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
When Wealth Determines Culpability
by Vincent M. Southerland
September 30, 2020
This interview with Vincent M. Southerland, the inaugural Executive Director of the Center on Race, Inequality, and the Law at NYU Law, was conducted and condensed by franknews.
Vincent | I'm the executive director of the Center on Race, Inequality, and the Law at NYU School of Law. The center focuses on the past, present, and future of race and inequality in America. We look at how race taints the operation of the criminal legal system and, in turn, taints experiences and outcomes for people in that system. Our work is focused on policy advocacy, research, litigation, and public education; we both expose racial inequality in the criminal legal system and attempt to rectify it in some way.
Before I joined the center, I was a federal public defender. I worked at the NAACP legal defense fund where I handled death penalty cases and cases of youth sentenced to life without parole. I also worked as a state public defender. Most of my career has focused on issues of racial justice in the criminal legal system.
frank | A lot of your work centers around bail system reform. Why do you think it is important to focus on that part of the criminal justice system?
The bail system is a point in our criminal legal system where the harms of the system at large are made readily apparent.
It ignores the presumption of innocence. It perpetuates mass incarceration. It is steeped in racial injustice. It is emblematic of a lot of the problems that we see in our system, and it is a place that is in dire need of reform and reimagination.
The harms of being held in pretrial detention are significant. It is hard for a lot of people to wrap their heads around the harm that comes from being plucked out of your life for a day or two. Imagine if you were stuck in jail for weeks or months on end, disconnected from employment, from health care, from your family, from your community, and from all the things that make your life vibrant. How would you go about resolving that if someone came to you and said, just plead guilty, and we will let you out of custody?
It demonstrates the inequities and harms that the criminal justice system imposes on people at a macro level. And to be clear, the pretrial justice system has operated as a coercive tool for decades — the cash bail system forces people to resolve cases by pleading guilty in instances where they otherwise might want to fight the allegations against them. And the connection between race and economic disadvantage adds a layer of injustice to the entire pretrial system.
Anecdotally, how have you seen how the bail system encourages people to plead guilty?
As a public defender, I've had countless cases where an individual was accused of a low-level offense and was essentially told that because of their prior criminal history, because of their personal history, because of barriers and hurdles that they had struggled with in their own lives, it was likely that bail or detention would be requested by a prosecutor, that a judge would likely agree with that request, and they would be required to post some amount of money to avoid pretrial detention. Their alternative was to plead guilty and be able to go home within a few days.
Faced with those options — knowing that you're stuck in jail, knowing you don't have family members who can post a couple of thousand dollars for you, knowing you can't afford to pay a bail bondsman to post bail for you, and knowing that you will potentially be sitting in jails for some indeterminate amount of time while waiting to get your day in court, it becomes very apparent to folks that the easiest and quickest way out of these situations is to plead guilty.
As a public defender, as the person defending them, what do you advocate for in that situation?
You have to strike a really careful balance. You don't want your clients to lie to the court. However, at the same time, you have to understand that people are in an incredibly difficult position, and they need to make the best choice for their lives under the circumstances.
The tradeoff has always troubled me. There were instances where I thought that there was a possibility that this person could fight the case and have a much different outcome, but I knew that fighting the case meant that they would be sitting in jail if they could not afford bail while waiting for that case to be resolved.
It's not unusual or extraordinary that a system founded to control populations is still doing the same work generations after our country's founding. It was nevertheless disappointing and frustrating.
Do people take debt to be able to afford cash bail?
In a way. There are processing fees and extra costs associated with both the bail bondsmen and the courts. You can use a bail bondsman who you pay a percentage of the bail amount and they'll post the rest of the bond for you. Out of what you have given them, they take their own fees. And if you or a family member post bail yourself, the court system also holds onto some percent of that money.
The real challenge with cash bail is that most Americans don’t have enough savings to cover a $1,000 emergency. And the bail process itself poses a challenge. Even if you are able to come up with a couple of thousand dollars, that money belongs to the court until your case is resolved. It takes even more time after the resolution of the case to get that money back.
I'll just speak from my own experience. I had a family member who had to post bail, and his case took the better part of two years to be resolved. After that, it took us another three and a half months to get the money we had posted back. Imagine if you or your family is out of that money for all that time. That is money that can be used to buy food, buy medicine, or to support your kids. That is money that can be used to cover any number of critical expenses that are especially challenging to cover when people are living paycheck to paycheck.
The idea of cash bail is rooted in the assumption that people will only show up to court if they have a financial incentive. Do you think that assumption holds?
The assumption that people will only come back to court if they have some financial skin in the game is one that is belied by the experience of the vast majority of people in the criminal legal system.
In my experience of representing people accused of crimes, they want to live up to their obligations to the court. They want to come back to court and resolve their criminal cases.
And the instrument we are using to ensure appearance — cash bail — is divorced from reality. Because of bias in policing and enforcement patterns, most people who are arrested in misdemeanor cases are not folks of significant means. They are often living at the margins. They are not going to be able to flee a jurisdiction or flee the country. We are talking about people who are living paycheck to paycheck. The reality is that people come to court, and people come back to court, in overwhelming numbers.
If that premise is false, are there other ways that we should be looking at the bail system?
I'm on the board of the Bail Project, which is a national organization that pays bail for people — the goal is to restore meaning to the presumption of innocence and to reinvigorate our pretrial system with some semblance of justice.
The work of the Bail Project has demonstrated that pretrial release with support is what people need. In about 20 jurisdictions across the country, the Bail Project serves as a bail fund for individuals who are accused of crimes — individuals who are facing the possibility that they may join the over half million people who are stuck in jail because they can’t afford to post bail.
Working with local public defenders and community-based organizations, the Bail Project’s bail disruptors post bail for the accused at no cost to them, and provide supportive services like court reminders, rides to court, and other assistance to ensure that they can get back and forth to court. They make sure clients are able to successfully resolve their cases by providing the support that people need in order to abide by whatever conditions of release the court has placed on them. At the end of the case, the bail posted is returned to the Bail Project to be used again for future clients.
We've seen overwhelming success in people coming back to court. And again, these individuals are not posting their own money. They don't have any financial incentive to return, and yet even in those circumstances, they come back to court, repeatedly and successfully. This idea that we need to impose a financial condition on folks has been debunked by the work that bail funds across the country are doing and by the experiences of people every day.
If there is a concern that an individual may pose a flight risk or a threat to public safety — the two things that state bail statutes most often require judges to consider — then we should have a robust hearing that requires the prosecutor to demonstrate why that person should be detained. There are reforms that we can look to, rather than using the blunt instrument of imposing unaffordable cash bail on preemptively detained individuals.