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A problem at the heart of US democracy

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Almost 150 million people voted in last week’s US elections - a remarkable and historic turnout.  The people elected Senators, Members of Congress, members of state legislatures and a variety of other office holders. They did not elect the next US president or vice president. Both will be elected on 14 December when 538 largely unknown individuals meet in the US Electoral College, an arrangement dreamed up by the US Constitutional Convention in 1787, writes Dick Roche.

The legitimacy of the Electoral College has been questioned for decades. There have been numerous to reform it. Currently fifteen US states are campaigning its abolition.

When the Constitutional Convention met in 1787 it had no template as to how the leadership of the new republic should be decided.

The Convention members were a patrician group with mixed feelings about democracy.  The  Father of Constitution” James Madison referred to “the inconvenience of democracy”. Edmund Randolph from Virginia spoke of the need for “sufficient checks against democracy”. Another representative spoke of “the evils we experience flow from the excess of democracy”.

Convention members were concerned that citizens had no knowledge of national figures and that left to their own devices the people could elect a demagog. They did not want Congress electing the President and worried about the balance between the big and small states. To resolve the conundrum a committee was appointed. It produced the idea of an Electoral College, an elite body that would decide who would be the most suitable leader. Other than setting the number of electors to be appointed by each state and details as to when and where the college should meet the US Constitution is silent on how the electors should be chosen or conduct their deliberations.

Today’s Electoral College consists of 538 Electors.  States are allocated college votes on the basis of their representation in Congress. When the election results are certified the states, with two exceptions,  allocate their votes in the College to the political parties on a winner-take-all basis. Following Joe Biden’s victory in California, the state’s  55 Electoral College votes will go to the Democrats.  Florida’s 29 votes will go to the Republicans on foot of Trump’s win there. Two states, Maine and Nebraska,  allocate two votes to the candidate who wins the popular vote in the state and one to the winner of each electoral district.

The political parties decide on who goes to the College. Electors pledge to vote for their party’s candidates. However Electors can become “faithless electors” and cast a ‘deviant’ vote for any person they wish. Bizarrely, there are no Constitutional or federal provisions dealing with faithless electors. Five states impose a penalty on faithless electors. Fourteen states have legal provisions that allow for the cancellation of a deviant vote and replacement of a faithless elector. Oddly the legislation in nineteen states and Washington DC allows the deviant votes to be counted as cast.  The remaining states have no legislation to deal with faithless voters.

As the 1960s Civil Rights Movement was casting light on America’s flawed political structures Senator Birch Bayh, an Indiana Democrat, launched a campaign to abolish the College.  He argued that Americans could not “proudly beat our chest and proclaim ourselves to be the world’s greatest democracy and yet to tolerate a presidential electoral system in which the people of the country do not vote for the President”.

Bayh’s proposal received overwhelming support in the US House of Representatives was endorsed by President Nixon and had the support of many states but like all earlier reform attempts it failed. The proposals were killed off by a segregationist filibuster in the US Senate.

The 2000 and 2016 US presidential elections pulled the spotlight back on the Electoral College.

In 2000 a controversial recount of votes in Florida went to the US Supreme Court. The recount, which risked delaying certification of the election, was halted by the Court. George W Bush was deemed to have beaten Al Gore. Bush won Florida by 537 votes out of almost 6 million votes cast. As a result he received Florida's 25 Electoral College votes: Gore’s 2.9 million votes counted for nil. When the Electoral College met on 18 December 2000 George W Bush won the US presidency by 5 votes. In the popular vote Gore received half a million votes more than Bushfive

In 2016,  the Electoral College was very much back in focus.  When the College convened on 19 December 2016 Donald Trump received 304 votes to Hillary Clinton’s 227, the fifth time in US history that a presidential candidate won the White House while losing the popular vote.  Winning Michigan, Wisconsin and Pennsylvania three battleground states by the paper-thin margins gave Trump his Electoral College win.

The College made the news for other reasons. In the run up to its meeting a major campaign was launched to persuade Republican electors to break their pledges and vote against Trump. A petition was launched requesting the College to elect Clinton. Republican electors were offered support to break their pledges. Advertisements were run in newspapers. Hollywood personalities made a video calling on Republican electors to vote against Trump. Anti Trump rallies were mounted. Nancy Pelosi’s daughter, a Democrat elector from California demanded that a briefing on Russian interference be given before the College voted. Time Magazine argued that the Electoral College was created to stop 'Demagogues Like Trump'.

Voting in the College further demonstrated the system's flaws. Four Democrat electors from Washington State, where Hillary Clinton had 52.5% voter support ‘went rogue’. Three voted for Colin Powell and the fourth voted for Faith Spotted Eagle, a Sioux elder and environmental campaigner. The four were subsequently fined $1,000 each. Mrs Clinton also lost an elector from Hawaii who voted for Bernie Sanders. Over 62% of Hawaii’s voters supported Clinton.

Two Republican electors from Texas, where Trump won over 52% of the vote, broke ranks. One of these, Christopher Suprun, explained in the New York Times that he would not vote as pledged because he felt that Donald Trump was “not qualified for the office”.

The US Constitution requires that the Electoral College convene to vote for the President and Vice President on “the first Monday after the second Wednesday in December” – 14 December this year. All vote counting, recounts and court disputes must be completed by 8 December.

The rapid rush to roll out vote-by-mail which played a very significant role in getting the Democrat vote out has produced a series of court actions. Where they will lead remains to be seen.  Given the sheer scale of the Biden majority it is very hard to see any case playing as central a role as in 2000, only time will tell.

One thing that is likely to happen is that Republicans and Democrats will continue to battle over a fundamentally undemocratic electoral system dreamed up between May and September 1787 and US electoral reform will continue to “play second fiddle” to partisan political advantage.

Dick Roche is a former Irish minister for environment, heritage and local government and former minister for European affairs.

Crime

Over 40 arrested in biggest-ever crackdown against drug ring smuggling cocaine from Brazil into Europe

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In the early hours of the morning (27 November), more than a thousand police officers with the support of Europol carried out co-ordinated raids against the members of this highly professional criminal syndicate. Some 180 house searches were executed, resulting in the arrest of 45 suspects. 

The investigation uncovered that this drug trafficking network was responsible for the annual importation of at least 45 tonnes of cocaine into the main European seaports, with profits exceeding €100 million over the course of 6 months.

This international sting, led by the Portuguese, Belgian and Brazilian authorities, was carried out simultaneously by agencies from three different continents, with coordination efforts facilitated by Europol:

  • Europe: Portuguese Judicial Police (Polícia Judiciária), Belgian Federal Judicial Police (Federale Gerechtelijke Politie, Police Judiciaire Fédérale), Spanish National Police (Policia Nacional), Dutch Police (Politie) and the Romanian Police (Poliția Română)
  • South America: Brazilian Federal Police (Policia Federal)
  • Middle East: Dubai Police Force and Dubai State Security

Results in brief 

  • 45 arrests in Brazil (38), Belgium (4), Spain (1) and Dubai (2).
  • 179 house searches.
  • Over €12m in cash seized in Portugal, €300,000 in cash seized in Belgium and over R$1m and US$169,000 in cash seized in Brazil.
  • 70 luxury vehicles seized in Brazil, Belgium and Spain and 37 aircrafts seized in Brazil.
  • 163 houses seized in Brazil worth in excess of R$132m, two houses seized in Spain worth €4m, and two apartments seized in Portugal worth €2.5m.
  • Financial assets of 10 individuals frozen in Spain.

Global co-operation 

In the framework of intelligence activities underway with its operational counterparts, Europol developed reliable intelligence concerning the international drug trafficking and money laundering activities of a Brazilian organized crime network operating in several EU countries.

The criminal syndicate had direct contact with drug cartels in Brazil and other South American source countries who were responsible for the preparation and the shipments of cocaine in maritime containers bound to major European seaports.

The scale of cocaine importation from Brazil to Europe under their control and command is massive and over 52 tonnes of cocaine were seized by law enforcement over the course of the investigation.

In April 2020, Europol brought together the involved countries who have since been working closely together to establish a joint strategy to bring down the whole network. The main targets were identified on either sides of the Atlantic Ocean.

Since then, Europol has provided continuous intelligence development and analysis to support the field investigators. During the action day, a total of 8 of its officers were deployed on-the-ground in Portugal, Belgium and Brazil to assist there the national authorities, ensuring swift analysis of new data as it was being collected during the action and adjusting the strategy as required.

Commenting on this operation, Europol’s Deputy Director Wil van Gemert said: "This operation highlights the complex structure and vast reach of Brazilian organized crime groups in Europe. The scale of the challenge faced today by police worldwide calls for a coordinated approach to tackle the drug trade across continents. The commitment of our partner countries to work via Europol underpinned the success of this operation and serves as a continued global call to action."

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EU

Navalny calls on Europe to follow the money

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The European Parliament’s Foreign Affairs Committee held an exchange of views with representatives of the Russian political opposition and NGOs on the current political and socio-economic situation in Russia.

Among the speakers was Alexei Navalny, who has recently recovered from being poisoned with a nerve agent similar to the one used in the Salisbury attack targeted at Sergei Skirpal and his daughter. 

Navalny called on Europe to adopt a new strategy towards Russia, that meets the new developments in Russian state leadership. He said that the forthcoming elections for the State Duma would be an absolutely crucial event and that everyone should be able to participate. If opposition politicians are not allowed to participate he asked the European Parliament and every European politician not to recognize the outcome.

Navalny told MEPs that it was not enough to sanction those responsible for carrying out his poisoning and that there was little sense in sanctioning those who didn’t travel a lot or who didn’t own assets in Europe. Instead, he said the main question that should be asked is who gained financially from Putin’s regime. Navalny pointed to the oligarchs, not just the old ones, but the new ones in Putin’s inner circle, with name-checks for Usmanov and Roman Abramovich. He said that these sanctions would be warmly welcomed by most Russians. 

On the various decisions of the European Court of Human Rights that have been ignored by the Russian judiciary, Navalny said it would be very easy to sanction them to prevent them from traveling to Europe and it would be very effective.

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coronavirus

Commission approves German scheme to compensate accommodation providers in the field of child and youth education for damages suffered due to the coronavirus outbreak

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The European Commission approved, under EU state aid rules, a German scheme to compensate accommodation providers for child and youth education for the loss of revenue caused by the coronavirus outbreak. The public support will take the form of direct grants. The scheme will compensate up to 60% of the loss of revenues incurred by eligible beneficiaries in the period between the beginning of the lockdown (which started on different dates across the regional states) and 31 July 2020 when their accommodation facilities had to be closed due to the restrictive measures implemented in Germany.

When calculating the loss of revenue, any reductions in costs resulting from income generated during the lockdown and any possible financial aid granted or actually paid out by the state (and in particular granted under scheme SA.58464) or third parties to cope with the consequences of the coronavirus outbreak will be deducted. At the central government level, facilities eligible to apply will have at their disposal a budget of up to €75 million.

However, these funds are not earmarked exclusively for this scheme. In addition, regional authorities (at Länder or local level) may also make use of this scheme from the local budgets. In any event, the scheme ensures that the same eligible costs cannot be compensated twice by different administrative levels. The Commission assessed the measure under Article 107(2)(b) of the Treaty on the Functioning of the European Union, which enables the Commission to approve state aid measures granted by member states to compensate specific companies or specific sectors for the damages caused by exceptional occurrences, such as the coronavirus outbreak.

The Commission found that the German scheme will compensate damages that are directly linked to the coronavirus outbreak. It also found that the measure is proportionate, as the envisaged compensation does not exceed what is necessary to make good the damages. The Commission therefore concluded that the scheme is in line with EU state aid rules.

More information on actions taken by the Commission to address the economic impact of the coronavirus pandemic can be found here. The non-confidential version of the decision will be made available under the case number SA.59228 in the state aid register on the Commission's competition website.

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