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 the Sisters in Law
by Sisters in Law
October 12, 2020
This interview with the Sisters in Law, Valerie Baston, Alisha Darden, Maryellen Hicks, Lakesha Smith, Delonia Watson, and Karen Williams, was conducted and condensed by franknews.
Can you describe what the Sisters in Law is and what your goals are?
Lakesha Smith: We are six African American female attorneys who decided to fill a gap in our community — the gap being the absence of African American female representation in our Tarrant County district courts.
In Tarrant County, we have never elected an African American female to a criminal district court or civil district court. The only African American female we've ever elected in Tarrant County was Maryellen Hicks, a Sister in Law, to a family court in 1981where she served for ten years. Judge Hicks was the first and the last African American female to serve at the district level in Tarrant County. We are ready to add to that list.
Photo via Maryellen Hicks
We value diversity and feel it is critical to create a more diverse judiciary in Tarrant County, especially considering we have such a diverse population. The county is no longer a majority-majority county, it is a minority-majority county. We need more diversity to reflect the makeup of our community and to ensure we have diversity of thought and experiences in our courts.
There are six of us and together we make up the Sisters in Law. We’re excited about what we offer Tarrant County as a whole.
What positions are you each running for?
Lakesha Smith: Karen Williams and I are running for criminal court in the district. Karen is the candidate for criminal district court number 2 and I am the candidate for the 213th district court. Delonia Watson is running for justice for Second Court of Appeals, Place 6. Everyone else is running as a candidate for civil district courts: Alisha Darden is running for the 153rd, Valerie Baston is running for the 342nd, and Maryellen Hicks is running for the 348th.
What has the campaigning process been like?
Valerie Baston: I'm not going to lie. It's been very difficult to campaign during this global pandemic. We've been relying on social media and on tapping into our networks and organizations. We do try to get to events that observe CDC guidelines so we can meet people and let them know we're running. We want people to know who we are and what our platform is about because it is so important that people know that they have a choice in this election. Normally in Tarrant County, you don't see anyone who isn’t a Republican running for office.
But, Tarrant County is a diverse county. The state of Texas is a diverse state. We have different ethnicities, different races, different religions, and gender identities. I feel like it's time for Tarrant County to have a judiciary that actually reflects the community.
The RNC is dumping money into Texas. What do you think that indicates?
Valeria Baston: When Beto ran for US Senate, Tarrant County went blue. Beto came to Tarrant County, put in the work, and as a result, Tarrant County went blue.
Right now, the polls are showing that Trump and Biden are very close. Republicans are concerned and they are right to be concerned. This administration has not taken COVID seriously here in Texas. Our local Republican leadership hasn't taken COVID seriously. Republicans understand that even their base doesn't like where we have been going as a state, and as a nation.
Republicans don't want to lose Texas because we have a lot of electoral votes. They don't want to lose the House or the Senate seats in the Texas Congress, and they definitely don't want to lose the judiciary.
Lakesha Smith: In addition, the governor is up for election in the next cycle. As Valerie said, Beto won Tarrant County, which was huge. Alarm bells are going off because Democrats are threatening their power structure.
Governor Abbott has an interest in maintaining power in places like Tarrant County. When you see a presidential race pouring money into Texas, you know the Republicans are worried — and that is exactly what we are seeing.
The appointment process here is a testament to the existing power structure. Right now, Republican judges step down early, so that Governor Greg Abbott's power is triggered and he can appoint the judge. Then, when these judges eventually go on the ballot in subsequent races, they are on the ballot as an incumbent. It gives them an advantage.
Maryellen Hicks: There are no Democrats on a district-level court, which is the highest trial court, or the appellate court that Ms. Watson is running for.
Right now, the courts are packed with Republicans, many of whom are members of the Federalist Society or are closely aligned with the Tea Party.
Are you worried about voter suppression on election day? Texas notoriously has had horrible gerrymandering and broad strokes of voter suppression that are very obvious, but are there things in Tarrant County specifically that you are looking for?
Karen Williams: We are definitely worried about voter suppression here. We are constantly reminding people to register to vote, and pushing people to vote in the early time period. We have two weeks of early voting prior to the general election, so we are encouraging people to go out and vote early.
We want to make sure that people get out and vote early. And in any case, whatever day that they choose to go and vote, we want people to know not to expect to go in and get out in five minutes. Be prepared to take some time so that if you do have to wait, you can wait.
How do you make sure people feel like they understand their voting rights? And what do you want to see from the media, in particular?
Delonia Watson: The Biden campaign has hundreds of attorneys ready to make sure that every voter's vote matters, but it is a very real threat that some of these issues will go to court. We have to make sure that we have a judiciary that is independent, and will not permit their ideology to control the law, but instead will apply the law fairly.
Lakesha Smith: In terms of the media, I don't think it's so much the media’s responsibility to take a side as to who's right, and who's wrong. But right now, I think it's very important to get out voter education and allow the voters to understand the issues that impact leadership in their local elections. When people hear about these things, they can come to their own conclusion about how the government is usurping the rights of the voters. Voters need to understand how the government has found a way to manipulate elections.
Are you paying attention to polling? Can you see where voter registration and enthusiasm, especially for nonwhite voters, stands in Tarrant County?
Lakesha Smith: Texas has registered over 2 million new voters. I can't speak to the demographics, but I feel confident based on conversations with voters that there’s enthusiasm to vote. Our base has been energized, unfortunately by the actions of the president. People are encouraged to get out and vote.
Delonia Watson: We are seeing a significant amount of excitement from people. People are galvanized. People are posting things about us, people are passing out flyers for us. People are excited about seeing a judiciary that looks more and more like them.
Karen Williams: Voter registration and voter turnout are up this year from the last presidential election. The Democratic vote and voter turnout were up by 14% in our primaries this year. In Tarrant County, the Democrats out voted the Republicans. Since the primary, there has been a lot more voter registration and the polls are saying that a lot more people are planning to vote Democratic. It goes beyond the people we are talking to.