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The State of Aloha

FAmericans pride themselves on creating and keeping an enlightened republic where our leaders are democratically elected. But the way we pick our president doesn’t measure up to our rhetoric.

The U.S. Constitution directs the Electoral College to pick the president. Every state in the union is given a number of electors — the total number of representatives in Congress. We get four: two senators and two representatives. Those electors pick the president based what happens in the state’s election. The candidate with the highest number of electoral votes wins.

Ironically, the electors are required to remain in their respective states and cast their vote. This prevents them from negotiating among themselves. It’s hardly a college at all.

With ever growing populations, the number of electors has changed over the years, but for next week’s we have 538 and the magic number for either candidate is 270 to win the presidency.

The Electoral College has been a historical check on the popular vote. It has meant that the state with the largest populations wield considerable control. It also means that when elections are close — as they have been in every presidential election this century — national campaigns focus on small parts of the country. It means that the entire election could hinge on a single state like it did in Florida in 2000 or even a county. Why would the founders come up with this?

It is one of the many checks on majority rule in the United States. Scholars, lawyers and judges have written on the anti-democratic streak running through the original articles of the Constitution. Before it was amended in 1912, senators were not directly elected by the people. They were chosen by state legislatures.

A notorious example is the original constitution’s outdated definition of the “people” in its aspirational preamble. People refers to a distinct kind of person: white men. The Constitution had to be amended to allow women and other races to vote and be counted.

When it came to determining the population for states, congressional districts, and, therefore, electors, the U.S. Constitution deemed untaxed “Indians” and slaves as three-fifths a person. That’s no accident. Most white slave owners lived in the South. If only their vote counted, they would be outvoted by other states every time.

The Constitution allowed states to use a slave’s body to determine population, but at the same time deprive them of the right to vote. And because the number of electors is based on a state’s delegation to Congress, states with many slaves, but a few white men, wielded great power.

Three centuries, a civil war, and 27 amendments later, and we find ourselves still using the Electoral College. We find the government still tinkering with what kind of person — be they unlawful immigrants or not — counts in our official census, which determines congressional districts and a state’s electors. Many have argued that not only is this unfair, even unconstitutional.

In his 2018 book outlining a progressive interpretation of the Constitution, Erwin Chemerinsky, the dean of University of California Berkeley Law School, has suggested that later amendments to the Constitution guaranteeing equal protection and due process of law invalidate the Electoral College. Chemerinsky points out that the Supreme Court of the United States has distilled from these amendments a bedrock principle: one person, one vote. In fact, 20 years ago, the conservative-majority in the famous case Bush v. Gore stated that a state cannot “value one person’s vote over that of another.” And yet that is precisely what the Electoral College does.

Our state’s population is around 1.4 million people, and we have four electors. That means a Hawaii elector represents around 350,000 people. New York has a population of 19.4 million and 29 Electoral College votes. The New York elector represents close to 700,000 people. What happened to one person, one vote?

While federal courts are unlikely to adopt a progressive interpretation of the U.S. Constitution anytime soon, there are other ways to democratize the Electoral College. States are free to divvy up electoral votes as they see fit. Almost every state, however, sets it up so that the candidate who wins the popular vote within the state, wins every electorate vote. In other words, if you vote Republican in California, but Joe Biden wins the popular vote, it doesn’t matter. All 55 electoral votes go to Joe. The same for Democrats in places like Kansas and probably Texas.

Only two states take a different approach. Maine and Nebraska give two votes to the popular state winner and an electoral vote for the winner in each congressional district. That at least moves us a little closer to the will of the voters. Of course, it makes the map on Election Day a little messy, but, hey, so is democracy.

* Ben Lowenthal is a trial and appellate lawyer, currently with the Office of the Public Defender, who grew up on Maui. His email is 808stateofaloha@gmail.com. “The State of Aloha” alternates Fridays with Sarah Ruppenthal’s “Neighbors.”

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