interviews
After the Polls Close
by John Fortier
October 19, 2020
This interview with John Fortier, Director of Bipartisan Policy Center’s Democracy Project, was conducted and condensed by franknews.
Why do we have an Electoral College?
Our election system is really much more of a states’ issue than people realize. We vote differently in different states, and the Electoral College really is the mechanism by which we vote through the states.
Who makes up the Electoral College? Who are our electors?
Sometimes people think of the Electoral College as a point system — if you win a state, you get some amount of points — but, really, when you vote, you are electing a slate of electors.
Slates of electors — one Republican, one Democrat — are nominated or elected by the parties in each state. On election day, the public votes for one of those slates.
The vote on November 3rd typically results in an Electoral College majority. There is a second election in December amongst electors, but it is not widely discussed or covered, mostly, because it doesn’t matter. Electors are loyal to their parties and typically vote as expected. The new Congress then votes to validate the Electoral College votes on January 6th, and by January 20th we reach inauguration. Usually, there are not any great hiccups in the process.
Does that change if it is a close election?
Even in a close election, we don’t think too much about the Electoral College. However, there are a few things that have happened in the past that could happen again.
First, there can be “faithless electors” — electors who vote against the popular vote of their state. Electors, for the most part, have the ability to act freely, and some people worry that they could tip a very close election if a few electors were to change their votes at the last minute — they could move the total for a candidate from 270 to 268, for example. However, in the past, faithless votes tend to be protest votes that do not really amount to anything.
Recently, a number of states have passed strict laws that bind their electors to the popular vote of their state. Previously, laws asked that electors be bound and, in some cases, imposed small fines on faithless electors, but there were no severe constraints. In the 15 States that now have this power, electors will be replaced if they vote the wrong way.
I wasn't sure if that was going to pass constitutional muster, but The Supreme Court upheld it this summer. The Supreme Court actually, in their footnote, hinted at the idea that the only case where this would cause additional hiccups is in the scenario that a candidate unexpectedly drops out, dies, or, for one reason or another, is not on the ticket. Which, of course, is something that has been in the conversation over the last couple of weeks with the president having Covid.
Another thing that can happen is the bargaining amongst the electors. In the 1968 election, George Wallace, a third-party candidate, won states and won electoral votes. Amongst the Nixon and the Humphrey electors, there was some discussion about coming together to exclude the Wallace electors. They didn’t want the election thrown into the House of Representatives, which is what happens if the Electoral College is tied.
But these are sort of odd situations, and these aren't the issues that keep me up at night.
What would you consider to be the more pressing concerns with the Electoral College during this election cycle?
I think the more realistic scenario that we could see is something like what started to happen in 2000 or what happened in 1876. In both cases, because the state race was so tight, there was a real question as to which slate of electors, the Republican slate or the Democratic slate, should be appointed.
In Florida 2000, if Al Gore were to pull ahead in the recount, would a second slate of electors need to be appointed? Eventually the Supreme Court stepped in and halted the recount in Florida, and the Republican slate of electors was appointed. But, imagine a scenario where the dispute is not resolved.
There are cases where two slates of electors may be appointed, and there is no set way to resolve that conflict.
Eventually, the dispute will end up in Congress’ hands, but it is not clear in The Constitution how Congress is supposed to decide. After 1876, when multiple slates of electors were actually sent in, Congress passed the Electoral Count Act to try to address how to approach that sort of scenario, but, I would say, it still is ambiguous.
It is also important to note that though we do have popular elections in every state, popular elections are not guaranteed by The Constitution.
Early on in our democracy, many state legislatures would directly appoint state electors. If you had a Republican legislature, you would appoint a Republican slate of electors. While this faded out after the Civil War, an argument — a controversial argument — was made by the Florida legislature in 2000. The Republican legislature felt that Democratic attorney generals were unfairly favoring the recount for Gore, so they wanted to step in and send the slate of electors to Washington themselves.
If I wanted to think of disaster scenarios — this is the sort of case that would be the disaster scenario. This is where there is the least amount of clarity in the election mechanisms after November 3rd. This is where parties could really seriously disagree, and this is where we have no third arbitrator to decide between the two of them. The parties would have to work it out on their own.
Are there deadlines that are important to know in the electoral process?
The president’s term ends on January 20th at noon.
Despite conversations about postponing the election, it would be incredibly hard to do. The deadline is in The Constitution.
If the election is not resolved by the inauguration, if it is still with the House of Representatives, then perhaps we have to go to the line of succession. But January the 20th at noon is when a new president has to take office.
There are two other dates that might matter. They're both in law, not in The Constitution, so theoretically they could be moved. There is the meeting of the electors, which is on December 14th this year. There is also the “safe harbor” deadline which is 6 days before the meeting of the electors, which is set by law to try and aid in the counting by ensuring no interference from Congress if the counting is complete by the set deadline. This date was highlighted by The Supreme Court in Bush v. Gore, and was one of the reasons they stopped the recount.
Recently, it seems there have been a lot of claims that the electoral process is undemocratic, and a push to move us towards a national popular vote. Do you think the Electoral College is still a democratic system?
The Electoral College has never been particularly popular in the modern era. Many people think that we should have a national popular vote — it is a more natural line of thought. And if we were to start from scratch now, maybe we would instill a national popular vote.
But is the Electoral College system undemocratic? I guess that I am not fully convinced of that.
We are a country of states. And though a few times there has been a difference between who wins the Electoral College and who wins the popular vote, it still is very unlikely to happen.
The proposal for a national vote, as it stands, is a halfway house, because it is really hard to amend The Constitution. States can appoint electors directly based on whatever criterion they want, and so the idea would be to appoint electors based on national popular, rather than the states' vote. But, there are some issues with that. What happens if the election is really close? You can’t really recount a national election, you can only recount the states. You would also have to make sure that all the states are uniform in their elections. And maybe that's a good thing, maybe people would like that. But maybe when we get down to the nitty-gritty and people will say, "Well, we really liked the way we vote in Alaska, it's good for us, or we like the way we vote in Oregon."
It is hard for a party to be on the losing end of this system twice within 16 years, and perhaps once more again, but I think there are reasons to be cautious about changing the system.
interviews
Success Only Comes After Failure
by Charles Kamasaki
May 21, 2020
This interview with Charles Kamasaki, author of the new book, Immigration Reform: The Corpse That Will Not Die, was conducted and condensed by franknews.
frank | Would you introduce yourself and your work?
Charles Kamasaki | I’m Charles Kamasaki. I have a somewhat meaningless title of Senior Cabinet Advisor. "Cabinet" is the term that's used here at UnidosUS for our senior management team. I've been in Washington and at UnidosUS since 1982 – I first came from South Texas to work on public policy. Immigration fell into my lap. For many years I oversaw our public policy division, the early 1990s through the 2000s. I became Executive Vice President in 2005 until 2014, when I transitioned into my current role while writing my book, Immigration Reform: The Corpse That Will Not Die.
What has your work been like in the last six to eight weeks, compared to the decades past?
Well, it's definitely shifted. Given how deeply the crisis is affecting the Latino community which we are representing and serving, it wouldn't have been possible for the work not to have changed. Let me articulate a couple of places where there has been a real convergence of the pandemic and immigration policy.
There is one set of issues around the so-called essential workers who continue to work during the pandemic, which has largely been within the food supply system. Literally from when the crops and livestock are harvested, all the way through to when it's either delivered to us from a restaurant or picked up at a store, Latino immigrants are heavily overrepresented. They continue to be, however, pretty much excluded from a lot of the remedies and responses that Congress has passed so far in response to this crisis.
And then there is another set of issues. There has been enormous job loss. Latinos are, again, overrepresented in becoming unemployed, having hours and wages cut, and losing businesses. And there are long term questions.
Or how does it work when any transactions that used to be done in person now have to be done online, like banking? A lot of our work has been focused on that.
That being said, there are things that are going to happen regardless of the arc of the pandemic recovery. There is going to be an election in November. Traditionally we have been very focused on voter registration and GOTV. There is legislation going to happen, apart from the CARE Act, which we've got to continue to devote resources towards. A lot of our focus has shifted towards the pandemic and it's immediate consequences, but we're trying as best we can to keep an eye on the longer term.
Do you see this as an opportunity to carry the visibility of the Latino community into a policy moment for immigration reform?
I think so, and I think that we may see some of those policy changes may come sooner rather than later. The Heroes Act that is going to pass the House probably today [5/15], has a couple of areas that are kind of interesting.
There are proposed stimulus checks for so-called mixed status families. Depending on how it is defined, there as many as 6 million people lawfully here, including US citizens in households that include at least one undocumented person. All of those households were excluded from the first stimulus checks, because, according to the way the bill was drafted, everybody in the household had to have a work-authorized social security number. There is a provision in the Heroes Act to fix that.
The provision that hasn't gotten a lot of attention so far, although I suspect it will, is giving so-called essential workers an opportunity to earn legal status.
I think there could very well be, in the immediate term, some policy action that deals with intersection of immigration policy and the pandemic.
I also think we are going to have a really interesting conversation about legal immigration. You may have noticed that President Trump issued an executive order to end or suspend all legal immigration. That was widely received as one would have expected based on traditional partisan leanings. I think that conversation probably changes 10 or 12 months out. If, as some economists say, it is going to take us a couple of years to come back economically, and we permit about a million legal immigrants into the country every year, I just can't imagine that we wouldn't have a debate around should we really continue to allow a million people to enter lawfully if a significant number of Americans are still unemployed.
I'm curious about this new debate on legal immigration you mentioned. Could you walk me through a little bit of each side of that debate and how you see that coming out in both upcoming 2020 presidential campaigns?
I think the restrictionist case is pretty simple: There are millions of Americans unemployed who are competing for a scarce number of jobs. It doesn't make any sense to allow a million people a year to enter the country, some of whom may be potential competitors for those jobs. The alternative case would be that these jobs are and will continue to be really tough, difficult jobs. Think about agriculture. Think about food processing where you're on a factory floor slaughtering and processing animals all day. Think about nursing homes. How many of the people who are currently unemployed would be willing to take those jobs? The answer from pro immigrant activists would be, not many.
Right. That makes sense and seems fairly standard. What does policy look like to you in like an ideal scenario?
I don't end my book actually with a policy prescription, although I did have several that I played around with then ultimately rejected. The reason is I think it's less about what I think, and more about what's doable. The best policy possible would include three buckets.
The first is longterm undocumented people who have not been convicted of serious crimes and who don't pose a threat to their communities ought to have an opportunity to legalize their status.
I also think we have to articulate that we are going to be generous with respect to the undocumented people who are here, then we're also going to be pretty firm in terms of enforcement in the future. This may get me in trouble with my more progressive colleagues, but as I write in my book, every nation, by definition, has a sovereign right to control its borders. Of course there are principles, most of which are codified in international law, around how we deal with asylum seekers and how we enforce the laws, which looks very different than what is going on right now. But, the conversation can't be binary.
Further, in respect to the question of legal immigration, I don't think it makes sense for Congress to write a law with a black and white plan on what immigration ought to look like. We are in the midst of a pandemic right now, and the future of work and the nature of the global economy is changing all the time. I don't think it is possible to write a law that specifies exactly how many people are going to be allowed to enter that is going to be relevant and consistent with the national interest five years from now or 10 years from now. I do think there is room for a body of experts to periodically adjust, based on data and economic forecasts and social needs, the number of immigrants who should be let in and in what sectors. If we had a nationwide childcare shortage, which we do, it's frankly a lot cheaper to allow a parent or another relative of a U.S. Citizen to enter in order to take care of their kids than it would be to spend the money to create another and regulate another childcare slot. So I would argue for some sort of independent commission to set levels on legal immigration in a way that responds to economic and social conditions.
Reforms are really hard. And the kind of progressive reforms that I have articulated, are not just once in a generation, they are more like once in a lifetime kind of events.
This has been true of the recent attempts of reform and was true of the last set of reforms that were successful. As you said, much of the debate is so stale, that it requires actors contravening conventional wisdom to succeed, and that's difficult for anyone.