#229: A Challenge to Winner-Take-All in the Electoral College

This is mark Joseph “young” blog entry #229, on the subject of A Challenge to Winner-Take-All in the Electoral College.

We have frequently discussed the Electoral College, the system by which States send Electors to select a President of the United States.  Much of that explanation appears in the page Coalition Government, compiled of several previous related articles.  That discussion included the suggestion that the “winner-take-all” system for choosing Electors, adopted by forty-eight States and the District of Columbia, should be replaced, on a State-by-State basis, with a proportional system–and why such a change was unlikely to be made by any of them.  (We more recently noted an opposite movement, an attempt to replace the State vote with a national vote that effectively eliminates the significance of any state, in web log post #203:  Electoral College End Run, an idea having a much better chance of passing but which is probably unconstitutional.)

Now an organization called Equal Citizens has decided that there might be another way to eliminate the winner-take-all system and replace it with proportional representation:  have the winner-take-all system declared unconstitutional.  To this end, they have filed lawsuits against the practice in California, Massachusetts, Texas, and South Carolina.

That might seem like overkill.  After all, wouldn’t one successful lawsuit fix the problem?  However, it probably wouldn’t.

Suppose they filed in Texas and won in Texas.  There are four Federal District Courts in Texas, any one of which would do, and victory would mean it was illegal to assign all thirty-eight of that State’s electors to the candidate winning the majority vote–in Texas.  At that point they have to hope that the State appeals the decision to the Fifth Circuit Federal Court of Appeals, and that they win there.  If they do, it will be illegal not only in Texas but also in Louisiana and Mississippi.  However, it will still be legal in the rest of the country.

In order for it to become unconstitutional nationwide, the Supreme Court of the United States would have to decide the case.  That means getting the Court to hear the case, and as we know the Court is rarely forced to hear any case and might prefer to stay out of this one.  The best shot at getting Certiorari at the Supreme Court for a case like this is to get decisions in more than one Circuit which hold opposing positions.  That is, they need one court to say it is constitutional and another to say it’s unconstitutional, so that the Supreme Court will see that it is necessary for it to resolve the matter for everyone.  That means in filing four lawsuits they are hoping to win at least one and lose at least one, at the appellate level.

In theory, they could win an effective victory if they won all four suits, as States might see that as an indication that other circuits would agree and avoid a lawsuit by complying with the change.  However, compliance would only be mandated in those circuits where the decisions were made, and additional lawsuits might be needed to change some recalcitrant States.

So how can a practice that is so nearly universal (only Maine and Nebraska do not follow it, and they both use district voting, that is, the state is divided into sections each of which picks a representative elector) be unconstitutional?

The argument is based on the XIVth Amendment, and specifically the Equal Protection Clause, which states that every citizen of legal age is to be treated equally by the States in all matters of law and politics.  That means, according to the Amendment, one person, one vote.  The claim is made that in a winner-take-all system, if fifty thousand voters pick one candidate but fifty thousand one voters pick the other, fifty thousand voters are disenfranchised when the entire electoral vote goes to the other candidate.  In order for their votes to be protected, the electoral vote should be divided based on the proportion of voters supporting each candidate–in this case, equally, or slightly in favor of the majority candidate.

So is it a good argument?


The XIVth amendment is one of the Reconstruction amendments following the Civil War.  The “Original Intent” of its reference to one person, one vote was to prevent discrimination against black men specifically; it was amending the section of the Constitution that counted slaves as partial persons by giving the emancipated slaves voting power equal to their white counterparts.  In that sense, it has nothing to do with the method of selecting Electors for the College.  However, as often happens, what the Framers of the Amendment wrote has been applied beyond what they intended.  This clause is the basis for all those lawsuits over reapportionment:  the claim that one party has by drawing the district lines given itself an unfair advantage by disenfranchising voters in certain geographic areas.  The connection is obvious:  if white government officials can set up districts such that blacks are always in the minority in every district (that is, by identifying black neighborhoods and apportioning them into several predominantly white surrounding neighborhoods) they can smother the voice of black voters.  Thus “gerrymandering” to oppress racial voting blocks is a violation of the Equal Protection Clause.

Yet the Equal Protection Clause would itself be inequitable if it only protected blacks or other racial minorities.  If it is a constitutional violation to stifle the representation of any one voter, it is equally a violation to stifle the representation of any other voter.  Arguably winner-take-all voting does exactly that, and on that basis could be ruled unconstitutional.

On the other hand, as we have noted in previous articles, the Framers of the Constitution did not intend for Presidents to be chosen by democratic process.  Quite the contrary, they expected that the Electoral College would always be hopelessly deadlocked and so serve effectively as a nominating committee offering a slate of candidates from which the legislature would select the one they believed would best serve them.  As we noted in #172:  Why Not Democracy?, that has happened exactly once.  However, the process was intended to empower the States as States, not so much the individual voters save as they are citizens of their respective States.  If we look at the Original Intent of the Constitution, it is evident that Electors are to be chosen by the States, by methods determined individually by each State.

Of course, the XIVth Amendment changed that at least in part.  The question is, in doing so did it mean that a State’s Electors had to be representative of all the voters proportionately, or is it sufficient for a State’s Electors to represent the majority of the State’s voters?  Are Presidents to be selected by the people, or by the States?

If winner-take-all Elector voting is deemed unconstitutional on that basis, it probably means that district apportionment is similarly unconstitutional, and electoral votes would have to be assigned based entirely on the proportion of the total vote in the state.  Israel uses such a system to elect its Parliament, and it is not an unworkable system.  If implemented, it would move us slightly closer to a President elected by the majority.

It is certainly worth considering.

As a footnote, in researching this article I stumbled upon this interesting toy which permits the user to experiment with various methods of choosing Electors and see their impact on the most recent two Presidential elections.  What intrigued me was that of eight possible methods (including the current one), Trump won the Electoral College in all but that one specifically rigged to give the Democrats the most electoral votes (that is, by using winner-take-all in states they nominally won and proportional in states they nominally lost).  That caused me to wonder how that could be if, as is often claimed, Clinton took the majority of the popular vote.  The answer seems to be in part that despite the fact that Trump took more votes in California than in any other state but two, Clinton took enough votes in that state to tip the balance of the popular vote, but not of the Electoral vote, because California is underrepresented in the Electoral College (because it is underrepresented in the House of Representatives).  That in turn reminded me that in the aforementioned web log post I commented that we did not want California to be the big bully that dictates the law to the rest of us.  The other part of the answer is simply that Trump took more states, and because of the “plus two” Electors each state gets, the geography worked for him:  the fact that Presidents are on some level chosen by the States, not the people, meant that having more states choose Trump gives him more Electors.

#228: Applying the Rules of Grammar

This is mark Joseph “young” blog entry #228, on the subject of Applying the Rules of Grammar.

This web log entry has little to do with my recent decision to collaborate on the next Multiverser novel (tentatively entitled Garden of Versers) and more to do with my dissatisfaction with a book I am currently reading that aims to teach aspiring writers to write better.

Some years back I was chatting with C. J. Henderson (pictured) at Ubercon, and he said that he didn’t really understand what a split infinitive was.  I explained, using what is perhaps the most famous example, and that example had a story attached.  It seems that when Patrick Stewart took the Star Trek role of Jean-Luc Picard he was bothered by the opening speech in which he was required to say, “to boldly go”.  That is a split infinitive–the infinitive being “to go”, and thus it ought to be “boldly to go” or “to go boldly”.  C. J. decided right then that he was never going to give any concern to splitting infinitives because, he said, he thought that one of the great speeches in modern writing.

Well, I still think that a bit hyperbolic, but I do see his point.  It is a strongly inspiring speech, and made stronger by the force of the split infinitive.  However, to some degree that force arises precisely because it breaks the rule–which brings me to one of the points I want to make.

When I was studying music theory, one of the first points Mr. Bednar made concerned the purpose of the course.  The first lesson to learn, he explained, was the rules, but then the second lesson was the reason for the rules.  Every rule in music theory exists because it prevents a typically undesired effect.  Once you understand the reason for the rules, you can decide intelligently when and how to break them to achieve that effect.  For example, in writing block harmony, the rule is to avoid parallel octaves, parallel fifths, and unsupported parallel fourths.  The reason for the rule is that the resonance between the notes in such parallels causes them to stand out against the other parts.  Thus you avoid such parallels when you want the harmony to blend evenly, but you choose to use these parallels when you want those parts to come to the fore:  you break the rule when, but only when, you are trying to achieve the result, and do so in ways that will effect the result only when it is wanted.

It is certainly possible in the course of writing to unintentionally or otherwise in attempting to fully and completely engage the reader split an infinitive or two–even to nest them as demonstrated in the first part of this sentence (to…to…engage…split).  However, although a brief interruption in the infinitive such as “to boldly go” can add force to the statement, a longer one such as just used here tends rather to be confusing.  That statement would have been easier to read as “It is certainly possible in the course of writing in attempting fully and completely to engage the reader unintentionally or otherwise to split an infinitive or two.”  (It is admittedly still a cumbersome sentence which could be significantly improved with more resequencing and a bit of trimming, but the point is still there.)  It is better to avoid them.

When I encounter a split infinitive in my reading, my mind usually attempts to repair it; it does the same when I encounter sentences ending with prepositions and a few other common mistakes.  (I refer the reader to my collected list of The Self-Breaking Rules of Grammar for a wonderfully illustrative set of mnemonics for some of these.)  However, I make a clear distinction in my writing, and particularly in my fiction.

Writings such as these web log posts, called “expository writing”, are supposed to be formal, and as such the rules of grammar should generally be followed.  An “intentional error” occasionally which creates impact is permitted, but it should be evident that saying it “wrong” is more effective than saying it “right”.  However, people don’t generally talk that way.  I often hear myself breaking the rules, particularly splitting infinitives and ending sentences with prepositions.  (It annoys me, and my mind sometimes goes back and attempts to edit what I said.)  Thus the rules are looser when writing fiction, and particularly when writing dialogue.  Fictional narrative is often in the voice of the character, or similarly approaching the voice of the character; dialogue is always in the character voice.  Thus my characters will split infinitives and end sentences with prepositions because they are supposed to come across as people, and that’s how people talk.  My narration almost never does so, unless I am trying to capture the impression of character thought and feeling (or I miss something in the editing process).

The rules exist partly for clarity.  Breaking them often creates narrative that is less easy to follow.  Some of the rules are what might be called grammatical formalities, artifact from previous centuries and source languages–someone has said that the reason we object to ending sentences with prepositions is that it is absolutely forbidden in Latin, although much of our usage is derived from German, where it is considerably more common.  The problem with doing this is it divorces the preposition from its object, and sometimes the object is omitted entirely, which makes the language less clear.  Yet native speakers provide the needed objects easily enough most of the time, and so native speakers omit them.

So the point is that you should understand the rules, figure out why they exist, what they prevent, and then learn to follow them most of the time, breaking them when doing so will achieve the kind of impact you want.  And remember:  the more frequently you break them, the less impact breaking them has.

#227: Toward Better Subtitles

This is mark Joseph “young” blog entry #227, on the subject of Toward Better Subtitles.

Decades ago I saw a joke birthday card.  On the face it raved about how it was the first perfect birthday card, designed and printed entirely by a computer so nothing could possibly go wrong.  Inside, it said in Courier Block lettering, MERRY CHRISTMAS.

It came to mind recently because I have come to watch television with the subtitles activated so that if somehow I miss what someone says I can read it and keep up, and sometimes they can be rather silly.  In a recent time travel movie I analyzed, Paradox, one of the characters at one point asks what it is they are seeing, and another reasonably clearly says, “Quark gluon,” but the person writing the subtitles apparently had insufficient education in advanced particle physics to recognize those as words, and so subtitled it “[Speaks Indistinct]”.  My wife recently reported watching a British mystery series and seeing the name “Wetherington Perish Church” as the local parish church.

Image captured by Gwydion M. Williams

The reason I thought of the birthday card is upon reading some of these I began to wonder whether someone was experimenting with speech-to-text software, feeding the soundtrack into a computer and getting it to figure out what everyone is saying.  I somehow doubt it–speech-to-text software has its limitations, but some of the mistakes I’ve seen could only be made by a human.  The kind of mistakes I see strongly suggest that someone is sitting at a keyboard listening to the soundtrack and typing what they hear, and that no one is proofreading the finished product.  Yet it strikes me that the people who do these subtitles are missing an obvious aid in their efforts.

I once watched an excellent Spanish-language time travel move, Los Cronocrimines a.k.a. TimeCrimes, which was both subtitled and dubbed in English, and it was intriguing to me to notice that the subtitles did not always match the dubbing.  My conclusion was that the subtitles were probably the more accurate rendering of the original Spanish.  My reasoning was that the dubbed text had to be adjusted so that the words we heard in the audience credibly matched the movement of the lips of the speakers, but the subtitles would be a direct English translation of the original Spanish dialogue.  Therein lies my solution:  use the script.

It wouldn’t work for a lot of programs–news, reality shows, talk shows–but the majority of the television I watch is scripted.  The people on the screen aren’t making up their lines; they’ve memorized them (or sometimes are reading them from a teleprompter).  The script is available, and given the ubiquity of computers it’s almost certainly available in an electronic file format.  So the obvious fix is for those who write the subtitles to start with the script, copy/paste the text into the subtitle program, and then simply adjust it whenever the actor got the line wrong–or not.  I often see subtitles in which the actor actually said about twice as many words as the subtitle, but didn’t really change the sense.

This solution seems so obvious to me that I find myself swithering between two conclusions.  It may be that the people responsible for the subtitling just aren’t bright enough to realize that they have an available resource for any text of which they are not certain, or to recognize that what they typed can’t possibly be right.  On the other hand, maybe the attitude is based on that corollary to the familiar law, Anything not worth doing is not worth doing well.  After all, how many of us out here really rely on subtitles?  Why spend a bit more time, a bit more money, a bit more effort on getting them right?  I’m constantly reading and reviewing books which are poorly edited; should I expect better of television and movies?  Does the subtitle audience really matter?

Maybe we don’t–but we aren’t all hard of hearing.  Some of us use subtitles because we watch late at night and don’t want the television to be so loud that it disturbs the sleep of others in the house.  Some use subtitles because we’re watching at work, such as night security, and we don’t want the noise of the television.  Some use subtitles to get past character accents that are sometimes challenging to understand (oh, that’s what she said!).  They’re a convenience–but an annoying one when they make stupid mistakes.

I don’t have much influence in the film industry.  I write a few articles about time travel in movies, and I’m aware that a few independent film producers have read them, but in the main I’ll probably be ignored.  However, it would be nice to have the subtitles match the dialogue, or at least accurately represent it, especially if the people typing them can’t understand what the actors are saying–that, after all, is when many of us most need to have the written form.  So here’s hoping that those who provide the subtitles can do a bit better for those of us who use them.