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.

 

Common Sense for the Eastern Shore

By Friends of Eastern Neck Board of Directors April 16, 2025
Let your elected representatives and business and cultural leaders know that our Refuge and others like it all over the country deserve to be protected. They deserve our stewardship for the natural wonders they shelter, and because they provide refuge for people, too.
By Elaine McNeil April 9, 2025
The Budget Deficit In a recent debate on closing Maryland’s budget deficit, Minority Leader Jason Buckel, a Republican delegate from Allegany County, made an important point: “The man upstairs has only been there for two, three years. I don’t blame him for our economic failures of the last 10,” referring to Democratic Gov. Wes Moore, who was elected in 2022. Ahead of the 2026 gubernatorial elections, Buckel’s comments highlight a key reality that many of his Republican colleagues seldom admit: It isn’t right to blame Gov. Moore for a budget deficit that has been brewing for years. Now projected at $3.3 billion, Maryland’s structural deficit is a problem that started long before Moore took office. In fact, it was first projected in 2017, during the tenure of former GOP Gov. Larry Hogan. This isn’t an opinion — it’s a fact that Buckel and other lawmakers, including Republican Del. Jefferson Ghrist, have bravely acknowledged. During that same debate, Ghrist remarked that the Department of Legislative Services had warned about this deficit throughout Hogan’s administration, yet he did little to address it. Ghrist pointed out that during Maryland’s “good years,” when the state received a flood of federal covid-19 relief dollars, spending spiraled without regard for long-term fiscal health. Hogan used these one-time federal funds to support ongoing programs, which masked the true state of Maryland’s finances and created an illusion of fiscal stability. Hogan continues to take credit for the “surplus” Maryland had in 2022 — even though experts repeatedly note it was caused by the influx of federal dollars during the pandemic. As Ghrist correctly observed, the lack of fiscal restraint and slow growth during the Hogan years laid the groundwork for the $3.3 billion structural deficit the state faces today. Indeed, Maryland’s economy has been stagnant since 2017, especially in comparison to its neighboring states, well before Moore took office. Compounding these challenges are President Donald Trump’s reckless layoffs and trade wars with our allies. Thousands of federal workers who live in Maryland are losing their jobs, which will cost the state hundreds of millions of dollars in lost revenue. Trump’s tariffs will also put an enormous strain on local businesses, including Eastern Shore farmers, who are now subject to up to 15% retaliatory tariffs on chicken, wheat, soybeans, corn, fruits, and vegetables. FY2026 Budget Considering this grim reality, Maryland’s lawmakers are making difficult, but necessary, decisions to shore up the state’s finances. Gov. Moore and state legislative leaders recently agreed to a budget that prioritizes expanding Maryland’s economy without raising taxes on most residents. In fact, 94% of Marylanders should see either a tax cut or no change at all to their income tax bill under the proposed agreement. Lawmakers also plan to cut government spending by the largest amount in 16 years, while at the same time making targeted investments in emerging industries, such as quantum computing and aerospace defense, so the state is less dependent on federal jobs. While the richest Marylanders might see their income taxes go up, it’s reasonable to ask someone making over $750,000 a year to pay $1,800 more to support law enforcement, strengthen our schools, and grow our economy. As for the proposed tax on data and IT services, these products aren’t subject to Maryland’s sales tax under current law. Maryland leaders want to modernize our tax code by levying a 3% sales tax on these products. Because they don’t raise income taxes on the majority of Marylanders and because state leaders are also cutting spending by billions, these ideas are fair. They’re also necessary after Gov. Hogan chose to kick the can down the road instead of addressing Maryland’s long-predicted deficit and now that Trump’s policies will lay off thousands of Marylanders and his tariffs will hurt our state. By making responsible choices now, Maryland leaders are putting the state on a path to long-term economic stability. Their decisions will help Maryland thrive, create jobs, and invest in the vital services that every resident relies on — without burdening hardworking families. I’m confident Maryland will emerge stronger, more resilient, and ready to lead in the industries of tomorrow. Elaine McNeil is chair of the Queen Anne’s Democratic Central Committee.
By John Christie April 2, 2025
Among Donald Trump’s most recent targets is what he calls “rogue law firms.” At 6pm last Thursday, March 27, he issued an Executive Order (EO) aimed at my old law firm, WilmerHale, as one of those “rogue” firms. Approximately 15 hours later, the firm filed a 63-page complaint challenging the EO on multiple constitutional grounds. The EO is an “unprecedented assault on the bedrock principle that one should not be penalized for merely defending or prosecuting a lawsuit” and constitutes an “undisguised form of retaliation for representing clients and causes Trump disfavors.” And by 8pm on Friday, March 28, a little over 24 hours after the EO was first issued, a federal district court judge in Washington granted a request for a temporary restraining order, blocking key provisions of the EO from taking effect for now. In doing so, the Court found that “the retaliatory nature of the EO is clear from its face. There is no doubt that it chills speech and legal advocacy and qualifies as a constitutional harm.” The Executive Order The EO and a so-called “Fact Sheet” that went with it recites that the Administration is committed to addressing the significant risks associated with law firms, particularly so-called “Big Law” firms that engage in conduct detrimental to critical American interests. Wilmer Cutler Pickering Hale and Dorr LLP (WilmerHale) is yet another law firm said to have abandoned the legal profession’s highest ideals and abused its pro bono practice by engaging in activities that “undermine justice and the interests of the United States.” The specific examples offered in support of this conclusion: The EO asserts that WilmerHale “engages in obvious partisan representations to achieve political ends,” an apparent reference to the firm’s representation of Trump’s political opponents — namely the Democratic National Committee and the presidential campaigns of Joe Biden and Kamala Harris. The EO cites WilmerHale’s “egregious conduct” in “supporting efforts to discriminate on the basis of race,” an apparent reference to the firm’s representation of Harvard in the Students for Fair Admissions litigation. The EO accuses WilmerHale of “backing the obstruction of efforts to prevent illegal aliens from committing horrific crimes,” an apparent reference to the firm’s litigation related pro bono practice and successful challenges to immigration related policies. The EO accuses WilmerHale of “furthering the degradation of the quality of American elections,” an apparent reference to the film’s involvement in challenges to restrictive state voter-identification and voter-registration laws. The EO singles out certain current and former WilmerHale partners, including Robert Mueller, for special criticism by describing Mr. Mueller’s investigation as “one of the most partisan investigations in American history” and having “weaponized the prosecutorial power to suspend the democratic process and distort justice.” The EO then Revokes security clearances held by WilmerHale attorneys; Prohibits the federal government from hiring WilmerHale employees absent a special waiver; Orders a review and the possible termination of federal contracts with entities that do business with the firm; Calls for the withdrawal of government goods or services from the firm; and Calls for restrictions on the ability of WilmerHale employees to enter federal buildings (presumably including federal courthouses) and on their “engaging” with government employees. WilmerHale’s Complaint WilmerHale engaged Paul Clement, a former Solicitor General during the George W. Bush administration and a well-known advocate frequently representing conservative causes, to represent the firm in this matter. Assisted by some 15 WilmerHale litigators, the complaint names the Executive Office of the President and 48 other Departments, Commissions, and individual Officers in their official capacity as defendants. A variety of constitutional violations are alleged: The First Amendment protects the rights of WilmerHale and its clients to speak freely, and petition the courts and other government institutions without facing retaliation and discrimination by federal officials. The separation of powers limits the President’s role to enforcing the law and no statute or constitutional provision empowers him to unilaterally sanction WilmerHale in this manner. The EO flagrantly violates due process by imposing severe consequences without notice or an opportunity to be heard. The EO violates the right to counsel protected by the Fifth and Sixth Amendments and imposes unconstitutional conditions on federal contracts and expenditures. The complaint alleges that WilmerHale has already suffered irreparable damage in the 16 hours since the EO issued. The firm has been vilified by the most powerful person in the country as a “rogue law firm” that has “engaged in conduct detrimental to critical American interests. The EO will inevitable cause extensive, lasting damage to WilmerHale’s current and future business prospects. The harm to the firm’s reputation will negatively affect its ability to recruit and retain employees. Further Proceedings Temporary restraining orders constitute emergency relief upon a showing of likely success on the merits and irreparable harm were the temporary relief not entered. A later hearing will be held in order for the judge to determine whether a preliminary injunction should be issued preventing the government from executing the EO during the continued length of the litigation. Editorial Note: In light of the recent capitulation of several “Big Law” firms to the unreasonable and unconstitutional attacks by the Trump administration, WilmerHale is providing a blueprint for resistance as it fights back. More law firms need to be inspired by WilmerHale’s response to Trump’s demand for revenge on his so-called political enemies. 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.
By Bill Flook & CSES Staff April 2, 2025
Tom Timberman was one of the founders of Common Sense for the Eastern Shore. Sadly, he died last month. He will be missed. Common Sense exists because of his leadership and inspiration. His vision was to provide factual and timely commentary and analysis on topics that concern people who live and work on Maryland's Eastern Shore, and to provide factual reporting to help readers shape their own lives. It was important to Tom, as it is today to the editorial board, for Common Sense to help voters to be aware of the effects — personal and local — of decisions made at the federal and state levels. Especially relevant now is this from our Mission Statement: “We seek an America responsive to its citizens and its constitution.” We reprint this tribute from Bill Flook, President of the Democratic Club of Kent County : Many of us were deeply saddened to learn of TomTimberman’s passing last week. It’s hard to believe that such a strong Democratic voice is gone. I worked with Tom for much of the past decade on many good projects promoting our values and activities, including helping on his campaign for County Commissioner, and I’ll particularly miss following his lead as Captain of the Dawn Patrol. Our group met most Saturday mornings for coffee and some good chat, before heading up to Dems HQ to set up the booth there. We’ll miss you, Tom!
By Jared Schablein April 2, 2025
After over 12 hours of debate over two days (and a whole circus from the other side), the Maryland House of Delegates has passed HB 350, this year's state budget, and sent it to the State Senate. This budget is a deal between House Democrats, Senate Democrats, and Governor Wes Moore. It faces our state's $3 billion deficit head-on not with fantasy math, but with real choices: smart cuts and fair new revenue. This is what grown-up governing looks like. How We Got Here: Maryland’s budget problems didn’t start overnight. Leaders began warning about a shortfall in 2017 when Governor Larry Hogan was in office. Hogan made our state budget bigger every year, but the legislature wasn’t allowed to move money around or make common-sense changes. By law, they could only make cuts. In 2020, Maryland voters changed that. Starting in 2023, lawmakers finally got full power to shape the budget, not just cut from it. Instead of fixing the problem, Governor Hogan used federal COVID relief to hide our fiscal instability. Then, before leaving office, he drained our state’s savings from $5.5 billion to $2.3 billion to boost his image. Today, we are facing a new fiscal arsonist. Donald Trump’s trade wars and cuts to federal programs hit Maryland hard. We have more federal jobs and agencies than any other state, so we felt it worse than most. A University of Maryland study says Trump’s tariffs alone could cost us $2 billion. Trump/Musk's policies caused over 30,000 people in Maryland to lose their jobs, offices to shut down, and promised investments to disappear. These federal cuts added another $300 million to our budget deficit. COVID relief gave us a short break and even created a fake surplus under Hogan, but that money is gone now. Meanwhile, housing, healthcare, and college prices have gone way up. The Trump–Musk White House is making it worse by cutting even more funding, eliminating research, and gutting the services we rely on. That’s why Maryland had to act. We needed a real plan to protect working people, fund our schools and hospitals, and keep our state strong. Why Cuts Were Needed Trump’s trade wars and cuts to federal agencies hit Maryland harder than any other state. A University of Maryland study says those tariffs alone could cost us $2 billion. That hurts real people: A chicken farmer on the Eastern Shore is paying 25% more for fertilizer. A dock worker in Baltimore has fewer ships to unload. A restaurant owner in Western Maryland can’t afford eggs and tomatoes. We’ve lost over 30,000 jobs. Offices have shut down. Promised investments disappeared. The decisions of the Trump/Musk administration added $300 million to our state deficit.
No mandate. Image: CSES design.
By Jan Plotczyk November 19, 2024
 The 2024 presidential election was over swiftly. The Associated Press called it at 5:34 am on Nov. 6, and by 8 am, President-elect Donald Trump was crowing about the “ historic mandate ” given to him by the American people. A “mandate”? Turns out not. Trump jumped to an early lead on election night, but in the following days, his lead diminished as mail-in and provisional ballots were counted. A Baltimore Banner article on Nov. 6 highlighted the “Trump shift” that had occurred in every political subdivision in Maryland, even in counties where Democrat Kamala Harris won. This shift described the increase in Trump support since his loss to President Joe Biden in 2020 . As of Nov. 6, the biggest Trump shift was an 8.1% increase in his support in red Cecil County, but there were also shifts in the central Maryland counties that are the state’s Democratic strongholds — 4.3% in Montgomery and lesser amounts in other blue counties. Fourteen counties recorded shifts of 4% or more. On the Eastern Shore, every county had a shift over 4.5% except Talbot (2.7%), and the five largest shifts were Shore counties. For the state’s Democrats, it did not look encouraging. But as mail-in and provisional ballots were counted across the state, the Trump shift was reduced everywhere, and as of Nov. 16, disappeared altogether in Garrett (-1.2%) and Charles (-0.1%) counties. The shift dropped below 3% in all Maryland counties. Cecil’s shift became 2.1%. Montgomery’s shift dropped to 2.9%. Talbot’s shift declined to 0.2%, lowest of the Eastern Shore counties. Now, instead of five, only two of the highest five shifts were in Eastern Shore counties. The red bars in the chart below represent the Trump shift percentage values as of Nov. 16, in ascending order. The grey bars represent the misleading (and ephemeral) Trump shift percentage values as of Nov. 6. Please note the degree to which the Trump shift lessened and disappeared in the 10 days after the election. Another red mirage. But if you had only read the Nov. 6 article and not looked at the updated data, you would have been fooled into thinking Trump support is stronger than it is.
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