CLASSROOM LAW PROJECT
Empowering Democracy
Youth Summit 2008
LESSON 6
What does the Constitution say about voting?
Constitutional Amendments and the Electoral College
Objective
Examine Constitutional amendments connected with voting, and the
Electoral College
Handouts (6-1) Lesson: Expansion of Voting Rights; (6-2) Voting Rights: Key
Constitutional Amendments; (6-3) Electoral College: Frequently Asked
Questions; (6-4) How the Electoral College Works
Backgrounders
Who Elects the President? by Constitutional Rights Foundation;
and two helpful pieces from the American Bar Association:
Lesson: Ensuring Access to the Ballot Box - Voting Rights in the United
States; and Voting History – Whose Voice Is Heard?
A. Warm-up
What do you think about students your age having the right to vote? What would it take
for that to happen (constitutional amendment)? Or, what have you heard (read or seen)
about the election?
B. Activities
1. Voting warm-up activity
Pairs: Think back to the first time you voted for anything. What was the election about?
What did you think about before you voted? Divide class in half. One half: What influences
how you vote? Other half: What influences how other people vote? Record and compare.
Refer to voter interview from Lesson 1. How did your interviewees decide for whom they
would vote for President? What conclusions can you draw? Predict the most important
factors in how voters will decide in 2008.
2. How have voting rights been expanded?
Introduce this activity with questions such as these: Voices that are not heard: who are
they? Why are they not heard and what difference does it make to voting as an expression
of democracy?
From Handout 6-1, ABA Expansion of Voting Rights, this excellent lesson is designed as an
introductory activity where students get an overview of the historical development of
voting rights. By examining the expansion of the right to vote, the activity highlights the
U.S. Constitution as a living document. Eight of the seventeen amendments adopted since
the ratification of the Bill of Rights have involved voting rights. Numerous Supreme Court
decisions as well as federal legislation (most notably the Voting Rights Act) have attempted
to break down barriers to voting. In addition, the activity provides students with the
opportunity to begin exploring what the right to vote means in America.
3. What do the amendments say?
Distribute Handout 6-2; this handout focuses on five key Constitutional amendments
affecting voting rights. Teachers may want to do a class read aloud of all the amendments
on the handout. Ask students to look for trends or for groups that are missing.
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Empowering Democracy
Youth Summit 2008
Divide class into five groups. Ask each group to present the voting amendments to the rest
of the class. Why do these amendments matter? Rank them as to importance. Create a
timeline. Options: focusing on one amendment, create newspaper headlines, do a skit,
create a song or rap.
4. May I attend the Electoral College?
What is the electoral college? How is the president really elected? Why do we have the
electoral college? Should we, could we change? See Handout 6-3, Electoral College FAQs.
For a brief description of the electoral college, see:
http://www.abanet.org/publiced/youth/sia/voting/electoralinfo.html
For a great graphic depiction of how the electoral college works, see Handout 6-4 excerpted
from a lesson by the Washington Post,
www.washpost.com/nielessonplans.nsf/0/B08521CC22F805E085256F5B00547D90/$File/
ElectoralCollege.pdf.
An excellent lesson on counting electoral votes by Constitutional Rights Foundation is
reprinted with permission in its entirety in the backgrounders. Students analyze actual
voting data from 1992, 1996, 2000, and 2004. The numbers in the tables may look daunting
at first but, on closer look, it is fascinating. Every number represents people voting for the
candidate they believe will do the best job as President. So students should have fun with
the numbers and see what they can learn. This lesson may also be found at
www.lawanddemocracy.org/pdffiles/Who%20Elects%20the%20President.pdf.
D.
Extended Activities
Homework / Journal/Weblog Entry
If you could propose a constitutional amendment related to voting, what would it be?
Describe why.
Choose a voting topic that interests you and frame three questions you would like
answered.
Investigate felons’ right to vote. Find out what Oregon’s law is regarding convicted felons'
right to vote. Discuss whether a person who pays his or her debt to society should be
allowed to vote. Does the kind of crime a person was convicted of affect your opinion? See:
www.abanet.org/publiced/youth/sia/voting/action_voice.html.
Research voting in other countries.
Constitutional Rights Foundation’s website is a treasure trove of materials for teachers.
See www.crf-usa.org
Resources for higher-level classes: www.yale.edu/lawweb/avalon/amend1.htm#14 .
This site provides a comprehensive list of Constitutional provisions related to voting. It
lists Amendments 11 through 27 without commentary. For commentary and context go to:
www.usconstitution.net/constamnotes.html .
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Empowering Democracy
Youth Summit 2008
Handout 6-1
Lesson: Expansion of Voting Rights
American Bar Association Division for Public Education
Lesson Plan (Grades 7-12), www.abanet.org/publiced/lawday/schools/lessons/hs_vote.html
By examining the expansion of the right to vote, the following activity highlights the notion of the
United States Constitution as a living document. Eight of the seventeen amendments adopted since
the ratification of the Bill of Rights have involved voting rights. Numerous Supreme Court decisions
as well as federal legislation (most notably the Voting Rights Act) have attempted to break down
barriers to voting.
This lesson is designed as an introductory activity to provide students with an overview of the
historical development of voting rights. In addition, the activity provides students with the
opportunity to begin exploring what the right to vote means in America.
Objectives
At the end of this lesson, students will be able to:
• identify specific examples of 'voting qualifications' used by states in America's history to
deny the right of minorities to vote;
• analyze specific historical examples in terms of their restriction on the right to vote;
• appreciate the expansion of the right to vote through constitutional amendments, Supreme
Court decisions, and the Voting Rights Act.
Method
1. Introduce the topic of voting rights, stressing its historical development.
2. Distribute copies of the Handout on the Right to Vote and ask students to read the first
paragraph on the law and its legislative history.
3. Divide the class into small groups (three to five students) and ask each group to decide
whether or not the action in each example is a denial of the right to vote. Tell each group that
it will be expected to give reasons for each of its answers. Groups may wish to appoint one
spokesperson for the entire exercise or may wish to have a different spokesperson provide
the answer and an accompanying rationale for each case study. Allow 10 minutes for groups
to reach their decisions.
4. Record each group's responses on the board and note groups' rationales where appropriate.
5. Debrief the activity by reviewing the actual outcome of each case as well as its basis (e.g.,
constitutional amendment, Voting Rights Act, Supreme Court decision). The outcome of
examples one, two and four will probably not generate a great deal of controversy. Tell
students that that the basis for each of these cases is relatively recent. Examples three and
five should generate class discussion. You may wish to share the Answer Key with students
at this time.
6. You may also wish to guide this discussion to a more general question of what the right to
vote means. Additional debriefing or follow-up lessons can focus on current controversies
relating to voting, such as how to conduct the census, apportionment as a way of increasing
minority representation, techniques of making registration easier (such as motor-voter), etc.
7. Another follow-up activity is to have students read excerpts from the Voting Rights Act and/or
selected Supreme Court decisions (recommended: South Carolina v. Katzenbach, 383 U.S.
301, 1966).
This article was written by Richard Roe and Peter deLacy, attorneys/educators on the staff
of the National Institute for Citizen Education in the Law; it first appeared in Update on LawRelated Education, published by the American Bar Association.
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Empowering Democracy
Youth Summit 2008
The Right to Vote Handout
Assume the United States Congress passed the following law: "The right to vote shall not
be denied." The report accompanying the legislation explains that Congress wanted to
encourage the greatest amount of voter turnout and to eliminate discrimination on the basis
of race and gender, since blacks and women had been denied the right to vote in the past.
Moreover, the right to vote is a fundamental principle in our democratic form of government.
Directions: For each of the following examples, decide whether the law has been violated
or not. Briefly explain your answer.
1. A state requires a person to be at least 21 years old to vote. Sandy Kent is 20 years
old and is told she cannot vote.
2. A city charges a $5.00 poll tax on all persons of voting age. Those who do not pay
the tax cannot vote. The tax money is used to improve the school system in the city.
Steve Eller does not pay the $5.00 and is not allowed to vote.
3. A state passes a law that denies convicted felons the right to vote until five years
after completion of their full sentences. Anita Jackson, serving a ten-year sentence
for committing a felony, is told she cannot vote.
4. A state requires everyone who registers to vote to pass a literacy test. More difficult
tests are given to blacks than to whites. 55% of the blacks fail the tests while only
10% of the whites fail. David Anderson, an African-American man who failed the
test, is not allowed to vote.
5. A state requires a person to be a resident for at least a year before he or she can
vote. Dana Brown has been a resident for six months and is not allowed to vote.
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CLASSROOM LAW PROJECT
Empowering Democracy
Youth Summit 2008
The Right to Vote Handout
Answer Key
1. The Twenty-sixth Amendment to the United States Constitution, adopted in 1971,
guarantees the right to vote to citizens who are eighteen years and older.
2. The U.S. Supreme Court in Harper v. Virginia State Board of Elections, 383 U.S. 663
(1966), struck down a similar poll tax as a violation of the equal protection clause of
the Fourteenth Amendment. The Court said, "Voter qualifications have no relation to
wealth nor to paying or not paying this or any other tax." The Twenty-fourth
Amendment abolished poll taxes in all federal elections.
3. This case is based on Richardson v. Ramirez, 418 U.S. 24 (1974), in which the
Supreme Court held that the equal protection clause of the Fourteenth Amendment
does not prohibit a state from disenfranchising convicted felons who had completed
their sentence and paroles. The Court relied heavily on Section Two of the
Fourteenth Amendment, which allows for the abridgement of the franchise for
"participation in rebellion or other crime."
4. The Voting Rights Act of 1965 (as amended in 1970, 1975 and 1982) bans literacy
tests as a requirement of voting. The Supreme Court in South Carolina v.
Katzenbach upheld the constitutionality of this provision of the Voting Rights Act.
5. The Supreme Court in Dunn v. Blumstein, 405 U.S. 330 (1972), struck down a
Tennessee law similar to this example. The Court said that residency requirements
were not valid "unless the State can demonstrate that such laws are 'necessary to
promote a compelling government interest.'"
Source: American Bar Association Division for Public Education
Lesson Plan (Grades 7-12), http://www.abanet.org/publiced/lawday/schools/lessons/hs_vote.html
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CLASSROOM LAW PROJECT
Empowering Democracy
Youth Summit 2008
Handout 6-2
Voting Rights: Key Constitutional Amendments
United States Constitution
Amendment 14. Citizen rights not to be abridged
Amendment 15. Race no bar to voting rights
Amendment 19. Giving nationwide suffrage to women
Amendment 24. Barring poll tax in federal elections
Amendment 26. Lowering the voting age to 18 years
Amendment 14. Citizen rights not to be abridged
Passed by Congress June 13, 1866. Ratified July 9, 1868
1. All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor to deny to any person within its
jurisdiction the equal protection of the laws.
2. Representatives shall be apportioned among the several States according to their
respective numbers, counting the whole number of persons in each State, excluding
Indians not taxed. But when the right to vote at any election for the choice of
Electors for President and Vice-President of the United States, Representatives in
Congress, the executive and judicial officers of a State, or the members of the
legislature thereof, is denied to any of the male inhabitants of such State, being
twenty-one years of age, and citizens of the United States, or in any way abridged,
except for participation in rebellion, or other crime, the basis of representation
therein shall be reduced in the proportion which the number of such male citizens
shall bear to the whole number of male citizens twenty-one years of age in such
State. …
Amendment 15. Race no bar to voting rights
Passed by Congress February 26, 1869. Ratified February 3, 1870.
1. The right of citizens of the United States to vote shall not be denied or abridged
by the United States or by any State on account of race, color, or previous condition
of servitude.
2. The Congress shall have the power to enforce this article by appropriate
legislation.
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CLASSROOM LAW PROJECT
Empowering Democracy
Youth Summit 2008
Amendment 19. Giving nationwide suffrage to women
Passed by Congress June 4, 1919. Ratified August 18, 1920.
1. The right of citizens of the United States to vote shall not be denied or abridged
by the United States or by any State on account of sex.
2. Congress shall have power to enforce this article by appropriate legislation.
Amendment 24. Barring poll tax in federal elections
This Amendment altered Article 1 Section 2 Part 3
Passed by Congress August 27, 1962. Ratified January 23,1964.
1. The right of citizens of the United States to vote in any primary or other election
for President or Vice President, for electors for President or Vice President, or for
Senator or Representative in Congress, shall not be denied or abridged by the
United States or any State by reason of failure to pay poll tax or any other tax.
2. Congress shall have power to enforce this article by appropriate legislation.
Amendment 26. Lowering the voting age to 18 years
This Amendment altered Article 1 Section 9 Part 4
Passed by Congress March 23, 1971. Ratified June 30, 1971.
The right of citizens of the United States, who are 18 years of age or older, to vote
shall not be denied or abridged by the United States or any state on account of age.
The Congress shall have power to enforce this article by appropriate legislation.
Source: excerpted from The Avalon Project at Yale Law School. This url presents additional
related constitutional amendments: www.yale.edu/lawweb/avalon/amend1.htm#14 .
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CLASSROOM LAW PROJECT
Empowering Democracy
Youth Summit 2008
Handout 6-3
Electoral College
Frequently Asked Questions
Why Did the Founders Create the Electoral College?
One of the major reasons for creating the electoral college process was lack of confidence
in the voters. The Founders did not think voters across the country (even though the
country was much smaller at the time) would have enough information to vote intelligently
in a national election. The electoral college was also seen as reflecting the system of
federalism. It gave an important role to the states. Some scholars argue that the electoral
college was created to give small states a voice in the election. Others say the electoral
college actually helped slave states. Since each slave was counted as three-fifths of a
person in establishing a state’s population, white male voters in the slave states had a
“louder” voice than voters in free states.
Has the Electoral College Been Changed During U.S. History?
A constitutional amendment (Amendment XII) was passed after the troubled election of
1800. The Founders did not provide for the development of political parties. Thus, the
Constitution called for each elector to vote for two candidates. The candidate receiving a
majority of the electoral votes would become President. The candidate receiving the
second highest number of electoral votes would become Vice President. Political parties
developed very rapidly, however, and candidates ran as party slates for President and Vice
President. In 1800, Thomas Jefferson was the Democratic-Republican party’s nominee for
president. Aaron Burr was its nominee for Vice-President. Democratic-Republican electors
voted for the two candidates—and they ended up tied. The election was thrown into the
House of Representatives. There, it took 36 ballots to resolve the issue and elect Jefferson
President. Amendment XII provided that electors would cast separate votes for President
and Vice President, preventing the problem of 1800 from happening again.
How Could the Electoral College Be Changed?
Abolishing the electoral college or making a change that would apply to all states would
require a constitutional amendment. Article V of the Constitution describes how the
Constitution can be amended. There are two ways for amendments to be proposed.
Congress can propose an amendment by a two-thirds vote of both houses. Two-thirds of
the state legislatures can call for a convention to propose amendments. There are also two
ways for amendments to be adopted. One is by a vote of three-fourths of the state
legislatures. The other is by conventions in three-fourths of the states. It is not easy to pass
a constitutional amendment! Some other reforms could be made at the state level. That
would not be easy, either. All the states would need to act for a reform to be adopted
nationally.
What Does an Elector Actually Do?
In each state, the electors for the candidate who won the popular vote meet on the Monday
following the second Wednesday of December. They meet in their state capital and cast
their electoral votes. One vote is cast for President and one for Vice-President. At least one
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CLASSROOM LAW PROJECT
Empowering Democracy
Youth Summit 2008
of their votes must be for someone from outside their state. This provision was designed to
keep electors from voting for “favorite sons”—candidates from their home states.
Must Electors Vote for the Candidate Who Won Their State’s Popular Vote?
The Constitution does not say that electors must vote according to the results of the
popular vote. However, 26 states and the District of Columbia have laws “binding” electors
to vote for the candidate who won the state’s popular vote. Some state political parties also
have rules requiring electors to pledge to support the party’s nominee. The Supreme Court
has held that a party can require such a pledge. The Court has not ruled on state laws
binding electors to vote according to the state’s election results. Most electors do vote for
their state’s winner—more than 99 percent over the course of U.S. history. However, socalled “faithless” electors do pop up from time to time. In 2000, an elector for the District of
Columbia cast a blank ballot, for example. In 1988, a West Virginia elector voted for the
vice-presidential candidate, Lloyd Bentsen, for President. What Happens After the Electors
Cast Their Votes? The electoral votes are sealed and sent to the President of the Senate.
On January 6,he opens and reads them before both houses of Congress. A candidate must
receive a majority (one over half) to be declared President. If no one obtains a majority, the
U.S. House of Representatives selects the President from the top three contenders. Each
state gets one vote. A majority is required to elect. The elections of 1800 and 1824 were
decided in the House of Representatives. If no one receives a majority of electoral votes for
Vice-President, the Senate makes the choice from among the top two contenders for that
office. At noon on January 20, the President and Vice-President are sworn in.
Where in the Constitution Is the Electoral College Described?
The term electoral college is not used in the Constitution. That term seems to have come
into use in the early 1800s. Article II, Section 1 of the Constitution does refer to electors. It
describes their role and the process by which they vote and the votes are counted.
Amendment XII, ratified on June 15, 1804, makes changes to the Constitution’s original
provisions regarding the electors.
Who Selects the Electors?
The Constitution says it is up to the state legislatures to decide how electors will be
chosen. The process for selecting electors therefore varies somewhat from state to state.
However, the political parties usually pick the electors. They may be selected at a state
convention, or the party leaders may pick them. Being picked as an elector is often a “thank
you” for working hard for the party. Third-party or independent candidates usually select
their electors themselves. In the nation’s early years, state legislatures picked the electors
themselves. In some states, they picked electors without having a popular vote for
president. South Carolina was the last state to do this. No state has done it since the Civil
War. In every state, there is a slate of electors for each candidate appearing on the ballot.
When citizens vote, they are actually choosing which electors will get to cast their votes in
the electoral college. In the past, the electors’ names appeared on the ballot below the
names of the candidates. In most states today, a short ballot is used. On the short ballot,
the electors’ names do not appear at all. In some states, the ballot may say “Electors for
”near the names of the presidential candidates. In other states, the electors are not
mentioned.
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CLASSROOM LAW PROJECT
Empowering Democracy
Youth Summit 2008
Who Can Be an Elector?
Article II, Section 1, Clause 2 of the Constitution says that the following people cannot
serve as electors: U.S. Senators, U.S. Representatives, or any “person holding an Office of
Trust or Profit under the United States.” The Fourteenth Amendment says that State
officials who have engaged in insurrection or rebellion against the United States or given
aid and comfort to its enemies cannot serve as electors. This provision was designed to
keep Confederate officials from serving as electors after the Civil War.
How Many Electoral Votes Does Each State Have?
Each state and the District of Columbia gets one electoral vote for each of its U.S. Senators
and Representatives. For example, Illinois has 21 electoral votes (19 representatives + 2
Senators). Since every state has 2 Senators no matter how many people it has, the smaller
states have more electoral votes per person in the state than the larger states do. For
example, California, the largest state in terms of population, has 54 electors, each of whom
represents 615,848 people. Wyoming, which is the smallest state in terms of population,
has 3 electors, each of whom represents only 164,594 people. The number of electoral
votes can change after the census, or count of people, which is taken in years ending with
0. After the census, the 435 members of the House of Representatives are reapportioned
among the states. If a state has gained population, it may gain representatives. If a state
has lost population, it may lose representatives. As a state loses or gains representatives, it
loses or gains electoral votes. For example, Illinois lost two representatives following the
1990 census and lost another after the 2000 census.
How Are the Electoral Votes for a State Awarded?
In 48 states and the District of Columbia, electoral votes are awarded on a winner-take-all
basis. The person who gets the most votes in the state wins all of the state’s electoral
votes. Maine and Nebraska award their votes differently. The candidate who gets the most
votes in each U.S. House of Representatives district wins the electoral vote for that district.
The remaining two electoral votes go to the overall state winner. In practice, the electoral
votes of these states have not been split—the candidate who won the state won in every
district.
How Can a Candidate Lose the Popular Vote but Win the Electoral Vote?
Because almost all states award their electoral votes using a winner-take-all method, a
candidate can lose the popular vote but win the electoral vote. This happened in 1876,
1888, and 2000. To understand how this happened, let’s look more closely at the 2000
election results. Al Gore, the Democratic candidate, won only 20 states, but had large
margins of victory in some of these states. However, those “extra” popular votes did Gore
no good in terms of the electoral college. George Bush won 30 states, including many
smaller states, which have more electoral votes per person than larger states. In the end,
those small-state electoral votes—along with such large states as Texas and Florida—put
Bush over the “top.”
Source: Constitutional Rights Foundation,
“Who Elects the President? Understanding the Electoral College”
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WHO ELECTS THE PRESIDENT?
UNDERSTANDING THE ELECTORAL COLLEGE
Reprinted with permission of the Constitutional Rights Foundation Chicago
from A More Perfect Union: Teaching the U.S. Constitution 2008)
Introduction:
The election of 2000 marked the third time since the Civil War that the presidential
candidate who won the popular vote did not win the electoral vote and therefore did not
become President. Despite the discussion prompted by this controversial election, many
citizens still do not fully understand how the electoral college functions. This three-part
lesson helps students understand how the electoral college works and why the Founders
included this structure in the Constitution, involves them in analyzing data from the past
four Presidential elections, and engages them in a simulated commission considering
reforms of the electoral college.
Objectives: At the end of this lesson, students will be able to:
•
•
•
•
•
Explain how the electoral college functions.
List reasons why the Founders created the electoral college.
Analyze recent data on popular and electoral votes.
Describe potential problems with the electoral college and reforms designed to
address those problems.
Take and defend a position on the future of the electoral college.
Materials:
You will need enough copies of the “Electoral College Background” handouts and
the “Election Data” handouts for one-fourth of the students to have each version (A-D of
each set of handouts). You will also need copies of the “Analyzing Election Data” and
“Should We Replace the Electoral College?” handouts for all students. Students will
need red, blue, and black markers, pencils, or pens; they may find calculators useful as
well. If your students are not able to identify all of the states on a map, make sure a
large, well-labeled map is displayed in the room for their reference in Part II of the
lesson.
Procedure:
Part I: Background on the Electoral College: A Jigsaw
1. Open the lesson with a K-W-L activity on the electoral college, the group that
actually elects the president. Ask students: What do you Know about the electoral
Part III of this lesson was adapted from “The Electoral College,” an online lesson from the Constitutional
Rights Foundation. The lesson is available at http://www.crf-usa.org/lessons/elect_college_guide.htm.
college? Write their answers on the board or a piece of posting paper. Tell them they
will have a chance to check the accuracy of the posted items in this lesson. Next, ask:
What do you Want to know about the electoral college? That is, what questions do
you have about the electoral college? Again, record their answers where they can be
saved throughout the lesson. Tell students that they should look for answers to these
questions as they proceed through the lesson. As they learn about the electoral
college, they should record the information on a third piece of paper or section of the
board, which you should label “What We Learned.”
2. Divide the class into four groups. Give each group one version of the “Electoral
College Background” handout. Each group is to read their handout and, as a group,
identify three important pieces of information that they will teach to classmates.
3. Jigsaw the class into groups of four, with each group containing one representative
from each of the four groups in Step 2 above. The task in the new groups is for each
student to teach their group members the important pieces of information from their
reading.
4. Conduct a class discussion of what the students learned in the jigsaw activity. Such
questions as the following can be used to guide discussion:
•
•
•
•
What reasons did the Founders have for creating the electoral college? Do you
think those reasons apply today?
How are electors selected? Do you think this is a good way to select electors?
Why or why not?
What laws must electors follow? Would you try to place greater restrictions on
electors? If so, what would they be?
How are the electoral votes for most states awarded? Who decides how the votes
are awarded?
Part II: Analyzing Election Data
1. Tell students that they are going to have a chance to analyze some voting data. When
they first look at the table you will be giving them, it may look intimidating because it
is so full of numbers. They should remember that every number represents people,
people who are voting for the candidate they support, the person they believe will do
the best job as President. So students should try to have fun with the numbers and see
what they can learn.
2. Give each of the four groups from Part I of the lesson one version of the “Election
Data” handout. Each version provides state-by-state data for one recent presidential
election—1992, 1996, 2000, and 2004. Go over the layout of the tables so students
will understand the information shown. The numbers in the columns headed with a
candidate’s name represent the popular votes in a state; the percentage of the popular
vote in that state is indicated in parentheses. If the popular vote is in bold (darker)
type, that means the candidate won that state and received the electoral votes shown
in the column to the far right.
3. The groups will specialize in the election for which they have data, but rather than
working as an entire group, students should work on the first part of the activity in
pairs. Distribute the “Analyzing Election Data” handout and tell students to use this
handout as a framework for analyzing the data. Allow time for students to work on
questions 1-7.
4. Next, create groups of eight, comprised of one pair representing each election year. In
these larger groups, students should compare the data, focusing particularly on the
maps they created. Questions 8-10 provide a framework for the comparison.
5. Conduct a class discussion of what students learned by analyzing the data. Through
the discussion, help students understand the following ideas:
•
•
•
•
Thinking about blue and red states (the winner-take-all electoral college system)
may mask the closeness of an election and cause us not to think about the people
in a state who do not vote with the majority. It may also cause candidates to
ignore some states as they are campaigning.
As seen in the 2000 election, the electoral college system does give small states a
voice (or, from the opposite perspective, gives them more power relative to their
population than large states). This does not mean that the large states are not
important—the winners in all four of these elections carried at least some of the
large states—they just do not have the proportionate influence their population
might suggest they should have.
A number of states have tended to vote consistently for one party or the other over
the past four elections. Candidates are less likely to pay attention to these states
because they are counting them as already won or lost; additional votes don’t
matter with the electoral college. The swing states are the focus of the most
campaign attention (which may be an advantage or disadvantage to those states,
depending on your view).
While the winners in all four of these elections had support from all four of the
quadrants used as rough regions in this lesson, someone could win either the
popular vote or electoral vote with support in only two (if one of those regions is
the northeast quadrant) or three regions. Because population is not distributed
equally, neither method would appear to ensure that all regions will be attended
to.
Part III: Simulated Commission: Should We Replace the
Electoral College?
1. Have the students remain in or return to their groups. Explain that the students are
going to be acting as a presidential commission. A commission is a group appointed
to study an issue and make recommendations about it. Their commission is going to
be making recommendations about the electoral college.
2. Distribute the “Should We Replace the Electoral College?” handout and go over the
directions with students. Groups are to complete three steps: (a) read about and
discuss the advantages and disadvantages of the electoral college, (b) read about and
discuss options they might recommend to the President, and (c) choose one option
and prepare to give the reasons for their choice. Remind students to use what they
have learned in the first two parts of this lesson in their discussions and decisionmaking.
Note: If your students have a good understanding of the electoral college, you may
want to assign each group to represent a particular interest—large states, small states,
the two major political parties, and third parties, for example. Alternatively, students
could be assigned to represent specific states. Two final votes might be taken—one in
which each commission member gets one vote and one in which they get the number
of electoral votes held by their assigned states.
3. After groups have completed the assigned tasks, ask which groups favored Option 1.
Ask them for their reasons. Ask others who rejected this option why they did. Repeat
this process for each option.
4. Conclude by holding a class vote on the options.
Extension:
1. Have students return to the information and questions posted during the K-W-L
activity. What items have they been able to confirm or disprove in this lesson? What
questions have they answered? Are there any questions that they have not answered?
Encourage students to research the answers to any unanswered questions.
2. Students could collect articles, editorials, maps, charts, political cartoons, and other
materials related to the electoral college. How do these materials expand their
understanding of the electoral college? Can the students find any misinformation in
the press?
Resource Person:
If you are able to locate someone who has served as an elector, you could invite that
person to class to discuss what serving as an elector involved. Officials from the two
major political parties might also be invited to class to discuss their views on the electoral
college.
Student Handout
Electoral College Background (Version A)
Why Did the Founders Create the Electoral College?
One of the major reasons for creating the electoral college process was lack of
confidence in the voters. The Founders did not think voters across the country (even
though the country was much smaller at the time) would have enough information to vote
intelligently in a national election.
The electoral college was also seen as reflecting the system of federalism. It gave an
important role to the states. Some scholars argue that the electoral college was created to
give small states a voice in the election. Others say the electoral college actually helped
slave states. Since each slave was counted as three-fifths of a person in establishing a
state’s population, white male voters in the slave states had a “louder” voice than voters
in free states.
Has the Electoral College Been Changed During U.S. History?
A constitutional amendment (Amendment XII) was passed after the troubled election
of 1800. The Founders did not provide for the development of political parties. Thus, the
Constitution called for each elector to vote for two candidates. The candidate receiving a
majority of the electoral votes would become President. The candidate receiving the
second highest number of electoral votes would become Vice President. Political parties
developed very rapidly, however, and candidates ran as party slates for President and
Vice President.
In 1800, Thomas Jefferson was the Democratic-Republican party’s nominee for
president. Aaron Burr was its nominee for Vice-President. Democratic-Republican
electors voted for the two candidates—and they ended up tied. The election was thrown
into the House of Representatives. There, it took 36 ballots to resolve the issue and elect
Jefferson President. Amendment XII provided that electors would cast separate votes for
President and Vice President, preventing the problem of 1800 from happening again.
How Could the Electoral College Be Changed?
Abolishing the electoral college or making a change that would apply to all states
would require a constitutional amendment. Article V of the Constitution describes how
the Constitution can be amended. There are two ways for amendments to be proposed.
Congress can propose an amendment by a two-thirds vote of both houses. Two-thirds of
the state legislatures can call for a convention to propose amendments. There are also two
ways for amendments to be adopted. One is by a vote of three-fourths of the state
legislatures. The other is by conventions in three-fourths of the states. It is not easy to
pass a constitutional amendment!
Some other reforms could be made at the state level. That would not be easy, either.
All the states would need to act for a reform to be adopted nationally.
Student Handout
Electoral College Background (Version B)
What Does an Elector Actually Do?
In each state, the electors for the candidate who won the popular vote meet on the
Monday following the second Wednesday of December. They meet in their state capital
and cast their electoral votes. One vote is cast for President and one for Vice-President.
At least one of their votes must be for someone from outside their state. This provision
was designed to keep electors from voting for “favorite sons”—candidates from their
home states.
Must Electors Vote for the Candidate
Who Won Their State’s Popular Vote?
The Constitution does not say that electors must vote according to the results of the
popular vote. However, 26 states and the District of Columbia have laws “binding”
electors to vote for the candidate who won the state’s popular vote. Some state political
parties also have rules requiring electors to pledge to support the party’s nominee. The
Supreme Court has held that a party can require such a pledge. The Court has not ruled
on state laws binding electors to vote according to the state’s election results.
Most electors do vote for their state’s winner—more than 99 percent over the course
of U.S. history. However, so-called “faithless” electors do pop up from time to time. In
2000, an elector for the District of Columbia cast a blank ballot, for example. In 1988, a
West Virginia elector voted for the vice-presidential candidate, Lloyd Bentsen, for
President.
What Happens After the Electors Cast Their Votes?
The electoral votes are sealed and sent to the President of the Senate. On January 6,
he opens and reads them before both houses of Congress. A candidate must receive a
majority (one over half) to be declared President. If no one obtains a majority, the U.S.
House of Representatives selects the President from the top three contenders. Each state
gets one vote. A majority is required to elect. The elections of 1800 and 1824 were
decided in the House of Representatives.
If no one receives a majority of electoral votes for Vice-President, the Senate makes
the choice from among the top two contenders for that office.
At noon on January 20, the President and Vice-President are sworn in.
Student Handout
Electoral College Background (Version C)
Where in the Constitution Is the Electoral College Described?
The term electoral college is not used in the Constitution. That term seems to have
come into use in the early 1800s.
Article II, Section 1 of the Constitution does refer to electors. It describes their role
and the process by which they vote and the votes are counted. Amendment XII, ratified
on June 15, 1804, makes changes to the Constitution’s original provisions regarding the
electors.
Who Selects the Electors?
The Constitution says it is up to the state legislatures to decide how electors will be
chosen. The process for selecting electors therefore varies somewhat from state to state.
However, the political parties usually pick the electors. They may be selected at a state
convention, or the party leaders may pick them. Being picked as an elector is often a
“thank you” for working hard for the party. Third-party or independent candidates
usually select their electors themselves.
In the nation’s early years, state legislatures picked the electors themselves. In some
states, they picked electors without having a popular vote for president. South Carolina
was the last state to do this. No state has done it since the Civil War.
In every state, there is a slate of electors for each candidate appearing on the ballot.
When citizens vote, they are actually choosing which electors will get to cast their votes
in the electoral college. In the past, the electors’ names appeared on the ballot below the
names of the candidates. In most states today, a short ballot is used. On the short ballot,
the electors’ names do not appear at all. In some states, the ballot may say “Electors for”
near the names of the presidential candidates. In other states, the electors are not
mentioned.
Who Can Be an Elector?
Article II, Section 1, Clause 2 of the Constitution says that the following people
cannot serve as electors: U.S. Senators, U.S. Representatives, or any “person holding an
Office of Trust or Profit under the United States.” The Fourteenth Amendment says that
State officials who have engaged in insurrection or rebellion against the United States or
given aid and comfort to its enemies cannot serve as electors. This provision was
designed to keep Confederate officials from serving as electors after the Civil War.
Student Handout
Electoral College Background (Version D)
How Many Electoral Votes Does Each State Have?
Each state and the District of Columbia gets one electoral vote for each of its U.S.
Senators and Representatives. For example, Illinois has 21 electoral votes (19
representatives + 2 Senators). Since every state has 2 Senators no matter how many
people it has, the smaller states have more electoral votes per person in the state than the
larger states do. For example, California, the largest state in terms of population, has 54
electors, each of whom represents 615,848 people. Wyoming, which is the smallest state
in terms of population, has 3 electors, each of whom represents only 164,594 people.
The number of electoral votes can change after the census, or count of people,
which is taken in years ending with 0. After the census, the 435 members of the House of
Representatives are reapportioned among the states. If a state has gained population, it
may gain representatives. If a state has lost population, it may lose representatives. As a
state loses or gains representatives, it loses or gains electoral votes. For example, Illinois
lost two representatives following the 1990 census and lost another after the 2000 census.
How Are the Electoral Votes for a State Awarded?
In 48 states and the District of Columbia, electoral votes are awarded on a winnertake-all basis. The person who gets the most votes in the state wins all of the state’s
electoral votes.
Maine and Nebraska award their votes differently. The candidate who gets the
most votes in each U.S. House of Representatives district wins the electoral vote for that
district. The remaining two electoral votes go to the overall state winner. In practice, the
electoral votes of these states have not been split—the candidate who won the state won
in every district.
How Can a Candidate Lose the Popular Vote
but Win the Electoral Vote?
Because almost all states award their electoral votes using a winner-take-all
method, a candidate can lose the popular vote but win the electoral vote. This happened
in 1876, 1888, and 2000. To understand how this happened, let’s look more closely at
the 2000 election results. Al Gore, the Democratic candidate, won only 20 states, but had
large margins of victory in some of these states. However, those “extra” popular votes did
Gore no good in terms of the electoral college. George Bush won 30 states, including
many smaller states, which have more electoral votes per person than larger states. In the
end, those small-state electoral votes—along with such large states as Texas and
Florida—put Bush over the “top.”
If this is confusing, think about it in these simplified terms. Imagine Gore won 20
states by an average margin of 200 votes each. Bush won 30 states by an average margin
of 100 votes each. In the popular vote, Gore would be ahead by 1000 votes—but Bush
would still win with the electoral votes of the 30 states he carried.
Student Handout
Election Data (Version A)
1992
Major Presidential Candidates: William Jefferson Clinton,
George Herbert Walker Bush, and vs. H. Ross Perot
STATE
CLINTON
POPULAR VOTE
BUSH POPULAR
VOTE
PEROT POPULAR
VOTE
ELECTORAL VOTES
Alabama
690,080 (40.9%)
804,283 (47.6%)
183,109 (10.8%)
9
Alaska
690,080 (40.9%)
804,283 (47.6%)
183,109 (10.8%)
3
Arizona
543,050 (36.5%)
572,086 (38.5%)
353,741 23.8%)
8
Arkansas
505,823 (53.2%)
337,324 (35.5%)
99,132 (10.4%)
6
California
5,121,325 (46.0%)
3,630,574 (32.6%)
2,296,006 (20.6%)
54
Colorado
629,681 (40.1%)
562,850 (35.9%)
336,010 (23.3%)
8
Connecticut
682,318 (42.2%)
578,313 (35.8%)
348,771(21.6%)
8
Delaware
126,054 (43.5%)
102,313 (35.3%)
59,213 (20.4%)
3
Dist. Of Columbia
192,619 (84.6%)
20,619 (9.1%)
9,681 (4.3%)
3
Florida
2,072,698 (39.0%)
2,173,310 (40.9%)
1,053,067 (19.8%)
25
Georgia
1,008,966 (43.5%)
995,252 (42.9%)
309,657 (13.3%)
13
Hawaii
179,310 (48.1%)
136,822 (36.7%)
53,003 (14.2%)
4
Idaho
137,013 (28.4%)
202,645 (42.0%)
130,395 (27.0%)
4
Illinois
2,453,350 (48.6%)
1,734,096 (34.3%)
840,515 (16.6%)
22
Indiana
848,420 (36.8%)
989,375 (42.9%)
455,934 (19.8%)
12
Iowa
586,353 (43.3%)
504,891 (37.3%)
253,468 (18.7%)
7
Kansas
390,434 (33.7%)
449,951 (38.9%)
312,358 (27.0%)
6
Kentucky
665,104 (44.6%)
617,178 (41.3%)
203,944 (13.7%)
8
Louisiana
815,971 (45.6%)
733,386 (41.0%)
211,478 (11.8%)
9
Maine
263,420 (38.8%)
206,504 (30.4%)
206,820 (30.4%)
4
Maryland
988,571 (49.8%)
707,094 (35.6%)
281,414 (14.2%)
10
Massachusetts
1,318,639 (47.5%)
805,039 (29.0%)
630,731 (22.7%)
12
Michigan
1,871,182 (43.8%)
1,554,940 (36.4%)
824,813 (19.3%)
18
Minnesota
1,020,997 (43.5%)
747,841 (31.9%)
562,506 (24.0%)
10
Mississippi
400,258 (40.8%)
487,793 (49.7%)
85,626 (8.7%)
7
Missouri
1,053,873 (44.1%)
811,159 (33.9%)
518,741 (21.7%)
11
Montana
154,507 (37.6%)
144,207 (35.1%)
107,225 (26.1%)
3
Nebraska
216,864 (29.4%)
343,678 (46.6%)
174,104 (23.6%)
5
Nevada
189,148 (37.4%)
175,828 (34.7%)
132,580 (26.2%)
4
New Hampshire
209,040 (38.9%)
202,484 (37.7%)
121,337 (22.6%)
4
New Jersey
1,436,206 (43.0%)
1,356,865 (40.6%)
521,829 (15.6%)
15
New Mexico
261,617 (45.9%)
212,824 (37.3%)
91,895 (16.1%)
5
New York
3,346,894 (47.3%)
2,041,690 (28.8%)
1,090,721 (15.4%)
33
N. Carolina
1,114,042 (42.7%)
1,134,664 (43.4%)
357,864 (13.7%)
14
N. Dakota
99,168 (32.2%)
136,244 (44.2%)
71,084 (23.1%)
3
1,984,942 (40.2%)
1,894,310 (38.3%)
1,036,426 (21.0%)
21
Oklahoma
473,066 (34.0%)
592,929 (42.6%)
319,878 (23.0%)
8
Oregon
621,314 (42.5%)
475,757 (32.5%)
354,091 (24.2%)
7
Pennsylvania
2,239,164 (45.1%)
1,791,841 (36.1%)
902,667 (18.2%)
23
Rhode Island
213,299 (47.0%)
131,601 (29.0%)
105,045 (23.2%)
4
S. Carolina
525,514 (42.8%)
577,507 (47.0%)
119,257 (9.7%)
8
S. Dakota
124,888 (37.1%)
136,718 (40.7%)
73,295 (21.8%)
3
Tennessee
933,521 (47.1%)
841,300 (42.4%)
199,968 (10.1%)
11
Texas
2,281,815 (37.1%)
2,496,071 (40.6%)
1,354,781 (22.0%)
32
Utah
183,429 (24.7%)
322,632 (43.4%)
203,400 (27.3%)
5
Vermont
133,592 (46.1%)
88,122 (30.4%)
65,991 (22.8%)
3
Virginia
1,038,650 (40.6%)
1,150,517 (45.0%)
348,639 (13.6%)
13
Washington
993,037 (43.4%)
731,234 (32.0%)
541,780 (23.7%)
11
West Virginia
331,001 (48.4%)
241,974 (35.4%)
108,829 (15.9%)
5
Wisconsin
1,041,066 (41.1%)
930,855 (36.8%)
544,479 (21.5%)
11
Wyoming
68,160 (34.1%)
79,347 (39.7%)
51,263 (25.6%)
3
44,909,326
(43.0%)
39,103,882 (37.4%)
19,741,657 (18.9%)
.
Ohio
TOTALS
(43.0%)
ELECTORAL
VOTES
370
168
0
Other candidates received .6 percent of the vote and no electoral votes.
Student Handout
Election Data (Version B)
1996
Major Presidential Candidates:
William Jefferson Clinton, Robert Dole, and H. Ross Perot
CLINTON
POPULAR VOTE
DOLE POPULAR
VOTE
PEROT POPULAR
VOTE
Alabama
662,165 (43%)
769,044 (50%)
92,149 (6%)
9
Alaska
80,380 (33%)
122,746 (51%)
26,333 (11%)
3
Arizona
653,288 (46%)
622,073 (44%)
112,072 (8%)
8
Arkansas
475,171(54%)
325,416 (37%)
69,884 (8%)
6
California
5,119,835 (51%)
3,828,380(38%)
697,847 (7%)
54
Colorado
671,152 (44%)
691,848 (46%)
99,629 (7%)
8
Connecticut
735,740 (52%)
483,109 (35%)
139,523 (10%)
8
Delaware
140,355 (52%)
99,062 (37%)
28,719 (11%)
3
D.C.
158,220 (86%)
17,339 (9%)
3,611 (2%)
3
Florida
2,546,870 (48%)
2,244,536 (42%)
483,870 (9%)
25
Georgia
1,053,849 (46%)
1,080,843 (47%)
146,337 (6%)
13
Hawaii
205,012 (57%)
113,943 (32%)
27,358 (7%)
4
Idaho
165,443 (34%)
256,595 (52%)
62,518 (13%)
4
Illinois
2,341,744 (54%)
1,587,021 (37%)
346,408 (8%)
22
Indiana
887,424 (42%)
1,006,693 (47%)
224,299 (10%)
12
Iowa
620,258 (50%)
492,644 (40%)
105,159 (8%)
7
Kansas
387,659 (36%)
583,245 (54%)
92,639 (9%)
6
Kentucky
636,614 (46%)
623,283 (45%)
120,396 (9%)
8
Louisiana
927,837 (52%)
712,586 (40%)
123,293 (7%)
9
Maine
312,788 (52%)
186,378 (31%)
85,970 (14%)
4
Maryland
966,207 (54%)
681,530 (38%)
115,812 (6%)
10
Massachusetts
1,571,763 (61%)
718,107 (28%)
227,217 (9%)
12
Michigan
1,989,653 (52%)
1,481,212 (38%)
336,670 (9%)
18
STATE
ELECTORAL VOTES
Minnesota
1,120,438 (51%)
766,476 (35%)
257,704 (12%)
10
Mississippi
394,022 (44%)
439,838 (49%)
52,222 (6%)
7
Missouri
1,025,935 (47%)
890,016 (41%)
217,188 (10%)
11
Montana
167,922 (41%)
179,652 (44%)
55,229 (13%)
3
Nebraska
236,761 (35%)
363,467 (54%)
71,278 (10%)
5
Nevada
203,974 (44%)
199,244 (43%)
43,986 (9%)
4
New
Hampshire
246,214 (49%)
196,532 (39%)
48,390 (10%)
4
New Jersey
1,652,329 (54%)
1,103,078 (36%)
262,134 (8%)
15
New Mexico
273,495 (49%)
232,751 (42%)
32,257 (6%)
5
New York
3,756,177 (59%)
1,933,492 (31%)
503,458 (8%)
33
North Carolina
1,107,849 (44%)
1,225,938 (49%)
168,059 (7%)
14
North Dakota
106,905 (40%)
125,050 (47%)
32,515 (12%)
3
2,148,222 (47%)
1,859,883 (40%)
483,207 (11%)
21
Oklahoma
488,105 (40%)
582,315 (48%)
130,788 (11%)
8
Oregon
649,641 (47%)
538,152 (39%)
121,221 (9%)
7
Pennsylvania
2,215,819 (49%)
1,801,169 (40%)
430,984 (10%)
23
Rhode Island
233,050 (60%)
104,683 (27%)
43,723 (11%)
4
South Carolina
506,283 (44%)
573,458 (50%)
64,386 (5%)
8
South Dakota
139,333 (43%)
150,543 (46%)
31,250 (10%)
3
Tennessee
909,146 (48%)
863,530 (46%)
105,918 (5%)
11
Texas
2,459,683 (44%)
2,736,167 (49%)
378,537
32
Utah
221,633 (33%)
361,911 (54%)
66,461 (10%)
5
Vermont
137,894 (53%)
80,352 (31%)
31,024 (12%)
3
Virginia
1,091,060 (45%)
1,138,350 (47%)
159,861 (7%)
13
Washington
1,123,323 (50%)
840,712 (37%)
201,003 (9%)
11
327,812 (51%)
233,946 (37%)
71,639 (11%)
5
Wisconsin
1,071,971 (49%)
845,029 (39%)
227,339 (10%)
11
Wyoming
77,934 (37%)
105,388 (50%)
25,928 (12%)
3
TOTALS
47,402,357
(49%)
39,198,755
(41%)
8,085,402 (8%)
379
159
0
Ohio
West Virginia
ELECTORAL
VOTES
Other candidates received 1.8 percent of the vote and no electoral votes.
Student Handout
Election Data (Version C)
2000
Major Presidential Candidates:
George W. Bush, Albert Gore, and Ralph Nader
STATE
BUSH POPULAR VOTE
GORE POPULAR VOTE
NADER
POPULAR VOTE ELECTORAL VOTES
Alabama
941,173 (56%)
692,611(42%)
18,323
(1%)
9
Alaska
167,398 (59%)
79,004 (28%)
28,747
(10%)
3
Arizona
781,652 (51%)
685,341 (45%)
45,645
(3%)
8
Arkansas
472,940 (51%)
422,768 (46%)
13,421
(1%)
6
California
4,567,429 (42%)
5,861,203 (53%)
418,707
(4%)
54
Colorado
883,748 (51%)
738,227 (42%)
91,434
(5%)
8
Connecticut
561,104 (38%)
816,659 (56%)
64,452
(4%)
8
Delaware
137,288 (42%)
180,068 (55%)
8,307
(3%)
3
18,073 (9%)
171,923 (85%)
10,576
(5%)
2*
Florida
2,912,790 (49%)
2,912,253 (49%)
97,488
(2%)
25
Georgia
1,419,720 (55%)
1,116,230 (43%)
13,432
(1%)**
13
Hawaii
137,845 (37%)
205,286 (56%)
21,623
(6%)
4
Idaho
336,937 (67%)
138,637 (28%)
12,292
(2%)
4
Illinois
2,019,421 (43%)
2,589,026 (55%)
103,759
(2%)
22
Indiana
1,245,836 (57%)
901,980 (41%)
18,531
(1%)**
12
Iowa
634,373 (48%)
638,517 (49%)
29,374
(2%)
7
Kansas
622,332 (58%)
399,276 (37%)
36,086
(3%)
6
DC
Kentucky
872,520 (57%)
638,923 (41%)
14,356
(2%)
8
Louisiana
927,871 (53%)
792,344 (45%)
20,473
(1%)
9
Maine
286,616 (44%)
319,951 (49%)
37,127
(6%)
4
Maryland
813,724 (40%)
1,143,888 (56%)
53,763
(3%)
10
Massachusetts
878,502 (33%)
1,616,487 (60%)
173,564
(6%)
12
Michigan
1,953,139 (46%)
2,170,418 (51%)
84,165
(2%)
18
Minnesota
1,109,659 (46%)
1,168,266 (48%)
126,696
(5%)
10
Mississippi
572,844 (58%)
404,614 (41%)
8,122
(1%)
7
Missouri
1,189,924 (50%)
1,111,138 (47%)
38,515
(2%)
11
Montana
240,178 (58%)
137,126 (33%)
24,437
(6%)
3
Nebraska
433,850 (62%)
231,776 (33%)
24,670
(4%)
5
Nevada
301,575 (50%)
279,978 (46%)
15,008
(2%)
4
New
Hampshire
273,559 (48%)
266,348 (47%)
22,188
(4%)
4
New Jersey
1,284,173 (40%)
1,788,850 (56%)
94,554
(3%)
15
New Mexico
286,417 (48%)
286,783 (48%)
21,251
(4%)
5
New York
2,403,374 (35%)
4,107,697 (60%)
244,030
(4%)
33
North Carolina
1,631,163 (56%)
1,257,692 (43%)
—
14
North Dakota
174,852 (61%)
95,284 (33%)
9,486
(3%)
3
2,350,363 (50%)
2,183,628 (46%)
117,799
(3%)
21
Oklahoma
744,337 (60%)
474,276 (38%)
—
8
Oregon
713,577 (47%)
720,342 (47%)
77,357
(5%)
7
Pennsylvania
2,281,127 (46%)
2,485,967 (51%)
103,392
(2%)
23
Rhode Island
130,555 (32%)
249,508 (61%)
25,052
(6%)
4
Ohio
South Carolina
786,892 (57%)
566,037 (41%)
20,279
(1%)
8
South Dakota
190,700 (60%)
118,804 (38%)
—
3
Tennessee
1,061,949 (51%)
981,720 (47%)
19,781
(1%)
11
Texas
3,799,639 (59%)
2,433,746 (38%)
137,994
(2%)
32
Utah
515,096 (67%)
203,053 (26%)
35,850
(5%)
5
Vermont
119,775 (41%)
149,022 (51%)
20,374
(7%)
3
Virginia
1,437,490 (52%)
1,217,290 (44%)
59,398
(2%)
13
Washington
1,108,864 (45%)
1,247,652 (50%)
103,002
(4%)
11
336,473 (52%)
295,497 (46%)
10,680
(2%)
5
Wisconsin
1,237,279 (48%)
1,242,987 (48%)
94,070
(4%)
11
Wyoming
147,947 (68%)
60,481 (28%)
4,625
(2%)**
3
TOTAL
50,456,062 (47.9%)
50,999,897 (48.4%)
2,882,955
(2.7%)
ELECTORAL
VOTES
271
266
0
West Virginia
*The District of Columbia has 3 electoral votes, but 1 vote was submitted blank.
**Write-in votes.
Other candidates received 1 percent of the vote and received no electoral votes.
Student Handout
Election Data (Version D)
2004
Major Presidential Candidates:
George W. Bush and John Kerry
STATE
BUSH POPULAR VOTE
KERRY POPULAR VOTE
ELECTORAL VOTES
1,176,394 (62%)
693,933 (37%)
9
Alaska
190,889 (61%)
111,025 (36%)
3
Arizona
1,104,294 (55%)
893,524 (44%)
10
Arkansas
572,770 (54%)
468,631 (44%)
6
California
5,509,826 (44%)
6,745,485 (54%)
55
Colorado
1,101,255 (52%)
1,001,732 (47%)
9
Connecticut
693,766 (44%)
857,434 (54%)
7
Delaware
171,660 (46%)
200,152 (53%)
3
21,256 (9%)
202,970 (89%)
3
Florida
3,964,522 (52%)
3,583,544 (47%)
27
Georgia
1,914,254 (58%)
1,366,149 (41%)
15
Hawaii
194,184 (45%)
231,691 (54%)
4
Idaho
409,235 (69%)
181,098 (30%)
4
Illinois
2,346,608 (44%)
2,891,989 (55%)
21
Indiana
1,479,438 (60%)
969,011 (39%)
11
Iowa
751,957 (50%)
741,898 (49%)
7
Kansas
736,456 (62%)
434,993 (37%)
6
Kentucky
1,069,439 (60%)
712,733 (40%)
8
Louisiana
1,102,169 (57%)
820,299 (42%)
9
330,201 (45%)
396,842 (54%)
4
Maryland
1,024,703 (43%)
1,334,493 (56%)
10
Massachusetts
1,071,109 (37%)
1,803,800 (62%)
12
Michigan
2,313,746 (48%)
2,479,178 (51%)
17
Minnesota
1,346,695 (48%)
1,445,014 (51%)
9*
Mississippi
684,981 (59%)
458,094 (40%)
6
Missouri
2,313,746 (48%)
2,479,178 (51%)
11
Montana
266,053 (59%)
173,710 (39%)
3
Nebraska
512,814 (66%)
254,328 (33%)
5
Alabama
DC
Maine
Nevada
418,690 (51%)
397,190 (48%)
5
New Hampshire
331,237 (49%)
340,511 (50%)
4
New Jersey
1,668,003 (46%)
1,911,430 (53%)
15
New Mexico
376,930 (50%)
370,942 (49%)
5
New York
2,952,567 (40%)
4,314,280 (58%)
31
North Carolina
1,961,166 (56%)
1,525,849 (44%)
15
North Dakota
196,651 (63%)
111,052 (35%)
3
2,859,764 (51%)
2,741,165 (49%)
20
Oklahoma
959,792 (66%)
503,966 (34%)
7
Oregon
866,831 (47%)
943,163 (52%)
7
Pennsylvania
2,793,847 (48%)
2,938,095 (51%)
21
Rhode Island
169,046 (39%)
259,760 (59%)
4
South Carolina
937,974 (58%)
661,699 (41%)
8
South Dakota
232,584 (60%)
149,244 (38%)
3
Tennessee
1,384,375 (57%)
1,036,477 (43%)
11
Texas
4,526,917 (61%)
2,832,704 (38%)
34
Utah
663,742 (73%)
241,199 (26%)
5
Vermont
121,180 (39%)
184,067 (59%)
3
Virginia
1,716,959 (54%)
1,454,742 (46%)
13
Washington
1,304,894 (46%)
1,510,201 (53%)
11
423,778 (56%)
326,541 (43%)
5
Wisconsin
1,478,120 (49%)
1,489,504 (50%)
10
Wyoming
167,629 (69%)
70,776 (29%)
3
TOTAL
62,039,073 (50.7%)
59,027,478 (48.3%)
ELECTORAL VOTES
286
251
Ohio
West Virginia
*Minnesota has 10 electoral votes, but one was cast for John Edwards, the Democratic
vice-presidential candidate.
Other candidates, including Ralph Nader (Independent) and Michael Badnarik
(Libertarian Party), received approximately 1 percent of the vote and no electoral votes.
Name _____________________________
Handout
Student
Analyzing Election Data
Work with a partner in your group to complete steps 1-7.
1. You have probably heard politicians or journalists talking about red and blue states.
This refers to the maps used on election night to show which candidate won each
state. Using the map attached, create a map of red and blue states for your election.
Use blue to show states won by the Democratic candidate. Use red to show states won
by the Republican candidate. You may also want to mark the number of electoral
votes won in each state on the map using a black marker.
2. Look at your completed map to get a general picture of the results of your election.
Write a sentence that gives your general impression of the election. An example is:
“Candidate X won the election of ____ by a landslide.”
3. Next, find the percentage of the popular vote won by each candidate. In the circle on
the left, use these percentages to create a pie chart of the popular vote.
Now create a pie chart showing the percentage of the electoral vote won by each
candidate. Use the circle on the right for this chart.
4. Compare the two graphs and the map. Which do you think presents the most accurate
picture of how close the election was? Why? How might thinking about red and blue
states affect the way we think about elections? Who is left out when we represent the
election results on a map? Are those people better represented in the pie charts?
5. One of the arguments for the electoral college is that it requires a candidate to have
support from all across the country. Did the winning candidate in your election have
support from across the country? Draw a line across the center of your map
horizontally. Draw another line across the center of your map vertically. You have
created four large regions of the United States. Could the candidate have won if he
had no support in any one of these regions? Could a candidate win without support
from all regions if the election was decided by the popular vote?
6. Look carefully at the numbers for some of the smaller states (remember that smaller
means fewer people). Some examples of smaller states are Alaska, Delaware, District
of Columbia, North Dakota, South Dakota, Vermont, and Wyoming. Look carefully
at the numbers for some of the states with lots of people. Some examples of larger
states are California, Texas, New York, Florida, Pennsylvania, Ohio, and Illinois.
Can you think of any way to use these numbers and your map to show the power of
large or small states in the electoral college system?
7. Is there anything that surprises you about the data for your election? Do you have
questions about the data?
For the next part of the analysis, work with students who specialized in the other election
years. Display the maps for the four election years in a row, from 1992 to 2004.
8. Compare the four maps. What differences do you notice? What similarities do you
notice?
9. Are there any states that voted for the same party’s candidate in all four elections?
Do you think the candidates in future elections will pay much attention to these
states? Why or why not?
10. Is your state solidly in one party’s camp, or is it a swing state, one that votes
Republican in some elections and Democratic in others? Do you think your state has
more power with the electoral college system than it would if the president were
elected by popular vote? Why or why not?
Student Handout
Should We Replace the Electoral College?
Imagine that you have been appointed to a presidential commission. The commission
is to make recommendations on the future of the electoral college. Should we keep the
electoral college, get rid of it entirely, or change it in some way?
****
In your group, read and discuss these arguments for and against the electoral college.
Arguments Against the Electoral College: The electoral college allows a
president to be elected who does not win the popular vote. This has happened three times
since the Civil War—1876, 1888, and 2000. Second, deadlocks can happen. A third-party
candidate or a close election could prevent any candidate from getting a majority of the
votes in the electoral college. The House of Representatives then decides who will be
president. This happened in 1800 and 1824. One study has shown that it has almost
happened 22 times!
Third, because each state gets at least three electoral votes no matter how few people
live there, voters in small states have more power than those in large states. This is a
violation of the “one person, one vote” principle. Fourth, states get their assigned
electoral votes no matter how many people vote. States with the same number of electoral
votes may have very different turnouts on election day. Fifth, the electoral college may
hold down voter turnout. If opinion polls show one candidate far ahead in a state, voters
in that state may decide not to vote. In fact, candidates often don’t campaign in states
where they are leading or trailing by a lot.
Arguments for the Electoral College: First, the electoral college represents
our federal system, with its emphasis on the states and their representatives. Second, the
electoral college is not archaic and undemocratic. We have two senators from every state
regardless of the state’s population. We don’t consider that archaic or undemocratic.
Third, the electoral college allows every state to have a voice, including the small states.
These states might be overlooked if the election was decided by the results of the popular
vote.
Fourth, the electoral college prevents sectionalism by requiring a winning candidate
to have support from throughout the country. Fifth, it has contributed to political stability
by promoting the two-party system. That system encourages the major parties to
represent a wide range of interests. Finally, the electoral college may strengthen the
power of organized interest groups, such as women voters or minority voters. These
groups can play a powerful role in deciding the outcome of close elections.
****
Next, read and discuss the options listed below. Most of these options will require a
constitutional amendment. Some could be achieved through state action.
Option 1: Keep the Electoral College. Keeping the electoral college means
retaining the winner-take-all format used in most states. This option would require no
action.
Option 2: Popular Vote. This option would involve abolishing the electoral
college. The election would be decided by who received the most votes of the people.
Variations of this option would require a candidate to receive 40 percent of the vote to
win or a majority (one more than half) of the popular vote. If no one met the established
standard, there would be a run-off election between the top two candidates. To be fully
implemented, this option would require a constitutional amendment. However, some
states are considering new laws committing their state’s electors to whichever candidate
won the popular vote at the national level. If enough states passed such laws, it would in
effect mean whoever won the popular vote would win the election.
Option 3: Majority Popular Vote with Instant Run-off. This option is a
variation of the majority popular vote that would provide quick results and not require a
second election. When people vote, they would rank order the candidates instead of
voting for just one. If no one received a majority, the candidate with the lowest number of
votes would be eliminated. The votes of people who chose that candidate would be recast
for their second-ranked candidate. The process would be repeated until a candidate
reached a majority. This option would require a constitutional amendment.
Option 4: District Electoral Vote. Each state gets electoral votes based on its
number of congressional representatives plus its two U.S. senators. In this option, if a
candidate wins in a congressional district, the candidate wins the electoral vote for that
district. The overall winner in the state gets two additional electoral votes (those
representing the two Senate seats). This option can be adopted by the states. However, if
all states were required to use it, a constitutional amendment would probably be needed.
Option 5: Proportional Electoral Vote. In this method, each state’s electoral
votes would be allotted according to the percentage of popular votes received. Thus, if
candidate A receives 60 percent of the vote, he/she receives 60 percent of the state’s
electoral votes. Coloradans voted on this option in 2004 but rejected it. This option can
be adopted by the states. However, if all states were required to use it, a constitutional
amendment would probably be needed.
****
As a group, choose one of the options described above. Be prepared to report on the
reasons for your decision.
CLASSROOM LAW PROJECT
Empowering Democracy
Youth Summit 2008
Backgrounder
Lesson: Ensuring Access to the Ballot Box
Voting Rights in the United States
By Elizabeth M. Yang and Kristi Gaines
This article was written for the September 2008 issue of Social Education magazine, the journal of
the National Council for the Social Studies. Find at: www.abanet.org/vote/2008/VotingRightsArticle.pdf.
The corresponding lesson follows here and may be found at: www.abanet.org/vote/2008/VoterID.pdf.
The process of voting is a fundamental right and privilege of any democracy. In fact,
Merriam-Webster defines the word democracy as “a government in which the supreme
power is vested in the people and exercised by them directly or indirectly through a system
of representation usually involving periodically held free elections.” The history of voting
rights in the United States has been a long and evolving process that continues to this day.
Many people would probably be amazed to know that the Constitution, as written by the
founders of our nation in 1787, only allowed the states to bestow the right to vote on white
males, over the age of 21, who either owned property or paid poll taxes. [1] The franchise
of voting was gradually expanded over the course of nearly the next 200 years, through
amendments to the Constitution and by enactment of federal legislation.
The prospect of voting rights today is certainly brighter and more inclusive than it was at the
founding of our nation. There is, however, a need for continued vigilance and study as
changes in our society and technology affect our electoral process. Modern times require a
look at issues that were not contemplated by our founding fathers or perhaps even by the
authors of major twentieth-century voting rights legislation, including the Civil Rights Act
and the Voting Rights Act. A closer look at some current issues related to voting rights—
voter identification laws, felon disenfranchisement, and “English only” laws—suggests how
voting rights can be adversely affected by the most seemingly ordinary requirements.
Voter Identification Laws
On its face, the concept of presenting voter identification at the polls is not a bad one. It
serves to confirm the identity of the voter and can provide proof of residency, which is often
a requirement of voting. So, one might ask, what is the harm? Everyone has a driver’s
license, right? Actually, the simple answer is no. Not everyone has a form of governmentissued identification. The answer becomes even more complicated when a breakdown of
individuals without identification, or the means to obtain it, is revealed to be generally
comprised of the elderly, minorities, the poor, and the homeless.
This tension between the legitimate government interest to prevent voter fraud and the
need to protect the more vulnerable portions of our population is being played out in
Congress and in our courts today. To date, although there have been attempts to federally
legislate a government-issued photo identification as a requirement to voting in federal
elections, the only requirement that has passed is a part of the Help America Vote Act of
2002 (“HAVA”). HAVA requires first time voters who register by mail without providing a
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form of identification to present some form of identification upon arriving at the polls to vote.
[2]
Several states have gone beyond HAVA and require that some form of identification be
presented at the polls by all voters. The requirement for the type of identification varies.
Indiana is one of the most restrictive, requiring government-issued photo identification for
all voters, and has been the subject of several lawsuits challenging the law. The state of
Virginia, on the other hand, will accept a Virginia voter registration card or driver’s license,
employer-issued photo identification card, any identification issued by the government or
military, or a social security card. In the instance where such identification is not available,
the voter may sign an affidavit affirming identity.
On April 28, 2008, in the case of Crawford v. Marion County Election Board, the Supreme
Court upheld the validity of Indiana’s voter identification requirement, determining that, “on
the basis of the record that has been made in this litigation, we cannot conclude that the
statute imposes ‘excessively burdensome requirements’ on any class of voters.”[3] The
petitioners in Crawford sought to have the entire law invalidated as unconstitutional, instead
of portions of the law. In order to prevail, they thus had to meet an extremely high burden of
proof that there was an undue burden on specific segments of the population that would
prevent them from voting. The Court’s decision was based on the fact that Indiana’s
Bureau of Motor Vehicles provides photo identification cards free of charge, and that the
petitioners did not actually prove that individuals were unable to vote as a result of the
identification requirement. Specifically, the Court noted that, “the record does not provide
us with the number of registered voters without photo identification,” and that the evidence
“does not provide any concrete evidence of the burden imposed on voters who currently
lack photo identification.”[4]
While this opinion would appear to have the last word on the constitutionality of requiring a
government-issued photo identification card to vote, the rationale for the opinion suggests
that this debate is actually far from over. The decision in Crawford was based on the
determination by the lower courts and the Supreme Court held that the evidence presented
did not conclusively prove that someone could not vote as a result of the law. This issue
will likely be revisited when a plaintiff can show that a government-issued photo
identification requirement had the actual effect of violating an individual’s right to vote. A
future court will then have to balance the burden of requiring the identification against the
state’s interest in preventing voter fraud.
Felon Disenfranchisement
There are a number of constitutional and federal statutory provisions that ensure the
fundamental right to vote in our country. Does this mean that an American citizen’s right to
vote can never be suspended or terminated? The answer is no. Many are surprised to
learn that American citizens can temporarily or permanently lose their right to vote after
being convicted of certain crimes, depending on the state in which they reside. In fact,
today an estimated 5.3 million Americans have lost their right to vote under these felon
disenfranchisement laws. [5]
The Constitution provides that states are responsible for determining who is eligible to vote,
but that states can not deny the voting rights of otherwise eligible citizens, “except for
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participation in rebellion, or other crime.”[6] The Supreme Court in 1974 affirmed that states
could prohibit citizens who had been convicted of a felony from voting. [7] Since that time,
48 states have enacted laws disenfranchising convicted felons. [8] Maine and Vermont are
the only two states that permit incarcerated felons to vote. Each of the remaining fortyeight state laws is different. While all prohibit voting while an individual is incarcerated,
some continue the restrictions while a person is on parole, and some extend the prohibition
to those on probation as well.
Similarly, states’ laws differ on whether and how a convicted felon’s voting rights may be
restored following the completion of their sentence. While many states provide for some
form of automatic restoration of voting rights for ex- offenders, others do not. Even in those
states where there is an opportunity for restoration, the process involved may be so
cumbersome and complex as to realistically prevent many ex-felons from pursuing it. In
Mississippi, for example, an ex-offender must get an individual bill passed by the state
legislature and signed by the governor. Currently, an estimated 2.1 million of those
disenfranchised nationwide have actually completed their sentences, but have not had their
right to vote restored. [9]
There continues to be debate about and challenges to several aspects of the felon
disenfranchisement laws, particularly on the grounds of racial discrimination. States can
not enact felony disenfranchisement laws that intentionally discriminate on the basis of race
or gender. [10] However, statistics show that felon disenfranchisement laws do have a
disproportionate impact on minorities. Over 1.4 million or 13% of all African American men
have been disenfranchised based on felony convictions, which is seven times the national
average. [11]
In addition, some states’ restoration laws require the individual to pay substantial fees or
require that the individual pay all legal debts to the state, including victim restitution, costs
of incarceration, and court fees, before they are eligible to pursue restoration. Many exfelons who have completed their sentences and met all other requirements needed to
restore their voting rights may not have the financial resources to meet this requirement for
many years, or in some cases, ever. Therefore, some have argued these laws constitute a
modern-day equivalent to an unconstitutional poll tax.
Felony disenfranchisement laws can also affect the voting rights of American citizens who
have never been convicted of a crime. There have been many reported instances where,
in an attempt to purge voter registration rolls of individuals who have been convicted of a
felony and are therefore no longer eligible to vote, a state has inadvertently removed
individuals with the same (or similar) name as a convicted felon. Some of these individuals
do not find out they have been removed until they arrive at the poll to vote and therefore
may not be able to resolve the issue in time to vote in a particular election.
There is no doubt that legal challenges to felon disenfranchisement laws will continue to be
brought in the courts. However, in recent years many states have begun to change their
laws to make it easier for ex-offenders to seek to restore their right to vote. For example,
the state of Maryland in 2007 repealed all provisions of its lifetime voting ban and put in
place an automatic restoration policy for those who have completed their sentences.
Debate of this issue has been undertaken in Congress as well. In fact, in 2008, several
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members of Congress have indicated their intent to introduce legislation to allow individuals
on parole or probation, or who have otherwise served their sentences, to vote in federal
elections.
English Only Laws
In several areas of law and society there have been efforts to establish or enforce Englishonly language requirements. This is true in certain areas of election law and administration
as well.
In 2007, 660,477 individuals became naturalized U.S. citizens and, if otherwise qualified,
were then eligible to register and vote in federal and state elections. [12] U.S. law requires
that each applicant for naturalization demonstrate that they can read, write and speak
words in ordinary usage in the English language. However, certain individuals are exempt
from this requirement. In addition, voting instructions can be written in confusing language
and concepts such as provisional ballots and the mechanics of various voting methods can
be complex. Basic English skills may not be sufficient for an individual to fully understand
the rights and requirements of voting.
In 1975, recognizing that language barriers should not prevent otherwise eligible Americans
from exercising their voting rights, Congress amended the Voting Rights Act to include
certain language provisions. In political subdivisions where at least five percent of the
population or more than 10,000 voting age citizens belong to a single language minority
group and have limited English language proficiency, information related to the electoral
process must be provided in the applicable minority language. Today, nearly 500
jurisdictions in 31 states are required to provide election materials and information in more
than one language and five states must provide such assistance state-wide. [13]
The language minority provision of the Voting Rights Act did not receive unanimous support
at the time it was enacted, and even today there are opponents of the law who believe that
electoral materials should be provided only in English.
Proponents of bilingual ballots insist that the minority language requirements are necessary
to ensure that many Americans are able to fully and fairly exercise their right to vote and
that such requirements do not impose a significant burden on the states. Moreover, they
claim that providing bilingual ballots assists in preventing election fraud by unscrupulous
individuals who might give inaccurate information to those individuals who do not fully
comprehend the necessary information in English. Opponents of bilingual ballots say that
having to print multiple ballots is costly for the state or locality and that enabling nonEnglish speakers to use bilingual ballots may prevent their full assimilation into American
society. Further, they argue that English is the language of the United States and that an
individual who cannot understand English cannot responsibly participate in political debate
or the electoral process.
Many states and localities, although not required by language minority provisions of the
Voting Rights Act, voluntarily offer election materials and information in languages other
than English. However, some of these state actions have undergone legal challenges.
Most recently, the state of Iowa had offered information and voter registration forms in a
select number of foreign languages on the secretary of state’s website. This action was
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found to violate an Iowa law passed in 2002 that requires all official governmental
communication to be made in English.
Attempts to implement English-only provisions in election law have been made on the
federal level as well. Forty-eight members of the U.S. House of Representatives have cosponsored legislation introduced in May of 2008 to require that ballots be provided only in
English. H.R. 5971, the American Elections Act of 2008, includes an exemption for
American Indian and Alaskan Native dialects because, in the words of one sponsor, “they
were here first.”[14] Previous attempts to enact an English-only restriction for election
materials on the federal level have failed. While it is not anticipated that this legislation will
be enacted, many believe that efforts such as this damages the perception of America as a
free and fair democracy and undermines our historical tradition as a nation of immigrants.
The Future of Voting Rights
The act of voting is the crowning achievement of any democracy. In order to ensure the
future of a representative form of government, citizens must be able to cast votes, without
fear of reprisal, for the candidates and issues of their choice. It is important to realize that
the physical act of voting is only one part of the success of democracy. The entire process
of voting—from voter registration to assistance at the polls, to who can vote to how they
vote—is just as important. All aspects of the electoral process must remain open and
accessible to all. The United States has a strong history of voting rights, but we cannot rely
on our past achievements. We must remain vigilant that no one is left behind as we
continue to move forward. As our electoral process evolves, we must make sure that the
important needs and concerns of government and society are balanced very carefully
against the equally important need to protect the ability and right to vote for all eligible
citizens.
Elizabeth M. Yang is the Director of the American Bar Association Standing Committee on
Election Law and Associate Director of the Division for Public Services in Washington,
DC.Kristi Gaines is a Legislative Counsel in the American Bar Association Governmental
Affairs Office in Washington, DC.
The views expressed in this article are those of the authors and have not been approved by
the House of Delegates or the Board of Governors of the American Bar Association and,
accordingly, should not be construed as representing the policy of the American Bar
Association.
NOTES
[1] U.S. CONST. art. I, § 2.
[2] Help America Vote Act of 2002, Pub. L. No. 107-252 (2002).
[3] Crawford v. Marion County Election Board, No. 07-21, slip op. at 18 (U.S. Apr. 28,
2008).
[4] Id. at 17.
[5] THE SENTENCING PROJECT, FACT SHEET ON FELONY DISENFRANCHISEMENT
LAWS
IN THE UNITED STATES (March 2008).
[6] John C. Keeney, Jr., Felon Disenfranchisement, in AMERICA VOTES! 91, 96 (Benjamin
E. Griffith ed.., 2008).
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[7] Richardson v. Ramirez, 418 U.S. 24 (1974).
[8] THE SENTENCING PROJECT, supra note 5.
[9] Id.
[10] See Hunter v. Underwood, 471 U.S. 222 (1985) and Hobson v. Pow, 424 F.Supp.
362 (N.D. Ala. 1977)
[11] THE SENTENCING PROJECT, supra note 5.
[12] Office of Immigration Statistics, Department of Homeland Security, Naturalizations in
the United States: 2007, Annual Flow Report (July 2008).
[13] Editorial, Yes on Bilingual Ballots, WASH. POST, July 10, 2006, at A16.
[14] Steve Tetreault, VOTING RIGHTS ACT: Heller offers English-only bill, LAS VEGAS
REVIEW-J., May 7, 2008 available at http://www.lvrj.com/news/18721214.html.
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Teaching Activity:
Voter Identification and the Right to Vote
This teaching activity was written for publication in the September 2008 issue of Social Education,
the journal of the National Council for the Social Studies.
Earlier this year, the Supreme Court decided Crawford v. Marion County Election Board, a
case that challenged an Indiana law requiring voters to show a state-issued photo
identification when voting in primary and general elections. The Court upheld the Indiana
law by a margin of 6 to 3, but there was no majority opinion in the case. Three justices
signed a plurality written by Justice Stevens and another three joined a concurring opinion
written by Justice Scalia. Justice Souter wrote a dissenting opinion joined by
JusticeGinsburg, and Justice Breyer wrote a second dissenting opinion.
In this activity, students will research the positions that divided the Court’s decision on voter
identification and then debate the constitutionality of scenarios affecting the right to vote.
Estimated Time
2 – 3 class periods.
Background
Students should be aware of the Court’s decision in Harper v. Virginia Board of Elections,
383 U.S. 663 (1966). In that decision, the Supreme Court struck down a Virginia law that
imposed a poll tax of $1.50 on persons voting in Virginia state elections. The Court held
that, because voter qualifications have no relation to wealth, a requirement tied to the
affluence of a voter or payment of a fee violated the Equal Protection Clause of the
Fourteenth Amendment. The Harper decision is cited frequently in the Crawford v. Marion
County Election Board decisions.
Activity
Step One
Share with students the main components of the Indiana voter identification law. Students
can either read the description of the law at the beginning of Justice Stevens’ plurality
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opinion, or you can share the components, listed below, on a handout or on the board. The
components include:
• Voters at primary and general elections are required to show a state-issued photo
identification. No identification is needed for absentee ballots submitted by mail.
Exemptions also apply to persons living in state-licensed facilities such as nursing homes.
• Indigent voters or voters who object to being photographed for religious reasons may cast
a provisional ballot. These ballots will be counted, however, only if the voter files an
affidavit with a county election board or a circuit court clerk within 10 days of the election.
• Persons seeking photo identification for the first time are required to show a birth
certificate, a naturalization certificate, a U.S. veteran photo identification, a U.S. military
photo identification, or a U.S. passport.
• No photo identification is required to register to vote, and the state offers free photo
identifications to qualified voters who can establish their residence and identity.
Ask students for their first impressions of the law. Why might the state require voters to
show photo identification when they vote? Would showing a photo identification as
described in the law pose substantial obstacles to any voters? Would the burdens of
obtaining a photo identification exceed the burdens already involved in registering and
going to vote? Have students keep a record of their first impression of whether the law
seems reasonable.
Step Two
Divide the class into groups of 4 to 6 students. Assign each group to one of the four
opinions filed in the Crawford case (Stevens plurality opinion, Scalia concurring opinion,
Souter dissenting opinion, and Breyer dissenting opinion). Make sure that at least one
group is assigned to each of the four opinions. Ask the groups to read and summarize the
main arguments of their assigned decision. As the groups report their summaries to the
class, check for understanding of these key points from each of the decisions:
Stevens Opinion
• Restrictions are invidious when they are irrelevant to voter qualifications.
• Evenhanded restrictions that protect the integrity of the voting process are judged by
balancing the interests put forward by the state and the burdens imposed by the state’s
rule.
• The state’s interests in this case were legitimate and relevant, while the burdens imposed
in obtaining a free identification were not substantial, or even a significant increase over the
“usual burdens of voting.
• Although the law may have imposed a special burden on some voters, not enough
evidence had been assembled to show the severity of that burden.
Scalia Opinion
• The primary question is whether the challenged law severely burdens the right to vote.
Ordinary and widespread burdens are typically not severe. This law imposed a single
burden – that of presenting an identification – on all voters.
• A generally applicable law that has “disparate impacts” (affects people differently) is not
unconstitutional without proof of discriminatory intent.
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Souter Opinion
• The state should be required to make a particular, fact-based showing that the threats to
its interest in protecting the voting process outweigh the burdens it has imposed on voters.
The majority did not insist enough on this showing of fact by the state; no evidence of inperson voter impersonation had been shown.
• Specific burdens on voters were demonstrated. There were far fewer places to obtain an
identification than there were places to vote. And although identifications were free, the
most common documents to establish the identity of first-time applicants for identification
(birth certificates and passports) were available only upon payment of a fee.
Breyer Opinion
• The restrictions imposed by the state went too far. More moderate models in states such
as Florida (which allowed a wider range of voter identifications) and Georgia (which allowed
a greater range of documentation to establish one’s identity) struck a more appropriate
balance between the state’s interest in protecting the voting process and the burdens
placed on voters.
Step Three
Ask the students to consider whether the arguments made in the opinions in the case
changed their first impressions of the law. Did the law strike an appropriate balance
between the state’s interests and the burdens it placed on voters? Did the requirements
raise legitimate equal protection concerns under the Fourteenth Amendment? For those
students who think that the law should be struck down, would they accept one of the more
moderate laws highlighted in Justice Breyer’s opinion?
Step Four
Conclude the activity by asking students to debate the constitutionality of the following
proposals, based on their understanding of the opinions in Crawford:
• A state requires individuals to show a state-issued photo identification to register to vote.
• A state requires a state-issued photo identification to vote, and requires payment of a $2
fee to help defray its expenses.
• A state enacts a law similar to the Indiana law, but deletes the provisional ballot exception
for indigent voters or voters who object to being photographed.
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Backgrounder
Voting History – Whose Voice Is Heard?
Source: Alexander Keyssar, The Right to Vote: The Contested History
of Democracy in the United States (New York: Basic Books, 2000), 316-24.
Voices in the Past
Voting is a key form of political expression. The results of elections are talked of as the
people's "voice." Today, almost all adult American citizens are legally entitled to vote.
Exceptions include people who have not registered to vote, people under 18 years of age,
and in most states prisoners and convicted felons. (In Oregon, felons who have completed
their sentences regain their right to vote.)
Yet the right to vote has not always been this broad. Early in U.S. history, most voters were
landowning white males from the "respectable" classes. The "working man," women,
certain racial and ethnic minorities, the poor, the illiterate, and various new arrivals to
communities were all barred from voting in various ways, in various historical periods, and
for varying lengths of time.
Right to vote is a term (and a concept) that actually didn't exist in the federal Constitution
until the ratification of the Fourteenth Amendment in 1868. The Amendment's principal
purpose was to make former slaves citizens of the United States and the state where they
lived. The Fifteenth Amendment, ratified in 1870, guaranteed that the federal and state
governments could neither deny nor abridge the right of U.S. citizens to vote on account of
race, color, or previous condition of servitude. Yet the states remained free to set voter
qualifications. Even as more citizens were allowed into the voting booth, politically powerful
interests found ways to prevent those they viewed as less desirable, responsible, or worthy
citizens from exercising the franchise.
Grandfather clauses, poll taxes, literacy tests, and complex registration requirements all are
ways U.S. citizens have been blocked or intimidated from voting. Later Amendments and
laws outlawed many such restrictions. The Nineteenth and Twenty-sixth Amendments,
respectively, gave the vote to women and to citizens ages 18-20. Still, even as late as
1950, ways were found to deny the political rights of groups such as Southern blacks,
Native Americans and Hispanics in the Southwest.
The history of suffrage in the United States holds many elements in common with other
nations, such as the eventual abolition of class-based and tax qualifications. But it has had
unique features, including the early abolition of property requirements and the existence of
slavery and a regionally concentrated, repressed population in the South. Finally, it was
fairly easy for immigrants to become citizens (and potential voters). These factors
influenced the approaches different interest groups took to both expand and restrict those
who were allowed to vote. Today, strategies to "get out the vote" of the working-class and
minorities are part of a continuing struggle to maneuver the political power of these groups
into the camps of vying political parties.
A variety of hindrances to voting still exist. Critics of the last presidential election
complained that some minority voters failed to vote because they were intimidated at
the ballot place. Others argued that the government should have provided educational and
other assistance to poor voters who needed help in registering and voting. Great concern
was raised about whether and how absentee ballots should be counted, as well as about
the possibility that antiquated voting equipment in economically depressed communities
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(that couldn't afford to replace them) prevented voters there from properly casting their
ballots. The mechanisms of voting therefore came under fire as preventing the people's
true voice from being heard.
Powerful Forces Bring Change
What forces have successfully overcome resistance to a broad franchise? These include
social movements such as the campaigns to achieve equal rights for blacks and women.
New, highly visible concentrations in urban areas made groups impossible to ignore that
might otherwise have been overlooked. As the population shifted, calls came to draw up
new voting districts through redistricting to allow the voice of the people to be more
accurately heard. The legality of some of these new districts has been argued all the way to
the Supreme Court, with varying degrees of success.
Attitudes and values shifted with time, and key events brought about unpredictable
changes. The biggest gains in U.S. voting history came during the Revolutionary War, the
Civil War, World Wars I and II, and the first decades of the Cold War. The Viet Nam war
has been credited with getting 18- to 20-year-olds the right to vote, with the argument being
that if these young adults were old enough to go to war, they were old enough to vote.
Yet has the progress toward broad suffrage in the United States been smooth and steady?
The answer is no. Over the history of the United States, suffrage has sometimes tightened,
not expanded, with people even losing political ground, including naturalized Irish
immigrants during the Know-Nothing period (1852-60); blacks in the mid-Atlantic states
before 1860; Southern blacks in 1890; and people on public relief in Maine in the 1930s.
Adopted in 1964, the Twenty-fourth Amendment banned poll taxes in national elections; in
1966, the Supreme Court banned them for state and local elections. The Voting Rights Act
of 1965 created severe penalties for anyone who attempts to deprive others of their voting
rights. With these and other voter protections, the goal of universal suffrage, and the
climate necessary for it to exist, has come within closer reach.
Who's Talking Now?
An unhappy part of the American voting story is that the electoral turnout in the United
States is markedly lower that in most other nations. Some say that nonvoting is itself a
statement—an expression of satisfaction and contentment. Yet studies have shown that
those who are least likely to be satisfied, and those who are most likely to need the
government's help, are also those who are least likely to vote. Further, the nonvoter is
largely ignored by the two major political parties, who spend most of their time and
resources reaching out to those who do vote.
At the same time, the more affluent citizens are, the more likely they are to participate in
civic life and the electoral process, whether vying for political office, being an active
member of a political party, campaigning, or volunteering on election day. These voices are
heard most, as are the voices of well-organized groups and the well-funded lobbyists who
often represent their interests.
History shows that no political institutions have ever existed that have permanently
guaranteed political equality. American institutions are no different. Political equality is a
goal that people who believe in democracy as needed for fairer representation; a system of
campaign financing that allows modestly funded as well as well-heeled candidates a fair
shot at winning; and a social and political climate that encourages participation of every
citizen, even the disaffected. Only then can a real "people's voice" be heard.
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