In defence of the Second Amendment

Gun control in the United States has historically emerged in three waves. Following the post-Civil War recapture of southern state governments by white planters, Black Codes were passed, limiting the freedom of ex-slaves to reject plantation employment, vote, own land, and keep and bear arms. (This is why it was abolitionists and Union veterans who founded the NRA in 1871 – not Klansmen, as Michael Moore implies in Bowling for Columbine.)

 

The second period of anti-gun legislation was prompted by the increase in organised crime and political radicalism during the Prohibition and Depression era, and spawned measures such as the National Firearms Act. The third wave began in the late 1960s, as part of the ‘White Backlash’ against Great Society liberalism occasioned by the urban unrest of that era. Chicago Mayor Richard Daley, the scourge of anti-war protestors at the 1968 Democratic convention, testified before Congress in support of a ban, and when Bobby Kennedy declared in favour of gun control on the 1968 campaign trail, the New York Times interpreted it as pandering to the backlash, calling him “a reconditioned Barry Goldwater plugging for law and order.” Since then, the Second Amendment, like all civil liberties, has been most imperilled when politicians have chosen to whip up hysteria about crime.

 

The case for gun control rests on a series of falsehoods. Its advocates tell us that the Second Amendment is a ‘collective’ right, conveniently separating it from the ‘individual’ rights listed elsewhere in the Bill of Rights. They tell us that ‘militia’ (a term that the Founders understood as having a precise legal meaning) means the National Guard, which was created by statute in 1903. They refer to the difference between the muskets of 1791 and the semi-automatic weapons of today, but no-one would similarly argue that the First Amendment doesn’t protect online speech. They cherry-pick examples of lax state laws governing the purchase and registration of guns, but ignore the high crime rates of big cities whose gun laws are already draconian.

 

In addition, the modern push for gun control has arisen in the context of the post-1960s rise of militarised policing and mass incarceration. Anti-gun measures are promoted by politicians eager to court middle-class suburbanites with ‘tough on crime’ rhetoric. Bill Clinton’s signing of the 1994 assault weapons ban was part of his attempt to outflank the Republicans to their right on law and order issues – but the increased homicide rates experienced by American cities in the years leading up to the ban were not caused by gun availability, but largely by the War on Drugs raising the prices of cocaine and heroin.

 

The worst argument against gun ownership is the idea that guns are unnecessary, as the police will protect against crime. That’s all well and good for the wealthy, educated whites who dominate the gun control lobby, but should poor African-Americans and Latinos disarm and rely on big city police departments with histories of police brutality and institutional racism?

 

The Second Amendment reminds us that Americans were intended to participate actively in the defence of their country, rather than being at the mercy of standing armies and professional police. Its flowery, eighteenth-century verbiage evokes an era when political debate was framed in the rights-based language of Enlightenment republicanism, not the results-oriented language of technocratic neoliberalism. And aside from its symbolic value, the current Supreme Court has begun putting it to practical use by striking down some of the worst examples of its violation. With Washington debating stringent federal gun laws, the body of precedent established with Heller v. District of Columbia could be the only thing protecting Americans from the fate which befell Australian gun owners in 1996.

 

Now is not the time to nullify the Second Amendment by enacting gun control laws which don’t work and which deflect blame for crime away from the true culprits – social alienation, inadequate mental health services, mass incarceration, and the War on Drugs.

In defence of the Electoral College: follow-up

Some timely links regarding my points made earlier about the effect of the winner-take-all method of awarding states’ electoral votes:

#1: conservative commentator Rich Lowry passes on an email from a Republican activist complaining about the winner-take-all system (which the writer erroneously claims was implemented by fin-de-siècle progressives). He goes on to whinge that a) Bush-43 had to promise steel tariffs to win West Virginia in 2000 (but surely that was more for Pennsylvanian consumption); b) Obama could close West Virginian coal mines because it had become a safe GOP state; c) Obama ignored the Gulf oil spill because Louisiana wasn’t a swing state; d) having elections contested in fewer states makes it easier for Big Gummint Librulz to “buy off a few select voters”; and e) rural voters in Michigan and Pennsylvania are “dictate[d]” to by Detroit and Philly. This litany of complaints has been rehashed on the American right ever since FDR and Truman began carrying large northern states by winning over racial minorities and union members.

#2: after failing yet again to carry Pennsylvania, Republicans there are again pushing to move the state away from the winner-take-all system. Last year they floated the idea of changing to the Maine/Nebraska method (one vote per congressional district plus two to the statewide winner); this time they want to allocate eighteen votes proportionally and the bonus two to the statewide winner.

Musings on electoral systems: geometric means in Bern

One of the challenges in designing any political system is the question of how to ensure proportionate representation and influence for racial and ethnic minorities. Two of the world’s best-known political scientists have offered different solutions. Arend Lijphart (in works such as Patterns of Democracy) has painted a picture of ‘consociational democracy’: proportional representation, parliamentary government, grand coalitions, and policy consensuses forged by bargaining between group elites. (Think the Netherlands, Belgium, or post-1998 Northern Ireland.) Donald Horowitz focuses on pre-electoral coalition-building, and boosts the alternative vote as a means of forcing candidates to reach out to other groups. (Unfortunately for him, his preferred example – Fiji – has never implemented the system fully and has never found a political modus vivendi between its Fijian and Indian populations.) Across the world, the push for minority representation yields a variety of arrangements – India’s reserved seats for scheduled castes and tribes, New Zealand’s Maori seats, and the United States’ racially-gerrymandered electoral districts to name just a few.

Being cleaved many ways by its linguistic (German-French-Italian) and religious (Protestant-Catholic) divisions, Switzerland is fertile ground for experiments in minority representation. One of its largest cantons, Bern, is something of a microcosm of the nation as a whole, with a small French-speaking minority in the north dominated by German-speakers elsewhere. After the Catholic French parts of the canton seceded in 1979 to form the canton of Jura, Bern realised it needed to meet the aspirations of the remaining (Protestant French) areas. It does this in two ways: guaranteed seats in the legislature and executive (like all Swiss cantons, Bern has a popularly-elected plural executive), and the creation of a 24-member quasi-legislative body for the region (the Conseil du Jura bernois) with power over certain culturally-sensitive matters.

Every four years, the Bernese people elect 160 members of the legislature (Grand conseil) and seven members of the executive (Conseil exécutif). The former has 160 seats, elected by proportional representation in large multi-member districts (see here for a previous post on Switzerland’s unique twist on PR). The Bernese Jura elects twelve of these, while the French-speaking community of Bienne-Seeland elects another three. At the same time, and using the same electoral system, the Bernese Jura elects the twenty-four members of the Conseil du Jura bernois. The executive election, however, is the most interesting, and uses a method to ensure fair representation unique in the democratic world.

Bern’s executive is elected by a two-round majoritarian system, common among Swiss cantons (some use a one-round majoritarian system, and two use proportional representation). One of the seven seats is reserved for a candidate from the Bernese Jura. If such a candidate obtains a first-round majority, they are elected, provided that among all candidates from the region, they had the highest ‘geometric mean’; otherwise, the candidate from the region with the best geometric mean in the second round is elected. The figure in question is the square root of the product of the candidate’s votes in the Bernese Jura and their votes across the canton (eg. a candidate obtaining 1000 votes in the region and 20,000 canton-wide would have a geometric mean equivalent to the square root of 20,000,000).

The use of the geometric means ensures that if two French-speaking candidates run equally well across the canton, the one who polled better in the Bernese Jura is elected, while if two candidates poll equally well in the Bernese Jura, the one with more votes in the rest of the canton is elected. In this way, candidates are given incentives to appeal to voters outside their region, but the preferences of the people of the Bernese Jura cannot be denied by the election of a French-speaking candidate whose support comes disproportionately from German-speaking areas. In recent years, a campaign for the popular election of the federal multi-member executive has proposed this method for ensuring that French- and Italian-speaking regions of Switzerland continue receiving their usual two seats should their proposal be adopted.

The ‘geometric mean’ method allows for the entire electorate of Bern to vote for its executive (as opposed to, say, having the German-speaking majority elect six and the Bernese Jura elect one) while deviating slightly from the one-man-one-vote ideal to give a geographically concentrated minority the opportunity to elect the candidate of its choice. One can imagine it being adapted for geographically dispersed minorities, provided there were some means of segregating their ballots from the rest of the population. It is designed for a multi-member majoritarian election, and might not be adaptable to proportional elections. Nevertheless, the constitutional protections for the Bernese Jura are an interesting mesh of Lijphartian ideas (proportional representation in the legislature) and Horowitzian ones (an executive electoral system which incentivises cross-ethnic coalition-forming).

In defence of the Electoral College 3

Part Three: Why the Electoral College is Good for America

In the preceding two posts of this series, I have shown how the focus of the 1948 and 1960 presidential campaigns on large northern states produced better outcomes for those Americans whose power was diluted in other organs of governmental power at the time – city-dwellers, racial and ethnic minorities, and unionised workers. In this part, I will make the case for the Electoral College, and recommend a few small changes which would improve its operation.

*Direct election would punish states with lower turnout (which is usually caused by having proportionally more poor and minorities – Hawaii, California, and Texas currently have the lowest rates of turnout in presidential polls). Under the current system, 436 of the 538 votes are distributed according to states’ total population, which includes non-citizens, those under 18, those not registered to vote, and those disenfranchised by various state laws – all of these groups are poorer and/or less white than the American people at large. The other 102 electoral votes do tilt the scales back to small, majority-white states, but this effect is outweighed by the effect of large states casting their entire electoral votes en bloc. The Electoral College thus ensures that a state’s influence on the presidential contest is not decreased by having a large minority population, or by random events which lower election-day turnout (such as hurricanes or uncompetitive down-ballot races).

*The Electoral College allows historically oppressed and marginalised groups the chance to be the swing voters: from Irish-Americans punishing the Democrats for Woodrow Wilson’s anglophilia in 1920, to Harry Truman’s appeals to African-Americans and Jews in 1948, to Kennedy’s success among Catholics in 1960, to non-whites providing the margin of victory in a few states for Obama in 2008, minorities concentrated in large states have benefited from being able to shift sizable blocs of electoral votes. Although diverse states such as New York, California, and Illinois are no longer swing states, Florida’s Cuban-Americans were pivotal in 2012, and Texas’ Latino population may be crucial in future election cycles.

*The Electoral College punishes candidates who attain large margins in a few states (which usually results from voter suppression or a lack of two-party competition). Historically, the Democratic lock on the South (itself due to Jim Crow) meant that scores of southern votes were wasted, giving the party the freedom to pursue swing voters in large northern states without risking many southern electoral votes. Direct election would have forced Democratic nominees to pander to segregationism, lest they risk a decrease in their popular vote totals in Dixie. Moreover, the election of Abraham Lincoln in 1860 (with 39% of the popular vote) was made possible by his winning of narrow pluralities or majorities in almost all northern states.

*‘Faithless electors’ could prevent constitutional crises. There are two advantages to having 538 warm bodies, instead of relying on an automatic tally of electoral votes. In the case of a presidential or vice-presidential candidate dying (as happened with Horace Greeley in 1872 and John Sherman in 1912), the electors could switch their votes to the party’s new nominee. In the case of a 1968-style situation, in which an extremist third party candidate holds the balance of power, the major parties could trade electoral votes to put one of them over the top, thereby forming an analogue to the ‘grand coalitions’ used by European parties to keep the far-right out of power.

The Electoral College could do with a few changes, however:

*End the malapportionment of electoral votes, either by eliminating the 102 votes and having a 436-member College, or by increasing the size of the House so as to overwhelm the effect of the 102 ‘Senatorial’ votes.

*Bring back the ‘long ballot’. Between 1940 and 1980, all states adopted the ‘short ballot’, under which voters vote for a ticket and are considered to have cast one vote for each elector pledged to that ticket – in most states, the electors don’t even appear on the ballot. A return to voting for individual electors would allow voters to split their votes between two or more presidential candidates, and increase awareness of the electors’ role.

*Repeal state laws punishing ‘faithless electors’. In twenty-four states, electors could be fined or jailed for failing to vote for a dead candidate or for voting for another candidate in order to thwart an extremist third party candidate holding the balance of power.

*Bring back electoral fusion. Imagine if Al Gore had been able to offer spots on Democratic slates to electors pledged to Ralph Nader, and to have those slates appear on both the Democratic and Green ballot lines. The Nader electors could vote for their candidate, but could switch to Gore if needed to give him 270. (Fusion slates were used by the Greenbackers and Populists, and also by Oklahoma Republicans in 1912, who slated pro-Roosevelt electors in an attempt to fend off the Bull Moose threat.)

*Bring back unpledged electors. Although unpledged electors are most associated with the defence of Jim Crow in the 1944, 1956, 1960, and 1964 elections, they could be used by any ideological group. Instead of backing Ron Paul or Gary Johnson, for example, the libertarian movement could nominate unpledged slates; if victorious, their votes could be traded to one of the major-party nominees in return for an end to the War on Drugs or an end to drone strikes.

The Electoral College is part of what made America great. I can only hope that when that glorious day comes when Australia becomes a republic, we see fit to copy this magnificent institution.

In defence of the Electoral College 2

Part Two: 1960 and 1968

In 1960, both major parties structured their campaigns around the need to win the large northern states, which just as in 1948, would decide the election. The Democrats nominated Kennedy, whose ability to attract Catholic votes in those states would prove invaluable (and any backlash from Protestants would be concentrated in safe, one-party states). Kennedy’s appeal to Catholics, Jews, African-Americans, and workers helped him win New York (45 EVs), Pennsylvania (38), Illinois (27), Michigan (20), and Massachusetts (16). His Republican opponent Richard Nixon, then considered to be on the GOP’s liberal wing, carried California (32) and Ohio (25), and was competitive enough in New York that the electors pledged to him on the Republican ballot line defeated those on the Democratic one (Kennedy won the Empire State thanks to its unique system of electoral fusion; his votes on the Liberal Party line provided the margin of victory).

Like Truman, Kennedy faced the prospect of being denied a majority in the Electoral College by the defection of southern Democrats. A slate of unpledged electors defeated the regular Democratic slate in Mississippi, while Alabama’s Democratic Party nominated a slate of eleven electors including six unpledged and five pledged to Kennedy. (The dispute over how to count Alabama’s popular vote is at the heart of the controversy over who won the national popular vote in 1960.) Those fourteen unpledged electors had hoped to be joined by others from the Solid South to form a third bloc, which would bargain with Kennedy or Nixon for changes to federal enforcement of civil rights laws – in the end, only one other elector joined them, a Republican from Oklahoma who had earlier tried to unite the GOP and Dixiecrats against the “labor-socialist nominee” Kennedy; the fifteen cast their votes for Senator Harry Byrd (D-VA). The strategy was unsuccessful, as Kennedy gained more electoral votes from small swings in large northern states than he lost from defections in the South.

The tenor of the 1960 campaign was decidedly northern and urban. Kennedy called for the release of Martin Luther King from jail, while Nixon’s running mate (and proportional electoral-vote proponent) Henry Cabot Lodge promised to appoint an African-American cabinet secretary; evidently, neither ticket was pursuing a ‘southern strategy’. When Protestant groups circulated vicious anti-Catholic pamphlets attacking Kennedy, Nixon distanced himself immediately – any gain among nativist voters in one-party states would be useless if he alienated Catholic ‘Eisenhower Democrats’ in large northern ones. The ‘unit rule’ once again ensured that those Americans whose political clout was diluted by malapportionment in Congress and state capitols would be those who would choose the President.

There was little formal effort to reform the Electoral College for a while after 1960. President Johnson endorsed the abolition of the electors themselves (leaving the voting system in place) and the Dixiecrats ended their flirtation with unpledged electors when they found a GOP nominee to their liking in 1964. The election of 1968, however, produced a number of nightmare scenarios which caused people to question the merits of the College. A few more states won by George Wallace or a shift of a few thousand votes here and there from Nixon to Humphrey, and the two major party candidates would have had to bargain with Wallace to obtain an electoral vote majority, or with southern congressional delegations to win a contingent vote in the House.

The threat of Wallace playing kingmaker could have easily been dealt with. Nixon could have accepted Humphrey’s proposal to have the runner-up major party cede enough electoral votes to give the other 270. Democrats and Republicans could have run combined slates of electors in the South to deny Wallace victories (ironically, this was the tactic used against Lincoln in some northern states in 1860). Or they could have fought it out in the Electoral College and forged a compromise solution in the contingent election. The events of 1968 were enough to spook America into ditching the Electoral College. Rep. Emmanuel Celler (D-NY) and Sen. Birch Bayh (D-IN) almost got an amendment passed which would have instituted a direct popular vote, and polls showed that they had overwhelming public support. It passed the House easily, but in an ironic twist, the body which had dealt such blows to southern segregationist power in 1948 and 1960 was saved by the threat of a Strom Thurmond filibuster.

In defence of the Electoral College 1

It seems that no American political institution has fewer defenders than the Electoral College. Its critics charge that it is malapportioned in favour of small states, wastes the votes cast for losing candidates, allows ‘faithless electors’ to substitute their own judgement for the will of the people, depresses voter turnout, and threatens a chaotic contingent vote in the House if it can’t reach a majority. In the run-up to its quadrennial ‘meeting’ on December 17, the New York Times has editorialised that it “remains a deeply defective political mechanism” and was “born in appeasement to slave states”. To see why the College persists, it might be instructive to look at the ways in which some key elections were shaped by its imperatives, and why reformers sought to abolish it.

Part One: Electoral College Defeats Dewey

In the 1948 presidential election, Democrat Harry Truman and Republican Thomas Dewey both stood a chance of carrying the biggest electoral prize of the day – New York’s 47 electoral votes. Truman also had to defend his left flank against renegade former VP Henry Wallace, who threatened to act as a spoiler. Needing to counter Wallace’s and Dewey’s appeal to African-American and Jewish voters, Truman desegregated the military, created the U.S. Commission on Civil Rights, and went against Britain by recognising Israel’s independence. Truman did lose the Empire State, but carried enough of the other large northern states to win the election handily.

The Electoral College shaped the election in a number of ways. The fact that most of the large northern states were also swing states meant that both parties had to nominate a candidate from the liberal wing of their parties – no Dixiecrat could challenge Truman, and a Dewey was preferable to a Taft or a Macarthur. The fact that those states cast their electoral votes en bloc meant that discrete minorities within them were lavished with attention – hence both candidates’ focus on African-Americans, Jews, and union members. Crucially, the fact that seven ex-Confederate states were safe for Truman (the other four supported Strom Thurmond, but their combined strength was less than New York’s) ensured that he could safely ignore southern pressure and forge ahead with civil rights initiatives. The concentration of African-Americans in electoral vote-rich northern states presented the candidates with too great a prize to ignore, and Truman, Dewey, and Wallace all courted their votes.

With minorities playing such a key role in re-electing Truman, it was no wonder that conservative interests blamed the Electoral College. In 1949, a proposal championed by liberal Republican Senator Henry Cabot Lodge (R-MA) for allocating states’ electoral votes proportionally was taken up in the House by race-baiting Congressman Ed Gossett (D-TX). The practice of states casting their votes en bloc, Gossett claimed, assisted African-Americans, “the radical wing of organized labor”, and those who “support the Zionist position on Palestine”. Another southern Congressman lamented in 1952 that presidential candidates chased after New York’s black- and communist-dominated 45 electoral votes (it had lost two seats after the 1950 census). The Lodge-Gossett Amendment would have made little difference to one-party states (Democratic fiefdoms in the South and GOP strongholds in the Midwest and Plains) while ensuring that New York’s votes would be split, making the state a much less enticing prize. The obvious consequence of this would be a shift in control within each party from metropolitan liberals to Dixiecrats and Taft Republicans, as presidential elections could be won by ignoring large, urbanised northern states.

Similar constitutional amendments were proposed in Congress during the 1950s, including some which provided for electoral votes to be awarded by congressional district (as is done today by Maine and Nebraska). (Note that prior to the early-1960s SCOTUS cases on malapportionment, rural congressional districts usually contained fewer people than urban ones.) Speaking against such changes in a 1956 speech, Senator John F. Kennedy (D-MA) noted that while congressional and state legislative districts were malapportioned in favour of the countryside, and the Senate was malapportioned in favour of small states, presidential elections gave the nation’s urban centres their moment in the sun due to the ability of city-dwellers to shift dozens of electoral votes to either party’s column. “It is not only the unit vote for the presidency we are talking about”, he explained, “but a whole solar system of governmental power. If it is proposed to change the balance of power of one of the elements of the solar system, it is necessary to consider the others”. Kennedy knew that the ‘district plan’ and the ‘proportional plan’ would dilute the influence of urban, non-white, and non-Protestant America.

Don’t Redistrict with Texas

Following the 2010 Census, Texas’ representation in the House increased from thirty-two to thirty-six seats, thanks to population growth driven almost entirely by racial minorities. Faced with an influx of (mostly) Democratic voters, the state’s Republican-controlled legislature proposed a redistricting plan which aimed at reducing their influence. That map was recently struck down by a federal court, and the Supreme Court has forced the Lone Star State to use an interim, judge-drawn congressional map in this year’s election (downloadable from here). The fight over where and how to draw the four new districts illustrates the advantages, as well as the shortcomings, of the Voting Rights Act.

Like most southern states, Texas must have its statewide redistricting plans precleared with either the Justice Department or the federal district court in the District of Columbia. In 1992 and 2002, Republican Attorneys-General were able to shape state maps to their liking; this year, the Democrats are able to block attempts at diluting the voting strength of their supporters. In a state in which racial minorities now form thirty-nine percent of the population, the Texas map, which retained only ten majority-minority districts from last decade and created no new ones, was never likely to be approved. Echoing the language of Justice Sandra Day O’Connor’s majority opinion in the landmark 1992 redistricting case of Shaw v. Reno, the court determined that the shape and composition of Texas’ districts could not be explained without reference to race, and that the map violated the Voting Rights Act.

Passed in 1965, the VRA was intended to end the disenfranchisement and under-registration of African-American voters in the South. Over the decades, federal courts have interpreted it as granting a geographically compact minority population the right to have a district drawn for them. The result has been the packing of African-Americans and Latinos into safe urban Democratic seats, leaving the suburban and rural South covered with safe Republican ones, and allowing the GOP to paint minority office-holders as beneficiaries of the electoral equivalent of affirmative action. The increase in minority office-holding that has resulted has been balanced by a ‘bleaching’ of most districts, so that most white politicians no longer need to appeal to a significant share of minority voters.

The Texas controversy demonstrates the ways in which state legislatures would dilute the votes of minorities if left to their own devices. As noted by Robert Draper in the Atlantic, the new map preserved the five-way split of Fort Worth, in which heavily-growing minority communities are ‘cracked’ into parts of Anglo-majority districts, until the judge-drawn plan granted the city a sixth, majority-minority, seat. Elsewhere in the state, Democratic-leaning groups such as liberal whites in Austin and Mexican-Americans in the state’s rural south are split over multiple districts. Without the constraints imposed by the VRA, Texas Republicans would have been able to gerrymander the state without limits in order to stave off the partisan effects of the state’s changing demographics.

On the other hand, the shortcomings of the VRA are numerous. While electoral reformers in the rest of the world try to move away from single-member districts and first-past-the-post, both features are seen by American litigants as the best way to protect minorities from vote dilution. By equating minority office-holding with racial progress, the VRA channelled the energies of the civil rights movement into re-electing minority members of Congress. By limiting its provisions to racial and linguistic minorities, it fails to protect other types of minority (such as San Francisco’s gay population, who were undoubtedly victims of hostile gerrymandering in the 1970s and 1980s). Worst of all, the focus on racially-gerrymandered districts has diverted attention from the more widespread phenomenon of less-race-conscious partisan gerrymandering.

It’s time to recognise that no system of single-member districts can make the House live up to John Adams’ wish that it would be “in miniature an exact portrait of the people at large” by adequately reflecting America’s ideological and demographic diversity. Larger, multi-member seats choosing members of Congress by open-list proportional representation or by the Single Transferable Vote would better achieve the goals of the VRA without leaving voters at the mercy of computer-assisted legislative gerrymandering. It would also allow any minority, whether racial or otherwise and whether geographically compact or dispersed, the chance to achieve its fair share of representation.