Democracy and Voting

  • December 20, 2016
    Guest Post

    by Jeff Mandell, Senior Associate at Stafford Rosenbaum LLP in Madison, Wisconsin. Jeff is also the Chair of the newly formed ACS Madison Lawyer Chapter.

    Yesterday’s vote by the electors of each State brought to a close the process that began with Election Day on Nov. 8. Or, more precisely, in various states, it began days or weeks earlier, when early voting opened and absentee ballots became available. This year, more than any before, I have been particularly focused on the process as well as the outcome. My efforts as a voter-protection volunteer reassured me that—setting the consequences of Wisconsin’s strict voter ID law to one side—there were no massive malfunctions in Wisconsin’s election day operations, but it also underscored how easy it is for individual votes, and voters, to fall through the cracks.

    I woke hours before dawn on Election Day, picked up a friend and drove two hours on a narrow highway. I had volunteered to monitor complaints and concerns submitted by poll watchers. The Democratic Party of Wisconsin sent me to Oshkosh, where, with two other lawyers, I would field reports from poll observers spread across nine counties. Before the polls opened at 7:00 a.m., we opened our laptops in the dining room of a small house, reached out to the volunteers at polling places around our area and logged into a website on which we could follow reports from every one of the state’s 3,620 precincts. Fortified with a mountain of snacks, we settled in for the 13 hours the polls would be open.

    Because I knew I would be spending Election Day in Oshkosh, I voted two weeks in advance. I knew Wisconsin allowed early voting but, at the time I cast my ballot, I had not yet studied state election law in preparation for my voter-protection duties. When I had voted early in other states before, my vote had been counted at the time I voted. But in Wisconsin, early voting is actually a form of absentee voting and absentee votes are not counted in advance.

  • December 16, 2016
    Guest Post

    by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States at Illinois Institute of Technology Chicago-Kent College of Law

    On Monday, Dec. 19, 2016, the 538 members of the Electoral College will gather in their states to cast their votes for president. The expected outcome is that they will elect Donald Trump. But this year there has been a surprising amount of discussion of a different result, thanks to efforts of some electors themselves and a variety of academics, writers and advocates.

    Article II, section 1 and the Twelfth Amendment of the Constitution provide the framework for the Electoral College. Every state has a number of electors equal to their congressional representation – two Senators plus the state’s House delegation. (Under the Twenty-third Amendment, the District of Columbia also has three electors.) The state legislatures have the authority to determine how the electors are selected and there is no requirement that the selection be by popular vote. Nor is there a requirement that the states assign their electors on a winner-take-all basis, as almost all do. (Maine and Nebraska are the exceptions.)

    Once the electors are selected, they meet in their states and cast their ballots. They certify the votes and send them to Congress, which will meet in early January to count the votes. To become president, a candidate must receive a majority – at least 270 – of the electoral votes. If no candidate receives 270 votes, then the House of Representatives, voting in state delegations with each state receiving one vote, must choose between the top three electoral-college vote-getters.

    This system is an odd way to run an election in the 21st century. Its roots are in compromises made at the Founding to protect slavery and (arguably) to ensure the influence of smaller states. Some argue that there was no expectation that the electors would exercise independent judgment. But as Alexander Hamilton explained in Federalist 68, the Framers were concerned that the people might be taken in by an unqualified candidate and they wanted to ensure that “[t]alents for low intrigue, and the little arts of popularity” would not displace the “requisite qualifications” for the presidency. And, he added, “every practicable obstacle should be opposed to cabal, intrigue, and corruption.”  Finally, he argued that the electoral college would protect the country against “the desire in foreign powers to gain an improper ascendant in our councils.” It is hard to read this explanation for the Electoral College without wondering if Hamilton was prescient.

  • December 16, 2016
    Guest Post

    by Andrew W. Robertson, Acting Executive Officer of the History PhD Program, CUNY Graduate Center.  His newest forthcoming publication is The Oxford Handbook of Revolutionary Elections in the Americas, 1800-1910 (New York: Oxford University Press, 2018), ed. by Andrew W. Robertson and Eduardo Posada Carbó.  His current work in progress is Democracy in the Early Republic: America’s Other ‘Peculiar Institution’ and John L. Brooke, Distinguished Humanities Professor of American History at The Ohio State University. His current project are State Formations: Histories and Cultures of Statehood, co-edited with Julia Strauss and Greg Anderson, and Forging the Civil War North: Political Crisis, Fugitive Slaves, and Liminal Rupture in Antebellum America, 1850-1856.

    On Nov. 8, Donald Trump was elected president of the United States, winning a projected 306 Electoral College votes to Hillary Clinton’s 232. The election outcome surprised many veteran campaigners, politicians, pollsters, columnists and members of the public. The election result is an extreme outlier in the history of the republic – it is one of four out of 57 presidential contests since 1789 in which the Electoral College victor has not also won the even a plurality of the vote and one of eight in which the margin was two percent or less. The Electoral College will appoint a president, on its constitutional authority as directed by the states. Now, as in 1876, 1888 and 2000, the nation should carefully consult the documents that record its governing mandate, particularly in light of other more pressing clear and present dangers. 

    Perhaps the outcome of the election even surprised President-elect Trump. It is the surprises that have followed the election, however, that have pushed the U.S. to the brink of a constitutional crisis. Trump has refused to sell off his many properties around the globe or to place them in a blind trust, a situation that could place him in the position of receiving foreign emoluments.  While he initially announced that he would address potential conflicts of interest at a press conference on Dec. 15, he has now deferred any such discussion to January. Our situation is all the more complicated since Trump expressed his admiration of Vladimir Putin, the ruler of a country which for almost a century has been our country’s leading adversary. Trump has nominated for Secretary of State Rex Tillerson, the corporate chair of ExxonMobil, a company with billions of dollars at stake in the future of sanctions on Russia voted by the United States Senate. More ominously, this week the Central Intelligence Agency released its formal determination that Russian operatives had deliberately interfered in the presidential election to tilt the outcome towards Mr. Trump. The election process may have been so thoroughly compromised that public officials will need to consider whether it has been conducted fairly.  Russian interference would undermine the very legitimacy of the democratic process and could have grave and long-lasting consequences. In the words of Michael Morell, the former acting director of the CIA, this information is the “political equivalent of 9/11,” and “an existential threat to our way of life.”

    There has never been such a set of circumstances surrounding a presidential election in the history of the American republic. While Congressional leaders are considering an investigation of these charges, any such inquiry would require weeks to complete. These issues raise serious questions about whether Mr. Trump is constitutionally qualified to be president. None are likely to be resolved before the Electoral College meets to vote on Dec. 19.

  • November 18, 2016

    by Katie O’Connor

    This year, for the second time in sixteen years, the winner of the national popular vote tally will not be the winner of the Electoral College vote and will not, consequently, be the next president of our country. In other words, this year, for the second time in sixteen years, the candidate who received the most votes from American voters will not win the election. This can and does happen, of course, because of the Electoral College system.

    There are many proffered explanations for why the Electoral College was created and maintained and none of them are particularly flattering to our democracy. The racist roots of the Electoral College are obvious. At the time our constitution was created, representatives to the U.S. House of Representatives were apportioned based on the three-fifths compromise, which counted each slave as three-fifths of a person for purposes of apportionment. This allowed for increased representation in southern slave states even though slaves could not vote. Subsequently, each state was given a number of electors to the Electoral College equivalent to the state’s two senators plus its number of representatives, furthering the skewed representation by slave states.

    Though it may not have been the reason the Electoral College was created, it soon became equally obvious that the institution furthered a sexist agenda as well. In a direct national popular vote system, a state could double its potential influence in an election by extending the franchise to women. With the Electoral College, though, a state would have the same influence regardless of how many people voted. Thus, the Electoral College disincentivized expanding the franchise and allowed for the continued disfranchisement of women with impunity.

  • November 2, 2016
    Guest Post

    by Matt Lynch, Steering Committee member of ACS Madison Lawyer Chapter, and Britt Cudaback, President of ACS University of Wisconsin Law School Student Chapter

    In the early months of 2011, while thousands of protesters demonstrated daily against the anti-union laws they advocated, Wisconsin GOP legislators crafted and enacted two measures that made it more difficult for their detractors to vote them out of power:  partisan redistricting and strict voter identification requirements.  While court challenges to the anti-union laws have now largely run their course, the legal battles over Wisconsin’s district maps and voter ID law have taken novel forms—and may soon offer tempting opportunities for the U.S. Supreme Court to bolster the procedural protections for participatory democracy.

    Key players from both sides of those cases huddled with more than 70 attorneys and law students last Thursday night for “Wisconsin Election Law:  Navigating the Thicket,” a panel discussion held at a Capitol Square restaurant overlooking the site of the 2011 demonstrations.  The event was co-sponsored by the Federalist Society, the ACS University of Wisconsin Law School Student Chapter, and the newly formed ACS Madison Lawyer Chapter.  UW Law School Assistant Professor Robert Yablon moderated the discussion.

    New Tools for Political Gerrymandering – and a New Tool to Challenge It

    In Wisconsin, the state legislature is primarily responsible for drawing legislative districts following the census, a system that incentivizes partisan gerrymandering by the majority party. Historically, gerrymandering was associated with comically misshapen districts. Since the dawn of the information age, however, egregious contortions are no longer necessary; parties can achieve the same goals of increasing partisan advantage with more subtle, computerized precision.

    With its 2011 redistricting maps, the GOP-controlled Wisconsin legislature proved just how effective these new tools could be. The following year, all 99 Assembly seats were up for election, and Wisconsin voters cast 200,000 more votes for Democratic Assembly candidates than Republican candidates.  Yet the Republicans won a commanding 60-39 majority.

    That, according to panelist and Wisconsin law professor Bill Whitford, goes so far as to deny the fundamental principle of majority rule. “Of course there’s partisan gerrymandering, always has been,” he acknowledged.  “But questions of degree are vitally important.”

    Whitford believes that a newly described measure holds the key to answering those questions of degree in a simple, objective way. He is seeking to prove it in a lawsuit challenging Wisconsin’s partisan redistricting, Whitford v. Gill, which is awaiting a post-trial decision from a three-judge federal redistricting panel.

    The new measure is the “efficiency gap,” which was described and defended in a 2015 law review article by Nicholas Stephanopoulos and Eric McGhee. The efficiency gap formula takes the total number of votes cast for a party’s candidates for legislative office statewide, then subtracts all “wasted” votes for that party—that is, votes cast for a losing candidate or those in excess of the number needed for a candidate to win. The remaining votes are “efficient,” because they proved necessary to elect a winning candidate.  Partisan gerrymandering seeks to maximize the efficiency of its party’s voters and minimize the efficiency of the other party’s voters; the difference in each party’s efficiency percentages is the map’s “efficiency gap.”

    The 2012 and 2014 Wisconsin state elections showed “efficiency gaps” of more than 10 percent in favor of Republicans—greater than any other state in the country. By comparison, the average efficiency gap in state legislative maps throughout the country between 1972 and 2014 was less than one percent.  But the yearly average has crept upward as more sophisticated tools for voter mapping have emerged; since the 2010 Census, the average gap nationally exceeds three percent in favor of Republicans.