If, as is likely, Biden wins the popular vote the Republicans will have won a majority of over 50% in presidential elections once out of the last eight. Over the same period the Republican party will have brought into the Supreme Court a significant conservative majority. This questions whether the current Federal system is not only not just but whether it is in fact working within the boundaries the Founding Fathers wished it to at the creation.
The current situation has seen the GOP have in the past a majority in the House of Representatives even though they have lost the majority of House popular votes in the aggregate on a number of occasions. These are legitimate facts which it is legitimate to address because if the majority, perhaps a significant majority of voters see their expressed preferences overturned, no matter how Constitutionally correct, the stage is being set for massive social discord if not explosive violence.
It is difficult to see a way of this challenging situation which would come
into sharp focus if Biden wins a large
majority of the popular vote, perhaps by as much as four percent and many millions
of votes but loses in the Electoral College which is entirely possible.
The argument that “why should New York, California and
Illinois dictate to the rest of America who should be the president” is sound
on a Constitutional basis but that argument begs the question as to why should
an American citizen living in California have their vote unequal to a citizen
living in Wyoming. If the same person moved to Cheyenne, their vote would been
magically transformed to having a substantially higher value.
The very Constitution that has brought about this situation is the block to any reform. It would take a Constitutional referendum proposed and passed by two thirds of both houses of Congress and then was ratified by three quarters of the states.
This is highly unlikely to happen as smaller
states would be loath to give up their electoral power. Similarly, so with the
other Constitutional reform remedy allowed under the Constitution a
Constitutional Convention called by two thirds of all states and any measures then agreed must be passed by three quarters of all state legislatures.
A “compact of States” has been proposed under which various states, that Constitutionally control
how their states Electoral Votes may be proportioned, agree to give their
Electoral Votes to whichever presidential candidate won a majority of the
presidential votes regardless of which candidate won their states votes.
Once enough states who collectively have 270 Electoral
College votes i.e. a majority, agree to that formula America would effectively
switch to a popular vote winner system. However, once again this works to the
perceived disadvantage of smaller states and the required 270 is not within
sight although a number if, mostly Democratic voting states, have agreed to the
formula.
Further this compact would come under scrutiny by the conservative Supreme Court not least because the Constitution explicitly
forbids a compact between states (Article1 Section10 Clause 3.)
If the polity dissolves into violence, then clearly some remedy must be sought. Views range from secession through agreement, which in a violent situation is hardly far-fetched. This would involve those states wishing to secede to allow the conservative sections, for instance in California, to secede from the liberal sections. But in practice since the liberal states are bi-coastal with Illinois in the middle some sort of new federation along the lines of East and West Pakistan would fail for exactly the same reason Pakistan failed.
There are voices suggesting the seceded states could petition to join Canada, that purported refuge for liberals when the Democratic party loses in the Electoral College. This would actually work in practice despite the liberal’s bi-Coastal situation and would effectively be no different from the European Union’s patchwork of states across vast distances.
The difference between secession and some sort of working relationship between
the former federal states and a Canadian Union would be that the Canadian union
would be composed of, surely, much happier citizens. One with abortion on
demand the other with the strictest laws against abortion, one with marijuana
legal, one with it not and whatever other causes appeal to both new sections.
If none of the proposal could be effected the only way for
the governments hand to be forced would be if the citizens of the disaffected
states refused to pay their Federal taxes-it being impossible to jail an entire
states population. The government would then have to look to changing overt acts of
secession into a valid one in law not by
a Constitutional remedy as regards changing the Electoral College but by letting the aggrieved states go their own way.
A temporary stay of this morass would be if Texas swung left
and voted with California for their presidential choice which would ensure a
large Democratic Electoral College majority. However with the apparent shifting
of Hispanic allegiances this might only work for a few electoral cycles and the
situation would again revert to possible chaos.
The 2020 election may, sadly and perhaps tragically bring this untenable situation into sharp focus and to prevent very real and endless destruction and loss of life a determined dialogue must be entered into by those in government, academia and the media.
