A Cure for Electoral Dysfunction

It was perhaps inevitable that we should end the year with “Resolved: The United States ought to replace the Electoral College with a direct national popular vote.” We are informed that this “winning resolution received 56% of the school vote and 58% of the student vote” but it sure feels like it was the inevitable, perhaps tardy, conclusion of November 8th. But now, without further ado, let’s present research for both sides.

The Negative

There are several elements that favor the negative. And I suspect that most kids are going to be talking about how our nation was founded with a clear distinction between state and federal governments and thus flaunt their ability to read a basic civics textbook. And if your judge isn’t among the minority of people in the United States that can even name the three branches of government (Annenberg Public Policy Center, 2016) then that might be a good way to go for the negative.

Strangely enough, that is also the first reason to go negative here: this just continues the tradition of the unitary executive where too much attention is paid to the president and not enough is paid to the legislature or the states. Despite the ostensibly-Democrat Obama being easily re-elected as president in 2012, the federal legislature remained Republican and more state governors and legislatures swung Republican as well. Here’s a couple of videos to get you caught up on sub-presidential politics:

And an old Daily Show segment on Gerrymandering that requires Flash (sorry).

The point here is that whatever the Affirmative promises the judge in terms of changing how people are represented, they’re not going to be able to deliver it because they’re too narrowly focused on the presidency. There’s a huge infrastructure of governmental dysfunction that is entirely extratopical and will prevent any noticeable benefits from engaging in a more-direct democracy.

The second reason to go negative is that there will be logistical nightmares in deploying a new national infrastructure for direct federal election since the resolution makes it quite clear that it is a direct national vote and not to be confused with the state and local elections, the eligibility for and infrastructure of which varies by location. And this is particularly troublesome because states are having difficulty maintaining their own voting infrastructure in the status quo:

The 2002 Help America Vote Act provided $4 billion to states, but that money is largely gone. With many state legislatures unwilling to allocate funding, election officials are left scrambling to make do. … Forty-three states used machines that were at least a decade old and nearing the end of their lifespans during November’s presidential election, according to the Brennan Center for Justice, which advocates for protecting election rights. Election officials in a least 31 states want to purchase new voting machines in the coming years, according to a 2015 report from the center. Most, however, don’t know where they’ll get the money. … “The machines in many cases are 10, 12-years old. That’s ancient history in terms of technology,” said Denise Merrill, the top election official in Connecticut and president of the National Association of Secretaries of State. “I don’t see any money coming from Washington, so the states are going to have to figure this out on their own.” (AP, 2017)

Furthermore, the aged voting machines are often unsupported and have known vulnerabilities:

Most of these machines are running Windows XP, for which Microsoft hasn’t released a security patch since April 2014. Though there’s no evidence of direct voting machine interference to date, researchers have demonstrated that many of them are susceptible to malware or, equally if not more alarming, a well-timed denial of service attack. … late last summer, Virginia decertified thousands of insecure WinVote machines. As one security researcher described it, “anyone within a half mile could have modified every vote, undetected” without “any technical expertise.” The vendor had gone out of business years prior. (Barrett, 2016)

So what we see here is that our current voting infrastructure is in dire straits, something that the affirmative is unlikely to have considered as they glibly suggest we make a new special federal-specific voting system to replace the electoral college. Never mind the part where they have to rewrite the constitution to support their side of the resolution, we’re doing a bad job of defending the voting process in the status quo and need to get into the habit of maintaining the process we have before we go expanding it as the affirmative would necessarily do.

But, third, here’s the big thing and where any claim they make on cost-benefit analysis falls apart: if states weren’t playing an arguably-unconstitutional game of winner-take-all with their electoral college votes, the electoral college would track a whole lot closer to the popular vote as former presidential candidate Lawrence Lessig observed, working with lawyer Jerry Sims:

In Williams v. Rhodes, 393 U.S. 23, 89 S. Ct. 5, 21 L.Ed.2d 24 (1968), the Supreme Court made the critical point regarding presidential election law, that although the election of the president by the Electoral College is established by Article II of the Constitution, presidential Electors may be selected by the States in any manner they choose, but when the States opt to select Electors by an election, the election conducted by the states must be conducted in a manner consistent with other provisions of the constitution … In Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525, 148 L.Ed.2d 388 (2000), the Supreme Court further explained as follows: … “The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” … [Therefore] a winner-take-all system of allocating Electors by the states denies the minority of voters within each state any representation whatsoever within the Electoral College and ultimately in the case of the 2000 and 2016 elections, denies the plurality of voters nationwide their choice for President under circumstances in which the constitutionally established small state advantage made part of the Electoral College would not. This is neither a reasonable nor a rational result in a representative democracy. This result was dictated by the winner-take-all method of allocating Electors used by the states. It is this state law method of allocating Electors that is an unconstitutional violation of the equal protection clause of the 14th Amendment and its bedrock principle of one man one vote. (Lessig & Sims, 2016)

So the big selling point that the affirmative wants to make about solving for popular losers taking the presidency anyway is actually non-unique and Clinton would have won the last election 270 to 263. And we just need a Supreme Court decision on that based on precedent, no radical changes are actually required. But–and this goes back to the lack of solving for the core political problems we started with–neither adjusting nor abolishing the electoral college would change the fact that 91% of congress got re-elected (Phillips, 2016)

The final focus comes down to this: the focus on the electoral college is misguided from the start, but we can still fix it far easier than the affirmative can. With this in mind, you might want to call out a framework of pragmatism: that being that you should aim for the simplest target to hit because you ought not be trying to do something perfect while the waiting country collapses or is co-opted away.

Bonus tangent: On the off-chance that the affirmative brings up third-party candidates getting no electoral college votes, the correct answer is to expand the House of Representatives–which stopped growing at 435 seats a century ago–until the electoral college, being based predominantly on congressional seats, is granular enough to appropriately represent the appeal of the political fringe. Additionally or alternately, states could adopt ranked-choice voting in addition to the Supreme Court striking down the practice of winner-take-all electoral allocation.

The Affirmative

Many affirmatives will be fussing about the split between the popular vote and the electoral college, but we’ve already precluded that on the negative, so let’s go with a pair of planks on actual citizen disenfranchisement. Here’s a video primer on voter disenfranchisement:

The first big advantage to making democracy more direct would be that–at least when voting for the president and vice-president–we can circumvent disenfranchisement by states. The Brennan Center for Justice is huge on voting rights and will give you a glimpse on how narrow this topic is. But the sub-A point is as follows: “in 2016, there [were] 14 states with voting restrictions in place for the first time in a presidential election” (Brennan Center for Justice, 2016) and new to 2017

At least 68 bills to restrict access to registration and voting have been introduced in 27 states. … New legislation cutting down on voting opportunities continues a longstanding trend. Following the 2010 election, 19 states passed 27 laws to make it harder to vote — often citing fraud prevention. More bills followed in the next four years. Although some laws were blocked by courts — partly because they found fraud to be nearly non-existent — voters in 20 states face new restrictions since the post 2010-wave began. (Brennan Center for Justice, 2017)

Further, sub-B, state-level ex-convict disenfranchisement could be eliminated to restore voting rights to 6.1 million Americans (The Sentencing Project, 2016) with 12 states using voter disenfranchisement as a lingering penalty even after an ex-convict has returned to public life. This has impacts on the outcomes of political contests with disparate impacts on minority communities:

Felony disenfranchisement has potentially affected the outcomes of U.S. elections, particularly as disenfranchisement policies disproportionately impact people of color. Nationwide, one in every 13 black adults cannot vote as the result of a felony conviction, and in four states – Florida, Kentucky, Tennessee, and Virginia – more than one in five black adults is disenfranchised. (The Sentencing Project, 2016)

Supplemental: By way of comparison,

disenfranchisement policies in the United States today are exceptional in their severity and the restriction of the voting rights of people who have completed their prison terms or were never incarcerated at all. While only two states (Maine and Vermont) in the United States allow citizens to vote from prison, the European Court of Human Rights determined in 2005 that a blanket ban on voting from prison violates the European Convention on Human Rights, which guarantees the right to free and fair elections. Indeed, almost half of European countries allow all incarcerated individuals to vote, facilitating voting within the prison or by absentee ballot. In Canada, Israel, and South Africa, courts have ruled that any conviction-based restriction of voting rights is unconstitutional. (The Sentencing Project, 2016)

So circumventing state-based restrictions on voting by moving to a direct popular national vote for the presidency and vice-presidency is good for ensuring that our citizens are equally protected from state to state and mitigating the systemic effects of racism in local governments.

But second, we can solve even more chronic racism and disenfranchisement than that, for which we turn to another video.

So that’s 4.1 million US residents, most all of them citizens and minorities, who do not live in states and are therefore disenfranchised from the federal government, inclusive of the electoral college and presidential election. And while people like Donald Trump insist that climate change is a hoax created by the Chinese, the US citizens in these territories are watching the ocean encroach on their land. Replacing the electoral college with a direct national vote is the only in-round way to give those citizens representation in the federal government.

So an affirmative ballot expands the right to vote in presidential elections to over 10 million citizens, predominantly minorities who have been targeted by racist policies and then ignored by the elected officials that don’t want to have to work for–or are actively opposed to–a diverse constituency.

Yes, our government has a lot of problems and just changing the way we vote for who gets to be president won’t fix all of them–but at the point where we mitigate the effects of racist policies on 10 million of our fellow citizens by giving them the right to vote for a meaningful position in the federal government, we have a moral obligation to accept that it’s what we ought to do.

Those are the sample cases. If you’re on the Negative, you’ll want to speak first to block the boring arguments and make it clear that the affirmative position is going to be a waste of the judge’s time. If you’re Affirmative, you’ll want to speak second so you can sucker-punch the negative that was all up on federalism with voter disenfranchisement.

But debate isn’t just about the case; you also need a heap of blocks against your opponents’ arguments. So, reviewing the Everyday Debate arguments, let’s work on blocks. The weakness of the Negative sample arguments below suggests that most debaters taking stock cases are going to prefer the Affirmative. So we’re going to start with blocking the Affirmative.

Blocking the Affirmative

Let’s burn down their weakest affirmative argument first: “A direct vote will not endanger the two-party system” for which there is only one response:

  1. There were four national parties represented in the last election: Democrat, Republican, Libertarian, and Green. We don’t know what you think you’re defending with this claim since coalition government are common in other democratic nations, but you’re wrong on the premise. Beyond this point: the Democrats were infiltrated by an Independent socialist and the Republicans were hijacked by an apolitical fascist, so even if we had a two-party system, it’s not a healthy one worth saving.

Having gotten that out of the way, let’s move on to the strongest argument they give for the affirmative is the legalistic “Supreme Court upholds one person one vote,” but all of their cards are from 1967. So we’ve got three answers in a chain:

  1. The cards supporting this are half a century old. If they were contextually relevant then the Supreme Court would’ve ruled against the Electoral College by now. That we are debating this today suggests that this is not the case and our opponents have presented bad evidence.
  2. The reason the evidence is bad is that enfranchisement to vote in a presidential election is allocated by the state, not by the federal government, which is why states have different registration processes and so on and some states disenfranchise felons and ex-convicts. Within each state’s jurisdiction, each registered vote is treated equally.
  3. At least until, again, per Lessig and Sims, the state disenfranchises the political minority by choosing to allocate its electoral college votes to a single candidate as a matter of building its political capital. This is an actual inequality, but we don’t need to abolish the Electoral College to fix it; we just need the Supreme Court to rule against this practice.

The next argument goes to the principle behind that, and includes the arguments about “fairness and proportionality” while getting into “winner-take-all bad.” I can assure you that the last thing adult judges want to hear is teenagers whining about things being unfair, but this is otherwise a halfway valid argument that appeals to a sense of justice, to which we’ve got a variety of structural answers which we will lead with some shade.

  1. The way to campaign to win the electoral college is perfectly fair; it is known to the presidential candidates and their campaign handlers. Clinton didn’t set foot in Wisconsin, Clinton lost Wisconsin (Engel, 2016). Ignorance and incompetence are not the same as being the victim of unfairness, as Donald Trump’s whining about unfairness during and after the campaign demonstrates (Stedman, 2016).
  2. Proportionality is a slightly different argument, but our opponents seem to have missed the part where the senate, made up of two senators per state regardless of how large or Rhode Island, is disproportional by founding design and its the senate-count inclusion in the Electoral College that causes disproprtionality. But here’s the thing: even if you agree with our opponents that disproportionality is bad, then what you really need to do is fix the legislature so the senate isn’t misrepresenting people rather than abolish the Electoral College. Our opponents are offering a fake solution here that won’t fix the problem they’ve identified.
  3. Let’s double down on that: if you really want to improve proportionality, we should also expand the house of representatives which hasn’t added more seats since we had a mere 110 million people almost a century ago. Again, this would not only solve our opponents’ problems with the Electoral College, but would improve the granularity our representation and make it harder for corporations to buy out our rights (Sottek, 2017).
  4. Now we agree that the real unfairness is being created by the states against their people by using winner-take-all rules, as we have described. But as we have also described in the Lessig & Sims card, there is no barrier to the states splitting their votes to solve for fairness in distributing electoral votes in a way that weighs the voters within the state equally, and the Supreme Court could potentially rule the practice unconstitutional if it were to be challenged.

Next, because this is Public Forum and as shallow as Rep. Chaffetz’s principles (Oh, 2017), the argument that “direct vote is simple” may be appealing, but it’s misleading:

  1. There is nothing simple about counting over a hundred million votes.
  2. If the complaint is that the Electoral College doesn’t make sense, then the problem is a lack of civics education that eliminating the Electoral College won’t do, just like cutting science won’t fix climate change (Zhang, 2017).
  3. Further, we must ask: if a person doesn’t understand the election process then how can we believe that their vote actually represents what they think they’re voting for? There are numerous reasons to not pursue universal suffrage through critiquing enlightenment philosophy (Crain, 2016) but the core reason to support universal suffrage is the consistent representation of self-interest of citizens in a relevant forum. Only, for the one-third of American voters that can’t name any of the branches of our government,  we can’t rely on their spurious vote being a representation of their self-interest and eliminating the Electoral College isn’t even going to scratch the surface of solving this disconnect.
  4. But chaining from that, the propensity of public officials to subtlety lead people down a complex path to actually vote against their interests (Ladd, 2017) is well-known, iconified by the phrase “Keep your government hands off my Medicare” (Cesca, 2009). So taking simple votes on complex issues has counterproductive results that make people feel even more disenfranchised from the system, undermining people’s motivation to vote in the first place.

The simplicity argument often chains to “encourage voter participation” on the enlightenment-based belief that more democracy is better democracy.  Unfortunately, the argument is a red herring.

  1. This is a speculative claim, and when we compare the presidential election to the more-direct midterm elections, we see that midterm elections have lower voter turnout. Alter (2014) reports that the 2014 midterm elections had a mere 36.4% voter turnout, compared with 55% and 60% voter turnout in presidential elections on either side of it (Hubby, 2017). So, exactly opposite of our opponents’ claims, we see that the Electoral College correlates to substantially higher voter turnout than direct voting.
  2. But beyond being flatly wrong, the motivation of this claim is confusing: our opponents are essentially making the baffling claim that they want to better extract uninformed opinions from disengaged citizenry. Make no mistake: their claim isn’t saying that people are unable to vote because of active and pernicious disenfranchisement (Brennan Center for Justice, 2016; Schneiderman, 2016); their claim is functionally that people don’t vote because they’re too depressed by their fellow citizens voting for the other candidate to bother, a point that they can’t solve with a direct vote.
  3. Furthermore, their notion of participation is dangerously facile: despite antipathy towards the legislature and desire for “change” in Washington, 97% of seats continued to be held by their party, generally by re-election (Drutman, 2016), and most of them are now happily selling us out. No, mere voting is not adequate participation in a system that is constantly trying to rig itself for the perpetuation of power. On January 30, President Obama said he was “heartened by the level of engagement taking place in communities around the country,” but more importantly that “Citizens exercising their Constitutional right to assemble, organize and have their voices heard by their elected officials is exactly what we expect to see when American values are at stake” (Kamisar, 2017).

So the affirmative’s desire for direct voting in the presidential election doesn’t actually result in getting more votes as demonstrated by higher turnout for presidential elections versus congressional elections in the status quo, it certainly doesn’t result in getting more informed votes, if anything the distraction from the perpetually re-elected legislature ensures that voters are less informed with a goal of making them less engaged and weakening the fiber of our overall democracy. So you should not vote for the affirmative. Meanwhile, the slightest adjustment to prevent states from block-voting in the Electoral College can solve for the disconnection between popular and Electoral vote in the status quo which is really what people don’t like about the Electoral College and thus why you’re going to be totally fine with voting for the negative here.

Blocking the Negative

The arguments presented for the negative are really pretty weak, but it’s not like they have to be strong: the status quo has staying power. But, noting that weak arguments get smaller responses, let’s get started.

Given the claim that “destabilize the political process,” we look at our opponents as if they are daft and reply:

  1. Our political process has been destabilized. This claim is not just non-unique, but we’re also past-brink and suffering the harms. In the last presidential campaign, the Democrats were infiltrated by an Independent socialist and the Republicans were hijacked by an apolitical fascist whose campaign was staffed by Russian subcontractors.

The claim that “indefinite delays for recounts” is graspingly ignorant.

  1. This claim is flatly false: first, recounts tend to be done at the county level and do not necessarily expand to an entire state. Secondly, and more importantly, courts can halt recounts if no material change is expected to emerge within a reasonable timeframe. We had recounts in this last election that resulted in no material delay (Detroit Free Press, 2016) and the Florida recount in 2000 was halted by the Supreme Court decision on Bush v. Gore rather than be allowed to cause a delay (Pecquet, 2006).

Similarly, the concern that direct voting could be “manipulated by special interests” hasn’t been keeping up on current events. By which I mean it’s so non-unique that it’s insultingly dumb to those of us who care about it. But let’s keep our answers short:

  1. Special interests are here and are getting more aggressive: “This is the ‘Bring your Own Billionaire’ election,” says Melissa Yeager, a writer with the Sunlight Foundation, which tracks campaign funding and money in government. “This is what it takes to compete in this election cycle” (Becker, 2015). Indeed, even Trump’s dubious claim of self-funding his campaign (Graham, 2016) caved in to mega-donor Adelson (Goldmacher, 2016).
  2. Special interests already manipulate the primary system; it’s why Iowa–the least relevant state in determining the president–has their primary caucus first: to secure campaign pledges to its special (agricultural) interests (Libit, 2015). This harm is totally non-unique and also assumes far too much about the power of the president versus congress or state governments.

Really, take some time to get caught up, we’ll wait:

The strangest argument that gets made is that “winning a popular vote does not confer special legitimacy” but:

  1. This isn’t even an argument, it’s just a statement: we somehow have a president and that’s okay. But if you parse it carefully, you realize that,
  2. Losing the popular vote confers a special lack of legitimacy that gets called up with every subsequent presidential blunder from Bay of Pigs to ignoring Bin Laden to invading Iraq to, now, Trumpcare or whatever the daily/hourly self-inflicted disaster afflicting the White House is at this point in time.

Now Everyday Debate also grabbed cards suggesting a “districting model” which is kind of like electoral college vote splitting but worse and stupid.

  1. This is the worst of both worlds: you keep all of the gawky flaws of the electoral college, but then tell the states that are already demonstrably happy to disenfranchise their residents to gerrymander not-quite-congressional districts into existence for the sole purpose of a hyper-partisan presidential election? Our opponents would have a far simpler time merely arguing against the winner-take-all model that most states (wrongly) use to allocate their electoral college votes than to go down this hypothetical path, but they didn’t so don’t let them shift their advocacy now.

Finally, the most odious claim is that “the electoral system affirms the majority will” because it doesn’t.

  1. The current president lost the popular vote by 2.9 million votes (Krieg, 2016). So that’s a brazen lie on-face and we should be offended that it was even presented in this forum.
  2. But beyond that, states actively manipulate their voter rolls to shape the perceived will of the people (Brennan Center for Justice, 2016; Schneiderman, 2016).
  3. And beyond that, they’re continuing to dehumanize all of the citizens who live in our non-state territories whose votes will therefore not be counted in the election.

Overall, if you want the president to be elected by the will of the people, to have a mandate from the people, then you actually have to go to the people. You can’t just ask the states what their people think, because their answer will be biased and totally fail to include the citizens in all of our territories. Our system, which the negative is functionally defending, is already pretty messed up in a variety of ways. But at the point where it disenfranchises over 10 million citizens from voting for president, we need to reform it, and we need to reform it by replacing the state-bound Electoral College with a direct popular vote: that’s our affirmative position.