Analysis

By: Roger Morris

To some people the Electoral College is an overly complex system that inhibits the will of the American people. A compelling argument in favor of this notion is the fact that a candidate can be elected President without receiving the most votes. This scenario has happened four times in American history: 1824, 1876, 1888, and 2000. Because of this, there has been a movement to shift the United States to a national popular vote system where the candidate with the most votes nationally wins the election.

Opponents of the Electoral College have laid out several reasons why the system is inadequate. Presidential elections could be considered competitions to win swing states and not the nation as a whole. Even amongst those swing states there is a strong incentive to focus on the states representing a larger worth in the Electoral College. During the 2012 campaign, about two-thirds of general-election campaign events (176 of 253) were in four swing states: Ohio, Florida, Virginia, and Iowa. This year, 91% of campaign events (319 of 351) since the nominating conventions have been in only 11 states, with nearly 60% of those events occurring in Ohio, Florida, North Carolina, and Pennsylvania. In 25 states, there have been a combined total of zero presidential campaign events during the general-election cycle. Opponents argue that this focus on only a few states comes at the expense of the rest of the country. Candidates have every reason to focus on issues and tailor their promises to please citizens of swing states.

In addition, citizens in states that are not competitive and receive no visits from candidates may see little reason to vote. If a voter wants to vote for a Democrat but lives in a state that always casts its electoral votes for Republicans, they may choose not to vote because they feel their vote has an incredibly small chance of making a difference. A national popular vote system could provide an incentive to these disenfranchised voters and allow their votes to hold more worth.

The Electoral College system is laid out in Article II and the Twelfth Amendment to the U.S. Constitution. Therefore, abolishing the Electoral College would require a Constitutional Amendment. Past efforts to make this change have been unsuccessful due to Amendments being notoriously difficult to pass. They require a two-thirds vote in each chamber of Congress and, if successful in Congress, ratification in three-fourths of state legislatures. However, a plan to sidestep the Amendment process called the “National Popular Vote Interstate Compact” has gained some traction. It currently has the support of the District of Columbia and ten states.

The plan was first proposed following the 2000 presidential election by Northwestern law professor Robert Bennett and expanded upon by law professors Akhil Amar of Yale and Vikram Amar of the University of Illinois. The legislatures in the ten states and DC have decided that they will have their electors cast their state’s electoral votes for whichever candidate wins the national popular vote. If every state were to pass this legislation we would maintain the Electoral College, but avoid situations like the 2000 presidential election where the candidate that won the national popular vote lost the Electoral College vote and did not become President. In 2000, the election came down to one state, Florida, which Al Gore lost by a few hundred votes. With the National Popular Vote Interstate Compact in place Gore would have won the presidential election by virtue of winning the national popular vote regardless of the total in Florida. If every state were to adopt this measure the winner of the national popular vote would win all 538 electoral votes.

There is some question of whether the National Popular Vote Interstate Compact is constitutional. Under Article I of the Constitution, Congress must approve compacts between states. At the same time, Article II reserves to the states the exclusive power to bind their electors. Whether this legislation is an end run around the Constitution has yet to be taken up by the Supreme Court.

The Compact will not go into effect until enough states join the plan to collectively represent a majority of electoral votes, 270. At that point, the winner of the national popular vote would always win a majority of electoral votes. As of 2016, the movement has the support of states with a combined 165 electoral votes. There are two currently active bills in the statehouses of Pennsylvania and Michigan, which could bring the total electoral votes controlled by this measure to 201. If Donald Trump or Hillary Clinton were to win the presidency despite losing the popular vote, we may see a new push to put the compact in place.

By: Roger Morris

Some of you may be saddened hear that the presidential election will not be decided on Tuesday, November 8^th but actually on December 19^th. This does not mean that you will have to put up with another month and a half of campaign ads and generally saddening news coverage. December 19^th is when the Electoral College meets and casts the 538 electoral votes that really decide who the 45^th President of the United States will be.

As you watch election night coverage, I am sure you will hear media commentators discuss the national popular vote, and how it impacts the election. However, the national popular vote means nothing when it comes to electing our next President. As recently as 2000, the winner of the popular vote ended up losing the Electoral College vote. This scenario has happened three other times in our nation’s history: 1824, 1876, and 1888. This doesn’t make any sense, right? Shouldn’t the person with the most votes win the election?

Not necessarily. Instead, the Electoral College elects our President and Vice President. When you go to cast your vote for President, you aren’t really voting for your candidate. You are voting for electors who will cast your state’s electoral votes in December. The Electoral College is the name for the 538 electors who vote to decide who the winners are. You may be wondering who these electors are and how they are chosen. The process varies from state to state, but generally each political party in your state will nominate slates of potential electors at state party conventions or choose them by a vote of the party’s central committee. These people are usually state party officials, elected officials, or others who have a political or personal affiliation with that political party. If Hillary Clinton were to win your state, then the electors chosen by your state’s Democratic Party would cast your state’s electoral votes. If Donald Trump were to win your state, then the electors chosen by the Republican Party in your state would cast your state’s electoral votes.

The number of electors in a state is calculated by adding the two senators your state has to the number of your state’s members of the House of Representatives, which is determined by population. In Kentucky, we have two Senators (like every other state) and six Representatives (apportioned based on our state’s population), bringing our total to eight. If Donald Trump wins Kentucky like the polls suggest, then the eight electors our state’s Republican Party selected would cast our state’s 8 electoral votes. The electors vote on the first Monday after the second Wednesday in December. This is the date the Electoral College meets according to federal law. In 2016, this date falls on December 19^th. Each state’s electors will meet in each of their respective states on that date to cast their votes. The electors will go through two rounds of voting: one to select the President and the other the Vice President.

The mode of appointing electors is exclusively reserved to the states by the Constitution. As a result, states can decide how they want to bind their electors. Most states commit all of their electors to the winner of the state popular vote. Maine and Nebraska do things a little bit differently. These states will cast two electoral votes to whichever candidate wins their state’s popular vote. The rest of Nebraska’s electoral votes are allotted based on whoever wins each of Nebraska’s 3 congressional districts. Polls suggest that Republican candidate Donald Trump will win the popular vote in Nebraska, so he will earn two electoral votes that way. To earn the other three electoral votes, Mr. Trump would have to win a majority of the vote in each of the three congressional districts. Polls suggest that Nebraska’s 2nd congressional district, which includes the state’s largest city Omaha, is closely contested, and this could provide Hillary Clinton with one electoral vote even though she will likely lose the state’s popular vote.  This scenario actually occurred in 2008 in Nebraska, with Barack Obama winning one of the state’s Electoral College votes by winning the 2nd congressional district.

Maine allocates its electoral votes the same way, with two for the statewide winner and two others based on congressional districts.  Trump is polling well in Maine’s 2nd congressional district. With the race tightening in the last few weeks, these individual electors could prove pivotal if the race is close.

Adding up the number of Senators (100) and Representatives (435) in the 50 states gives us a total of 535. DC also receives 3 Electoral College votes under the 23rd amendment, even though it has no voting representative in Congress. To win the election a candidate must win at least 270 electoral votes, or a majority of the Electoral College. Of course 538 is an even number, which means there is a possibility of a tie of 269-269. This has never happened and is an unlikely scenario, but it is not impossible.

If a candidate wins at least 270 votes on December 19^th, 2016 when the Electoral votes are cast, then the election will be verified by Congress on January 6 and the winning candidate will take the oath of office on January 20^th, 2017 to become the 45^th President of the United States. What happens if a candidate does not reach 270?  We will consider that possibility in another post.

By: Roger Morris

If you are going to vote this cycle it is more likely than not you will need to present your ID to cast a ballot. 32 states have laws in place that require you to do so and up until this past summer that total was to include one more, the important swing state of North Carolina. The 4^th Circuit Court of Appeals’ ruling in North Carolina NAACP v. McCrory overturned North Carolina’s controversial voter ID law, HB 589, and as a result, citizens of the Tar Heel state do not need to present an ID to vote in person on election day.

The North Carolina General Assembly passed HB 589 shortly after the Supreme Court’s ruling in Shelby County v. Holder, which made it significantly easier for a state like North Carolina to pass a voter ID law. At the heart of Shelby County was Section 5 of the Voting Rights Act of 1965. Section 5 required that states or localities with a history of voter discrimination, like some counties in North Carolina, receive approval from the federal government before making changing to their election laws. This approval is called “preclearance.” In a 5-4 decision written by Chief Justice Roberts, the Court overturned the VRA’s coverage formula to determine which states and localities were required to seek preclearance, meaning that states like North Carolina could change their election laws without preclearance, which they very quickly did. The day after the Shelby County decision was handed down, the Republican legislative leader announced an intention to pass a new “omnibus” election law bill, which resulted in HB 589. Proponents of the bill claimed the new law was needed to address voter fraud concerns, while the bill’s opponents pointed out a 2013 report by the North Carolina Board of Elections which revealed that out of 40 million votes cast between 2000 and 2012 there were only 2 cases of in-person voter fraud that were referred to the District Attorney.

HB 589 made numerous changes to North Carolina election law. Citizens were required to present any of 8 acceptable forms of ID: North Carolina driver’s license; special ID for non-operators; US passport; US military ID card; federal tribal enrollment card; NC tribal enrollment card; or a driver’s license from another state if the voter’s registration was within 90 days of the election. Early voting was reduced from 17 to 10 days. Out-of-precinct voting, which allowed voters who show up at the wrong precinct to cast a provisional vote as long as they are in the correct county, was eliminated. Preregistration was also done away with, which allowed 16 and 17 year olds to register to vote even if they would not be eligible to vote in the next election.

While Republican lawmakers were drafting the bill, they requested data on the use of early voting practices and IDs by race. It showed African Americans disproportionally lack IDs, especially the most common form of identification: a driver’s license. The forms of allowable ID that made it into the bill were ones African Americans tended to hold in lower percentages. In addition, data shows that African Americans disproportionally used early voting, especially the first 7 of the 17 days of early voting that existed pre-HB 589. The General Assembly proceeded to cut early voting to 10 days.

On the day the bill was signed into law the North Carolina NAACP sued the state over the ID requirement. Federal District Court Judge Thomas Schroeder of the Middle District of North Carolina upheld the law. Judge Schroeder found the justifications for the law, such as the desire to protect against voter fraud, to be “not unreasonable” and “plausible.” However, the 4th Circuit Court of Appeals overturned this ruling. Judge Diana Motz, writing for the court, stated that the law was “the most restrictive voting law North Carolina has seen since the era of Jim Crow.” The Court found that the North Carolina General Assembly acted with discriminatory intent and that HB 589 violated the 14^th and 15^th Amendments, which prohibit racial discrimination in the regulation of elections.

Before overturning the law, the court assessed the non-racial factors that could have contributed to the legislation’s passage. Judge Motz wrote, “In enacting the photo ID requirement, the General Assembly stated that it sought to combat voter fraud and promote public confidence in the electoral system.” The court found that, contrary to the stated goal, the legislature would not have enacted the law if it did not disproportionally affect African American voters. The law only addressed in-person voting and North Carolina failed to identify a single person accused of in-person voter fraud.

Judge Motz wrote that the “problem” the majority party in the state legislature was trying to deal with was “emerging support for the minority party.” As a result of the General Assembly’s racial motivation in passing the law, HB 589 was ruled to be in violation of constitutional and statutory prohibitions on intentional discrimination. The 4^th Circuit Court of Appeals found that the appropriate remedy was to strike down each of those provisions.

However, the legal challenge did not end with the 4^th Circuit’s ruling. In August, North Carolina filed an emergency appeal asking the Supreme Court to allow it to implement several provisions of HB 589 for the November 2016 election: the voter ID requirement, reduction in early voting days, and preregistration. Later that month, North Carolina’s appeal fell one vote short of the required five Justices to halt the lower court’s ruling. As a result, North Carolina citizens will not have to present an ID to exercise their right to vote.

By: Clifton Rogers 

The Republican Party and Donald Trump have made repeated calls to the general public to “watch the polls” to prevent election mischief. Kentucky law allows for each political party to have representatives at the polls to act as “challengers.” They are there to ensure voting integrity; however, they must be certified by the Board of Elections and their activities are limited.

KRS 117.316 lays out what a challenger may do. A challenger can verify that voters are correctly registered, in the correct precinct, properly identified, and not a convicted felon lacking voting rights. The Trump Campaign and Republican Party can take some solace in those provisions given their oft-stated concerns over individuals voting multiple times. The power of challengers are not unlimited and KRS 117.317 lays out what challengers may NOT do. It states that a challenger shall not:

            (1) Electioneer or campaign on behalf of any candidate, issue, or political party;

            (2) Handle official election materials except as provided in KRS 117.187;

            (3) Attempt to intimidate or harass, verbally or otherwise, any voter who is being challenged or any precinct election officer;

            (4) Behave in any manner to disrupt activities at the polling place; or

            (5) Attempt to interfere with the proper conduct of the election.

These prohibitions are consistent with the general ban on electioneering or campaigning at polling places. In Kentucky electioneering is prohibited by anyone, including the general public, within 100 feet of a polling place. These prohibitions exist to prevent voter intimidation, last-minute campaigning, and hassling of voters.

 In addition to being prohibited from campaigning near a polling site, the general public is prohibited from being in the voting room except to vote. KRS Section 117.235 states that no person other than a voter, a person assisting a voter, a minor child, a challenger, or a person certified to enforce the law may be in the voting room while voting is taking place. 

A reasonable election official could likely interpret an uncertified, random individual who attempts to “check the polls” to be attempting to campaign or to intimidate voters.  They can also cause general disruption and confusion. If a member of the general public attempted to be in a voting room to watch the process or to stand near a polling site for that purpose they would be asked to leave. If they persisted then they would be subject to prosecution.  KRS Section 117.995 provides the penalties for the violation of these sections. It states that any person who violates these laws after being notified of them is subject to a Class A Misdemeanor for the first offense and a Class D Felony for subsequent offenses.

In sum, Kentucky law has provisions in place to ward off voter intimidation. Under the law, election officials inside the polls, and not the general public, are the best defense for warding off anything that may occur.