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With Due Respect

Is the US election democratic?

FLASH. Retired Senior Justice Antonio T. Carpio will be conferred an honorary degree by the University of the Philippines (UP) on Dec. 10. May I share my text to him: “I should say ‘Congratulations’ for UP’s conferment on you of Doctor of Laws. But I should really felicitate UP for finally and at last recognizing one of its most outstanding law alumni of all time, whether titled ‘Chief Justice’ or not. Anyway, better late than never! Leni and I will attend the ceremony online.”

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The well-publicized process that elected Donald Trump as the president of the United States (US) in 2016 but repudiated him in his quest for a second four-year term in 2020 has been denounced as “undemocratic.” Is it?

To begin with, the US process may be characterized as an indirect election in the sense that the voters elect the 538 members of the US Electoral College who in turn elect the president. The electors are chosen by the qualified voters in the 50 American states in rough proportion to their population. (Details in my 11/1/20 column, “The raging race to 270”)

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Normally, the winner of the nationwide popular vote also wins the electors’ majority vote. However, under this complex, indirect system of election, a candidate may capture a majority of the popular vote yet lose the electoral vote; hence the criticism, “undemocratic.”

This happened in the 1824, 1876, 1888, 2000, and 2016 elections. In 2016, Hillary Clinton won almost three million more popular votes than Trump who however got more electoral votes than her, 304-227.

Each of the 50 states determines by local law the presidential and local election process. It is usually supervised by an appointee (typically, the secretary of state) and political subaltern of the incumbent state governor who is a politician.

The Electoral College system had not been changed since the US Constitution ordained it more than 230 years ago in 1789. Why? Because the US Constitution (per its Article V) is extremely difficult to amend. In general, one way of changing it is for both chambers of the US Congress to propose the amendments by two-thirds vote that must thereafter be accepted or ratified by three-fourths (or 38) of the 50 states via their state legislatures or via special ratifying conventions.

Another way is for two-thirds of state legislatures to ask the US Congress to call a constitutional convention to which each of the states would elect delegates. The proposed amendments of the constitutional convention would then have to be ratified by three-fourths (38) of the 50 states, also via their legislatures or via special ratifying conventions.

Why was it made difficult by the framers? Answer: to protect state autonomy. The US was originated by European immigrants who sought freedom from their autocratic rulers. Thus, they zealously guarded their autonomy (or self-rule), ceding only or mostly their defense needs and diplomatic dealings with the outside world (plus relevant taxation) to their federal government.

Their autonomy is also reflected in the 100-member US Senate where each of the 50 states, regardless of their population, is represented by two senators elected for a six-year term, staggered every two years.

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On the other hand, popular democracy is mirrored in the US House of Representatives where members are elected every two years from congressional districts apportioned to states by population, provided that each state has at least one congressional representative.

The autonomous equality of the 50 states in the Electoral College and in the US Senate balanced with populism in the US House makes the Union “democratic” in the same way that the sovereign equality of independent states in the United Nations gives every member one vote regardless of their population.

Similarly, the indirect election of British prime ministers by their Parliament and the direct election of the Philippine presidents by mere plurality do not make their processes undemocratic. After all, as shown repeatedly by poll surveys, the majority of the people unite post-election and support the elected top official.

In sum, democracy has many faces depending on a country’s history, traditions, and aspirations. But I think the simplest way to judge an election process is to test its adherence to Abraham Lincoln’s “government of the people, by the people and for the people,” and, if I may respectfully add, under the rule of law.

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TAGS: Artemio V. Panganiban, democracy, state autonomy, US elections, US electoral college, With Due Respect
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