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
In Conversation with Chief Justice Bridget Mary McCormack
by Chief Justice Bridget Mary McCormack
September 27, 2020
This interview with Chief Justice Bridget Mary McCormack , Chief Justice of the Michigan Supreme Court, was conducted and condensed by franknews.
I am the chief justice of the Michigan Supreme Court. I was elected to the Court in 2012. And in 2019, I was selected by my colleagues to be the chief justice.
How is the CDC eviction ban being implemented throughout Michigan?
Michigan has 242 trial courts, including 103 district courts where eviction proceedings are heard. And different judges are interpreting and handling the CDC guidance differently.
One of the things my colleagues and I are going to be talking about over the next few days is whether there is a reason for the Supreme Court to issue any administrative order so that we have uniformity.
That doesn't mean that issuing an order that governs everybody is the right thing to do, but it is something that we have done throughout this pandemic. In fact, we've issued 19 emergency administrative orders to help the courts figure out how to do business in this new world, including one to address the eviction backlog when Michigan's eviction ban was lifted. So it might also make sense for us to figure out if there's a uniform way we should give trial courts instructions on what to do.
What has been the overlap of the CDC guideline and Michigan’s efforts?
The governor issued an executive order back at the end of March and it expired sometime in July. District courts started to process eviction cases then. The Michigan Supreme court issued an order for how to process that backlog and the process for addressing pandemic evictions that included a diversion program.
The Legislature has allocated a significant amount of funding for addressing that backlog — $60 million was allocated to our diversion program. That money goes towards direct payments to satisfy outstanding rent due as well as to fund additional legal aid lawyers across the state to help people connect with available resources.
We had a statewide process for both addressing the backlog and helping folks find their way to funding when the CDC guidance came out. So now, there is Cares Act funding on the table that the Legislature needs to have spent by the end of the calendar year, but the CDC guidance makes it really hard to figure out whether you can still help the tenant and the landlord access the funding or not.
What steps has the Court taken to ensure that tenants do have counsel?
I should say that normally they're not entitled to government-funded counsel.
In criminal cases, if you can't afford a lawyer, you are entitled to counsel at the government's expense. That's not true in civil cases.
In this emergency diversion program, a chunk of the funding was directed to legal aid lawyers. The diversion program requires courts to connect a tenant who is facing eviction with a legal aid lawyer so they can figure out if they can access funding to satisfy the outstanding judgment. But, again, that is not a process that is required and it only happens in places where a judge has set up their own eviction diversion program, and they have a legal aid office that works with them on it. It's not something that happens in nonemergency COVID times.
Are there parts of this that you hope extends to the future?
Hopefully, it helps both tenants and landlords. Not every landlord is some big corporation. Some of them are people who are just renting one apartment to try to cover their own rent. What we are seeing is an economic crisis of people who can't afford rent because they've lost their jobs or been impacted by the COVID-19 crisis in ways that they can't pay their bills. If they get evicted, and there is no market for someone to fill that place, that is only going to extend the problem.
We also know it is disruptive to public health to have people without homes. We know that people are better off at home. A diversion program makes a lot of sense in figuring out how we solve this economic crisis and public health crisis. Whether it continues beyond is above my paygrade.
And why do you feel like it's so important that tenants do have access to legal aid?
So they can fully understand what they might be legally entitled to ask a court for, or more acutely in this case, so they can find their way to funding that might actually help them. What they need more than anything is money. The legal aid lawyers throughout the state know exactly how to get them help if they're entitled to it.
Frankly, if we had a little bit less regulation of the bar, we could have non-lawyer navigators helping people to get funding.
When you have a health care issue, you don't see a specialist every single time. Sometimes the nurse practitioner can help you, sometimes a physician's assistant can help you. In law we have only one professional that is public-facing — a lawyer. It might be that this is the opportunity to think about how we can diversify the kinds of professionals who can help people with legal problems.
When you say, "if we can change the regulation to the bar," what does that mean exactly?
It just means that right now we only license lawyers and it doesn't have to be that way. There are a couple of states, Utah and Arizona, who have pilot projects where they are experimenting with licensing professionals to help people with legal problems who are not lawyers.
We're never going to get to a point where we have enough lawyers to assist everybody with every civil legal problem. Eight out of ten people in Michigan can't afford lawyers for their civil legal problems.
Is there anything else that you think is important for people to know about their own rights in this situation?
In Michigan, I'd say to take advantage of our statewide diversion program and get connected with your local legal aid office. Make sure you access the funding that the Legislature has put aside for you. This is what it's there for. Let's make sure we take advantage of it.