Understanding the US Presidential election
It’s not just The Electoral College that complicates the US voting process
The 2020 US Presidential election will be a drawn-out affair. The result is not likely to be decided until a few days after or maybe a week later. The closer the vote, the longer it will take to get a result.
It won’t be the first time. The 2000 US Presidential election was held on 7th November but the result was only announced on 12th December.
The ability to vote in the US depends upon different State-level rules. In all but two of the smaller States, all the Electoral College votes from that State go to the winner of the election in that State. Despite the voting patterns in individual States, the winner there takes all.
In the 2000 election, all of Florida’s (then) 25 Electoral College votes went to Mr Bush even though he won only 537 more popular votes out of almost six million[1].
The Electoral College
In the best of times, it’s the Electoral College that decides the result of a Presidential election. Just like the ‘first past the post’ election system in the UK, this can result in a government being elected with a minority of the popular vote as happened in 2016.
The Electoral College was founded in 1887 on false assumptions for the future and was in any case a compromise[2]. It does however give greater weight to smaller states, one of the checks and balances the US constitution values. It also means that a candidate needs to get a spread of votes from across the country. On balance it usually reflects the popular vote (48 out of 52 elections since 1804 produced a popular mandate).
However it disenfranchised non-white voters from the start. Southern States favoured the Electoral College compromise because although slaves had no votes at the time, it devalued their representation.
More hoops to jump through if you’re black
There are still many obstacles to a truly proportional voting system in the US.
As an example, in Colorado, voting, is much more straightforward than in Alabama and much of this is owed to historic discrimination based on slave ownership.
In 2016, a federal court decried North Carolina’s voter-ID laws as deliberately discriminatory machinations that “target African Americans with almost surgical precision”.
Even in Wisconsin, a study found that the number of Democrats who didn’t vote because they lacked proper ID in 2016 exceeded Trump’s margin of victory.
Today, the number of black and Hispanic Americans who say that eligible voters are being denied the right to vote is 60%. That’s twice as many as white American voters who responded to the same question. The majority of Americans don’t see the problem.
Some of you may recall that the 2000 election between Vice President AL Gore and George W Bush featured the celebrated ‘hanging chads’ but the key issue was that many absentee votes were not counted and those that were, featured irregularities that resulted in calls for a recount. The delay in deciding who took Florida’s Electoral College votes took many weeks and was finally decided by the US Supreme Court which ruled that the recounts must stop.
Just like many southern States, Florida is a state with a history of disenfranchising blacks, a legacy that was critical to the result in 2000.
The way the States vote[3]
Postal or absentee votes are claimed to be open to fraud although there is no evidence to support this in the US nor in many other countries used to postal voting.
It is expected that the postal vote will be two to three times more popular with Democratic voters and those who are sheltering as a result of fears of contracting the coronavirus.
Many States require postal voters to jump through hoops in order to qualify for a postal vote. This disenfranchises those less able or willing to go through the process and allows legal challenges to be made on the result. Some States will not even allow the pandemic to be given as a reason to request postal ballots – these States are Indiana, Tennessee, Mississippi, Louisiana and Texas.
Arizona, Colorado and Florida start counting postal ballots at least two weeks before election-day but most States do not start the count until election-day and these States include Pennsylvania, Michigan and Wisconsin. Ohio is allowed to continue counting for 11 days after election-day.
Postal ballots will be automatically issued to voters only in the States of Washington, Colorado Nevada, Oregon, Utah, California, New Jersey, Vermont, Hawaii and the District of Columbia. Those resident in other states will need formally to request their ballots and some will need to do so three weeks before the election-day.
So, for some States you must register in the first week of October to be sure of receiving a ballot.
In Maryland, Wisconsin, Iowa, Illinois, Ohio you have to go through a two-stage process to request and then complete an application form.
In order for their ballots to be counted, voters in some key States need to be careful. E.g., Pennsylvania and Texas require double envelopes to be used; Alabama require ID and signatures of two witnesses (both over 18 years of age) or a Notary to vouch that you are who you say you are.
There are already over 300 legal cases pending for the 2020 election. This will delay the result. A more significant reason for a delayed decision is that in some States, postal votes are not counted until the election ends. Many fear that this will result in a ‘Red mirage‘, where Republican votes already counted are indicative of the eventual result. ‘Red Mirage’
Taking a swing at the 2020 result
Swing States[4] will be those whose Electoral College votes matter more than others. The eight swing States for 2020 deliver 127 Electoral College votes together and 270 are needed for victory. The proportion of Electoral College votes in these States is roughly a quarter, more or less equal to the proportion of the US population resident there. The cut and thrust of campaigning in the final month will go into those States.
Missing from this swing state list are familiar presidential battlegrounds like Colorado, Ohio and Virginia. In their stead are states like Arizona and Georgia, which haven’t voted for a Democratic nominee since the 1990s, and Minnesota, which hasn’t voted for a Republican in nearly a half-century.
Pennsylvania, Michigan and Wisconsin are the ones to watch where the result may be a long time coming.
Just like the Electoral College, Pennsylvania steel and coal is a legacy of the past, but these industries also wielded a disproportionate influence on the result in 2016. They just might again.
The United states Congress
It’s not just the President that voters elect. They also elect all 435 representatives in the lower house, the House of Representatives (The House) and a number of Senators depending if their term of office has run its full six years. The Senate has the sole power to confirm those of the President’s appointments that require consent, and to ratify treaties. There are, however, two exceptions to this rule: the House must also approve appointments to the Vice Presidency and any treaty that involves foreign trade. The Senate also tries impeachment cases for federal officials referred to it by the House. The House and the Senate together form the United States Congress[5].
In general The House decides initiates bills that require government funding, whilst the Senate handles Constitutional and legal matters. One such unresolved issue is whether the District of Columbia will become a State and consequently inherit voting rights. This is an issue since it will likely return mostly Democrat representatives and so its application has been resisted by a Republican-controlled Senate.
The U.S. Senate currently has 53 Republicans and 47 Democrats. There are 35 seats up in 2020 - including special elections in Arizona and Georgia - of which 23 are held by the Republicans. Democrats will need to gain 3 or 4 seats to take control.
There are nine seats considered safe for the Republicans (including two who are not running) and seven for the Democrats. That leaves 19 seats in contention.
Martha McSally (R) from AZ, Cory Gardner (R) from CO and Susan Collins (R) from ME are set to fall.
Joni Ernst (R) from IA, Steve Daines (R) from MT and Thom Tillis (R) from NC are a close-call.
Kelly Loeffler (R) and David Perdue (R) both from GA and third termer Lindsey Graham (R) from SC. Are targets. Fourth term Pat Roberts’ (R) seat is also a target although he is not standing.
On the Democrats’ side, Doug Jones (D) from AL, seat is considered the most threatened of any Senate seat. Fourth term Susan Collins (D) from ME, Gary Peters (D) from MI are at risk.
If all those seats mentioned above change hands, the Democrats would gain 7 seats, making the split 54 to 46 in the Democrat’s favour.
Another interesting aspect is that the Vice President serves as President of the Senate and may cast the decisive vote in the event of a tie in the Senate.
Executive order
In principle, an executive order is a signed, written, and published directive from the President of the United States that manages operations of the federal government. Executive orders are not legislation; they require no approval from Congress, and Congress cannot simply overturn them. Congress may pass legislation that might make it difficult, or even impossible, to carry out the order, such as removing funding. Only a sitting U.S. President may overturn an existing executive order by issuing another executive order to that effect[6]. In some cases executive orders may receive approval from Congress and become legislation.
While Reagan and both Bushes (all Republican presidents) issued significant numbers of executive orders, conservative scholars argue that Democrats Clinton and Obama routinely overstepped their authority to issue such directives in arenas where Congress had not acted[7].
An executive order can be used to execute a power the commander in chief already has. It can’t be used to give the presidency new powers.
The Judiciary
Where the Executive and Legislative branches are elected by the people, members of the Judicial Branch are appointed by the President and confirmed by the Senate.
Federal courts enjoy the sole power to interpret the law, determine the constitutionality of the law, and apply it to individual cases. Congress has significant discretion to determine the shape and structure of the federal judiciary. Even the number of Supreme Court Justices is left to Congress; at times there have been as few as six, while the current number (nine, with one Chief Justice and eight Associate Justices) has been in place since 1869.
The Supreme Court of the United States is the highest court in the land and the only part of the federal judiciary specifically required by the Constitution.
The Constitution does not stipulate the number of Supreme Court Justices; the number is set instead by Congress. There have been as few as six, but since 1869 there have been nine Justices, including one Chief Justice. This may become an issue if the 2020 election results in a Democrat majority in the Senate. All Justices are nominated by the President, confirmed by the Senate, and hold their offices under life tenure.
The Court typically will agree to hear a case only when it involves a new and important legal principle, or when two or more federal appellate courts have interpreted a law differently[8].
Abortions were made legal across the United States in a landmark 1973 Supreme Court judgement, often referred to as the Roe versus Wade case. The court can only tackle Roe v. Wade if it takes on a case which allows it to revisit federal laws protecting the procedure. That is why anti-abortion politicians in states including Alabama, Georgia and Ohio have introduced severely restrictive laws and even abortion bans which they know are unconstitutional. They hope to force a legal challenge which will ultimately make it to the highest appeal court, the Supreme Court.
A predominantly liberal Supreme Court would probably not hear such a case or if it did, would reinforce the current Federal law. However, following recent appointments, the balance of opinion on the Supreme Court has moved significantly to the right; there is presumed to be a 6/3 majority for conservative interpretation.
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