Voting Rights

Congress Considers Major Electoral Reforms

Nicholas Stephanopoulos for Election Law Blog examines a House bill that addresses partisan gerrymandering:

 “[H.R. 1 marks] the first time that proposals like automatic voter registration, redistricting commissions, and multiple-match public financing have been endorsed by a majority of that body. If Democrats win unified control of Washington in 2020, it’s also likely that some or all of H.R. 1 will become law. If that happens, it would be a development of earthshaking significance, at least as important as the enactment of the Voting Rights Act in 1965 or the Federal Election Campaign Act in 1974.”


Florida Governor-Elect Seeks to Delay Implementation of Voting Rights Restoration

In November 2018, Florida voted to re-enfranchise more than 1.4 million people who had completed felony sentences. However:

“Opponents, including Republican Gov.-elect Ron DeSantis, say before the amendment can be implemented, the legislature needs to pass a bill to clarify its terms and fulfill its intent. Supporters say it should be implemented immediately. The disagreement is generating confusion and the threat of lawsuits.”

—Wall Street Journal


Lessons from Venezuela

At page 4 of “How Democracies Die” Steven Levitsky and Daniel Ziblatt outline Hugo Chavez’s rise to autocratic power in sad, broken Venezuela. They note that in 2012 he was re-elected in a contest that was “free but not fair.” Yet they fail to acknowledge that the American presidential selection system also is “free” without being “fair.” There is nothing fair about a system that conducts a national vote in which the candidates ignore more than 80% of the population, and the winner does not need a national plurality.


How Democracies Die: Some Comments

Among other things, “How Democracies Die” has one of the best covers of any 2018 book. In the substantive parts of the short, compelling book, Harvard Government Professors Steven Levitsky and Daniel Ziblatt have sketched an important jeremiad against anti-democratic, authoritarian tendencies – risks to the American democracy that they say are all too real. But, as this blog will show, they have committed some real howlers by failing to assess the way the presidential selection system contributes to the risks they warn about.


The Majority of Countries are Now Democratic

From the Pew Research Center:

“As of the end of 2016, 97 out of 167 countries (58%) with populations of at least 500,000 were democracies, and only 21 (13%) were autocracies, both post-World War II records . . . Broadly speaking, the share of democracies among the world’s governments has been on an upward trend since the mid-1970s.”


North Carolina Officials Warned of Election Fraud in January 2017

From the Washington Post:

“North Carolina state election officials told federal prosecutors in January 2017 that they found evidence of efforts to manipulate the absentee ballot vote in rural Bladen County in the 2016 election and warned that such activities ‘will likely continue for future elections’ if not addressed…”

A Half-Century Ago

When I graduated college 50 years ago next year, a constitutional amendment to replace the electoral system with direct, popular vote nearly passed. President Richard Nixon supported it. So did the Chamber of Commerce and the League of Women Voters among many other groups. It was blocked in 1970 by a filibuster led by southern senators. 

They had a lot to lose if black people in the south could cast votes for president that mattered. These votes could be joined with votes of those everywhere in the country who sympathized with the civil rights claims of black people. The white advantage in presidential selection could be lost. As everyone knows, that same grip on power was transferred from the Democratic Party to the Republican Party. The irony is that the Democrats in the south would have been better off with the popular vote method of choosing the president. 


Progressive Activists Defeat Democrats' Gerrymandering Proposal

From Slate:

“As Democratic legislators barreled toward a December vote, New Jersey’s progressive community rallied against the proposal. A huge coalition of grassroots activists, union leaders, voting rights advocates, and racial justice proponents objected to the amendment. More than 100 activists and academics—representing a broad range of organizations, including the New Jersey Working Families Alliance and the League of Women Voters—testified against the amendment. They held press conferences and protests to shame Democratic leaders and demand real reform. It worked: On Saturday, Democratic legislators backed away from the amendment, canceling a Monday vote and effectively killing it.


The Disappointment of the Reconstruction Amendments

The 14th Amendment turned the three-fifths compromise into a five-fifths concession. Former slaves were fully counted as citizens for purposes of allocating House seats, and thus electors in the Electoral College. When Reconstruction failed and Jim Crow laws denied black people access to the ballot, the white southerners ended up with increased power in Congress and over the selection of the president.

If black people did succeed in voting, despite all obstacles, then their votes for anyone but the choice of the white majority were discarded under the "unit rule."

The Electoral College system was a tool of repression against former slaves and their descendants in the south through history until even today. 


Senate Votes to Require Political Nonprofits to Reveal Donors

If passed, the bill would reverse a Trump administration policy allowing nonprofits to keep the identity of their donors secret. From the bill’s sponsor, Senator Jon Tester (D-Mont.):

“These dark money forces are a threat to our democracy, and they must be reined in. Today’s action sheds more light on the wealthy few who are trying to buy our elections and drown out the voices of regular folks. We must wrestle our country back and continue to bring transparency and accountability back to political campaigns.”


The Great Blunder

In his review of Allan Lichtman’s The Embattled Vote in America: From the Founding to the Present (Harvard: 2018), James Morone wrote in the New York Times September 12, 2018, that this “important book emphasizes the Founders’ great blunder: They failed to enshrine a right to vote in the Constitution or the Bill of Rights.” As a result, Morone reports and Lichtman documents, “Each party gropes for advantage by fiddling with the franchise.”

Lichtman lists the “vital reforms” – he includes abolition of the electoral college, automatic voter registration, national election standards, less partisan voting districts. Morone adds limiting the power of the judiciary to strike down laws and proportional representation for congressional elections.

Neither Lichtman nor Morone, as far as I can tell, points out that the single biggest limitation on the right to vote is that neither party seeks the votes of more than 80% of the eligible populace when it comes to the choice of president. Either the Red or the Blue team concedes to the other a victory in at least 40 states. The unit or winner-take-all rule then allocates all electors to the party that won a plurality in a state basically simply by having its nominee appear on the ballot. This system plainly communicates to most people in the country that their vote does not matter in the choice of the most important political figure on the planet.

This message then discourages would-be voters from showing up. That in turn means that less “fiddling” is required to alter the outcomes of down-ballot races. A huge increase in turn-out everywhere in the country would make fairly small-scale shenanigans less impactful and as a result would minimize their occurrence. Certainly at the least, the “fiddling” would more often be drowned out by the clamor of millions more voting for president in every state, if only states would allocate their electors to the winner of the national vote instead of the winner of the state vote.


No Need To Dismantle

In reviewing George Edwards’ Why the Electoral College is Bad for America  (2004), Jeffrey Cohen of Fordham University concluded: “I do not think the Founders designed the electoral college with egalitarian ends in mind, but that does not mean that, over 200 years after the adoption of the Constitution, we should not promote political equality, even if it means dismantling institutions that undermine political equality.”

Of course the granting of suffrage to former slaves and women and people aged 18 to 21 all promoted “political equality” even if the electoral system denied true equality.

But it’s also worth noting that the Electoral College does not need to be “dismantled.” Any state can choose as electors those from the party slate whose nominee for president has won the most votes cast in the United States. That would make every vote count, or matter, equally.


Brennan Center: Voter Roll Purging Remains High in GA, NC, and FL

The Brennan Center for Justice released a report following up on their analysis of the widespread purges of voter rolls throughout the South leading up to the 2016 election. The report finds that in Florida, North Carolina, and Georgia, the exceptionally high rates of purges has not declined. The rates of purging continue to be alarmingly high in these 3 states when compared to those before the 2006 and 2008 presidential election and others.

In recent two year periods, North Carolina has purged 11.7% of its registered voters from its list, Georgia has purged 10.6%, and Florida over 7%. The timing of the increased purges coincides with the Supreme Court’s Shelby ruling which in 2013 that “struck down a part of the Voting Rights Act that required nine states with a history of racial discrimination to obtain federal approval when altering their election laws.

Would state officials have the same perverse incentives to trim their voting rolls of prior eligible voters if the winner-take-all electoral system were not in practice by all three of these states?


Essential Reading on Democracy: Dr. Carol Anderson’s One Person, One Vote

The concept of “One person, one vote” became a widely articulated core principle of the Constitution when it was first spoken by Chief Justice Earl Warren’s Supreme Court in 1963. In Dr. Carol Anderson of Emory University’s new book One Person, No Vote, the scholar exposes how this fundamental egalitarian principle of Constitutional law and its enforcement by the Civil Rights Act of 1965 has again become violated with shocking impunity throughout the American South. After the Supreme Court’s 2013 Shelby ruling which rolled back key protections of the Act, many states have implemented discriminatory measures which effectively disenfranchise large numbers of black voters. Along with Dr. Anderson’s seminal book White Rage, which chronicled the near-century of disenfranchisement that preceded the Civil Rights Act despite the ratification of the 15th Amendment in 1870, One Person, No Vote is essential reading for all citizens concerned with the resurgent anti-democratic pressures in our society.