Election Law

  • December 18, 2017
    by Samuel Rubinstein, Strategic Engagement Fellow, American Constitution Society
    As the eyes of the nation were on Alabama for the high profile special Senate election between Roy Moore and Doug Jones, the Alabama Supreme Court issued a decision that raises troubling questions of partisan decision-making by state court judges. This corrosive effect that campaign money and politics have had on impartial justice was highlighted by Partisan Justice, a recent ACS report.
    At issue in Alabama was a Montgomery County Circuit Court ruling which ordered the state not to destroy digital scans of paper ballots made by voting machines. Although paper ballots are retained, plaintiffs argued that public records laws mandate that the digital scans also be kept. The scans are important, they further argued, because only digital records are tabulated in the absence of a hand-recount, and machines can be tampered with. The state argued that the requested relief would require many machines to be reset with little time before the election. Siding with plaintiffs, the lower court wrote that, “the only action being asked of [the Secretary of State] at this point is to send a communication through a system that already exists and is routinely used,” to instruct local officials. Nonetheless, the Alabama Supreme Court reversed the injunction, allowing the records to be destroyed. Ultimately, the election was decided by 1.5 percentage points, avoiding an automatic hand-recount.
  • November 15, 2017
    Guest Post

    by Katherine Oh, Political Researcher & Strategist, American Civil Liberties Union

    The surprising highs of voter participation in recent state and local elections, record numbers of women running for office, and even "not usually a sign guy" protestors marching in the streets are promising signs not just for American democracy and civil society in the new era under President Trump. They're signaling the moment may be ripe for leveraging activist and grassroots energy to bring the National Popular Vote Compact into effect.

  • March 1, 2017

    by Katie O’Connor

    In an era of record political polarization, there are still a handful of issues on which Americans seem to agree. One such issue is the need to implement serious campaign finance reform and drastically reduce the amount of money in politics. According to a 2015 New York Times/CBS News poll, 84 percent of respondents thought that money has too much influence in American political campaigns. 39 percent of respondents said the system for funding political campaigns needs fundamental changes, and another 46 percent said the system needs to be completely rebuilt. Over three-quarters of respondents were in favor of limiting the amount of money individuals can contribute to political campaigns.

    Despite a near consensus on the need for change, little has been done to slow the flood of money into politics in recent years. In fact, it has only hastened, with some help from the Supreme Court. The 2016 presidential election is estimated to have cost $6.9 billion, up from $4.3 billion in 2000. Part of the blame for the impasse lies with Congress, which has been growing increasingly gridlocked for decades. But Congressional deadlock is not a total bar to campaign finance reform.

    The Federal Election Commission (FEC) is the agency whose mission is to enforce and administer campaign finance laws. Specifically, the FEC enforces laws which seek to “limit the disproportionate influence of wealthy individuals and special interest groups on the outcome of federal elections; regulate spending in campaigns for federal office; and deter abuses by mandating public disclosure of campaign finances.” Despite its bipartisan and overwhelmingly popular mission and its distance from a dysfunctional Congress, the FEC is not immune to gridlock. In fact, it has come to be referred to, in some circles, as the Failure to Enforce Commission.

  • 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.