Alexander Kynev
How
ow American federalism ensures free elections
November 15, 2016
EPDE expert Alexander Kynev
K nev spent the week before the U
U.S.
presidential election in the United States,
States where he met with experts
and candidate representatives from campaign headquarters.
The price of freedom: how American federalism ensures free
elections
The U.S. and the whole world is in shock after the unexpected results
of the U.S. presidential
residential election. Once again, like in 2000, the
candidate who won the popular vote lost the election as a whole
after securing only a minority of the electoral college. But while Al
Gore, who in 2000 lost the election to George W. Bush, received only
about 500,000 votes more in the popular vote, now (even though the
count of absentee ballots is ongoing, with large numbers in California
and Washington waiting to be tallied)
tallied the gap between Hillary Clinton
and Donald Trump is already 670,000,
670,000 and it is estimated to end up at
about 2 million.
In the nineteenth century, such a paradox happened three times ((in
1824, 1876, and 1888). More than a hundred years later, we have
already witnessed
ed two such cases in the twenty-first
first century
century. It
seems like a trivial problem to solve—simply
simply abolish the Electoral
College and introduce the popular vote system. But changing this rule
is extremely difficult because this paradox is a direct consequence of
American federalism, and it actually ensures the stability and
uniqueness of American democracy. The paradox seems absurd from
the Russian perspective; the familiar authoritarian Russian model,
where everything is simple and hierarchical, simply does not allow
Russian citizens to imagine that in other countries things can be very
different.
How can the apparent unjustness of the Electoral College be related
to the price of freedom, and what options are there to change it?
The main problem is that in the U.S. there is no single electoral law
that one can change. According to the U.S. Constitution, the
president is elected by the states, and each state has its own laws on
how to conduct the elections. In fact, the U.S. presidential election is
actually 51 separate elections, running parallel in fifty states and in
the District of Columbia. There is not even a central election
commission (formally, the Federal Election Commission, which
consists only of 6 members, collects and summarizes information
about campaign financing, income, and expenses of candidates and
their supporters’ committees). The Election Assistance Commission,
established in 2002, merely acts as a clearing house and information
resource about elections, developing recommendations on voting
logistics, certifying voting equipment, and similar matters. According
to Article 1 of the U.S. Constitution, any debate about the legitimacy
of the election of the members of the House of Representatives or
Senators should be settled by the respective Chamber.
The Electoral College system and the separate electoral systems in
the states are a direct consequence of the U.S. structure of
government. It is a consequence of the desire to protect the
representation and position of both large and small (in terms of
population) states. So, in the Senate all states, large and small, are
represented by 2 senators; for the House of Representatives, each
state elects at least one representative and the number of seats
(currently 435) can be changed in order to ensure fair distribution
among states. The number of electors from each state is equal to the
sum of the state’s congressmen and senators (i.e. at least 3 from
each state). Since 1961, DC (the capital of the country) also chooses 3
electors.
Each state decides on its voting system—including electors,
governors, and senators. For a long time, senators were elected by
the state legislatures, until the adoption in 1913 of the 17th
Amendment to the Constitution, which enables their direct election.
But even now every state has different rules on electing senators
(one or two rounds), on how to fill in a vacancy if it occurs, and on
electing governors (in some states governors are elected for 2 years,
in others for 4; in some they have the right to run for a second term,
in others they don’t).
Different states have different voting procedures. Some states allow
early voting (in 33 states and the District of Columbia), while others
don’t. Early voting has different terms in every state. For example, in
Maryland everyone can vote early, while in Virginia only those who
can confirm their absence on election day (absentee voting) are
allowed to vote early. In Washington, Oregon, and Colorado, voters
do not vote at voting stations but by mail. About three weeks prior to
Election Day, voters receive an envelope with a ballot, instructions,
and a return shipment envelope. Starting on November 1, voters can
visit voting stations and drop the envelope with their ballot in the
ballot box, or they can send it by mail. Different states have different
voter identification requirements and different methods of voting.
Today, almost everywhere voting is conducted by scanning a paper
sheet. Manual counting without a scanner remains in practice in New
Hampshire and in some places in Virginia; the famous “punch card
ballots” (which, in the 2000 election in Florida, had to be perforated
next to the name of the selected candidate) have been abolished.
In some places it is even possible to vote without an identification
document (such as in small towns where people know each other). It
is also sometimes possible to vote without an ID, and with a so-called
provisional ballot (voters receive a ballot but do not immediately
scan it; instead, the ballot is sealed and voters are given a few days to
return and verify their identity, and only then are their ballots added
to the system). There is no single official voting result database; each
county or city publishes their own voting results. It is primarily the
media and the analysts who generalize the results. In 35 states, the
state secretary leads the organization of elections at the state level.
In 15 states there are state election commissions, formed according
to different rules. State commissions are primarily responsible for
organizing the voting process, monitoring the technical equipment,
and other such tasks. Voting occurs in approximately 7,000
municipalities (counties and cities), which form election commissions
and cover the main expenses for voting logistics. Moreover,
commissions for regular and early voting are different.
It is this system of American federalism—in which different
government bodies (whose legitimacy is received directly from the
citizens) impose multiple checks and balances on each other—that
ensures American democracy and the rule of law. This is also what
allows the change of government and the periodical hand-over of the
reins of power to the opposite side. Congress limits the power of the
president, and the states restrict them both. Within the states, the
governor and the state legislature restrict each other. The same is
true of the Attorney General, who is directly elected by the people,
and the Secretary of State—all of them are restricted by diverse
versions of local government, such as elected local councils, school
councils, judges, sheriffs, etc. Everyone has their own powers that no
one can take away. In this system, in which everyone is watching one
another, and in which all the information, including voter lists, is
open to competing parties, it is almost impossible to rig the elections.
Accusations of rigging in the past (for example, the alleged fraud in
favor of Kennedy in Illinois in 1960), even if credible, happened in a
completely different era with a different information environment.
Current concerns about the U.S. elections are not about fraud, but
about attempts to interfere with the voting of certain voter groups.
There is a problem with gerrymandering (manipulation that occurs
when areas are divided into voting districts), whereby the majority in
the state legislature tailors state districts in its favor. Many people
fight against this mechanism on the judicial level. There is a problem
with the discrimination of minorities in order to reduce their share in
voting; this is particularly noticeable in the southern states, and local
NGOs are actively fighting against it. The Voting Rights Act of 1965
was a result of the struggle for civil rights in the 1960s. According to
the Act, states in which the African-American population had been
previously exposed to discrimination were obligated to negotiate any
changes in voting procedure with the federal government. This law
applied to such states as Alabama, Alaska, Arizona, Georgia,
Louisiana, Mississippi, South Carolina, Texas, Virginia, and a number
of counties and municipalities in six other states. This law was
challenged and repealed by the U.S. Supreme Court in June 2013. The
appeal came from the city of Calera, in Alabama, whose
representatives felt that “racism and discrimination are relics of the
past, and that is why black people are no longer in need of such legal
support.” Five out of nine Supreme Court Justices deemed the law to
be unconstitutional. In its decision, the Supreme Court declared that
“America has changed a lot.” Subsequently, the situation worsened in
a number of states for minorities. The Republicans who dominate
these states, and who usually do not get along with the minorities,
tried to do everything possible to limit their participation in the
elections. For example, there were changes in the location of voting
sites in places where minorities are overrepresented, making it
harder for them to cast their vote. In North Carolina, where the local
African-American population had a habit of voting early, the early
voting option was simply canceled. Texas, with its strong Latin-
American diaspora, introduced significant restrictions on the types of
documents that can be used for voter identification, thus eliminating
several hundred thousand people from the election process. These
decisions are being challenged in courts.
All of these diverse ways of limiting the federal government are a
consequence of the U.S. Constitution. Amendments to the
Constitution can be adopted by two thirds of the members of
Congress or by the National Convention (a special body that has
never convened and whose election process is not determined). After
passing through Congress, an amendment must be ratified by threefourths of the states, which is possible only with the full consensus of
the elites. Congress itself defines which of the two possible ways to
use: ratification by state legislatures or by conventions organized
specifically for such a decision. The second method was used only
once in history: to adopt the 21st Amendment, which abolished the
previously adopted 18th Amendment (“Prohibition”).
For reasons described above, it is extremely difficult to change the
rules governing the election of the U.S. president. In order to abolish
the Electoral College, the U.S. would need to change the
Constitution, but the small states would certainly not be willing to
reduce their political influence. The alternative is that each state
individually changes the election of its electors (i.e. abolition of the
principle whereby the winner in the state gets all its electors).
Incidentally, two states, Maine and Nebraska, have already done this,
but both of them are relatively small in terms of population. Other
states could do the same, but this would require a tacit agreement
for all states to make the change at the same time. Otherwise there is
a risk of a new mathematical injustice, whereby one state shares the
votes and other do not, due to which the influence of the latter on
the results would only increase. In theory, some state electors can
vote for someone else (in some states they must pay a fine for doing
so), and such cases have occasionally occurred, but they have never
changed the overall outcome of a presidential election. In American
history, there have been 157 cases of electors voting contrary to their
original commitment. One remarkable incident occurred during the
1836 vice-presidential elections (electors vote separately for a VP).
The Democratic Party candidate, Richard Johnson, did not have
enough votes to ensure his election because the Virginia delegation
to the Electoral College went against the decision of the voters and
refused to support Johnson. Nevertheless, Johnson was elected to
the Senate, which at the time was dominated by Democrats. Now the
gap in electoral votes is so large (232 against 306) that such a large
number of “elector defectors” seems simply impossible.
The so-called “Amar Plan” (named after two brothers, both law
professors, Akhil Reed Amar and Vikram Amar), proposed in 2001,
requires that the states agree to give all their Electoral College votes
to the winner of the popular vote, regardless of the outcome in their
own state. This system will be implemented as soon as a number of
states with a total of 270 members in the Electoral College (i.e. the
majority) agree to participate in it. As of 2016, the agreement has
been adopted by ten states and the District of Columbia (the last to
join was New York in 2014), but their total number Electoral College
members is 165, well below the required 270. Opposing this plan are
traditional Republican states and “swing states,” as they (not without
reason) believe that it will reduce their influence.
What to do if the rules cannot be changed quickly?
Seek compromise. The most famous scandal concerning the
difference between the popular and electoral votes took place in
1876 and ended in a compromise between two competing
candidates: Democrat Samuel Tilden and Republican Rutherford
Hayes, who became President.
According to initial data, the governor of the State of New York and
fighter against corruption, Democrat Samuel Tilden, won the
election. His opponent, Hayes, even publicly conceded victory to
Tilden in the New York Sun. However, the time was shortly after the
Civil War, and President Grant’s administration sent federal troops
from the northern states into the three southern states that voted
for Tilden—South Carolina, Florida, and Louisiana—and started a
vote recount in those states, as well as in Oregon, which had also
voted for Tilden. After the “recount,” Hayes won in all of them. In
addition to the southern states, President Grant sent troops to the
U.S. capital, Washington DC, on February 16, 1877, to quell the
unrest there. After a continuous 18-hour meeting, at 4 a.m. on March
2, 1877, Congress declared Hayes the President with a margin of one
elector, but the House of Representatives, on March 3, voted with
137 for and 88 against for Tilden. Many feared the return of civil war.
Hayes’ “victory” with one elector vote is considered the dirtiest in the
history of U.S. presidential elections. In the popular vote, Hayes had
4,034,000 and Tilden 4,288,000 votes, or 47.9% vs. 51%.
At the same time, Hayes and Tilden reached a compromise: in
exchange for recognizing the vote recount in the southern states,
Republicans agreed to withdraw federal troops from the South,
ending the Reconstruction period. In addition, the 1877 agreement
led to the expulsion of blacks from public positions after the adoption
of “poll taxes” laws (the majority of African-Americans and Mexicans
could not afford to pay them), and the so-called “grandfather clause”
(illiterate persons were barred from voting except in cases where the
voter or his ancestors had the right to vote prior to the Civil War—
which in effect allowed whites to continue voting and excluded the
blacks). In the end, the then Republicans kept the power but took
into account the interests of the then Democrats.
Now Democrats and Republicans are very different (and in some
ways the opposite of what they were in Hayes’ times), but this does
not negate the need for compromise as a way out of a difficult
political situation. In any case, everyone knows that the elections of
2016 are not the last, and the unwillingness to compromise will strike
back in the next election and doubtlessly influence the political views
of ignored voter groups—because no one can circumvent the system
of checks and balances and the constant change of power.
Alexander Kynev,
EPDE Expert
PhD in Political Science