Democracy and Voting

  • 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.

  • October 17, 2016
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The Constitution has very few requirements for a person to be President of the United States. The individual must be 35 years old, 14 years a resident within the United States and a “natural born citizen.” Although the meaning of this phrase is debated and was an issue concerning Ted Cruz, there is no doubt that Hillary Clinton and Donald Trump meet all of these requirements.

    Fitness to be president, then, is not about constitutional prerequisites. Rather, it is about the criteria that voters use – and should use – in evaluating the candidates. I believe that in assessing the candidates in this or any presidential election, five criteria are most important.

    First, what are the candidates’ values, views on the issues and priorities? For many voters, this is answered by whether the candidate is Republican or Democrat. In this election, there is an enormous difference between Clinton and Trump on issues ranging from immigration to tax policy to racial policy to abortion to gun control. If this were the only consideration, it is hard to imagine a person who identifies as liberal voting for Trump or one who identifies as conservative voting for Clinton.

    Second, does the candidate have the good judgment and temperament to be president? Crises will happen that require quick decisions. Challenges that cannot be anticipated at the time of the election are inevitable, perhaps a foreign war or an attack on the United States or a recession.  Although voters likely strongly disagree over which candidate will exercise better judgment or over who has the temperament better suited to be president, few would disagree as to the importance of these personality traits in choosing a Chief Executive. One benefit to the long campaign season for the presidency is that people get much more chance to get a sense of the judgment and temperament of the candidates. 

  • April 11, 2016
    Guest Post

    by Emmet J. Bondurant and Kathay Feng

    Emmet J. Bondurant authored the Common Cause amicus brief with Jeremy D. Farris in Evenwel v. Abbott and argued the landmark redistricting case Wesberry v. Sanders before the U.S. Supreme Court in 1963. In Wesberry, the Supreme Court definitively established that the Constitution requires congressional districts be drawn counting all people.

    Kathay Feng is Common Cause’s National Redistricting Director and heads up their California operations, where she successfully championed the state’s adoption of a Citizens Redistricting Commission to draw state and congressional districts through a transparent and inclusive process.

    Last Monday morning, the entire community of voting rights advocates breathed a sigh of relief. The U.S. Supreme Court issued an 8-0 decision in Evenwel v. Abbott, written by Justice Ruth Bader Ginsberg, upholding the standard state practice of counting all people for purposes of conducting state redistricting.

    A little primer first: At the start of each decade, the Census Bureau conducts a count of every American – where they live, how many people are in a household, and basic demographic information about them. This Census data is crucial for a number of things that happen right after: We allocate the number of representatives to the Congress from each state using these numbers, we redraw the congressional districts based on this total count, AND states use these numbers to redraw the lines for the state legislative districts. The goal has always been to make sure the districts have equal numbers of people in them so the people elected to represent the districts are serving the same number of people.

    In Evenwel, two plaintiffs from Texas asked the Supreme Court to reinterpret fundamental principles of our democracy by drawing lines based on voters only, and making invisible millions of our family, friends, and neighbors who are not voters. The Court rejected this approach, unanimously holding that states may use census data counting total population to draw districts. Common Cause’s amicus brief laid out why the Supreme Court had to reject Evenwel’s argument:

    “It would [] create an indefensible situation in which states would be required by Article I, Section 2 to use total population as the basis for the redistricting of congressional districts, but be prohibited by the Equal Protection Clause from using the same standard when redistricting state legislative districts. Finally, it would break the structural link between the right of every person to equal protection under the laws enacted by the state legislature and the right of every person subject to those laws to equal representation in the houses of that legislature.”

  • March 25, 2016
    BookTalk
    Engines of Liberty
    The Power of Citizen Activists to Make Constitutional Law
    By: 
    David Cole

    by David Cole, Hon. George J. Mitchell Professor in Law and Public Policy, Georgetown Law

    President Obama’s nomination of D.C. Circuit Judge Merrick Garland to fill the seat vacated by Supreme Court Justice Antonin Scalia’s death has many wondering what we might expect from a Court with a liberal majority. It’s been a long time; the Court has not had a majority of liberal justices since the early 1970s. If Republicans maintain their current obstructionist stance, that may not change until and unless Hillary Clinton wins the presidential election. But even if Garland is ultimately confirmed, we ought not to expect major changes from the Court. Stare decisis places significant constraints on the ability of any Court to change direction; absent the rare overruling of precedent, most of the action is at the margins. The margins are important, to be sure, but they are margins.

    More to the point, as I show in my new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, major transformations of constitutional law are generally attributable not so much to new Court personnel as to the extended, in-the-trenches work of citizens working in association with like-minded citizens to lay the ground for change, most often outside the federal courts altogether. Constitutional law changes slowly, from the ground up, not suddenly, from the top down.

    Take marriage equality. In 1972, the Supreme Court in Baker v. Nelson summarily dismissed a petition arguing that the Constitution requires recognition of same-sex marriage as not even presenting a substantial federal question. Yet in 2015, the Court in Obergefell v. Hodges recognized a constitutional right to marriage equality. One cannot explain that remarkable shift simply by examining the changed personnel on the Court. The Court in 2015 was, if anything, more conservative than the Court in 1972. Rather, one must look at the work gay rights groups did in a wide variety of forums beyond the federal courts.

    Gay rights activists did not immediately ask for marriage. They started small and worked incrementally, seeking recognition in state family law of parental rights of gay and lesbian parents, urging private and public employers at the state and local levels to extend modest work-related benefits to same-sex domestic partners, and lobbying for anti-discrimination laws to include protection for gays and lesbians. Only when gay rights groups had made substantial progress in particular states did they seek marriage recognition—and even then only in the most favorable states. They also worked with public relations experts to determine how best to argue for marriage equality in public referenda, learning from their losses and adjusting their strategies as they went. Other groups pressured the media and entertainment industries to represent gays and lesbians more positively, and fought for legal protections that made it safer for gays and lesbians to “come out.” All of these changes were essential steps along the way to Obergefell, and they were taken deliberately, strategically, and over more than two decades. It’s that work that explains the constitutional recognition of marriage equality.