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 "Do It Your Way" State
by Judd Choate
October 17, 2020
This interview with Judd Choate, the State Election Director in Colorado, was conducted and condensed by frank news. The article was originally published in May 2020.
Colorado made the change to widespread vote-by-mail six years ago. Can you talk about what that process looked like, and where you received the most pushback if any?
There was basically no pushback. Our change was over a long period of time. In 1980, Colorado allowed no-excuse absentee — People would sign up each year to be on the mail-in ballot list, and after each election, they would have to again request a mail-in ballot. In 2006, we created what's called the Permanent Mail-in Voter (the PMIV list), and in 2010, we provided an online way to sign for the PMIV through our online voter registration system. By the 2012 election, over 70% of our voters were receiving their ballots by mail.
While it's true that that legislation was part of a very partisan bill – only Democrats voted for it and every Republican voted against it – it was not partisan because of vote-by-mail. Republicans didn't like other pieces of legislation. That became law in 2013, and we have been a vote-by-mail state ever since.
What did you see a change in the electorate? Did more people of a certain demographic start to vote because they were allowed to vote-by-mail? Did more people in general vote?
Well, these are really hard questions to answer. I'm a social scientist, I have a Ph.D. in political science, and I was a professor for several years. When I am posed with these questions, I always struggle because, yes, there is a relationship between the adoption of vote-by-mail and voter turnout, but did it cause it? I don't know.
It is certainly true that over the last 20 years we went from a state with an average turnout to a state with one of the highest turnouts. In the 2000 federal election, we were just slightly above the national average turnout. Since then, we have become the state with the highest turnout in the country behind only Minnesota. Minnesota always has the highest turnout, and we hate them for it. They are always the rockstar of turnout and we are now consistently trailing just behind them.
But, is that because of vote-by-mail? I think vote-by-mail did have a positive effect and increased our turnout, but there are a whole bunch of other things that are in that calculus as well. I haven't run the numbers, I haven't collected the data, I haven’t run the regressions, so I'm uncomfortable with the idea of saying that the increase is due to just that one factor. But, there is no doubt that vote-by-mail was one important factor in driving up our turnout.
Right. Do you feel like you act as a model for other States?
Yes, I do believe we're a model, and that is not just me talking. The California legislation that was adopted a couple of years ago was largely patterned after Colorado. In fact, I went to California and testified and explained what the transformation Colorado undertook looked like and how this legislation takes a lot of those pieces and incorporates them into a California timeline. So yes, absolutely. We have been a model for Utah and Hawaii as well.
We mail a ballot to you 22 days prior to the election. Then we open early voting locations 15 days prior to the election, and we have early voting all the way through until election day. And then on election day, we have additional vote centers. All of the early voting stations also operate as voting centers, and then we are statutorily required to have many more. And we have same-day voter registration. No other state has all of these elements.
All these elements are designed around this idea that our voters are our customers and the customers should be able to make decisions that best match their needs to be able to vote. We just try to maximize that opportunity by creating as many opportunities to have the chance to vote the way that you need to do it to correspond with your lifestyle.
It seems like common sense that states would try and make this as easy as possible for people, but obviously, that is not true. Which red states have adopted these tools?
Utah conducts all elections entirely by mail, and that was a recent adoption. They looked around and they saw Colorado, Oregon, Washington use vote-by-mail, thought that the model looked right to them, and adopted it statewide. Over 70% of the votes cast in Montana are vote-by-mail, and I don't think anybody could argue that Montana is not a red state. Arizona has over 70% vote-by-mail. Nevada, which has a Republican Secretary of State, is adopting vote-by-mail for the elections this year. I don't know if they are going to keep it, but they are for this year, given the COVID-19 issues. Iowa has over 70% vote-by-mail, and Iowa also has a Republican Secretary of State.
Clearly, there are a lot of Republican election administrators or people who are the chief election officials who look at the data in other states that have adopted vote-by-mail and see it's a model that could work for them.
What do you anticipate the response from the states to President Trump's wariness about vote-by-mail to be? Are you thinking about November any differently?
Well, I'm not going to talk about the president.
All of the people that operate in this space, all of the election officials, understand how vote-by-mail verifies voters and only counts ballots that we can verify came from the right person. The states that employ vote-by-mail aggressively use verification methods. When people who don't understand elections, idly throw bombs at it, that just shows they don’t understand how it operates. There are built-in safeguards all along the way, which in many respects are much greater than are required for in-person voting.
What are some of those safeguards?
We mail the ballot to you. If that ballot comes back as undeliverable, we know you don't live there anymore. That in itself is a verification of the fact that you are who you say you are and you live where you say you live. States with polling place elections have to take people's word for that. We're validating that they live in our state or jurisdiction every single time they vote. That's a huge piece of verification that vote-by-mail states have that polling place states do not have.
The second thing is that in Colorado, and most vote-by-mail states, the way that voters verify their identity is by signing the back of that ballot. For every single voter, that signature on the back of that envelope is verified against the signature that we have on file for that voter. There is no better verification, that is not biometric, than comparing the signature that voters gave when they got their driver's license to the one on the ballot.
Are you looking for even more ways to engage voters in Colorado?
Absolutely, we want to be the new Minnesota. We want to be the state that every other state hates. The way we do that is to figure out any possible way that we can maximize voter participation while protecting against voter fraud. So how are we doing that? Well, this year we're going to send a postcard to every person who appears to be eligible and is not currently registered to vote. Colorado has the highest rate of registration in the country at over 90% — 90% of our eligible voters are registered to vote. But if you have 5 million people who live in a state, 90% means you still have 500,000 people out there who might be eligible to vote and are not registered. If we register them to vote, they are in our database, and we're going to send them a ballot 22 days prior to the election. That is going to drive up turnout.
We are also installing drop boxes all around the state. We already have over 400, but we've set aside some of the federal money that we have received recently to encourage our counties to install more. We hope that by this election we will have closer to 500 drop boxes around the state. We would like to capture metrics about how close every voter in the state is to a dropbox to try to figure out how we can reach every single one of our voters, not just in the metropolitan area, but all around the state.
We have a number of different little things that we do on the edges to try to maximize voter participation, and I can walk you through a couple of those.
We used to be pretty restrictive when it came to felons. Now, the only restriction on felons is if you are currently incarcerated for a felony. If you are out on probation, if you are on parole, if you are an ex-felon, you can vote with no problem whatsoever. We also created a program to get people who are in felony status registered to vote more quickly. We require parole officers to alert people who are leaving an institution to the fact that they can register to vote, and tell them how.
Recently, we have also allowed 17-year-olds to vote in primaries if they will be 18 by the general. So for Colorado, that means you could have been 17 and voted in the presidential primary, and you could have been 17 and voted in the state primary. That has proven to be a really nice way to get young people engaged. In fact, among 17-year-olds who were eligible in the last presidential primary election, we had over 50% turnout. That's an amazing number. And that means they are very likely to vote in the general election because they are already engaged.