Putting politics aside (which I acknowledge is not the easiest thing to do right now), most people felt some sense of relief on the morning of Nov. 9, 2016. We did not wake up to a nail-bitingly close election, to a plane full of lawyers flying to Florida or Ohio or Pennsylvania, to lawsuits being filed over rigging and fraud and voter suppression. We did not wake up to a nightmare scenario like that of Nov. 8, 2000. Broadly speaking, our election system functioned the way it is supposed to function and the results reflected the votes cast by the people.
But that is only the top line of the story. Beneath the surface, myriad issues deserve our attention.
This was the first election in over 50 years where voters were without the protections of Section 5 of the Voting Rights Act and that almost certainly took its toll. Section 5 required federal approval for proposed voting changes in states and local jurisdictions with a history of discriminatory voting practices. This put the onus on the states to justify restrictions on the right to vote and put time on the side of voters whose rights would be protected until the state had proven that new rules would not have a discriminatory effect. The Supreme Court’s 2013 Shelby County v. Holder decision, striking down Section 5, opened the door to onerous voting restrictions and many states wasted no time passing them. As a result, voters in North Carolina, Arizona, Texas, and many other states had to navigate new burdens during this election and many citizens were undoubtedly disenfranchised as a result. In the coming months, we must determine how these laws ultimately affected the right to vote and whether the Voting Rights Act needs to be strengthened to prevent it from happening again.
This was the second election in sixteen years that resulted in a split between the winner of the national popular vote and the winner of the Electoral College vote. As previous candidates in this scenario have done, the candidates this year knew the rules of the game and accepted that the Electoral College ultimately decides the election. Nevertheless, this result should induce us to revisit the fairness and utility of the Electoral College. There are valid arguments on both sides of the debate, but they all deserve a fair hearing.