Monday, October 19, 2020

Guest Blogger James McCrone: Democracy by Appliqué

 I am delighted today to host James McCrone, my friend and delightful fellow member  of the New York Chapter of Mystery Writers of America. Jamie is the author of the Imogen Trager novels—Faithless ElectorDark Network, and the new Emergency Powers—“taut” and “gripping” political thrillers about a stolen presidency. His work also recently appeared in the short-story anthology Low Down Dirty Vote, vol. 2 (July, 2020).  Jamie has an MFA from the University of Washington. A Pacific Northwest native, he lives in South Philadelphia with his wife and three children.

Jamie's topic today could not be more relevant - a discussion of how Americans conduct presidential elections and why our system is so arcane and complex. - Annamaria


I’m struck by the patchwork uncertainty of it all.


July’s Supreme Court ruling concerning Faithless Electors has done little to quell the potential for chaos in this November’s election. I can’t shake the image of 2020 America as some shambling Akakii Akakievich, from Nicolai Gogol’s fine story The Overcoat (1842), as he pleads with the tailor Petrovich to patch his winter coat.



“Yes,” says Petrovich dubiously, “patches could be found…but there’s nothing to sew them to. The thing is completely rotten…”


Patches are meant to be temporary. The application of a first patch to something heralds the beginning of the end of the garment. But like the hapless Akakii we’re still insisting on trying to patch over something that won’t hold, namely the United States Electoral College system.


This is, of course, the peculiar institution whereby US citizens vote indirectly for president. Indeed, there’s nothing in the US Constitution that says everyday voters have any voice in electing the president. It is only Electors meeting in their respective state capitols on “the first Monday after the second Wednesday in December” who decide who shall be president. (This year, that date is Dec. 14.) When Americans vote for the presidential and vice presidential candidate of their choice, either by mail or in-person, this November, they will actually be casting a vote for a slate of electors, equal to the number of a state's electoral votes, who will cast a vote on their behalf in their respective state capitals on December 14.


The founding fathers’ generation found it necessary to apply the first electoral patch by combining the vote for president and vice president, a response to the first truly contested election, which had resulted in a tie (the 12th Amendment in 1804). Of course, their very invention of Electors was itself a patch, meant to disguise an easily ripped seam. 


In the 19th century, states seeking to augment their power turned the Electoral College into the winner-take-all affairs we’re familiar with, where a plurality of votes for one candidate (not necessarily even a majority) in a given state means that all that state's Electoral votes go to the candidate who won the plurality. A second patch was applied right over the first. In response to that patch, two states, Nebraska and Maine, fashioned their own patch to make the Electoral result in their states more democratic by splitting their Electoral votes among the plurality winners. 


Later, states began making laws requiring Electors to vote for the plurality winner. Because Electors were originally envisioned as free actors, it was unclear whether those state laws would stand Constitutional scrutiny. This past July, however, the Supreme Court, seeking to avoid “chaos” in the 2020 election, applied the most recent patch, stating that the state laws were Constitutional. 


All of this on a garment so ill-fitting and ineptly made that it needed fundamental retailoring after only three uses (1804)! 



So, yet another patch. For now. 


And this most recent patch isn’t even a very good one. The Supreme Court ruling merely allows states to make laws restricting the freedom of Electors. 32 states (with a total of 325 electoral votes) have no such laws, thereby still leaving open the possibility of Faithless Electors, those who vote contrary to their pledge. No one is suggesting all 32 states would throw their votes one direction or another, but what if the contest was close and only 3 or 4 Electoral votes separated the candidates? (Bush v. Gore anyone?) 


There have been documented bribery attempts and even violent threats to coerce Electors to switch their votes in past contests. Even without those problems, there is the uncertainty of the Electoral College process itself, and the fact that it has five times returned a “winner,” who lost the popular vote (1824, 1876, 1888, 2000 and 2016). There remains ample potential for chaos. The National Popular Vote initiative is another potential patch, if well-meaning. 


Sadly, it’s deeper than my admittedly drawn out metaphor.

In The Overcoat, when, after forgoing meals in order to pay for it, Akakievich’s coat is stolen, he appeals not to the police, but to “a very important personage.” In Czarist Russia who you know is what’s most important. And it’s common knowledge that without some intervention by some patron the corrupt police will not only not help Akakii, if they were to find the coat, they’d keep it themselves!


Status determines the level of justice in Akakii’s world, as it does in ours. And like in ours, those who have gained high status have little or no accountability, and perhaps even less care or concern for those below them on the ladder. “Without law, there’s only power,” is a tag-line from my earlier work, Dark Network, and I can’t help wondering what Gogol would make of our times. Gogol might note that often law is what protects the powerful.


Here is  how Scott Fitzgerald felt about it all almost a hundred years ago (from The Great Gatsby): “They were careless people…they smashed up things and creatures and then retreated back into their money or their vast carelessness or whatever it was that kept them together, and let other people clean up the mess they had made.” 


Fortunately for us, unlike the serfs and aggrieved clerks of Czarist Russia, we can do more than just clean up the mess, even if the upcoming election - our tool for doing so - is careworn and a patchwork. We can vote. It’s how we let those in power know to whom they’re accountable.


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  1. Thanks for letting me contribute to Murder is Everywhere!

    1. Thanks for a most timely blog! As one born outside the USA, I always struggled to understand the Electoral College system. It didn't take long to realise that few Americans really understand it either - and certainly not its history.

  2. The quote from The Great Gatsby is spot on! So topical.

  3. Jamie, I am a fan of the The National Popular Vote Compact. I agree that it is patch on a patch. And that it could fall off if states "reneg" and again change their laws. But at least, for as long as it lasted, it would mean that the president would be elected directly by the people. It would make this whole "swing state" insanity go away. No?

  4. Thank you! And worse, part of the misunderstanding is that there's a good deal of misinformation surrounding what it is, and what it's purported to protect.

  5. Annamaria, the NPV Compact is certainly a possible work-around (since there seems to be no leadership on an Amendment). Since awarding electoral votes would be tied to the national general election outcome, it would be fairer, but certain states would still play an outsized role.
    Interestingly, those who supported state laws requiring electors to vote as pledged tend not to support the NPV Compact, but the SCOTUS ruling they favored (binding electors to state law) now makes it simpler for states to bind their respective electors to the NPV. All it requires is an act of the legislature.

  6. Thanks Kwei! I fear the Fitzgerald quote may always be apt...

  7. Great piece James. By the time the curtain comes down on this election production, we may be looking back on the Bush-Gore finale as light-hearted fare. Arghhhh.