Voting Rights

Who cares what most people want?

It never even crosses the mind of the CBS reporter or the Trump campaign manager that most people in the country disapprove of the president.

In America’s screwy system, that doesn’t matter. Donald Trump only needs to win Florida to be in the re-election catbird seat. That’s why he kicks off his campaign there. No one comments about that either.  It is taken for granted that the president should be reelected or not based on whether he gains a narrow plurality from people in Florida and a couple other swing states. 

Then his campaign manager talks about a “landslide” consisting of winning by a few votes a couple of very tiny states that Trump did not carry in 2016. This is a landslide composed of a couple of pebbles. 

Donald Trump currently holds the record for consistent disapproval. No matter. Unless a few states change the way the electors are picked, most Americans don’t matter in picking the president. This is the reason why it was dreadful that the governor of Nevada vetoed the National Popular Vote Interstate Compact. He could’ve been part of the most important reform in the political process. He could have been somebody. 



Electoral college reform matters more than ever

The Supreme Court’s decision to bar the federal judiciary from addressing partisan gerrymandering lets state legislatures deprive blocks of voters from congressional representation — subject only to review by state courts whose members are confirmed by the same legislatures or possibly elected through the same gerrymandering. 

Republicans in Maryland or African Americans in North Carolina are just two examples of the victimized groups. 

This ruling opens the door for states to adopt a district system for choosing electors that would gerrymander picking the president.  

While the Supreme Court continues to make its negative contributions to the survival of the American republic, it is even more important that every American voter counts and counts equally in electing the president of the United States. Then a future president, one who wins the national plurality, might appoint justices who are committed to promoting democracy. 

Politicians, donors, and voters really have to get on board the national popular vote train. The country is in a bad fix. 

It’s a shame that the Democratic legislatures just frustrated reform in Maine and the governor of Nevada vetoed the reform bill. Dems be woke please. 



The Supreme Court Will Not Stop Partisan Gerrymandering, Leaving State Legislatures to Police Themselves

In a much-anticipated ruling, the Supreme Court ruled in a 5-4 decision that “Partisan gerrymandering claims present political questions beyond the reach of the federal courts.”  That means that the courts will not intervene to stop state legislatures from drawing bizarrely shaped and unfair districts designed to dilute many people’s votes in order to gain a political advantage, no matter how egregious. 

Partisan gerrymandering means that through clever drawing of district boundaries, a state legislature can minimize the impact of political opponents’ votes, and can win a majority of seats despite winning fewer votes:

In the case before the Supreme Court, the North Carolina representative in charge of drawing the state’s congressional map proposed an explicitly partisan gerrymander, saying “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”   The plan worked.  In 2016, Republicans won 50.3% of the votes for Congress but won 10 congressional seats.  In 2010, before the hyper-partisan map was in place, Republicans won 54% of congressional votes and six out of 13 seats.  Today’s decision also addressed a congressional map from Maryland designed to benefit Democrats in that state.  

The majority opinion, written by Chief Justice Roberts and joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh, did not deny that partisan gerrymandering could be used to effectively disenfranchise many voters, or even that it was “incompatible with democratic principles.”  Nevertheless, the majority found that the claims were non-justiciable.  In other words, the Court decided that because it could not come up with a standard to determine which gerrymanders went too far, the judiciary would not intervene in these claims at all. 

Instead, the Court left it to the states to police themselves.  The majority stated that one way states are addressing this problem is “by placing power to draw electoral districts in the hands of independent commissions.” 

It is true that in 2018, voters in Colorado, Missouri, and Michigan overwhelmingly voted to approve constitutional amendments creating commissions tasked with drawing fair congressional and state legislative districts.   

However, that does not mean that the people’s desire for fairness will be respected.  In Missouri, the state legislature is doing all it can to thwart the will of the people and keep the power to draw their own districts for themselves. Lawmakers tried to reverse many of the ballot measure’s protections, and vowed to try again next year before the changes go into effect in 2020. 

 There is, of course, every incentive for legislatures to fight to keep the power to draw their own districts in the most favorable way possible in order to maintain their power.  If they do not give it up willingly, today’s decision means that the people cannot turn to federal courts to preserve their rights to vote in fair elections.



Elizabeth Warren has a Plan to Make it Easier to Vote—But It Won’t Make Most Votes for President Count

Senator Elizabeth Warren has released her detailed plan aimed at making voting easier and elections more secure. Her plan includes modern voting machines with paper ballot trails, mandatory automatic and same-day registration, early voting, vote-by-mail, and making Election Day a federal holiday.  All of these ideas would make it easier to vote, but a bigger problem would remain: most people’s votes for president still would not count.

Right now, the candidates make no effort to win the votes of most Americans.  In all but two states, all votes for the runner-up candidate and all excess votes for the winning candidate are systematically disregarded.

Warren’s plan calls for a bonus in federal funding for states that achieve high voter turnout rates.  But she doesn’t mention the reason that voter turnout in many states is so low: people rightly understand that their votes for president do not matter.  It should come as no surprise that voter turnout is generally much higher in states that were contested in recent elections than in safe states.  If the votes in every state mattered as much as they do in swing states, we could expect turnout to increase by tens of millions of votes.

Warren also notes that our current elections pose a national security vulnerability.  However, she doesn’t mention the fact that part of the reason we are so vulnerable to foreign interference is that our elections are decided by just a few states.  This quirk of our electoral system makes it easier and cheaper to target the places that matter.  Under a national election, it would be much harder to skew the results because every vote everywhere would count, not just the votes in a handful of swing states. 

Fortunately, making a national popular vote a reality is not up to presidential candidates.  It is up to the states to decide how to allocate their electoral votes.  If enough states agree to pledge their electoral votes to the winner of the national popular vote, turnout will drastically increase, elections will be more secure, and, most importantly, the vote that every person casts will be counted in the final tally.



Karl Rove’s Weak Defense of the Electoral College

In his editorial, “The Lovely but Unloved Electoral College,” appearing in the April 10, 2019 Wall Street Journal, former George W. Bush strategist Karl Rove does not so much defend the Electoral College but attempts to minimize its failings and paints a parade of horribles that he imagines would descend if the system were altered.  If anything, much of his defense of the current system is an argument for its alteration.

First, Rove states that there is “zero chance” of abolishing the Electoral College because it would take a constitutional amendment. While he is correct that an amendment is unlikely, he is wrong that there is no other way for the system to change. The National Popular Vote Interstate Compact is an agreement among states to give their electoral votes to the winner of the national popular vote once states with 270 electoral votes join the Compact.  Right now, fourteen states plus DC have passed the Compact, totaling 189 votes—70% of the way to becoming effective.  There is tremendous momentum behind the Compact, with Oregon likely to be the next state to join with 7 additional electoral votes.

Rove does not argue that it is good that the Electoral College sometimes means a person becomes president despite the fact that more voters preferred another candidate.  Instead, he argues that splits between the Electoral College and the national popular vote are a “rare divergence” explained by “extenuating circumstances.”

But these “circumstances” are in fact strong arguments for reform. He argues that the only reason George W. Bush lost the popular vote in 2000 is because the TV networks prematurely called Florida for Gore at 8:02 Eastern time, while many western states were still voting.  Rove does not provide a citation for his assertion that “Republicans were more likely to be discouraged and stay home, probably costing George W. Bush several hundred thousand votes and two states, New Mexico and Oregon,” but even if it were true, this is a good reason why the country would do better under the popular vote.  If all votes count equally, it will be much more difficult for networks or other actors to interfere with the results, intentionally or otherwise, while votes are still being cast.

Rove also asserts that “Winning GOP candidates may have fallen short in the popular vote in 1876 and 1888 only because the black Republican vote in the South was being extinguished by violence.” What he doesn’t mention is how the Electoral College meant that even if they had been able to vote, the votes of African Americans in the south would not have counted because they could not get a plurality in the states where they lived, a problem that persists to this day.

More important than past elections is the likelihood that the Electoral College will thwart the will of the people in the future. Rove notes that there have only been five Electoral College/popular vote splits out of 58 elections, but fails to note that splits have occurred in two out of the last five elections, and two out of the last three open elections. Our analysis shows that, far from becoming more and more rare, splits will become increasingly likely when the outcome rests on just a few swing states.  In close elections, there will be a split in up to 32% of elections, with neither party having a long-term advantage.

Next, Rove suggests that a number of consequences would befall our nation if we switched to a national popular vote: there would be recounts needed in many states, third parties would multiply, and small states would be ignored.  But those are all problems that exist in a worse form under the current system than under a popular vote. 

  • A popular vote election involving hundreds of millions of voters would be unlikely to be close enough to need multiple recounts, unlike the winner-take-all Electoral College where the election can turn on a few hundred voters in a single state.

  • Right now, a third party candidate could theoretically win the election with only 23% of the vote. Under a popular vote, a third party would at least have to get more votes than anyone else. Further, many Americans feel disenchanted with the two major parties and would welcome real third party challenges, perhaps in combination with ranked-choice voting

  • Finally, small states, as well as most big and medium-sized states, are already ignored by candidates who instead lavish almost all of their attention on big swing states like Florida and Pennsylvania. 

Rove claims that “[t]he Founders knew what they were doing. Abolishing the Electoral College is an awful idea.”  But though the Founders were brilliant men, they were not omniscient. They came up with a compromise that reached the necessary votes—and that was constrained by the hard limits on travel and communications at the time—but which they themselves acknowledged was not perfect.  More importantly, it bore very little resemblance to the Electoral College as it operates now. It was, according to Hamilton, meant to be a deliberative body of a “small number of persons, selected by their fellow-citizens from the general mass, [who] will be most likely to possess the information and discernment requisite to such complicated investigations” as choosing the president.  Of course, the reality is far different.

It is time to work within the confines of the Constitution to allow the people to choose the president. Article II, Section 1 of the U.S. Constitution allows the states to determine how electors are appointed. If state law in enough jurisdictions directed the electors to pledge their votes to the winner of the national popular vote, campaigns would have to look everywhere for votes instead of focusing on a few swing states. Only then will every vote matter equally.



Majority of Americans Support Getting Rid of Electoral College

The widespread discontent with the Electoral College has recently gone from a slow, constant simmer to a full-on boil.

Making Every Vote Count weighed in on Hardball with Chris Matthews tonight, as CEO Reed Hundt joined the show to discuss the system’s inequities.


The Biggest Threat to Democracy is up to the States to Fix

The Democratic House has passed a massive election reform bill, HR 1:

The sweeping bill is aimed at getting money out of politics and increasing transparency around donors, cracking down on lobbying, and expanding voting rights for Americans by implementing provisions like automatic voter registration.

This bill would go a long way to restoring the voting rights of U.S. citizens.  However, it will probably never even get a vote in the Senate.  And HR 1 does not even address the reason that most Americans’ votes don’t count in the presidential election: the Electoral College.  Unless you happen to live in a swing state, your vote is either taken for granted or ignored. 

But there is some good news.  States have the power to allocate their electoral votes in any way they chose.  If the states pass a law that pledges their electoral votes to the winner of the national popular vote, candidates will campaign for every vote everywhere and every vote will count equally.



Voting Holiday

Senate majority leader Mitch McConnell says that making election day a national holiday is a “power grab” by the Democrats.

This idea is not about giving power to the Democrats. It is about giving power to the people. Right on.

Everyone in elected office legitimately holds their position only because they have obtained the consent of the governed. That is conveyed by voting. The more people who vote, the more the consent is validated. 

 It is weird for Senator McConnell to complain about democracy when the administration he helps so much is trying to unseat the leader of Venezuela on the grounds that he did not legitimately obtain the consent of his governed through a fair election

Declaring election day a holiday makes it easier for people to give their consent to Senator McConnell exercising power over them, but it also celebrates that act of democracy. I particularly like the idea of combining Veterans Day with Election Day because soldiers fought and died for democracy. 



Colorado State Senate Passes National Popular Vote Bill

On January 29, Colorado’s Senate passed a bill that would add Colorado to the list of 11 states plus D.C. to join the National Popular Vote Interstate Compact. Currently, the Compact has 172 electors that will be pledged to the winner of the national popular vote if states with a total of 270 electoral votes join the Compact.  

The Colorado bill will now go to the state’s House for consideration.  If passed, Colorado would add its 9 electoral votes to the tally.



Not Quite

“[T]he minority share of the electorate is growing,” and this favors the Democrats, assert Levitsky & Ziblatt. They then explain that the Republican response has been to limit participation by, inter alia, pushing for voter ID laws. These have “only a modest effect on turnout. But a modest effect can be decisive in close elections…” Pages 183-85.

Two comments.

First, increase in minority participation may be important to the national popular vote, but of course that is irrelevant to the question of who wins the presidency. The increase in minorities in the overall population arguably has motivated Republicans to vote for their nominee in swing states more than it has favored Democrats in swing states.

Second, the “modest effect” is especially critical in swing states. In a national popular vote system, voter ID laws would not matter much because their “modest effect” would be unlikely to alter the outcome.



The Presidential Selection System Magnifies Threats to Fair Elections

In an article describing the influence of voting machine lobbyists in Georgia, the New Yorker explains: 

“The practice of democracy begins with casting votes; its integrity depends on the inclusivity of the franchise and the accurate recording of its will. Georgia turns out to be a prime example of how voting-system venders, in partnership with elected officials, can jeopardize the democratic process by influencing municipalities to buy proprietary, inscrutable voting devices that are infinitely less secure than paper-ballot systems that cost three times less.”

In 2016, 77,704 voters in three states flipped the election from Hillary Clinton to Donald Trump.  That’s just 0.057% of all votes cast.  In our winner-take-all system where a small number of states determine the president, we are incredibly vulnerable to election manipulation.



Supreme Court Mischaracterized: They Got FDR and the 19th Amendment Wrong

The Supreme Court was designed to be profoundly anti-democratic. As a result, it inevitably can become an instrument for anti-democratic forces to use in order to create a rule of law that is neither desired nor supported by the majority of Americans.

In “How Democracies Die,” Professors Levitsky and Ziblatt at page 119 condemn Franklin Roosevelt for wanting to change the size of the Court in order to appoint justices less inclined to kill legislation that the vast majority of Americans thought necessary to respond to the Great Depression. Roosevelt was on the side of democracy. The professors wrongly characterize him as contributing to the erosion of norms essential to the working of democracy.

It should also be noted that the Supreme Court ought to have term limits and a strong and public ethics code in order to mitigate its anti-democratic character.

On page 125 they claim the Nineteenth Amendment in 1919 gave women the right to vote, and exemplified “bipartisan cooperation.” This amendment was not ratified by the requisite number of states until Tennessee barely adopted it in 1920 (not 1919). It exemplified, if anything, regional white male hostility to any threat to the hegemony of this demographic. As the map below, from Wikipedia, shows, the red and orange states had no or very limited suffrage for women in elections at every level prior to the Nineteenth Amendment:

Screen Shot 2019-01-21 at 9.45.20 AM.png

In general, regional differences have characterized all efforts to extend the franchise. This is the case with efforts to cause the national vote winner always to become president.



Voters Across the Country Reject Gerrymandering

In 2018, voters in four states—Colorado, Michigan, Missouri and Utah—approved ballot measures limiting partisan redistricting.  But lawmakers from both parties are resisting these efforts for reform:

“Even as voters and courts vigorously rejected the practice this year, politicians in some states are doing their best to remain in control of the redistricting process. Critics argue that amounts to letting politicians pick their own voters.”



States Don’t Have to Wait for Congress to Save Democracy

H.R. 1, the Democrats’ hugely ambitions election reform bill “would go an enormous way toward repairing our badly broken democracy,” Rick Hasen writes:

“Among the provisions affecting voting and voting rights are those requiring online voter registration, automatic voter registration, and same-day registration for voting in federal elections; a requirement to use independent redistricting commissions to draw congressional districts in each state; limitations on voter purges; an end to felon disenfranchisement for federal elections; protection against intimidation and false information surrounding elections; improved access to voting by persons with disabilities; a set of improved cybersecurity standards around voting and voting systems, including a requirement that all voting systems produce a paper trail for auditing and checking results; and a ban on a state’s chief election officer engaging in political activities connected to federal offices.”

However, most everyone agrees that given the Republican-held Senate and presidency, this bill will not pass, at least not any time soon.  But states can go a long way to saving democracy by designating their electoral college votes to the winner of the national popular vote.  If they do, presidential candidates will have to appeal to all voters, not just the select few in closely-contested states.



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.