THE BIG NULLIFICATION

Nullification is the new word creeping into the talking points and vocabulary of Trump supporters. The word is meant to convey that Trump's enemies are trying to reverse the will of the voters in the 2016 election.  It is a word meant to spin the case against impeachment and its users seek to include it in the conversation as "received wisdom."

A Little Background
In October and November 2016, with the polls indicating that a Hillary Clinton presidency was all but inevitable, the Republican Party was preparing its opposition plan for the following four years. They planned to create a “living hell” for the next president of the United States, vowing not to approve any Supreme Court nominee over the next four years and preparing a draft of articles of impeachment based on “her e-mails and other crimes” shortly after inauguration.

Congressional Republicans publicly floating support for this notion at the time included Rep. Jason Chaffetz (R-UT, Chairman of the House Oversight Committee), Sen. Ron Johnson (R-WI), and Reps. Michael McCaul (R-TX), Louie Gohmert (R-TX), Jim Sensenbrenner (R-WI) and Peter King ((R-NY), among others. In late October and early November 2016, talk radio was all abuzz about the upcoming impeachment. Of course, Candidate Donald Trump weighed in:

"Hillary Clinton is the most corrupt person ever to seek the presidency, and if she were elected, it would create an unprecedented constitutional crisis. You know it’s going to happen. And in all fairness, we went through it with her husband. He was impeached. ... Folks, do we want to go through this again?" (Trump rally in Florida, Nov. 2, 2016)

That Republican Party's position was in line with their historical opposition to the presidency of Obama, an obstruction plan fraught on the same night he was inaugurated for his first term. This time however, as opposed as to when Obama was elected in 2008, they controlled the House. 

Representative Chaffetz said about the expected Clinton presidency: “Even before we get to Day One, we’ve got two years of material lined up.” As Chairman of the Oversight Committee he already had several years’ experience on partisan obstruction, having led the investigation of Secretary of State Clinton on Benghazi (in one of seven congressional committee investigations into the matter) and her emails. Then came the surprising victory by Donald Trump, who obtained 46.1% of the vote and 304 Electoral votes, while Clinton had 48.2% of the vote but only 227 Electoral College votes. Rep. Chaffetz left Congress shortly thereafter to join Fox News.

Representing the Will of the Electorate

This talk about nullification brings scrutiny to the way public officials are elected. The “will of the voters” most direct measurement is votes cast and that, perhaps, should be the standard. While the Electoral College is representative of “the will of the voters” in landslide victories, this is not the case for close calls. A recent study by M. Geruso et al, published by the National Bureau of Economic Research, NBER, analyzes statistically how the Electoral College is more likely to overturn the will of the voters, so-called “inversions”, in close elections.  That is, the Electoral College is more likely to “nullify” elections than impeachment proceedings, which have resulted in zero removals from office for a president. Inversions have actually resulted in four presidents winning the Electoral College but not the popular vote. It is estimated that 40% of elections in which the popular vote difference is 1% (less than 1.3 million votes in 2016) can result in that outcome, i.e. nearly half. In recent times this has occurred twice, in 2000 and in 2016. It also happened in 1876 (S. Tilden 50.9%, RB Hayes 47.9% - Hayes became president), and in 1888 (G. Cleveland 48.6%, B Harrison 47.8% - Harrison became president)[1].  Furthermore, the statistical analysis as applied to our current electoral demographics and map indicates a 65% chance of any Republican presidential candidate emerging victorious, even when losing the popular vote by a 3% margin.

These distortions of representation “trickle down” to the House of Representatives, but by a different mechanism: Gerrymandering. Over the last 10 Congressional elections, three have resulted in Democratic majorities and seven in Republican ones. The average popular vote resulting in a majority for the Democrats has been 53%, resulting on an average House majority of 55.6%, a two and a half point spread. The average popular vote resulting in a House majority for the Republicans is 49.5% for a House majority of 54%, a 4.5% spread. This spread increased substantially after the redistricting of the 2010 census, as Republican led state houses gerrymandered many congressional districts to their favor.

	Democrat			Republican			All Reps
	Pop Vote	Reps	D Caucus	Pop Vote	Reps	R Caucus
2000	47.10%	212	48.96%	47.60%	221	51.04%	433
2002	45.20%	205	47.24%	50.00%	229	52.76%	434
2004	46.80%	202	46.54%	49.40%	232	53.46%	434
2006	52.30%	233	53.56%	44.30%	202	46.44%	435
2008	53.20%	257	59.08%	42.60%	178	40.92%	435
2010	44.90%	193	44.37%	51.70%	242	55.63%	435
2012	48.80%	201	46.21%	47.60%	234	53.79%	435
2014	45.50%	188	43.72%	51.20%	242	56.28%	430
2016	48.00%	194	44.60%	49.10%	241	55.40%	435
2018	53.40%	235	54.15%	44.80%	199	45.85%	434
Win AVGs	52.97%		55.60%	49.51%		54.05%

(Since 2010, the one D led House had a +0.75% relative to the popular vote, while the R led Houses had an average +5.38 spread)

Voters perceive these representation distortions and react accordingly, because they become voting disincentives. Voter turnout is pushed down by these mechanisms as people think that, after all, their vote will not really count. People in a “Blue” or “Red” State or Congressional District will believe, with logic and reason, that their vote does not make a difference in the final outcome as the Electoral Votes or the party majority in their CD is, essentially, predetermined (“rigged”?). The “Voice of America” is stifled.

 When it comes to presidential elections, the Electoral College has created an institutional monster: “Swing States,” with their “Swing Districts.” These so called electoral battlegrounds result in other regions of the country being almost ignored by the campaigns. Jamelle Bouie has written a well-reasoned argument about the nationwide coalitions of interests that would make it to the national discussion in a campaign, instead of local state issues if it were not because of Electoral College politicking (The Electoral College is the Greatest Threat to Our Democracy). Farmers in Iowa and Ohio have the same type of challenges as those in Kansas or New York, but the latter two are ignored, while the former ones are courted in retail politics. The same happens with urban problems of Atlanta or Detroit, or in the manufacturing plants of South Carolina and California, national issues being addressed in a skewed manner--only looking at the trees, not the forest. Many solutions have been offered to this slow creeping poison in our democracy, which creates divisiveness and apathy simultaneously, from the National Popular Vote Compact, to apportioning by Congressional District (for example Maine and Nebraska), to Constitutional Amendments (of which over 100 have been offered). 

The end result of this electoral model has been simultaneous growth of voter apathy and sectarian divide. The political consequence is the creation of partisan factions which drive the discourse and increased frequency of impeachment calls. We have been seeing this happen over the last twenty five years or so, like a frog in slowly heating water.  

Impeachment as a Political Crisis

The calls for impeachment before the expected victory of Clinton have not been the only instance of Republicans calling for this constitutional remedy. It is significant that during the first two years of Obama’s presidency, with the Democrats controlling the House, national opinion polls found that 35% of Republicans favored impeaching the president, even though there were not any ongoing investigations of any sort. Reasons given for opening impeachment inquiries during the Obama years ranged from the “Climate-gate” email controversy, the methodology used by the Bureau of Labor Statistics to measure jobs, the response to the BP Oil Spill, undermining US security by brokering a prisoner exchange of an army soldier for five Guantanamo detainees, to his “foreign” birthplace; and, of course, Benghazi.

Using impeachment calls as a political rallying cry is a signal of the toxic divisiveness underlying the body politic (more on this) and originated in the poisoned well of faulty representation. Out of 45 presidents, thirteen have had inquiries or resolutions introduced in the House calling for their impeachment, including all eight since Ronald Reagan (Iran-Contra). Typically the underlying offenses have been abuse of power or corruption. The case of Hillary Clinton is unprecedented in that calls for her impeachment were being made before she had been elected. 

The increasing use of impeachment threats based on political interest or bias has cleft the nation into sectarian partisanship. The political discourse and rhetoric has shifted, characterizing opposition sympathizers and leaders as enemies, not just adversaries. This political and sectarian nature of impeachment had been forewarned by Alexander Hamilton:

“Pre-existing factions … [agitating passions and dividing the community] into parties more or less friendly, or inimical, to the accused... [enlisting] animosities, partialities, influence and interest on one side or the other … [result in ] the greatest danger, … [that] the decision will be regulated more by the comparative strength of parties, [rather] than by the real demonstrations of innocence or guilt.”[2]

Differences of opinions on how to reach national goals have been colored by partisan politics, but the primary goal remains: a better and more secure future for generations to come.[3] 

If, as Hamilton feared, the final result is not dependent on “the real demonstrations of innocence or guilt,” we are in for a rough ride descending further into an abyss of sectarian partisanship enmity, as opposed to politically adversarial relationships. The feared trauma to the country associated with impeachment has actually been with us for more than twenty years. This is truly it: we have been living “the trauma of impeachment” far too long.

But if the Trump impeachment results in his removal from office, it may be a sign that the country is beginning to heal from the sectarian sickness vise which grips it, because it will have demonstrated a resolve of purpose beyond partisanship. The blatant and clear unfitness of Trump as president of the United States and leader of the free world allows for a constitutional remedy that forces unity and can bring an end to the dark era of divisiveness. And it is time for it to end.

Some more essays:
On party rule: "A Weak Democracy"

On impeachment: "We'll See What Happens...."

All on Elections and Other Complications of Democracy

---

[1] The 1824 election of John Quincy Adams (30.9% of the vote vs Andrew Jackson with 41.4%) is not comparable to the other four, because it was so split between all the candidates that it was decided by a final vote in the House of Representatives.

[2] Federalist 65

[3] Or, as Thomas Jefferson said, “Life, liberty, and the pursuit of happiness.”

All illustrations copyright their respective authors.