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
The Constitution on Your Right to Vote
by Joshua Douglas
October 13, 2020
This interview with Joshua Douglas, professor of law at the J. David Rosenberg College of Law at the University of Kentucky, was conducted and condensed by franknews.
Joshua | I'm the author of a book titled Vote for US: How to Take Back Our Elections and Change the Future of Voting. I've written extensively in law review articles and in the popular press about the constitutional right to vote. I focus, in particular, on state constitutions and what they say on voting rights, election law procedure, and a slew of other topics.
frank | You write a lot about how voting issues get a lot of attention on a federal level and less so on a state level. Why do you think that is and do you think it is important that we shift our focus to state courts?
Well, that may be changing a bit. Voting rights advocates have not had a lot of success at the federal court level, so, increasingly, they are bringing more claims in state court. Generally, however, we tend to think of federal courts as the protectors of civil rights. I don't know if that's a remnant of the Warren Court expanding civil rights protections in the sixties, but I do think that it's true that the state courts' role in the election process has been overlooked, at least in the past.
How do state courts shape the meaning of the constitutional right to vote? What is up for debate in terms of an individual's right to vote?
The interesting thing is that many of the plaintiffs are now bringing cases about voting rights to the state courts under state constitutions, not under the U.S. Constitution.
The right is listed in the negative. There are four constitutional amendments, the 15th, the 19th, the 24th, and the 26th, that say that the states can't deny the right to vote on the basis of a particular characteristic, but there is no actual affirmative grant of the right to vote. Instead, the Supreme Court has found protection implicitly within the Equal Protection Clause. However, almost every single state constitution does affirmatively grant the right to vote. It says things like, "every citizen of the state shall be a qualified voter" or "all citizens shall be entitled to vote."
So, over the past several years, state courts have been using the more explicit and broader grant of the right to vote in state constitutions as grounds to strike down state laws. States are saying that though the federal constitution does not explicitly grant the right to vote, our state constitution does. We see this in the Missouri Supreme Court ruling on a voter ID case, as well as the Pennsylvania Supreme Court ruling on a redistricting case. This is also seen in a case currently in the Supreme Court, originally out of Pennsylvania, extending the absentee balloting receipt deadline. State courts are looking at their state constitution and saying, "Hey, there's actually explicit language here that protects the right to vote here that is not present in the U.S. Constitution."
If we understand that the electoral system is a state's issue, do we have to accept that sometimes it's harder to vote in Texas or Georgia than it is in California or New York?
I mean, that always has been the case. That is in large part because of the U.S. Constitution’s Elections Clause, Article One, Section Four, which says that the times, place, and manner of the election is up to state legislatures.
Now, that clause also says that Congress may alter or amend those regulations.
For example, the Voting Rights Act of 1965 imposes nationwide rules that ban literacy tests and forbids discrimination on the basis of race in voting. Congress enacted rules again in 1993 through the National Voter Registration Act, which implemented a federal law and is the reason why every DMV in the country has to offer voting registration opportunities. HR1, a bill proposed by the Democrats that would impose national voting rules.
But, historically, we have not seen many rules come out of Congress. Combine that with the federal courts being unwilling to affirmatively impose certain rules, and, in my view, being less protective of the right to vote under the federal equal protection clause, and it leads to a patchwork system of state rules and how to vote.
Do you have pressing concerns in your state, Kentucky, right now?
I actually think we are doing pretty well in Kentucky. There was a bipartisan agreement between the Democratic Governor and the Republican Secretary of State in administering this election that set in place fairly extensive voting rules. Basically, anyone can vote via absentee ballot. An excuse is still required, but COVID-19 concerns qualify as an excuse — the Republican Secretary of State made it very clear that it's the voter's subjective understanding of their own concerns.
There is also going to be three weeks of early voting, including three Saturdays, in addition to the traditional polling place voting on November 3rd. I am a little bit concerned about long lines at the polls. We're going to have a lot fewer polling stations than normally, and most neighborhood precincts are not going to be open due to COVID. There is a lack of poll workers and a lack of places that are set up to have adequate ventilation and adequate social distancing.
For example, Jefferson County, which includes Louisville and is the largest county, is going to have 20 in-person polling places. Lexington, which is the second-largest county, is going to have eight polling places. I am concerned about things like the lines and transportation, but all that said, I think the Kentucky plan is pretty darn good and could be a model for the nation.
What other states are you watching?
Wisconsin looks like it's going to be a mess, especially with the decision that just came down out of the seventh circuit — federal judges blocked a lower court’s order that extended the deadline for returning absentee ballots. Texas is very concerning because of its restrictive voting rules, including an executive order that only allows for one ballot drop off location per county. The 5th Circuit Court of Appeals just upheld that rule. That means in places like Harris County, which includes Houston, there is one spot to drop off your ballot. That is crazy.
There are also five states, Texas, Louisiana, Mississippi, Tennessee, and Indiana, that don't accept COVID as an excuse to vote absentee. That is particularly concerning because it is going to force people who may have genuine concerns about the virus to vote in person.
In a state like Texas, where they have shut down so many of the ballot drop off locations, is there anything to do at this point, or is it too little, too late?
In Texas, the courts have rejected the challenges to the law, unfortunately. Even the Texas Supreme Court, so the state court route hasn't really worked.
The only other thing to do is voter education — to try to get people to fill out and mail their ballots early so that we are not overwhelming the postal service.
We have a month of voting. It is important that we take advantage of that by making a plan and voting early.