Super Lawyers
William C. Altreuter

Thursday, November 10, 2016

I said I'm staying off social media for a while, but I guess what I mean is Facebook. I have also said that I am not going to talk about the election-- for a while, but I will say this: when I was an undergraduate I interned for the Senate Judiciary Committee's Subcommittee on the Constitution, which was chaired at the time by Birch Bayh. The big project the Subcommittee was working on back then was an amendment to abolish the Electoral College, so I can honestly say that for very nearly as long as I have been able to vote I have advocated for direct election of the President. Back then the last time the Electoral College result departed from the popular vote was the Tilden-Hayes election of 1876. By the time I got to the Subcommittee the hearings had been had and one of my tasks was to familiarize myself with the testimony, which consisted largely of social scientists and historians discussing how the system was designed, and how it works. It was pretty much a given that a disparity between the popular vote and the Electoral College outcome would represent a constitutional crisis, but it many of these experts also thought that this sort of thing was unlikely. In fact, a lot of political scientists thought that the Electoral College actually served to amplify the popular vote, and that this was a feature which allowed the incoming President to point to greater support, which in turn operated to mitigate partisanship. Well, now we see how that turned out. As Steve Goodman observed in "A Dying Cub Fan's Last Request", "The Law of Averages tells us that anything that can happen, will", and now, for the second time in twenty years (and damn near the third time) we have seen what this profoundly anti-democratic system does. It has never operated to the national benefit, and we now see that actually operates to bring about results which, in addition to being profoundly undemocratic, are precisely the opposite of what Alexander Hamilton, James Madison and the rest would have wished for.

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