James M. Redwine

Elections

The Right To Matter

by Leave a Comment

From www.270towin.com

It was not the British Parliament’s tax on tea that caused the Boston Tea Party on December 16, 1773; it was the denial of the Colonists’ right to be represented in Parliament.

It is not the sexual part of unwanted sex that matters to the Me Too Movement, we Homo sapiens have spent the last 200 to 300 thousand years engaging in sex; it is the “unwanted” factor that is objectionable.

And when our Founders were barely able to cobble together our Republic it was not the fact that some of the Thirteen Colonies had much greater populations than others or much greater wealth than others that almost caused the United States to be simply thirteen entirely separate entities; it was the fear by both the more populous and less populous colonies that their voices would not sufficiently matter.

There were many reasons why and how our constitutional democracy survived colliding circumstances, desires and egos but two of the most significant compromises were the Proportional Representative construct and the Electoral College.

Large states accepted the compromise that in the Senate each state would have two and only two Senators because their proportional influence was recognized by having the number of Congressional Representatives determined by population. Smaller states accepted this arrangement in like manner because they would have an equal voice in at least one of the two Congressional bodies, the Senate, even though they would have fewer Congresspersons than larger states.

Then there is the imaginative system of the Electoral College. The Electoral College determines who will be the Executive Branch leaders, the President and Vice President, via a method similar to the proportional representative system. And because the President has the authority to nominate all federal judges, whoever has influence over the election of the President has an indirect voice in the makeup of the third branch of our federal government, the Judicial Branch. Therefore, the Electoral College, whose only job is to meet every four years and vote for the Chief Executive and the Vice President, has some influence over two of the three Branches of our government. Of course, the Executive Branch contains the armed forces, the F.B.I., the D.E.A., etc., etc., etc. And these countless agencies assert immense power over all of us. We certainly want our opinions to matter when it comes to all those aspects of our government.

The number of Electors of the Electoral College is determined by totaling the number of Congressional Representatives each state has and each state’s two senators. The number of Congressional Representatives is derived from each state’s population. So, very similar to the general system of representative/proportional government, where all states have two and only two senators but have differing numbers of Congresspersons based on population, the Electoral College is based on every state having some Electors but more populous states having more Electors than less populous states.

Currently there are 538 members of the Electoral College based on 100 Senators and 438 Congressional Representatives. For example, Indiana has 2 Senators and 9 Congresspersons for a total of 11 Electors and Oklahoma has 2 Senators and 5 Congresspersons for a total of 7 Electors. On the other hand, California has 2 Senators and 53 Congresspersons for a total of 55 Electors. Indiana’s sister state of Illinois has 20 Electors, almost twice as many as Indiana, and Oklahoma’s sister state of Texas has 38, over five times as many as Oklahoma. The District of Columbia has no Senators but does have 3 Electors based on the 23rd Amendment to the Constitution. Three is the least number of Electors of any state. The U.S. Territories do not receive any Electors.

Whichever candidate receives 270 Electoral votes, the current majority of Electors, is elected President. Sometimes the candidate who receives the most popular votes does not receive a majority of the Electoral votes. This always reignites a debate to eliminate the Electoral College and go to a pure one person/one vote system. Such was the case in 2016 when the Democrat nominee Hillary Clinton received 3,000,000 more popular votes than the Republican nominee Donald Trump, but Trump received 304 Electoral votes, which was 77 more than Clinton received. Had this outcome been inverted I suggest the pro/anti-Electoral College debate would have also been inverted.

There certainly are legitimate arguments for modifying or even eliminating the Electoral College system even though the College has helped to assuage the constant yin and yang of large states versus small ones. As for me, having spent most of my life, so far, in either Oklahoma or Indiana, I do not wish to rely upon the tender mercies of the few lumbering giant states with huge populations of voters that might deign to turn a deaf ear to my concerns and those of the other residents of the numerous less populous states.

Legal Slight of Hand

by Leave a Comment

After last week’s scintillating column on Constitutional Law I know you are eagerly awaiting promised round two on politics and the United States Supreme Court. Of course, America’s judiciary eschews any notion that court outcomes are sometimes a product of the political views of the judge or judges who decide the cases. At the National Judicial College where I have served as a part-time faculty member since 1995 one of the guiding principles is the effort to have completely impartial judging of all cases. That is a proper goal. However, is that goal always achieved? Let’s take a look behind the black robes of history starting with America’s most famous case, Marbury v. Madison, decided in 1803 a mere sixteen years after the end of the Constitutional Convention that occurred on September 17, 1787.

You may recall that last week we had sought guidance on understanding the U.S. Constitution from law professor Michael Klarman who spoke to the Indiana Graduate Judges Seminar in French Lick, Indiana in June 2019. In his book The Framers’ Coup, The Making of the United States Constitution, Professor Klarman gave an in-depth analysis of the political warfare that produced our Constitution. A similar phenomenon occurred when the fourth Chief Justice of the Supreme Court, John Marshall, blatantly grabbed for the U.S. Supreme Court the immense power to declare whether a particular law was constitutional. Marshall deftly, and unethically, used the virulent hatred between those early Americans who favored a strong central government, the Federalists, and the anti-Federalists who preferred a more citizen-centered national government. John Adams was our second president and he was one of the strongest proponents of a strong central government. Adams was defeated in an election by our third president Thomas Jefferson in a bitterly fought campaign. John Marshall served as Adams’ Secretary of State and Marshall and Jefferson despised one another. Just before Adams’ term as president ran out he appointed John Marshall to be Chief Justice of the U.S. Supreme Court. Marshall was succeeded as Secretary of State by James Madison who, incidentally, later became our fourth president.

Just before John Adams left office he also appointed numerous judges and justices of the peace as a sharp stick in the eye of the incoming president Thomas Jefferson. William Marbury, a wealthy businessman and vocal opponent of Jefferson, was one of Adams’ justice of the peace appointees. While Secretary of State, John Marshall had the duty of signing Marbury’s certificate of appointment and delivering it to Congress. Marshall failed to get that done and the task was left to new Secretary of State James Madison. But President Jefferson, who was angry at John Adams for the last minute appointments, ordered Madison to not deliver Marbury’s certificate. Marbury then filed a law suit in the Supreme Court seeking to have the Court order Madison to give Marbury the certificate of appointment.

If all this intrigue seems rather petty and even perhaps reminiscent of our current political climate involving nasty actions on all sides, well, the pettiness turned out to have a momentous affect on every court case in America after 1803. The squabble may have resembled a tempest in a teapot but Chief Justice John Marshall’s highly political decision in the case resulted in a federal judiciary of immense power, a power not contemplated by many of our Founders and Framers of our Constitution.

Because of his earlier direct connection to Marbury’s appointment John Marshall should have recused himself from the case and should have had no part in it. However, Marshall seized upon Thomas Jefferson’s hatred of John Adams to trade what Jefferson wanted, that is to prevent Adams’ last minute appointments, for a huge leap toward a strong centralized government where the Judicial Branch would have power over decisions of both the Legislative and Executive Branches’ decisions.

What John Marshall and two more members of the then five member Supreme Court decided was that the legislative act that purported to give jurisdiction over cases such as the one brought by Marbury violated the Constitution therefore the Supreme Court had no authority to order Madison to give Marbury his certificate. It might appear to have been a win for Jefferson over Adams, but it was the ultimate Pyrrhic victory as Marshall and all future courts used it as a nuclear weapon in the war between the Federalists and anti-Federalists. Supreme power over what the Constitution meant has resided in the Supreme Court ever since 1803.

For example, in Dred Scott v. Sandford (1857) Chief Justice Roger Taney, a former slave owner, and the U.S. Supreme Court ruled Negro slaves had no rights that the Constitution was bound to protect. Then in George Bush v. Al Gore (2000) a bitterly divided court led by Chief Justice William Rehnquist who had been appointed by Republican President Richard Nixon to be an associate justice then by Republican President Ronald Reagan to be Chief Justice handed the presidential election to Republican George Bush.

So, as America’s judiciary proclaims it must remain independent from outside influences and look only to the law and the facts, it might appear to some cynics that the blindfold often slips. Anyway, I am certain you probably feel the same sense of relief in finishing this column that I did in finishing law school and Professor Klarman’s book. On the bright side however, the rest of your day is bound to get better.

Sticks And Stones

by Leave a Comment

Special Consul Robert Mueller testified before Congress on July 24, 2019. During his six hours of testimony before the House Judiciary Committee the major emphasis shifted from concerns about the outcome of the 2016 presidential election to attempts by foreign countries to influence all of our elections.

Mueller testified that for many years and right up to our next election cycle in 2020 several foreign entities were involving themselves in our democracy. And while Mueller specified only Russia for 2016 he made it clear that we should be aware of other actors. Iran, Israel and even our first cousins the British, among numerous others, have sought to inveigle themselves into our governmental decisions.

We have often been subtlety and sometimes not so subtlety nudged toward or away from war or toward or away from alliances with other countries. The favored techniques in days before the internet were the planting of fake newspaper stories or biased books and movies. Today spy dossiers or misleading memes and tweets over the internet are the preferred methods.

But if the aim of a foreign country is to defame or embarrass a politician it seems silly to dispense dirty secrets or even create false ones when such disclosures and prejudiced articles appear in the newspapers and on television every day. For example, if a country wanted to defame Donald Trump it should just encourage Americans to read The New York Times or watch CNN. And if a foreign entity wished to bring down Hillary Clinton it should republish stories from The National Enquirer or push FOX News. There is no need for foreign attempts to bring down a candidate for public office when we do such a thorough job of that ourselves.

What is even more perplexing is why any foreign country cares about our elections when we care so little about the outcomes ourselves. About 40% of eligible voters do not vote in presidential elections and only about 40% trouble themselves to vote in mid-term national elections. And when it comes to state, county and city elections most of the voters are those hoping to get jobs from the winners.

The bottom line may be that foreign entities are often more concerned with the outcomes of our elections than we are. Maybe we should learn from them.

Not So Bad After All

by Leave a Comment

As our country nears its 243rd birthday we Americans may feel as if all is gloom and doom. Members of Congress are calling for the impeachment of President Trump. President Trump is tweeting out claims that some Congress people are traitors. CNN accuses FOX News of being a sycophant for the White House. Rush Limbaugh proclaims CNN, MSNBC, The New York Times and The Washington Post are not news agencies but simply “fake news” whose agendas have a single minded mission to remove the President from office.

At coffee shops and taverns throughout the United States one-time friends cannot carry on a respectful conversation. Even churches are choosing sides. In short, the last election drags into its third year and the next election is morphing into a mere continuation of the election past. Political pundits and politicians are donning sackcloth and ashes or arming themselves with skewers to assassinate the characters of those who have the temerity to disagree with them. It ain’t good, folks. Are we falling apart?

No! We are practicing the democracy bequeathed to us on July 04, 1776. A healthy lack of respect for the opinions of others is our birthright. As long as we simply “suffer the slings and arrows” and do not “take up arms to oppose them” it is all as clanging brass and hollow threats. In fact, our current political climate is about the same as it has been since John Adams and Thomas Jefferson, who both signed the Declaration of Independence, saw their close friendship dissolve over policy differences. It is America. We have the right, perhaps the duty, to voice our disagreements.

What we do not want to lose sight of is policy differences are important but should not be lethal. Maybe we should step back, take a deep breath and see how another country, North Korea for example, handles allegations of treason.

We do not know the facts and should be cautious of reports from either North Korea or other countries that may wish to harm North Korea. With that said, it has been “reported” that Kim Jong Un of North Korea was upset over the failed summit between Kim and President Trump to the point he imprisoned some of his negotiators and executed several others. He allegedly declared them traitors. Even if these reports are exaggerated, the contrast between America’s hyperbole and North Korea’s drastic actions should remind us of what the Fourth of July truly means.

To Those Who Dare And Care

by Leave a Comment

As with much of our philosophy we can thank the ancient Greeks for the concept of the Phoenix, something (or someone) who rises from the ashes of defeat to be even better than before. Or as we all remember our parents attempting to convince us, we learn more from defeat than victory. This provides scant solace at the time of a loss or an embarrassment but most of us eventually see the validity of wisdom born of hardship and the shallowness of temporary acclaim.

It is likely you are already aware that Rudyard Kipling (1865-1936) and Teddy Roosevelt (1858-1919) among many others have already written about these concepts and certainly more presciently than I. Kipling in his poem If advised his son and the rest of us:

“If you can dream and not make dreams your master,
If you can think and not make thoughts your aim,
If you can meet with Triumph and Disaster and
Treat those two imposters just the same, ….
Then you will be a man my son.”

Teddy Roosevelt in his thesis, The Man in the Arena, wrote of greatness born of failure:

“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”

Naturally, winners of elections are justly elated and losers are hurt and depressed. I have lost an election and have won some. What I discovered was my loss and my victories had less to do with me than with the vicissitudes of a fickle electorate. Most voters had no idea who I was and both the victories and the loss were mostly happenstance.

On the other hand, for our democracy to endure someone has to be willing to suffer the slings, arrows, and expense of running for office. So, to all those who cared enough and dared enough to seek to serve the rest of us, both winners and others, I say, Thank You!

Options

by Leave a Comment

Peg and I voted early. I am not aware of whose idea early voting was, but it was a good one. Perhaps the period could be expanded and maybe a safe and secure system of voting from home could be devised. My opinion is that the more citizens who cast one legitimate ballot the better. If we can deliver packages by drone, get gourmet meals sent to our homes and pay our taxes over the internet we should be able to hold legitimate elections that meet our current lifestyle and encourages all who are qualified to vote. Of course, such a system would need to ensure only those qualified vote and ensure that there is only one vote per voter. But as we plan to colonize Mars and the Moon we ought to be able to call upon our ingenuity to increase our options here on Earth.

In my view that is what differentiates us from all other species, options. And the important decisions as to who should lead us forward are one critical area where options matter most. We should not only encourage maximum participation in elections, we should make that participation inviting and easy. After all, we know our society demands maximum ease in such things as satellite and cable TV, drive-through fast foods and shopping by index finger, so why should we make voting less accessible?

Some of you will read this article on or before Election Day on November 06, 2018. If you have not voted, please do so. You will feel better when your taxes come due if you feel you have had some input into who sent the statements to you.

I see participation in our democracy much as I view the case settlement system I helped devise in the Circuit Court of Posey County, Indiana. Let’s take a divorce for example. Two spouses who once loved one another and perhaps had children together or operated a business, now need to go new directions. How can the vital issues of child custody and property division best be resolved? Is it better to have the divorcing spouses turn their future over to a complete stranger, a judge, or might they be happier if they work together to resolve things for themselves? This system of keeping the couple’s options open leads to happier children and a much greater chance of a better future for all involved. In other words, such a court case is kind of like an election where the participants, the voters, have the option to impact their own destiny.

We may make a bad choice occasionally, but we can rectify matters at the next election if we stay involved. One thing is for sure, if we do not vote we cannot impact the selection of those people who control our lives. And if we lose control we are in the same position as all other species, that is, we will have no control because we did not exercise our options.