We speak with American University law professor Jamie Raskin about the Electoral College and how the Republican party took control of all branches of the U.S. government: the White House, the Senate, the House, the Judiciary, State Governorships and Legislatures. [includes rush transcript]
- Jamie Raskin, American University law professor.
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: We’re joined on the telephone — rather, in the studio in Washington by Jamie Raskin of American University, law professor. Jamie, right now, we’re looking at Republican consolidation of power over not only the presidency, Supreme Court, Senate, House, federal judiciary the majority of governorships and state legislatures. Can you talk about the significance of this, and the structural underpinnings?
JAMIE RASKIN: Well, I think that Juan put his finger on what’s going on here, which is that our political institutions were structured by a determination to protect slavery in the South. And so, all of our political institutions have a pro-Southern tilt to them. The Electoral College can only be understood as being intertwined with the history of slavery and white supremacy in the country. The Southern states were looking for a way to combine the disproportionate power they got through the US Senate with the House of Representatives where they got disproportionate power through the three-fifths clause, counting the slaves, 60% of the slaves, to inflate the power of the slave masters in their congressional delegations. So the Electoral College worked like a dream for the southern states. Four out of the five first presidents were slave masters. The electoral college, all the way up through the 20th century and today, has operated to give disproportionate power to the South and specifically the most conservative backward forces in the South. We just saw that play out again yesterday. In the 20th century, there were a number of conservative Dixiecrats who left the Democratic Party in presidential elections like George Wallace, like Harry Byrd, like Strom Thurmond and ran for president as independents to send a message to the Democratic Party about how the civil rights movement should not be joined and should not be supported. The Electoral College has always been a lever against civil rights progress. Today is now acts to support the most conservative forces in the country that want to increase corporate power, that don’t want to deal with issues like health care for the people, that don’t want to deal with environmental protection and so on. And we’re getting a kind of one party lockup of the political system through the Republican party control of the House, the Senate, the White House, the Supreme Court, the federal judiciary, and the different levers of power going to reinforce one another as we saw in 2000 when five-justice majority all appointed by Republicans on the Supreme Court moved to hand Bush a victory in the Electoral College, despite the fact that he was town 500,000 votes. They have been able to use the last four years with their control over the federal budget, with their control over the federal government, with their support in the corporate media, to consolidate their political power. So, if you believe the central insight of our founders about checks and balances, we’re in a dangerous situation to have one party control over all of our major political institutions.
JUAN GONZALEZ: I’d like to ask you, also, because I will never forget the conversation I had many years ago with Ruben Frankel, who at that time was head of the Puerto Rican Legal Defense and Education Fund as he was on a train to Washington to the Justice Department to argue over redistricting. This was in the early 1990’s. His lawyer was Rudy Giuliani, who was very much in favor of supporting the creation of a new Latino district in New York. And in essence, the Republicans, strategically, in the early 1990’s, made a decision to support the creation of these — some of these minority districts in the country. They were basically appeasing the African-American and Latino upper classes in seeking to get more seats, but in essence diluted the minority vote in the rest of the country by compacting it into the 80% minority districts, 60% minority districts which would guarantee the Charlie Rangel and other political representatives of the world perpetual seats, but would in essence create opportunities for the Republicans throughout the rest of the country. And obviously, this is what DeLay just did in Texas, to forestall the new majority that’s developing in Texas by rearranging the seats there, and being responsible primarily for the big Republican gain this time around.
JAMIE RASKIN: Right. Well, I mean, that’s an enormously complex issue. On one hand, the Rehnquist court in Shaw v. Reno and in Miller v. Johnson were saying that it’s unconstitutional to create majority black and Hispanic districts that have a bizarre configuration or bizarre perimeter to them. On the other hand the Republicans were pushing to back as many racial minorities, i.e., Democrats, into districts as possible to create extremely Democratic districts and in effect bleach or whiten the neighboring districts. Ultimately, the Supreme Court exceeded to that Republican strategy. But the big problem here, and this is where I think we have to keep our eyes on, is the way that politicians get to choose their own voters through the legislative redistricting process. We saw that happen in Texas where the DeLay-engineered re-gerrymandering of the congressional districts led to a wipeout of four white Texas democrats in this election. But you know, outside of Texas, only three congressional incumbents of either party lost in the entire country. That’s because gerrymandering has been perfected as a computerized art now, where the members of congress through their friends in the state legislatures can design and custom make their own congressional districts. Well, that also given the current political configuration, is a recipe for frozen republican control of the House of Representatives. One of the rays of light in this campaign is the development of instant runoff voting in San Francisco. It was adopted in Burlington, Vermont, and I think a couple of other places. The democrats and progressives in this country have got to begin to challenge the frozen institutional underpinnings of monopoly republican power over our politics.
AMY GOODMAN: We’re talking about Jamie Raskin, a law professor at American University, about the consolidation of republican power in this country after the elections. Jamie, I was just reading a quote in the news headlines of Richard Viguerie. He is a leading conservative Christian, who said now comes the revolution. If you don’t implement a conservative agenda now, when do you? In a memo sent to other conservative Christians, Viguerie wrote, "Make no mistake, conservative Christians and values voters won this election for George W. Bush and Republicans in congress." He went on from there and talking about how this is the moment. Can you respond?
JAMIE RASKIN: Well, obviously, the Republicans did well, appealing to their religious base in the country. It’s clearly a numerical minority in the country, and yet they do have decisive power in the Republican Party, which means that we have sort of a minority ideological agenda driving the entire train of government, and I’m hoping that this is what does cause a backlash in this race. I was puzzled along the way in the election how the Republicans continually invoked abortion, specifically talking about so-called partial birth abortion and Kerry and Edwards did not emphasize the pro-choice, which I think does appeal to millions of independent and Republican women voters in the suburbs. They didn’t appeal to the values of the liberal base in the country to try to bring those voters over. So, they sort of let them wander on the sort of security-mom cluster of appeals that the Republicans were making. I do think there’s a pro-choice majority in the country. The Republicans very cleverly developed an issue out of thin air, this partial birth abortion issue, which relates only to several hundred medical cases in the entire country every year. It’s a freakishly unusual procedure, and yet somehow, the Democrats have been cornered on that, and the fundamental issue of a woman’s right to choose has been lost in the process. I think the rhetoric of values has got to be turned around. Everybody has values. The idea that some people voted on the war, some peopled voted on the economy and some people voted on the values is just absurd. Everyone has values, and everyone brings values to the understanding of these different issues. And the thing that frightens me is the way that an eroding public school system and very powerful religion in some parts of the country and television on all over the place is leading to a steady dumbing down of the American public and a corrosion of basic critical thinking in the population.
JUAN GONZALEZ: What about the issue of the Electoral College? There was obviously hope among many people that if there had been a second consecutive skewing of the popular vote versus the Electoral College vote, there might finally begin to develop a movement to get rid of the Electoral College, which right now is rendering certainly some of the major states like New York and California, with so much population, but basically are irrelevant to the national political scene.
JAMIE RASKIN: Yeah, the Electoral College radically depresses turnout. It renders millions of votes irrelevant to the process. There could have been, again, a difference in the popular and in the Electoral College votes. Imagine if Kerry had gotten 300,000 votes more in Ohio. He would have won Ohio. He would have won the election, although Bush would have had a couple of million votes more because of the inflated totals coming out of the southern states. But the bottom line is that until we move to a direct popular vote, we’re never really going to know where the majority of the people are, because the campaigns take place in the swing states, and we somehow have become accustomed to the idea that the people of 40 states are going to sit back and be television spectators to the presidential campaign that takes place in ten states where the campaigns design their appeals to swing blocks of voters in a handful of the swing states. That’s not — that’s not a popular way of electing a president.
AMY GOODMAN: For the lay person, Jamie Raskin, can you explain why it works that way? Why does it come down to these few states, and why does the Electoral College determine that strategy?
JAMIE RASKIN: Right now, we know who’s going to win in the vast majority of states. So, we knew that Kerry was going to take New York and Connecticut and Rhode Island and California. And we knew that Bush was going to take everywhere in the South — except for Florida, that may have been up for grabs — Texas and Utah and Alaska. So, it’s a simple waste of money for the campaigns to put any money, any energy or resources into those states when the money has to go to the so-called swing states — Ohio, Pennsylvania, Wisconsin, Oregon. And that’s where all of the attention goes, and the turnout rate in those states is much higher.
AMY GOODMAN: But why is that determined by the Electoral College?
JAMIE RASKIN: Well, each state gets a number of electors equal to the number of people it has in its house delegation, plus the two senators. This was the system that was engineered at the time of the writing of the constitution, specifically by the small states by the white power brokers in the Southern states, who pushed for the Electoral College system. By the way, if there’s a failure in the Electoral College. If there’s a tie, then the presidential election is thrown into the House of Representatives where the states vote, but not according to population, with each state casting one vote. So, New York and California would each get one vote, but so would Utah and South Carolina and Alabama and so on. So, you see the way in which there’s a kind of structural rigging of the process that goes back to the very beginning. What we really need to be doing is talking about constitutional reforms. The problem is that the disease of this disproportionate concentration of political power kills the cure because it’s the people who are in power now that get to decide. We need a two-thirds vote in the house and senate and three-quarters of the state to ratify any constitutional change. Even a very basic one such as constitutionalizing the right to vote, which the Supreme Court, in Bush versus Gore, told us in 2000, is not part of the constitution. The court said it’s not the right of the people to vote in each state, it’s the power of the legislators to appoint the electors. The Florida legislature had threatened to disregard the popular vote if the Florida Supreme Court succeeded in getting them counted and appointing the electors for Bush. The Supreme Court said that was fine. So, I think that we have to acknowledge that although we talk about democracy, democracy is always channeled and structured in particular ways. Those are ways now that are benefiting the Republican Party and the Republican Party has figured out how to manipulate the levers of power.
AMY GOODMAN: Jamie Raskin, as we wrap up, a final comment and observation, conclusions as we come out of this victory for president George W. Bush.
JAMIE RASKIN: Well, I had a professor in college who taught me that politics is the art of doing the same thing over and over again until one day is works, and that it sort of looks like a miracle. The progressive forces should have their eyes open about what we’re up against in terms of the structure of the government. And yet, I think through popular education about the nature of the government and popular education about the threats to the civil rights and civil liberties, we can reach across the political spectrum to other people who are unnatural allies like libertarians who I think have every reason to be freaked out about the Orwellian, big-business, militarist, imperialist direction of the Bush administration, to create new allies, new formations, no coalitions, to be creative and to use the fact that Bush has to try to solve the crises of his own making in Iraq and in our economy, and we have the opportunity to go out and educate.
AMY GOODMAN: Jamie Raskin, thank you very much for joining us, law professor at American University.
JAMIE RASKIN: My pleasure.
AMY GOODMAN: Thank you.