba (broken in 1960) would have to consider the possibility that such a policy might cost him Florida and therefore a second term. Perhaps this helps explain why long after Washington normalized relations with the Soviet Union, China and other governments that formerly or presently call themselves Communists, Cuba remains on the do-not-call list.

Problem No. 5 The Electoral College system further distorts the one-person, one-vote principle of democracy because electoral votes are not distributed according to population. Every state gets one electoral vote for each member of its delegation to the House of

33 Representatives (this by itself would be a rough measure of its population) and each state also gets two “bonus” electors representing its two senators.

This causes significant overrepresentation of small states in the “College.” In the most extreme case, using 2010 Census figures and the new distribution of House seats based on that census, an individual citizen in Wyoming has more than triple the weight in electoral votes as an individual in California. Yes, you read that right. In fact, it’s closer to quadruple than triple. Can this be a good thing?

If we could do nothing more than allocate the electoral votes on a population basis, it would make the system substantially more democratic. But we can’t do that, at least not without amending the Constitution, because the apportionment formula is embedded in the Constitution as one more inducements that the Framers felt was necessary to attract support of small states for ratification.

Problem No. 6 The Electoral College creates the possibility of a 269-269 tie vote, and in almost every recent election there has been a relatively credible scenario for such an outcome. The rules of the Electoral College system for dealing with a tie are bizarre and scary and create a fairly plausible scenario by which no one would be elected president in time for Inauguration Day.

Problem No. 7 Although our system, as evolved, makes it very hard for third parties to win elections and almost impossible for a third party to win the presidency, the Electoral College system makes it quite possible for a small third-party showing in a single state or two to change the outcome of the whole national election.

This happened in 2000, when Ralph Nader, running as the Green Party nominee, finished third in the popular vote with just 2.74 percent, and received just 1.6 percent in Florida, but those votes (plus a number of other weird factors about which some people are still arguing) probably shifted the state from Democratic nominee Al Gore to Republican George W. Bush. And, because of winner-take-all, that one state also tipped the outcome of the national election.

In most recent cycles, there has been at least one halfway credible scenario under which a small third party can tip a key state and perhaps the whole election. There’s an even weirder scenario in which former Congressman Virgil Goode, the nominee of the tiny, right-wing Constitution Party, costs Mitt Romney the presidency by drawing votes in Virginia (which happens to be the state Goode represented in Congress, so he has a name there). Although the Constitution Party doesn’t even show up in national polls, when Goode’s name is included in Virginia polls this year, he has scored as much as 9 percent. I doubt he’ll get anywhere near 9, but Virginia is considered very close and has been designated a key swing state worth 13 winner-take-all electoral votes. Maybe that’s why a couple of lefty parties helped Goode get the signatures he needed to get on the ballot in Virginia.

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Of course, even in a pure popular vote system (unless you have ranked choice voting) minor parties have the potential to change the outcome. But the Electoral College, paired with the winner-take-all aspect, greatly increases the leverage. I’m not predicting that any of these scenarios will come true in 2012, but the Electoral College system makes such shenanigans possible, and they happen more often that you might realize.

Problem No. 8 The Electoral College system prevented Dick Cheney from becoming vice president. Well, no, it actually didn’t, but it would have if we had taken the letter and the intention behind the words in the Constitution seriously.

The Constitution says that an elector cannot vote for a presidential and vice presidential candidate both of whom come from the same state as him/herself (the elector, that is). This rule actually made sense when the Framers put it in there but stopped making sense almost immediately. (To explain this, we’ll eventually have to get to the story of how the Framers thought this contraption was going to work.) But it’s still in there. George W. Bush was a Texan. In 2000, when he became Bush’s running mate, Cheney had been living and voting and paying taxes for five years in Texas where he eked out a living as CEO of Halliburton.

If you had to say which state he “inhabited,” at that point in his life, you could not say anything other than “Texas.” This became awkward when the Bush-Cheney ticket carried Texas. The Constitution (in both the original and as changed by Amendment XII) technically prohibit the Texas electors from voting for both Bush and Cheney. And the electoral vote was so close that without the Texas votes, Cheney would not have had a majority.

It’s true that shortly before the election, Cheney obtained a Wyoming driver’s license and put his Dallas home on the market (he had a vacation home in Wyoming, which is the state he used to represent in Congress). And the courts decided that was good enough to make him a non-Texan for electoral vote purposes. It would have been silly to disqualify Cheney over this, but the issue is at least one more bizarre legacy of the Framers’ contraption and the fact that we are still (wink, wink, nod, nod) bound by the rules ratified in 1789 and 1804.

Problem No. 9 In case of a tie, or if no candidate receives a majority of all electoral votes cast for president, the choice of president is thrown in the House of Representatives but the election is conducted on a one-state one-vote basis. (Yes, Wyoming – population 563,000 in the 2010 census -- would have equal say in the selection of the president with California – 37 million.) And to win, a candidate must receive the support of an absolute majority of states.

But states that have an even number of House members may deadlock. (Minnesota, with its current delegation of four Democrats and four Republicans, would be a good

35 candidate for this fate.) A deadlocked state cannot vote at all for a presidential candidate. But, to produce a winner, one candidate would still have to win 26 states, even though several states would presumably be deadlocked.

If no presidential candidate can get to 26, there is no constitutional mechanism for producing a winner. The vice president (whose selection in this scenario would be thrown into the Senate) could serve indefinitely as acting president. This has never happened, although it has come close. If we wait long enough, it will happen someday.

Problem No. 10

And here’s a really crazy part, which sort of underscores the craziness of our practice of abiding by the Framers’ language. When the Framers put that crazy structure, where the presidential election would be thrown from the Electoral College into the House for a one-state one-vote choice of the next president, they believed this would actually happen on a regular basis. Which is why you need to come back here tomorrow for the installment on what the Framers thought they were doing when they came up with the Electoral College system (which, as I’ve already mentioned, had pretty much nothing to do with how it has turned out).

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TAYLOR BRODARICK (IN FORBES MAGAZINE) “IT’S TIME TO ABOLISH THE ELECTORAL COLLEGE” FORBES MAGAZINE, NOVEMBER 4, 2012

In two days, the presidential election will be held and we will presumably learn who the President for the next four years will be. In two days, I hope this essay will not seem very important but I am concerned it will be.

For the second time in twelve years and the fifth time in the nation’s history the winner of the popular vote may lose the electoral vote and therefore the presidency. This time it could be the Republican who finds himself shortchanged by an antiquated electoral mechanism. A number of pundits think Mitt Romney could win the popular vote and Barack Obama could win a majority of electoral votes and secure reelection. I hope whoever wins does so with the most votes so that we can avoid the controversy of the 2000 election. Regardless, it’s time to abolish this obsolete system.

Pop Quiz: Can you name the three candidates who received votes in the 2004 Electoral College? The correct answers are George W. Bush (286), John Kerry (251) and John Ewards (1). No, you did not read a typo. Not only did a Minnesota elector vote for Democratic Vice Presidential nominee John Edwards for both President and Vice President, but he or she could not spell his ordinary last name correctly. Four years earlier, a District of Columbia elector, Barbara Lett-Simmons, abstained from voting for Al Gore despite the fact he won the District’s three electoral votes. She was protesting the lack of voting representation for the national capital in Congress. Considering George W. Bush

36 won 271 electoral votes (270 is needed to win the presidency), it seems reckless to protest with a vote that could have changed the outcome of the election. Imagine if several Bush electors decided to vote for Gore because he won the popular vote. Lett-Simmons’ vote could theoretically have mattered; though I doubt the Bush legal team would let that occur without a challenge.

Despite the potential for rogue electors to alter the will of their state or district’s voters, only twenty-four states still have laws to punish faithless electors. Yet only once did the Electoral College fail to elect a candidate that it should have. Richard M. Johnson’s election as Vice President in 1836 was decided in the Senate after twenty-three Virginia electors did not vote for him for personal reasons; Johnson had fathered illegitimate children with one of his former slaves and acknowledged his relationship with her. These historical footnotes touch on the inherent, though unlikely, danger of 538 electors overriding the will of millions of voters. The real problem is the Electoral College can act properly and still not elect the candidate chosen by the national electorate.

We forget in 2012 that for much of this country’s history most people saw themselves as (insert your state here) first and Americans second. The United States of America was founded as a federation of thirteen rebellious British colonies with very distinct cultures and identities. This sectionalism became an increasingly difficult problem as the contentious slavery issue splintered the nation in the mid-nineteenth century. Two quotations by Confederate General Robert E. Lee eloquently describe the importance of one’s allegiance to state then.

"I shall never bear arms against the Union, but it may be necessary for me to carry a musket in the defense of my native state, Virginia, in which case I shall not prove recreant to my duty." Spring 1861

“I devote myself to the service of my native State in whose behalf alone will I ever again draw my sword.” April 23, 1861

You may hold a sense of pride in your state but I doubt you would consider someone a traitor for relocating from one state to another one. Look at the backgrounds of the two major presidential candidates. Barack Obama is an Illinois resident but has lived in Hawaii, Washington (state), California, New York, Massachusetts, Illinois, Washington (the national capital) as well as Indonesia. Mitt Romney has lived in Michigan, California, Utah and Massachusetts as well as France. I may be missing a few stops but you get the point. George Washington lived in Virginia virtually his entire life with the exception of military campaigns and service in New York and Philadelphia as the first president. I believe his sole trip abroad was accompanying his half-brother Lawrence to Barbados in 1751. We are a much more mobile people now. Education and jobs take many of us far away from our native state. Segmenting our presidential vote by the state name on our driver license seems arbitrary and antithetical to the spirit of choosing a national leader. Voting rights are extremely important in a representative democracy. Six amendments in the Constitution address voting issues. Some of the more important American political movements of the past two centuries used suffrage as a centerpiece issue. Whether racial

37 (1860s and 1960s), gender (early twentieth century until 1920), or youth (lowering the voting age to eighteen to enfranchise many soldiers fighting in the Vietnam War), voting rights campaigns have been proxy fights for better achieving equality under the law. I feel the Electoral College discriminates geographically. Major candidates should have to pander appeal to everyone and not just voters in the so-called “swing” states. Living in Ohio or Florida shouldn’t increase the value of your vote but right now it does. Why should a Cincinnati resident’s vote count more than someone who lives across the river in Kentucky? Does it seem fair that the candidates are basically ignoring New York, California and Texas or nearly 30% of the population?

I think it would be more equitable to force more nationally-focused campaigns. Imagine Barack Obama speaking to crowds in Dallas or Mitt Romney campaigning in New York City. At the very least, it might engage more people in the national debate. If we ever hope to breach the 60% voter turnout threshold last seen in the 1960s (the last two elections have produced around 57%), this is one way to do so. The lawsuits that emerged in the fallout of the 2000 election will be less likely to reappear. When one state decides an election, it behooves all sides to fight for those electoral votes. If the popular vote decided the winner, I doubt we’d see such fallout again.

Even in the razor-thin 1968 and 2000 elections, the popular vote winners won by over 500,000 votes. It would be awfully hard to litigate a candidate to victory as the absolute numbers grow larger. It is much easier when a state vote is separated by 537 votes as it was in Florida in 2000. Hopefully, this would discourage voter fraud efforts. It is a lot harder to coordinate election improprieties on a national scale than on the state and local levels. Lastly, the Electoral College would be one more expense we can slash from the federal income statement (albeit a small item).

As I mentioned earlier, I hope the Electoral College does not become an issue this year. Nevertheless, in a stridently polarized political landscape, it’s time to make the popular vote the ultimate arbiter of presidential elections. If we want every vote to matter, I believe it’s the only sensible path to take.

NEW YORK TIMES EDITORIAL: ‘TIME TO END THE ELECTORAL COLLEGE,” December 19, 2016

By overwhelming majorities, Americans would prefer to elect the president by direct popular vote, not filtered through the antiquated mechanism of the Electoral College. They understand, on a gut level, the basic fairness of awarding the nation’s highest office on the same basis as every other elected office — to the person who gets the most votes. But for now, the presidency is still decided by 538 electors. And on Monday, despite much talk in recent weeks about urging those electors to block Donald Trump from the White House, a majority did as expected and cast their ballots for him — a result Congress will ratify next month.

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And so for the second time in 16 years, the candidate who lost the popular vote has won the presidency. Unlike 2000, it wasn’t even close. Hillary Clinton beat Mr. Trump by more than 2.8 million votes, or 2.1 percent of the electorate. That’s a wider margin than 10 winning candidates enjoyed and the biggest deficit for an incoming president since the 19th century. Yes, Mr. Trump won under the rules, but the rules should change so that a presidential election reflects the will of Americans and promotes a more participatory democracy.

Today the College, which allocates electors based on each state’s representation in Congress, tips the scales in favor of smaller states; a Wyoming resident’s vote counts 3.6 times as much as a Californian’s. And because almost all states use a winner-take-all system, the election ends up being fought in just a dozen or so “battleground” states, leaving tens of millions of Americans on the sidelines….

Conservative opponents of a direct vote say it would give an unfair edge to large, heavily Democratic cities and states. But why should the votes of Americans in California or New York count for less than those in Idaho or Texas? A direct popular vote would treat all Americans equally, no matter where they live — including, by the way, Republicans in San Francisco and Democrats in Corpus Christi, whose votes are currently worthless. The system as it now operates does a terrible job of representing the nation’s demographic and geographic diversity. Almost 138 million Americans went to the polls this year, but Mr. Trump secured his Electoral College victory thanks to fewer than 80,000 votes across three states: Michigan, Pennsylvania and Wisconsin.

This page opposed the Electoral College in 1936, and in more recent years as well. In 2004, President George W. Bush won the popular vote by more than three million, but he could have lost the Electoral College with a switch of fewer than 60,000 votes in Ohio. Many Republicans have endorsed doing away with the Electoral College, including Mr. Trump himself in 2012. Maybe that’s why he keeps claiming falsely that he won the popular vote, or why more than half of Republicans now seem to believe he did. For most reasonable people, it’s hard to understand why the loser of the popular vote should wind up running the country

NINA AGRAWAL “ ALL THE TIMES IN U.S. HISTORY THAT MEMBERS OF THE ELECTORAL COLLEGE VOTED THEIR OWN WAY” LOS ANGELES TIMES, DECEMBER 20, 2016

They had been lobbied for weeks to abandon Republican presidential nominee Donald Trump. But ultimately, only two members of the electoral college did so, while five members deserted Democratic nominee Hillary Clinton. It was the largest number of individual defections by electors in a U.S. presidential election — but not enough to change the outcome. The final tally in Monday’s vote was 304 votes for Trump and 227 votes for Clinton. The two Republican renegades were from Texas, while Clinton lost

39 pledged votes from Hawaii, Maine and Washington.

These seven individuals join a small club of “faithless electors” in American history.

Samuel Miles of Pennsylvania had the distinction of being the first, in 1796. Miles was a Federalist who had promised to vote for the Federalist candidate, John Adams, but instead cast his vote for Democratic-Republican candidate Thomas Jefferson. There had been a total of 157 faithless electors until Monday, according to FairVote.org, a nonprofit that advocates for national popular-vote elections for president.

Several of them broke with the electorate less out of rebellion than for practical reasons. Throughout the years, 71 electors changed their votes because the candidate their state chose died before the electoral college could convene. In 1872, for example, Horace Greeley, the nominee of both the Democratic and Liberal Republican parties, lost the general election and died 24 days later. Sixty-three of the 66 Democratic electors refused to vote for a deceased candidate.

In the 1808 election, which set the previous record for individual defections, six New York electors from the Democratic-Republican party refused to vote for James Madison and voted instead for the party’s vice presidential candidate, George Clinton.

The Constitution does not specifically require electors to cast their votes according to the popular vote in their states, but the laws of 29 states and the District of Columbia bind electors to do so. Some require pledges or threaten fines or criminal action, according to a summary of state laws by the National Assn. of Secretaries of State. No elector has ever been prosecuted for not voting as pledged.

Since 1900, there have been only 16 faithless electors who defected for individual reasons, including the seven from Monday. Here’s a rundown of who those 16 are and why they voted the way they did:

1948 Preston Parks of Tennessee was chosen as an elector for the Democratic Party, which was pledged to incumbent Harry S. Truman. Before the election, some Democrats opposed to Truman’s support of civil rights and racial integration split off and formed the States’ Rights Democratic Party, also known as the Dixiecrats. Parks actively campaigned for Dixiecrat candidate Strom Thurmond and said in advance of the election that he would not vote for Truman under any circumstances , instead voting for Thurmond.

1956 W.F. Turner, a Democratic elector from Alabama, voted for a local circuit judge, Walter B. Jones, for president instead of the Democratic nominee, Adlai Stevenson. Jones, an avowed white supremacist who in 1960 presided over New York Times Co. vs. Sullivan, which later became a landmark Supreme Court case that defined the standard for journalistic libel, was not on the popular ballot. Fellow electors at the time told Turner he was under an “obligation” to vote for Stevenson because the electors had signed a party

40 loyalty oath. Turner replied: “I have fulfilled my obligations to the people of Alabama. I’m talking about the white people.”

1960 Henry D. Irwin, a Republican from Oklahoma, telegraphed all of his fellow Republican electors in the country asking if they would consider supporting a Barry Goldwater-Harry Byrd ticket over Richard Nixon-Henry Cabot Lodge. Irwin received approximately 40 replies, some favorable, but when it came time to cast their votes, Irwin was the only one who defected. According to an account in the book “Why the Electoral College is Bad for America,” by George C. Edwards III, Irwin told the Senate Judiciary Committee in a subsequent hearing about possibly changing the presidential election procedures that he had worked to get electors to abandon John F. Kennedy and Nixon in favor of a strongly conservative candidate. He said he voted the way he did because he “feared the immediate future of our government under the control of the socialist-labor leadership.”

1968 Lloyd Bailey, a Republican from North Carolina, voted for George Wallace of the American Independence Party over Nixon, the Republican candidate. Bailey was a member of the ultraconservative John Birch Society and, according to Edwards’ book, disliked what he considered to be Nixon’s “leftist” appointments of Henry Kissinger and Daniel Patrick Moynihan to advisory positions, as well as his request to Chief Justice Earl Warren to remain on for an additional six months.

1972 Roger MacBride, a Republican elector from Virginia, deserted Nixon to vote for the candidate of the nascent Libertarian Party, John Hospers, a philosophy professor at USC. MacBride was a political disciple of Rose Lane, according to his obituary in the New York Times. Lane was the daughter of author Laura Ingalls Wilder and an adherent to Ayn Rand’s philosophy of objectivism. After Lane died, MacBride became the guardian of the “Little House on the Prairie” series and produced a television version of it. He went on to become the Libertarian presidential candidate in 1976, but received no electoral college votes.

1976 Mike Padden, a Republican from Washington state, cast his vote for Ronald Reagan (who had lost in the Republican primary) over Gerald Ford, having decided that Ford was not definitively clear in his opposition to abortion. Edwards notes in his book that the 1976 election between Ford and Jimmy Carter was exceptionally close, and had Ford garnered slightly more support, Padden’s faithless vote would have essentially resulted in a tie, throwing the election to the House of Representatives.

1988 Democratic elector Margarette Leach, a nurse and former member of the West Virginia Legislature, voted for vice presidential nominee Lloyd Bentsen as president and presidential nominee Michael Dukakis as vice president. “I wanted to make a statement about the electoral college,”Leach told the New York Times. “We've outgrown it. And I

41 wanted to point up what I perceive as a weakness in the system — that 270 people can get together in this country and elect a president, whether he's on the ballot or not.”

2000 Barbara Lett-Simmons, a Democratic elector from the District of Columbia, left her ballot blank to protest what she called the district’s “colonial status,” or its lack of congressional representation. Lett-Simmons later said she would have voted for Democratic nominee Al Gore if she thought he had a chance of winning. The presidential election that year, between incumbent Vice President Gore and Texas Gov. George W. Bush, was the closest in U.S. history, with 537 votes separating the two candidates in the deciding state of Florida. The narrow margin required a recount and ultimately necessitated a Supreme Court decision. In the end, Bush received 271 electoral votes and Gore 266.

2004 One Minnesota elector voted for vice presidential candidate John Edwards (actually spelled “Ewards” on the ballot) instead of presidential candidate John F. Kerry. That elector also voted for Edwards for vice president. It is not known who it was, since none of the state’s 10 electors identified himself or herself as having cast a protest vote or having made a mistake.

2016 Christopher Suprun, a paramedic and former firefighter who was one of the first responders on Sept. 11, wrote in a New York Times op-ed in the run-up to the electoral college vote that Trump is “someone who shows daily he is not qualified for the office.” Suprun said he had a legal right and constitutional duty to vote his conscience and planned to do so. On Monday, he cast his vote for Ohio Gov. John Kasich.

Another Republican elector from Texas, William Greene, cast his vote for former Texas Rep. Ron Paul, according to the Austin American-Statesman.

(A third Texan, Art Sisneros, had also opposed Trump and resigned from the electoral college ahead of the vote. He was replaced by an alternate.)

In Washington, where voting for a person not nominated by the party carries a $1,000 fine, four electors defected from Clinton, who won the state’s popular vote. Esther John, who voted for former Secretary of State Colin Powell, told local media she did so “in the hopes that Democrats and Republicans could reconcile.” Peter B. Chiafolo, a co-founder of the group Hamilton Electors, which seeks to change the electoral process, also voted for Powell. So did Levi Guerra, who, together with Powell, had previously attempted to challenge Washington’s faithless elector law in court. Robert Satiacum, an environmental activist, voted for Faith Spotted Eagle, a Yankton Sioux elder who has protested against the Keystone XL and Dakota Access pipelines.

In Hawaii, where Clinton won 62% of the vote, elector David Mulinix voted for Vermont Sen. Bernie Sanders because he thought Sanders was the “most qualified” candidate.

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