James M. Redwine

electoral college

Our Two Branch Democracy

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Photo by Peg Redwine

Pure democratic government involves direct selection of leaders by those who are led. The United States is two thirds of a democracy. The Executive Branch is elected by popular vote every four years. The House of Representatives of the Legislative Branch is elected by popular vote every two years. The Senatorial part of the Legislative Branch is elected by popular vote in staggered parts over six years. The Executive and Legislative Branches then select all members of the federal judiciary. The American public has no direct input in the selection of the Judicial Branch.

Federal judges receive life-time appointments subject only to their own choice or, extremely rarely, impeachment. Supreme Court Justice Samuel Chase (in 1805) was the only U.S. Supreme Court justice to have articles of impeachment brought against him; he was acquitted and continued on the court. Fifteen lower federal court judges have been impeached in American history. Eight were convicted and removed from the court. Four were acquitted and three resigned. We currently have about 1,800 federal judges including 9 Supreme Court justices.

The Judicial Branch of our government is in some ways the most powerful and in every way the least democratic branch. While we have only one President, the President may serve a maximum of eight years and must be elected by popular vote. Of course, the Electoral College is the mechanism we use, but popular vote by the electorate is still the gold standard. That is, we have the right to help choose our Executives. Not so our federal judges.

In like manner, we have the right to help choose our state’s Congress people and our state’s two senators. And while there are no term limits for the Legislative Branch, if we choose, we can vote them out. Not so our federal judges.

The historical reasons for how our ideal form of a Three Equal Branch democracy became two equal branches with the Judicial Branch being outside the control of the citizens are complex and, in many ways, convoluted. For the purposes of this column, I ask for a suspension of your legitimate questions about the etiology of how we got to our current non-democratic system. I respectfully recommend an examination of the most famous and momentous U.S. Supreme Court case, Marbury v. Madison, 5 U.S. (1cranch) 137 (1803). It was the original wrongly decided case that the highly political Chief Justice John Marshall used to outfox his bitter political opponent, President Thomas Jefferson, and usurp out of whole cloth for the Supreme Court the ultimate authority to determine if an act or law was constitutional. That was the beginning of how the federal courts have placed themselves beyond the reach of the citizens and slowly but inexorably created a government that, I submit, James Madison and the other Founders would not recognize. The ideal of a living democracy based on direct citizen involvement in the selection of each of three separate and equal branches of self-government has evolved into bicameral branches of Executives and Legislators who then choose the Judicial Branch.

Most experts now believe it would take an amendment to Article III of our Constitution to return to the purity of the Founders’ vision. If so, that painful and arduous process would be preferable to the alternatives.

A Legal Revolution

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Alexis de Tocqueville (1805-1859) was a Frenchman who studied American society during a nine-month tour in 1831 when the United States were still simmering with vitriolic political animus from the 1824 and 1828 elections between John Quincy Adams and Andrew Jackson. Adams was elected by the House of Representatives in 1824 and Jackson won via the Electoral College in 1828. After neither election did the United States fall into chaos, even though Jackson won both the popular vote and a plurality, but not a majority, of the Electoral College vote yet Adams grabbed the presidency in 1824.

Four men ran for president in 1824, John Quincy Adams, Andrew Jackson, Henry Clay and William Crawford. Because the Electoral College vote was split in such a way that none of the four received a majority, as required to be elected President, under the Twelfth Amendment to the U.S. Constitution a “contingent” election was held in the House of Representatives. Each state’s delegation was given one vote and Adams was elected. Jackson and his supporters alleged that Adams and Clay had entered into a “Corrupt Bargain” to shift Clay’s votes to Adams. Regardless, Adams was elected by the House and the country moved on until 1828 when Jackson ran against Adams again.

In his treatise on American democracy de Tocqueville defined America’s presidential election as “a revolution at law” and described it as follows:

“Every four years, long before the appointed (presidential election) day arrives, the election becomes the greatest, and one might say the only, affair occupying men’s minds…. As the election draws near intrigues grow more active and agitation is more lively and widespread. The citizens divide up into several camps.… The whole nation gets into a feverish state.”

De Tocqueville’s ultimate verdict on America’s democracy was encapsulated in his general verdict on how political controversies were ultimately resolved. His observation was that:

“In America there is hardly a political question which does not sooner or later turn into a judicial one.”

De Tocqueville’s opinion was that the American manner of resolving political issues without bloodshed worked because, unlike European monarchies, the United States citizens respected the law and they did so because they had the right to both create it and change it. Since we get to choose our legislators who write our election laws and because we can change the laws by changing whom we elect if we are unhappy, we accept the laws as written including who is ultimately declared the winner of a current election.

The laws we have the right to create and the right to change include filing for an elected office, running for that office, who counts the votes, how they are counted, as well as how and when someone can legally contest an election. That legal procedure applies to all facets of an election cycle. Each state’s legislature has the authority to establish its own procedures in this regard as long as they do not violate federal law.

As an Indiana Circuit Court Judge I was involved in a recount of a congressional race, a county clerk general election, a county council general election, a town council election and a county council primary election. The Indiana legislature had enacted and published a clear statutory procedure for each type of election contest, including what role each public official should play in any recount. The statutes demanded total openness and media access to ensure the public could have confidence that if all involved followed the law a clear winner would be fairly determined. There were time limits, controls and transparency. After a recount result was certified in each contest life moved on and the eventual losers and their supporters accepted the results because they had had their “day in court”; that is, democratically enacted law was followed not the arbitrary or partisan activity of individuals.

De Tocqueville compared America’s hotly contested democratic elections to a surging river that strains at its banks with raging waters then calms down and carries on peacefully once the results have been properly certified. From my own experience with several elections and after the recounts of some of them, I agree with de Tocqueville’s analogy.

That is not to say I am for or against any type of recount for any office. I absolutely have no position on whether any candidate for any office should concede or contest anything. My position is simply that as long as the law is properly followed our democracy can handle either circumstance.

Choices And Consequences

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Should you have read last week’s column you may remember the specific topic was the Electoral College and the general topic was our Constitution’s guarantee of our right to matter or free choice. Free choice, that is what separates humans from animals and America from many other countries. Our Founders designed a government where the ideal was: All matter, but none too much. Of course, as with most ideals, America’s vaunted guarantees of freedom of choice and equality for everyone remain as goals not yet attained. On the other hand, it is no small thing that America not only proclaimed these ideals but set them forth in writing at our founding. And we have struggled mightily since our Constitution was adopted on September 17, 1787 to live up to our ideals which were declared on July 04, 1776 to be: “That all men are endowed with the right to life, liberty and the pursuit of happiness”. Although the term “all” was advisory only.

To me these ideals come under the general category of a right to make our own choices but with an understanding our choices have consequences. These Civics lessons were burned into my psyche in a most graphic manner one day in Junior High School by one of my teachers who was straight forward, stern and strict; I liked and respected him. As he was also my Junior High football coach I always called him Coach even in the classroom probably because football was a lot more important to me than Civics. Coach’s successful coaching techniques relied heavily on those previously mentioned traits coupled with a no-nonsense attitude that victory came only through sweat. In the Pawhuska, Oklahoma school system of the 1950’s such was the general credo of the entire staff. And remembering my student days I confess such a system was necessary to force an education into me as my personal credo tended more toward the laissez-faire when it came to school work. Alas, the same was also true for some of my classmates including my friends Abby and Jack whom you will meet soon.

An example of how Coach’s attitude helped instill American history in me occurred during our Civics class section on the Civil War. Coach was one of those teachers who did not allow Political Correctness to cloud the facts. When it came to the reasons why the South seceded he taught that the immorality of slavery was a choice supported within our Constitution and the Civil War was about that choice. States Rights to determine whether to allow slavery, not slavery itself, was the gravamen of “The Cause” at the beginning of the war for the South and preservation of the Union, not the elimination of slavery, was the cause for the North. It was these competing choices and their consequences that brought about the Civil War that eventually both ended slavery and preserved the Union.

I probably would have remembered no more of these Junior High Civics lessons about States Rights and slavery than the other lessons I daydreamed through in school had Coach not given that particular lecture right after grabbing my attention with a long, thin paddle. That otherwise hazy school day began with Coach being called away from class for a brief meeting. When he left his discipline left with him and some of us fell immediately back into our natural educational state of benign ignorance.

My friend Abby who sat in the front row got up to talk to a girl two aisles over. When she did my friend Jack saw fit to sneak behind her and remove a thumbtack from the bulletin board then place it, business end up, on the seat of Abby’s desk. Somehow Abby sensed Coach was returning so she turned and hurried back to her seat. Abby sat down on the tack just as Coach entered the classroom and observed and heard Abby react appropriately.

The Coach affixed his terrifying stare on each of us individually and when he got to Jack, Jack folded like a pair of dirty socks. Coach called Jack up to the front of the class and ordered him to bend over and grab his ankles. From an assortment of paddles he kept hanging from the chalk rail Coach chose a thin paddle about two feet long and pushed a thumbtack through it. After the Coach vigorously applied paddle to posterior while Jack manly gritted his teeth in silence, we had our Civics lesson on choices and consequences concerning the Constitution, slavery, States Rights, the Union and the Civil War. I remember them well. And if any of my classmates from that day read this article I bet they do too.

The Right To Matter

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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.

A Yankee Girl Does Rodeo

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America consists of four countries: (1) everything east of the Mississippi River excluding Florida; (2) Florida, (3) everything west of the Mississippi River excluding California; and, (4) California. Rodeos are the province of people in country (3) although some folks in Florida and California do know there is no accent on the term rodéo except for a certain drive in Beverly Hills frequented by the frou-frou set.

Yankees, that is almost all of those people in countries (1) (2) and (4) snub their noses at those of us from country (3). Yankees tend to talk funny while casting aspersions on the pleasing western drawls of those of us from country (3), and Yankees dress odd while failing to appreciate western wear. In sum, some Yankees want to ignore country (3) even to the point of eliminating the Electoral College and bribing their way into colleges most of those in country (3) would not wish to attend. After all, could real Americans root for colleges whose colors are pastels?

It was important issues such as these that coursed through my brain as Peg, who was born in New York, and I attended a rodeo in Osage County, Oklahoma last week. I was left with the conclusion that Yankee girls and rodeos may not be the best fit. Perhaps you will agree once I relate Peg’s take on the Roy Clark Memorial Championship Rodeo held April 26 and 27, 2019 in Pawhuska, Osage County, Oklahoma.

Peg was fine with and impressed by the opening ceremonies that started with a cowgirl mounted on a horse and carrying the United States flag. That cowgirl was followed by another mounted cowgirl carrying the state flag of Oklahoma then by five more cowgirls riding around the arena with flags of the Air Force, Army, Marines, Navy and Coast Guard. As the flags were displayed “The Star Spangled Banner” was sung, the Pledge of Allegiance was recited and a long prayer was given. Then the rodeo events began. That’s also when Peg began to inquire about such things as calves, steers, horses and bulls feeling put upon by such things as cowboys, cowgirls, ropes and stock handlers.

“Jim, that cowboy roped that calf around the neck while it was running full speed and abruptly jerked it to a stop by reigning in his horse. Doesn’t that hurt and isn’t that cruel and inhumane?”

“I suppose so, but not ever having been roped, I don’t know. I note the calf jumped up and trotted off looking fine.”

“Well I beg to differ, you chased me until I roped you in, although sometimes I wonder why I did. Anyway, Jim, the announcer said the cowboy tied up three of the calf’s legs with a ‘piggin string’ he carried in his teeth. Where are the pigs?”

“There are no pigs in rodeos unless you are on a farm back east. It’s just a term of art.”

“It seems like almost all the cowboys who try to ride the bucking horses and bulls get thrown off. Doesn’t that hurt? And, where’s the art in that?”

“Yes, it hurts about like getting hit by a 300 pound football player. However, if they hang on for 8 seconds they can win prize money. It’s all part of the rodeo experience, Peg.”

“Jim, I don’t think it’s fair they penalize the cowgirl barrel racers for knocking over a barrel. Why don’t they set the barrels up so they won’t fall over?”

“Because then the cowgirls would go flying over the saddle horns when the horse hits a barrel.”

“Jim, in that team roping thingy why don’t they just set a large circle of rope down on the arena floor and shoo the steer’s hind legs into it?”

“Because that is not what happens on a ranch when cattle are being worked. Rodeos are based on actual ranch work and steers have to be rounded up on a ranch.”

“Jim, do you think we’ll see Sam Elliott here tonight?”

“Are you ready to leave? Maybe we’ll go see a movie. Perhaps you’ll see Sam there.”

The Constitutional Convention and Cable News

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The Constitutional Convention was held in Philadelphia in 1787. The delegates kept the proceedings secret to avoid, “licentious publications of their proceedings.” James Madison, the Father of the Constitution, stated that no Constitution would have ever been adopted if the debates had been public. Remarkably, for four months the secrecy was maintained.

Can you imagine the motives CNN, FOX and MSNBC would have projected upon George Washington, et. al.? No delegate would have escaped the allegations of lying or even treason to the Revolution.

But inside the Convention the fifty-five delegates, half of whom were lawyers, debated the most volatile issues of the day. Slavery, whether we would have one-man-one-vote or an electoral college, large states versus small states, foreign attachments, the establishment of courts, provision for national defense and many others. How did they do it?

Of course, I do not know. However, I am pretty sure no one was called a liar for stating his views and no one was ascribed venal motives. Most likely George Washington as the presiding officer of the Convention made sure each delegate had an opportunity to present his views and everyone else had an opportunity to respond.

Maybe it is because I am a judge and once practiced law but it seems likely to me the Constitutional Convention proceeded much as a court case. First an issue would be brought up, States’ Rights for example, then each delegate who wished to would state his position. Then, after extensive but civilized debate a vote would be taken.

This time honored approach to resolving controversies has served the legal system and America well for over two hundred years. First define the issues for resolution, a criminal trial for example, then allow each side to fully present their views without threats or name-calling.

I humbly suggest this same respectful approach will work in every conversation from government to individuals. Shouting down or using force to prevent those one disagrees with from speaking will not result in the kind of result we achieved in 1787.

As I was writing this column I received an email and an attachment from my friend Jerry Wade of New Harmony, Indiana who used to live in New York City and who still subscribes to the New York Times.

Jerry must have been really bored recently because he has obviously been following my column about our country’s increasingly uncivil discourse. Jerry sent me an article by Bret Stephens that appeared as an opinion editorial in The Times. It contained an excellent analysis of the current climate surrounding “Freedom of Speech”, a.k.a., “If you don’t agree with me, you must be crazy!”

I will share a small portion of Stephens’ article with you.

“We disagree about racial issues, bathroom policy, health care laws and, of course, the 45th president. We express our disagreements in radio and cable rants in ways that are increasingly virulent; street and campus protests that are increasingly violent; and personal conversations that are increasingly embittering.”

Stephens does suggest a solution:

“… [T]o disagree well you must first understand well. You have to read deeply, listen carefully, watch closely. You need to grant your adversary moral respect; give him the intellectual benefit of doubt; have sympathy for his motives and participate empathically with his line of reasoning. And you need to allow for the possibility that you might yet be persuaded of what he has to say.”

In other words, to have productive intellectual discourse we have to first concentrate on being civil.