Wake Up, America!

Sherwin Markman • September 27, 2022

The time has come for all of us to be aware that the seeds to our destruction as a democratic republic lie in the explicit words of the Constitution, and that there is a real possibility that those words will be used to abolish any ability of the American people to choose their own president.

I am not referring to the clearly criminal insurrection of January 6, 2021, staged by right wing zealots and their leaders. That violent attempt to subvert our democracy had no basis in fact or law.

What I am suggesting is none of that, but rather a scheme that, if successful, would be cloaked in the protective safety of the Constitution itself.

This poison pill lies at the very heart of our founding document in the unambiguous words of the second paragraph of Section 1 of Article II of the Constitution, the Section that decrees how our presidents are selected. The third paragraph of that Section was amended in 1804 by the adoption of the 12th Amendment which was intended to remedy the debacle of the 1800 contest between Jefferson and Burr. But the words of that second paragraph remained unchanged. Those fateful words are:

“Each state shall appoint, in such manner as the legislature thereof may direct, a number electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress” and those electors shall “choose the president….”

It is immediately apparent that there is no limitation to the power of each state legislature to “appoint (its electors), in such manner” as it may direct, and those electors shall choose the president.

The fact that all the states have since the middle of the 19th century chosen to select their electors via the popular vote of their citizens is no more nor less than historical happenstance. There is absolutely no constitutional requirement for a popular vote, and each state, probably prior to any election, is totally free to change its method of selecting electors. They are free to entirely abolish the popular vote for their electors; they may, if they choose, select the electors themselves.

There is no safe harbor for any popular vote for our president. As a matter of historical fact, any such popular voting for president was explicitly rejected by the framers of our Constitution. That was also the case for the election of senators who, until 1913 when the 17th Amendment decreed that they shall be elected by popular vote, were also selected by their state legislatures. In the original Constitution, only the members of the House of Representatives were elected by the people.

Thus it is that these explicit words of Article II of our Constitution create the soft underbelly of our ability to elect our own president. Those words provide a roadmap to the end of our democracy.

In order to win the presidency in this manner, there is a road that anti-democracy zealots could travel. It begins with achieving control of legislatures of enough “blue” states likely to vote for the Democratic nominee. These controlled legislatures have sufficient electoral votes that, when added to the electoral votes from traditional “red” states, would give them a 270 electoral vote majority. They could then abolish the popular vote in those “blue” states and provide that their electors shall be chosen by their respective legislatures. Thus, by abolishing the popular vote in those states, they would harvest enough additional electoral votes to elect a president.

The chances of success of such a scheme are not as far fetched as might initially appear, because Republican control of state governments has long exceeded their success in the popular votes for presidential electors. Just look at Biden’s victory in 2020. Of his 306 electoral votes, 73 of them came from states which at the same time elected Republican controlled legislatures: Arizona (11 electors), Georgia (16), Michigan (16), Pennsylvania (20), and Wisconsin (10). If legislatures in enough of those states abolished the popular selection of electors to bring Biden’s total below 270, Trump would be president.

In writing this essay, I am confident that I am revealing nothing to the insurrectionists. Although I am not privy to their scheming, I have no doubt that they know all of this as well as, if not better than, the rest of us. But, in the 2020 election, I believe they had neither the time nor the wit effectively to deploy their most dangerous weapon. In 2024, we cannot count on their continuing failure to deploy what is clearly available to them. Thus, I submit this essay because the old truism remains true: forewarned is forearmed.

So what can be done to protect our ability to elect our presidents?

It all begins with awareness of the danger, which, of course, is the purpose of this essay. There follows a number of steps beginning with mobilization of public opinion. The people must express themselves — and doing so is a powerful tool. One only has to recall the impact pro-choice demonstrators had when they voted en masse in Kansas, one of the reddest of red states.

We must begin paying close attention to the candidates for our state legislatures. Historically, those contests have flown far under the radar. However, in the Constitution they are central to the election of presidents. Accordingly, the insurrectionists will be deeply involved in choosing and influencing state legislature candidates. The rest of us must do the same.

This means not only monetary support, but full and inventive use of public forums and debates with the clear objective of forcing all legislature candidates to commit to the proposition that presidential electors will continue to be elected by the people.

Most of all, means must be found to bring into the light of day the secret schemes of those who would steal our elections. There is no doubt but that, if this particular conspiracy is ever exposed, the wrath of Americans will be uncontainable.

Democrats, Republicans, and Independents will be outraged, but it is the Republicans who will bear the greatest responsibility. It is my fervent hope that they will follow this plea from the greatest Republican, spoken at Gettysburg:

“…that we here highly resolve … that government of the people, by the people, for the people shall not perish from the earth.”

Sherwin Markman graduated from Yale Law School and lived in Rock Hall, Md., for many years. He served as an assistant to President Lyndon Johnson, after which he was a trial lawyer in Washington, D.C. He has published several books, including one dealing with the Electoral College. He has also taught and lectured about the American political system.

< Older Post

Newer Post >

Mail

Common Sense for the Eastern Shore

Megan Outten Launches Campaign for Wicomico County Council, District 7

By Friends of Megan Outten • July 29, 2025

Megan Outten, a lifelong Wicomico County resident and former Salisbury City Councilwoman, officially announced her candidacy recently for Wicomico County Council, District 7. At 33, Outten brings the energy of a new generation combined with a proven record of public service and results-driven leadership. “I’m running because Wicomico deserves better,” Outten said. “Too often, our communities are expected to do more with less. We’re facing underfunded schools, limited economic opportunities, and years of neglected infrastructure. I believe Wicomico deserves leadership that listens, plans ahead, and delivers real, measurable results.” A Record of Action and A Vision for the Future On Salisbury’s City Council, Outten earned a reputation for her proactive, hands-on approach — working directly with residents to close infrastructure gaps, support first responders, and ensure everyday voices were heard. Now she’s bringing that same focus to the County Council, with priorities centered on affordability, public safety, and stronger, more resilient communities. Key Priorities for District 7: Fully fund public schools so every child has the opportunity to succeed. Fix aging infrastructure and county services through proactive investment. Keep Wicomico affordable with smarter planning and pathways to homeownership. Support first responders and safer neighborhoods through better tools, training, and prevention. Expand resources for seniors, youth, and underserved communities. Outten’s platform is rooted in real data and shaped by direct community engagement. With Wicomico now the fastest-growing school system on Maryland’s Eastern Shore — and 85% of students relying on extra resources — she points to the county’s lagging investment as a key area for action. “Strong schools lead to strong jobs, thriving industries, and healthier communities,” Outten said. “Our schools and infrastructure are at a tipping point. We need leadership that stops reacting after things break — and starts investing before they do.” A Commitment to Home and Service Born and raised in Wicomico, Megan Outten sees this campaign as a continuation of her lifelong service to her community. Her vision reflects what she’s hearing from neighbors across the county: a demand for fairness, opportunity, and accountability in local government. “Wicomico is my home; it’s where I grew up, built my life, and where I want to raise my family,” Outten said. “Our county is full of potential. We just need leaders who will listen, work hard, and get things done. That’s what I’ve always done, and that’s exactly what I’ll continue to do on the County Council.” Outten will be meeting with residents across District 7 in the months ahead and unveiling more details of her platform. For more information or to get involved, contact info@meganoutten.com

“Turtles All The Way Down”

By John Christie • July 29, 2025

Way back in 1935, the Supreme Court determined that independent agencies like the Consumer Product Safety Commission (CPSC), the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB) do not violate the Constitution’s separation of powers. Humphrey’s Executor v. United States (1935). Congress provided that the CPSC, like the NLRB and MSPB, would operate as an independent agency — a multi-member, bipartisan commission whose members serve staggered terms and could be removed only “for neglect of duty or malfeasance in office but for no other cause.” Rejecting a claim that the removal restriction interferes with the “executive power,” the Humphrey’s Court held that Congress has the authority to “forbid their [members’] removal except for cause” when creating such “quasi-legislative or quasi-judicial” bodies. As a result, these agencies have operated as independent agencies for many decades under many different presidencies. Shortly after assuming office in his second term, Donald Trump began to fire, without cause, the Democratic members of several of these agencies. The lower courts determined to reinstate the discharged members pending the ultimate outcome of the litigation, relying on Humphrey’s , resulting in yet another emergency appeal to the Supreme Court by the administration. In the first such case, a majority of the Court allowed President Trump to discharge the Democratic members of the NLRB and the MSPB while the litigation over the legality of the discharges continued. Trump v. Wilcox (May 22, 2025). The majority claimed that they do not now decide whether Humphrey’s should be overruled because “that question is better left for resolution after full briefing and argument.” However, hinting that these agency members have “considerable” executive power and suggesting that “the Government” faces greater “risk of harm” from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty,” the majority gave the President the green light to proceed. Justice Kagan, joined by Justices Sotomayor and Jackson, dissented, asserting that Humphrey’s remains good law until overturned and forecloses both the President’s firings and the Court’s decision to award emergency relief.” Our emergency docket, while fit for some things, should not be used to “overrule or revise existing law.” Moreover, the dissenters contend that the majority’s effort to explain their decision “hardly rises to the occasion.” Maybe by saying that the Commissioners exercise “considerable” executive power, the majority is suggesting that Humphrey’s is no longer good law but if that is what the majority means, then it has foretold a “massive change” in the law and done so on the emergency docket, “with little time, scant briefing, and no argument.” And, the “greater risk of harm” in fact is that Congress provided for these discharged members to serve their full terms, protected from a President’s desire to substitute his political allies. More recently, in the latest shadow docket ruling in the administration’s favor, the same majority of the Court again permitted President Trump to fire, without cause, the Democratic members of another independent agency, this time the Consumer Product Safety Commission (CPSC). Trump v. Boyle (July 23, 2025). The same three justices dissented, once more objecting to the use of the Court’s emergency docket to destroy the independence of an independent agency as established by Congress. The CPSC, like the NLRB and MSPB, was designed to operate as “a classic independent agency.” In Congress’s view, that structure would better enable the CPSC to achieve its mission — ensuring the safety of consumer products, from toys to appliances — than would a single-party agency under the full control of a single President. “By allowing the President to remove Commissioners for no reason other than their party affiliation, the majority has negated Congress’s choice of agency bipartisanship and independence.” The dissenters also assert that the majority’s sole professed basis for the more recent order in Boyle was its prior order in Wilcox . But in their opinion, Wilcox itself was minimally explained. So, the dissenters claim, the majority rejects the design of Congress for a whole class of agencies by “layering nothing on nothing.” “Next time, though, the majority will have two (if still under-reasoned) orders to cite. Truly, this is ‘turtles all the way down.’” Rapanos v. United States (2006). * ***** *In Rapanos , in a footnote to his plurality opinion, former Supreme Court Justice Scalia explained that this allusion is to a classic story told in different forms and attributed to various authors. His favorite version: An Eastern guru affirms that the earth is supported on the back of a tiger. When asked what supports the tiger, he says it stands upon an elephant; and when asked what supports the elephant, he says it is a giant turtle. When asked, finally, what supports the giant turtle, he is briefly taken aback, but quickly replies "Ah, after that it is turtles all the way down." John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.

“Andy Harris Just Made the Most Dangerous Vote of His Career”

By Shore Progress, Progessive Maryland, Progressive Harford Co • July 15, 2025

Marylanders will not forget this vote.

How Many Will Be Kicked Off Medicaid in MD-01 Because of Andy Harris?

By Jan Plotczyk • July 9, 2025

More than 30,000 of our neighbors in Maryland’s first congressional district will lose their health insurance through the Affordable Care Act and Medicaid because of provisions in the GOP’s heartless tax cut and spending bill passed last week.

Six Reasons Why the House Budget Bill Will Hurt Rural America

By Michael Chameides, Barn Raiser • May 21, 2025

Right now, Congress is working on a fast-track bill that would make historic cuts to basic needs programs in order to finance another round of tax breaks for the wealthy and big corporations.

Who Will SNAP Cuts Affect in Maryland? On the Eastern Shore?

By Catlin Nchako, Center on Budget and Policy Priorities • May 21, 2025

The House Agriculture Committee recently voted, along party lines, to advance legislation that would cut as much as $300 million from the Supplemental Nutrition Assistance Program. SNAP is the nation’s most important anti-hunger program, helping more than 41 million people in the U.S. pay for food. With potential cuts this large, it helps to know who benefits from this program in Maryland, and who would lose this assistance. The Center on Budget and Policy Priorities compiled data on SNAP beneficiaries by congressional district, cited below, and produced the Maryland state datasheet , shown below. In Maryland, in 2023-24, 1 in 9 people lived in a household with SNAP benefits. In Maryland’s First Congressional District, in 2023-24: Almost 34,000 households used SNAP benefits. Of those households, 43% had at least one senior (over age 60). 29% of SNAP recipients were people of color. 15% were Black, non-Hispanic, higher than 11.8% nationally. 6% were Hispanic (19.4% nationally). There were 24,700 total veterans (ages 18-64). Of those, 2,200 lived in households that used SNAP benefits (9%). The CBPP SNAP datasheet for Maryland is below. See data from all the states and download factsheets here.