You really gotta give him credit for trying.
Law professor Leon Friedman is trying to make the claim that the Electoral College system (which is written into our Constitution) is itself unconstitutional.
The United States is not a democracy. We’re a Constitutional Republic, or a Democratic Republic.
We directly elect our senators and representatives to Congress, but we do not directly elect the President.
This is the way the Founding Fathers designed it.
In fact, many of them wanted the House of Representatives to choose the President, much like they do in Great Britain.
But the compromise was the Electoral College system. Some of the electors are based on population, but some are allocated by state (every state gets three electors no matter what the population is).
All of this means that sometimes – as in 2000 and again in 2016 – the popular vote and the results of the electoral college don’t match up.
And that’s precisely what the Founding Fathers wanted. That’s why they put it in the Constitution.
Professor Freidman starts by pointing out that the electoral college system was a compromise between the pro-slavery South and the anti-Slavery North. Southerners wanted their slaves counted as people so the could get more representatives in Congress and Northerners contended since they were considered slaves and can’t vote, much less do anything else, they shouldn’t be counted as “people.”
The compromise was the “three/fifths” rule that counted slaves literally as three-fifths of one person for congressional apportionment.
What does any of this have to do with the current electoral system? Nothing at all. It bears no relationship on it, since we don’t have slavery anymore.
But leftists use this argument in their specious claim that the electoral college today is wrong, or racist, or unconstitutional.
The good professor argues that because the electoral college gives greater weight to smaller states, that a vote in a rural state like Wyoming is worth “3.6 times” more than a vote in California.
And this may be true on paper – if it mattered.
But it doesn’t.
Freidman claims that since the 14th Amendment provides that “no state shall deny to any person … the equal protection of the laws,” it overrules restrictions in the 12th Amendment (which established the Electoral College system).
He then claims that the “equal protection clause” of the 14th Amendment means that voters are not being “equally protected” in urban states. Here’s how he words it:
If the Fourteenth Amendment overrules some restrictions of the Eleventh Amendment, it can also overrule requirements of the Twelfth Amendment. In 1954, the Supreme Court held in Bolling v. Sharpe, that the federal government is subject to the same equal protection requirements as the state governments, even though the equal protection clause of the Fourteenth Amendment does not mention the federal government. The due process clause of the Fifth Amendment (which does apply to the federal government) contains equal protection guarantees as well, even if they are not specifically mentioned. The Court said in Weinberger v. Wiesenfeld, “This Court’s approach to Fifth Amendment equal protection claims [covering the federal government] has … been precisely the same as to equal protection claims under the Fourteenth Amendment.”
The right to vote in a federal election should therefore be protected by the same “one-person, one vote” established in state elections. The 3.6 vote discrepancy in the electoral college should be subject to the same equal protection analysis that the Supreme Court has applied in state and local elections. We must end this historical anomaly. Citizens in the adversely affected states should bring the matter to a federal court.
What Professor Freidman ignores is that the “one person, one vote” equal vote nonsense he’s talking about happens in the House and in the Senate.
But it is specifically exempted for the Presidency. It’s not just in the constitution, it’s an actualamendment to the Constitution. So if Professor Freidman and his friends want to get rid of the 12thAmendment, they’d better start their own Constitutional Amendment process. That’s how they overturned the 18th Amendment, and that’s the only way they’ll get rid of the 12th.
All of this is nonsense anyway. Nobody is getting rid of the electoral college.
And liberals would be fools to even try. As has been reported many times, as it stands now, the Electoral College favors Democrats. It has for years.
I’m not sure what Professor Friedman is proposing, but if it’s a popular vote system, I suggest he do some research on the perils of such a system, not to mention the impact on the United States.