Very much against the grain of my fellow Progressives, I have long defended the Electoral College. Perhaps because I have seen the damage a national popular vote does to a geographically and demographically diverse country like Mexico. Or perhaps because I grew up in the land beyond Wallace Stegner’s and John Wesley Powell’s 100th Meridian, and am therefore hypersensitive to the role the federal government plays in maintaining our civilization beyond the cities and towns of this country.
But I find it increasingly difficult to defend the Electoral College this year, when it unexpectedly selects a winner who has fallen more than two million votes short of a popular vote victory. The Electoral College has failed the majority of the American people this time — perhaps it is time to talk about alternatives.
The Dream of a Bipartisan, Rational Constitutional Convention
But as long as the dialogue has shifted to the discussion of something as radical as the elimination of the Electoral College, maybe it is time to open up the floor to discussions of everything that is wrong and broken with the Constitution of the United States of America. We have been living under the rule of a fundamentally broken document that has been held together by the rubber bands and topical bandages of Supreme Court decisions for the last 220 years. As long as we are being honest, let’s talk seriously and openly about reinventing the entire blueprint.
This nation’s first progressive radical — Thomas Jefferson — actually argued for regular Constitutional Conventions to be held at scheduled periodic intervals.
I for one would start with a revision of Article I to abolish the idea of the imperial presidency based on a theory of the unitary executive and perhaps even a proposal for unbundled executive power. If nothing else, the election of Donald Trump has established that the checks and balances of our Constitution and Supreme Court jurisprudence are not perfect safeguard against the 1% scenario that Bruce Ackerman has warned us about before: the democratic election of an undemocratic tyrant capable of executing a presidential coup d’etat. I would also question the wisdom of Article V, which has essentially prevented effective amendment where our national blueprint document has demonstrated strain, instead forcing nine judges to assume the super-human role of changing the document to accord with the times through increasingly controversial legal and linguistic acrobatics. Perhaps it is time to be honest with each other and put all the cards on the table: we need a new document that works effectively for the future of our people, rather than chaining us to a vulgar, shameful, provincial past.
The Nightmare of a Coup D’Etat by Constitutional Convention
But a bipartisan, rational, open, just convention is not what this diary is about. This diary is about something more horrifying. If a sensible, open, rational, bipartisan constitutional convention to fix our myriad public problems is the dream, this diary is about the nightmare: a partisan, unilateral revision of the Constitution by the Republican Party. It has been on the Conservative agenda for years. But until now, I have dismissed it as a pipe dream.
Proposing Amendments: the Path Less Followed
Historically it has been Congress by a 2/3 vote of each house that has originated proposals for Constitutional Amendment under Article V of our Constitution, that then were subject to ratification by ¾ of the several state legislatures.
However, under Article V, there is a never-exercised second method by which to change the Constitution: proposals to change the document can be made so long as 2/3 of the states’ legislatures apply to Congress for a constitutional convention to amend the fundamental document of our nation. This does not mean that in each state, the proposal must carry a 2/3 majority in the state house and state senate; rather, with a simple 51% majority in each house of a state, the state itself is counted as having proposed a constitutional change.
I want to claim in this diary that we are becoming increasingly vulnerable to a unilateral, partisan Republican-driven constitutional convention under this second method if Republican Party gains are not reversed dramatically and decisively in the 2018 and 2020 elections. The numbers no longer suggest this is a pipe dream. It is fast becoming a real possibility.
Under Article V, the legislatures of two thirds of the several states — 34 states to be precise — may propose such amendments to be discussed at a Constitutional Convention called for such purpose. This has only been attempted three times in the 20th century. Movements to pass amendments in 2/3 of state legislatures failed all three times; however, on one occasion such an effort came so close to succeeding that it actually prompted Congress to initiate its own constitutional amendment addressing the same issue: the XVII Amendment calling for the election of Senators by popular vote within the several states.
Regardless of whether a proposed amendment is born from the approval of the legislatures of 2/3 of the states or from the approval by 2/3 of both houses of Congress (which has been the historic path for amendments), the actual ratification of such amendments is determined by a simple majority vote of each house of Congress: either the legislatures of ¾ of the states (38 states) must ratify such an amendment or at least 38 state conventions must be held resulting in ratification of the proposed amendment, thereby making the amendment official, effective and binding upon the remaining 12 states.
After the election of Donald Trump in 2016, how realistic is it that we could see some effort by the Republican Party to carry out a partisan, unilateral amendment to the Constitution in the coming years? Under the traditional path for proposing amendments, whereby 2/3 of each house of Congress must approve a proposed amendment, this is not likely at all. The Republican Party’s tenuous, simple majority hold on the Senate remains a bulwark against such an anti-democratic coup d’etat. But as preposterous as it sounds, we are frighteningly vulnerable, I argue, to an amendment via the actions of the several states.
The Pre-Trump Balance of Power
Before the elections of 2016, there were already 30 states whose legislatures were under the complete control of the Republican Party (a majority in both houses of the state legislature). Those states were: Alaska, Nevada, Utah, Arizona, Idaho, Montana, Wyoming, North Dakota, South Dakota, Kansas, Oklahoma, Nebraska, Texas, Louisiana, Arkansas, Missouri, Wisconsin, Michigan, Indiana, Ohio, Pennsylvania, West Virginia, Virginia, North Carolina, South Carolina, Georgia, Tennessee, Alabama, Mississippi, New Hampshire, and Florida. Going into this election, Republicans only needed to pick up a net gain of four state legislatures to have the necessary majority to provoke a new constitutional convention.
This drift towards Republican control of our state legislatures has been going on for several years: before the 2014 mid-term elections, the New Hampshire and Virginia legislatures were split; the Maine, Nevada, Washington, Minnesota, Colorado, New Mexico and West Virginia legislatures were in Democratic Party control. After 2014, New Hampshire and Virginia both turned red, while the Democratic Party in Maine, Colorado, Washington, New Mexico, and Minnesota gave up control, settling on split legislature stalemates in each.
The New Reality
While the country has been reeling from the shock of Donald Trump’s electoral victory on the national stage, not a lot of attention has been given at the national level to the changes of control at the level of state legislatures.
The Democratic Party did particularly well in Nevada and New Mexico this year, grabbing control of both houses in Nevada and flipping the New Mexico House of Representatives to Democratic Party control this year, thereby ending a situation of a split legislature and putting both states’ legislatures firmly under Democratic Party control.
However, the Democratic Party also lost control of the Iowa State Senate, the Kentucky House of Representatives and the Minnesota State Senate this year. As a consequence, both houses of the Iowa, Minnesota and Kentucky legislatures are under Republican control now.
And although officially the Alaska House of Representatives has a majority Republican Party control, there are three Republicans and two independent representatives who have apparently formed a “coalition” of some sort with the Democratic Party minority, giving the Democratic Party a majority of votes. For now I would continue to view this as a Republican-controlled house, however, because I am skeptical of the lasting strength of such a coalition in today’s politics. In my mind, the legislature of Alaska is effectively still under Republican control.
As a consequence of the 2016 elections, Republicans now control the state legislatures of 31 states. In addition, there are currently two states that are held in a split legislature détente: Maine and Colorado. In both states, the Republicans control the state senates, while the Democratic Party is holding on to a tiny majority of the house (5 seat difference in Maine; 9 seat difference in Colorado). And in Washington, the Democratic Party is hanging on to control of the legislature by a thread: the Democrats outnumber the Republicans in that state’s state senate by one seat, and in the house by two seats.
The 2018 Elections: Everything is At Stake this Time
The 2018 elections may hold the key to determine whether the Republicans can extend their control over the governments of our states or not. Midterm elections are notoriously bad times for the Democratic Party, and good for the Republican Party. The states to watch in 2018 include Colorado, Maine, Nevada, Oregon, Delaware, New Jersey, Washington, and New Mexico. Why these states? Because each of these states has either fallen under complete Republican control or flirted with it in a split legislature stalemate at least once since the year 2000. The Republican Party only needs to pick up control of three more state legislatures to force a Constitutional Convention, and needs an additional seven states to control the ratification process. In my mind, it is not beyond the realm to imagine Republicans picking up the legislatures of Colorado, Maine Washington and Nevada in 2018.
If by some horrific turn of events the Republicans managed to gain control of any seven of the eight states listed above, it would be an effective carte blanche to rewrite the US Constitution by Constitutional Convention for the first time since 1789.
Am I being paranoid? Perhaps. But if there is anything I have learned this year about our nation’s political situation it is to expect the unexpected. After what has transpired this year, I don’t think anything is off the table and I have learned to expect the impossible from the Republican Party.