(Don’t) Trust The Process
In my last two issues, I described the influence of both the media and money on US elections. For the final part of this series, we’ll be looking at the election process itself.
The tumultuous 2020 presidential election has made the fairness of elections a hot topic, but when examining their history, we see a pattern of murky and inconsistent regulations dating back to the Constitution.
At the crux of this conflict—which includes battles over voting rights, the effectiveness of the Electoral College and primary elections, and district gerrymandering—is a fundamental disagreement over who should get the right to vote.
Who, exactly, is included in “We the People?”
A Shaky Foundation
The rose-colored images of our founding fathers that dominated our childhood civics textbooks suggested they believed all men were created equal, and each American had the Creator-endowed right to participate in self-governance.
The truth is far more complicated. While believers of the Radical Enlightenment like Thomas Jefferson and Benjamin Franklin thought every American had the right to participate in democracy, Moderate thinkers such as John Adams and Alexander Hamilton favored limiting voting power to the educated elite. They worried that uneducated common people could be too easily swayed into electing a populist demagogue whose self-interests would lead the country into chaos.1
Furthermore, since they had very few examples to draw from—no other country in the world directly elected its leader at the time—the founders had to make things up as they went along. “In 1787, the United States was in a unique position,” University of Minnesota School of Law political science professor David Schultz told History.com. “When you looked across the rest of the world you saw monarchies and principalities. You didn’t have this concept of voting rights. You didn’t vote kings in or out of office.”
The result was a series of compromises. Voters would elect Congressmen by direct popular vote, and Senators would be chosen by each state’s legislature.2 As for the presidency, the founders created the Electoral College.
The Electoral College was one of the most contentious decisions that came out of the Constitutional Convention. The founders debated for months, finally eeking out a compromise that called for a group of independent electors equal to the number of representatives in Congress to vote for the president. It was never intended to be the “perfect,” system, Texas A&M University political science professor George Edwards told History.com. “They were tired, impatient, frustrated. They cobbled together this plan because they couldn’t agree on anything else.”
The system was put into place, and the founders were pleased when George Washington was unanimously elected as the first President. But many of the issues they designed the Electoral College to safeguard against never came to fruition. More on that later.
The State of Elections
Largely absent from the founders’ vision of elections was how exactly they’d be conducted. In deference to concerns over sovereignty, the founders left most details for the states to decide. What resulted was a patchwork of processes and regulations— some less democratic than others.
Most states afforded voting rights exclusively to white male property owners over 21. They began removing property requirements in the 1820s, and following the 13-15th Amendments, which outlawed slavery and gave all citizens3 the right to vote, regardless of race. More than a half-million Black men voted during the 1870s Reconstruction era, and nearly 2,000 were elected to public office, including Hiram Revels and Blanche Bruce, who became the first Black Americans to be elected to the US Senate.
But following the withdrawal of federal troops from the former Confederacy, Reconstruction came to a screeching halt. Under the guise of reform, states began enacting legislation that made it much more difficult for minorities to vote, including poll taxes, literacy tests, and grandfather clauses that stated only men whose male ancestors were granted suffrage could vote. After Revels and Bruce’s terms expired, the next Black Senator wouldn’t be elected to Congress until 1967.
What followed was nearly 100 years of near-authoritarian rule in the South, where Southern Baptist Democrats held office with little opposition. If you wonder what an American theocracy might resemble, look no further than the Jim Crow South. Congress didn’t address the rampant voting inequality until the mid-60s, when the 24th Amendment outlawed poll taxes, and the Civil Rights Act of 1964 reinforced voting equality.
Voting rights and accessibility began to largely expand over the next 40 years, including legislation requiring polling places be eligible for people with disabilities and a way for motor vehicle agencies to offer voter registration opportunities.
The New Jim Crow?
Despite a large amount of federal reform, modern politicians have still found ways to game the system. In response to President Trump’s erroneous claims of having the 2020 election stolen from him, 19 states still enacted 33 laws that made it harder for Americans to vote, according to the Brennan Center for Justice. Some of these regulations make mail-in ballots and early voting more difficult or impose harsher voter ID requirements. Others place strict criminal penalties on officials or people who engage in ordinary and essential tasks.
Proponents of these new laws say they’ve been enacted in the name of election integrity, but others see it as an attempt to suppress voting in traditionally Democratic districts. Rick Hasen, a law professor at the University of California, Irvine, said in a National Public Radio interview that there were also larger issues at play. “Perhaps an even bigger danger is election subversion, the idea that we might make it easier for partisans to mess with how votes are counted and how election winners are declared,” Hasen said. That’s not voter suppression—it’s voter negation.
Electoral College Dropout
That’s certainly the way critics of the Electoral College felt after President Trump worked his way to the White House in 2016, despite losing the popular vote to Hillary Clinton by nearly 2.9 million votes. Trump’s victory largely resulted from a calculated grab for electoral votes in key states, which he admitted in a 2016 tweet. A week after the election, politicians in both the House and Senate proposed to abolish the Electoral College. It also renewed previous efforts to enact the National Popular Vote Interstate Compact, an agreement between states to award their electoral votes to whichever candidate won the popular vote and essentially sidestep the Electoral College. Currently, the NPVIC has been adopted by 15 states—75 electoral votes short of the required 270 needed for it to take effect.
The world in which the Electoral College was established—primarily agrarian, with the majority of the population living on small farms—is long in the rearview mirror. Large urban centers that skew Democratic wield the popular power, but because of the way electoral votes are distributed, that power is significantly diminished.
There’s evidence the founders would be on board to abolish the Electoral College. The ramshackle compromise they put forth 230 years ago to elect a president was built upon several assumptions that never came to light. The founders assumed electors would vote according to their personal preferences without influence from state or national political parties, which didn’t exist at the time. They also expected each elector’s vote would be counted separately, but currently, 48 states have passed laws dictating that all electoral votes should go to the candidate who wins the popular vote4.
Blurred Lines
At the state level, another manipulation tactic is gerrymandering, where Congressional districts are redrawn to gain an electoral advantage. States are required to reassign district lines every 10 years to ensure districts are equally populated and comply with federal regulations. But the district shuffle can be an opportunity for politicians to redraw boundaries that benefit their party. This upcoming round of redistricting is especially concerning to officials following the 2019 Supreme Court ruling that gerrymandering for party advantage cannot be challenged in federal court. Computerized voter tracking has also become so sophisticated that it would be fairly easy to give parties as much as a 70-30 advantage when they have only 50% or less of the state’s total voters.
Inalienable Voting Rights
Where do we go from here? Congress certainly has the power to step in—Article I, Section 4 of the Constitution affords them the right to impose more election regulations on the states. They could toss out the Electoral College, rescind recent limits on the 1965 Voting Rights Act and close gerrymandering loopholes by requiring independent officials to draw district borders.
As a replacement, many progressive leaders are championing ranked choice voting and open primary elections, which would not only make elections more representative of the popular will, but also open the field to third party candidates previously thought of as “spoilers.”
Likewise, imposing an 18-year term limit on all federal positions—including the Judicial branch— would discourage the political cronyism currently miring legislative progress and would also allow for two Supreme Court Justices to be selected every presidential term.
The electoral landscape is certainly different from the one our founding fathers experienced, but the driving issue they grappled with remains the same: America has never developed a consensus on WHO should be allowed to participate in democracy. Until that question is answered, the rights of We the People will continue to ebb and flow.
What’s Your Take?
I’ve shared my perspective on the election process, and I want to hear yours. What steps can we take to make elections more fair?
For a deeper look at the divide between Radical and Moderate Enlightenment thinkers during our founding, see American Schism: How the Two Enlightenments Hold the Secret to Healing our Nation by Seth David Radwell.
Senators continued to be elected this way until 1914, when the 17th Amendment dictated they would be elected by direct popular election like their counterparts in the House of Representatives.
Almost all citizens. Women were still not allowed to vote until 1920, when the 19th Amendment granted them suffrage. Native Americans were likewise given the right to vote in 1924 as part of the Indian Citizenship Act.
Per state laws, only Maine and Nebraska may split their electoral votes among candidates.
A cynical interpretation is that arguments about process are never principled; losers complain about rules and refs while winners defend them. Speculating that the Founders would've arranged things differently if they'd anticipated that the party of good would be hampered, and the party of evil helped, by their rules is at best the stuff of partisan pep talks.
Given that the states which formed the federal union adopted a set of rules (and rules about how to change the rules), what should the party of good do today?
Consider what would have to happen to abolish the electoral college and rely instead on the national popular vote to choose the President and Vice President. In whatever state the party of evil held a majority, for some reason, that evil majority would have to give up power. Unlikely, no? Of course the rules could be amended without all of the states that are dominated by the party of evil going along with it, but if more than 12 held out the project would fail.
Changing state laws to require electoral votes to be allocated to the popular vote winner in congressional districts might be easier to sell. (California could set a noble example.) But even that change would be thwarted if the party of evil held a majority in the state and were on its toes. The devil is nimble and that seems to be a nonstarter (pace Maine and Nebraska).
The filibuster is a Senate rule which, I imagine, could be changed by majority vote. If 50 senators voted to end it, the Vice President could break the tie and it would be gone. But game theory gets interesting in the Senate. The majority has changed hands time and again and the filibuster has stayed in place. Therefore it must be serving someone's interests and perhaps there's a paper in that for a political science grad student. Or for a finance major. If everyone has a price, what is Sinema's? Or Manchin's? Or Romney's?
Leave all that aside. The question was posed: what should we do to make elections more fair? Or, in grown up terms, what should be done to make them come out as one prefers?
I'd rather rule myself without having my choices thwarted by anyone. Therefore, as a preliminary matter, I'd prefer a system of much more limited government. If the set of choices that government could interfere with were small enough, I wouldn't care about elections. But government leaves little uncontrolled and is insatiable.
So I must care about elections. But there is no chance that my preferences would be enacted. There is simply not enough support for restricting the franchise to tax payers and active duty military personnel. There is probably not even enough support to adopt measures like those in Canada, Mexico and France to improve the security of elections. So I might as well sip bourbon and bid adieu to the middle child project. Ciao.
Electoral College is one thing but the truly evil beast is the filibuster. Always odious and particularly odiferous. The historical peak of voter suppression. And I dare say I don’t need to remind you who it was used against. Help Shitcan the filibuster big guy!!!!!!!!! Dan Brown