How to Fix the U.S. Constitution — Elections and the Vote
Part Two of a Series
In this series, I explain my thoughts on constitutional reform to safeguard our republic and create a better, stronger, and more resilient government. The last post, covered the civics of amending the constitution and a proposal regarding term limits. This post covers a perennial frustration in American politics: elections and voting.
STRUCTURAL AMENDMENTS PART 2
Structural amendments affect the basic ways in which our government functions and how different branches and levels of government interact with one another.
THE VOTING SYSTEM
In a previous article, I discussed the problems of political parties and how the two-party system evolved alongside an election-system known as first-past-the-post (FTPT) or winner-take-all. This system funnels most voters into one of two parties, forces many to vote strategically against the party they disagree with the most, and encourages disengagement by a large segment of the voter pool who feel unrepresented by the two-party system. Worse still is that the winner-take-all system punishes voters who support alternative-party candidates by making the party they are the closest to ideologically lose support, and assisting the opposing party.*
There are any number of alternative voting systems that could be used in the United States, but barring a complete upending of our presidential system, there are clear improvements that can be made while maintaining the current separation between the executive and legislative branches.
The best option for the United States is to transition elections towards an instant-runoff-voting system (IRV) for the presidency and the Senate, while reforming the House of Representatives to be chosen via ranked-choice-voting, AKA the single-transferrable-vote (STV). These systems both feature an important improvement over the existing system: ranking choices.
In an instant-runoff system multiple candidates run for a single office. This model would work well for electing the president and members of the U.S. Senate. The voters rank their choices in order as far down the list as they want. If no candidate passes the 50% threshold, the candidate with the lowest first-choice support is eliminated, and their votes are reallocated to their second-choice candidate. This process continues until a candidate passes 50% or there is only one candidate remaining. While it doesn’t make a third-party win that much more likely, it does a relatively good job of ensuring that voters can vote for their preferred candidate first, while doing a much better job of making sure that the ultimate winner is acceptable to a majority of voters.
In a single-transferrable-vote system multiple candidates run for multiple offices. This system would work well for electing members of the House of Representatives. For example, in a district drawn to include three representatives voters rank their choices in order as far down the list of candidates as they prefer. When votes are tabulated there is a mathematical threshold that must be passed before a seat can be won by a candidate. In a three-winner election most STV systems have the threshold at 25% of the vote. Winners are declared by the same elimination process as a single-winner race, with some additional complexity for candidates who receive more than the required amount.
For state elections, the same logic applies, but some states could be experimental proving grounds for further reform by moving to a mixed-member-proportional system (MMP), which is more complex but leads to proportional outcomes highly reflective of voter preferences. The adoption of MMP systems in some states could also foster the development of additional parties at the local and state levels.
Given the problems with the FPTP winner-take-all system, and the benefits of the above alternatives, the Constitution should be amended to reflect the following:
Mandate nationwide Instant-Runoff-Voting (IRV) for the presidency and the senate, and mandate Single-Transferrable-Vote (STV) systems for the House of Representatives. Further mandate that states institute IRV for single-winner elections such as governors, and STV or Mixed-Member-Proportional (MMP) systems for state legislatures.
Doing so would increase voter engagement and lead to a more responsive and less partisan government that would more accurately reflect the makeup of the voting public and lead to more responsive government.
THE ELECTORAL COLLEGE
The Electoral College is an archaic structure that was inserted to the Constitution to both act as a check on the popular will and to ensure that the states have regional influence when electing the president. Throughout American history more and more states have mandated that their electors vote with the will of the people of their state, but the system itself can warp outcomes from time to time, especially when elections are very close in certain regions of the country. Not only does the College allow the loser of the national popular vote to win the election if they are victorious in particular states, but when combined with the first-past-the-post system it allows a winner to be declared with a mere plurality of the vote in key states.
Additionally, in the event of no majority in the Electoral Vote itself, the House of Representatives votes for a winner with one vote per state. This all but guarantees a sense of corruption and illegitimacy for those who disagree with the final outcome–as occurred after the elections of 1800 and 1824.
Most simply, the Constitution could be amended to abolish the Electoral College entirely, and transfer to a nationwide instant-runoff election for the presidency determined by the national popular vote. However, this belies some legitimate concerns about attention to non-urban issues during campaigns, and the role of states in selecting the executive of the federal government. Given those concerns, a compromise will need to be found to advance a constitutional amendment modifying the Electoral College.
Maintain the Electoral College but require each state to assign their electors by Instant Runoff statewide votes. In the event of no majority in the Electoral Vote, the next House of Representatives will vote directly–not 1 vote per state–on a winning ticket out of tickets receiving Electoral Votes–for President & Vice President–when the new Congress is inaugurated.
This amendment would allow presidential elections to more clearly express the will of the people, while maintaining the state-based structures of the Electoral College.
THE GERRYMANDER
All legislative bodies that are organized around local representatives must have districts that create constituencies out of a larger whole. Districts for both the US House of Representatives and state legislatures are redrawn on a decennial basis to ensure that the population of constituents represented in each districts remains largely equal across the board. In most states, the task of drawing districts for both state and federal representatives falls to the state legislatures themselves.
Since the earliest days of the republic, state legislatures have taken advantage of this process to draw partisan districts that advantaged one party over another. This practice became known as gerrymandering after Massachusetts governor Elbridge Gerry, and has frequently been used by state legislatures to manipulate district lines to protect some parties and harm others.
While partisan gerrymandering is bad enough, it’s never been found unconstitutional by the courts. However, in the 20th-century it became a common practice for state legislatures to focus more closely on partisan voter demographics, which led to clear racial rationales for partisan gerrymanders. The practice of “packing” certain racial and ethnic demographics into a single district, or “cracking” a community into multiple districts became commonplace to dilute the effect of those voters in elections. The courts have ruled racial gerrymanders illegal, and states have been compelled to redraw their maps. Even so, state legislatures have grown adept at defending their legislatures as merely partisan rather than racial. It’s likely that the Supreme Court will ultimately rule on a gerrymandering case in the coming years on either speech or equal protection grounds.
While no method of dividing a region’s population can lead to outcomes that meet all the priorities of different parties involved, state legislatures are not the appropriate body to do so. Legislatures are of course made up of partisan elected officials who will clearly work to ensure the success of themselves and their party for both state and federal elections. The incentive to create partisan gerrymanders is too strong to allow. Given how easily a partisan gerrymander can become a racial gerrymander it is imperative that this power be taken away from an overtly partisan and political body.
Changing voting systems could take large steps to alleviate the gerrymander problem, but a Single-Transferrable-Vote model is still capable of being gerrymandered in many scenarios, particularly if politicians are allowed to continue to control redistricting–more on this in a forthcoming article.
Therefore, the Constitution should be amended to explicitly outlaw state gerrymanders of US House and state legislative districts. States should be mandated to create nonpartisan, independent commissions to draw representative districts compatible with an STV system–or an MMP system if the state adopts such a system. The commission’s mission should be to create districts that effectively represent the communities in the region without marginalizing groups for racial, ethnic, religious, or partisan reasons. The amendment should also extend jurisdiction in cases challenging redistricting to the federal courts.
Again, a nonpartisan commission will not always create “perfect” outcomes or district maps, but it will allow for a transparent and apolitical process at the state level to ensure that the winner of the most recent state elections doesn’t have free-reign to control legislative maps for a decade. Giving the federal courts jurisdiction in redistricting cases allows the federal government to check outcomes of the state redistricting process and ensure that no voters’ rights are violated through redistricting.
FEDERAL OVERSIGHT
Article 1 Section 4 of the Constitution already grants Congress broad powers to regulate the time, manner, and place of the election of federal officials. Theoretically, Congress could mandate STV/Instant-Runoff for the House and Senate now, though it could not mandate the states change their internal election methods for state offices, which requires an amendment. The Constitution could itself be amended to require Congress to regulate the nation’s electoral process more directly.
For example in the US, political parties are completely private organizations that managed to formally establish themselves in the federal government through the legislative rules of Congress. The founders did not anticipate the formation of political parties and, once formed, they quickly hijacked the political process. I believe it a folly to attempt to put political parties back in Pandora’s Box, but they ought to be formally recognized as a part of the American political and electoral process. This pertains especially to preliminary elections, such as primaries and caucuses.
There are currently no external guidelines for political parties when it comes to preliminary elections and candidate selection. The arcane and complex methods used by Democrats and Republicans to choose their nominees vary state-to-state and lead to confusion, cynicism, and disengagement by many voters. The Congress should be encouraged to exercise their Article 1 Section 4 powers and regulate the electoral process for federal offices. Barring that, Congress should be ordered to do so via a Constitutional Amendment:
Mandate that Congress codify a timeline and a uniform process for all political parties with regard to preliminary elections, candidate selections, or generating party lists for all federal offices. Further mandate that political parties must conform to the Constitution’s democratic principles in all candidate selections at both the federal and state level.
Additionally, Congress and the federal government should be more empowered to oversee the electoral process and ensure free and fair elections occur nationwide. Congress should regulate the “time”, “place”, and “manner” of elections to ensure that voters have strong access to polling places on election day. Too many states manipulate the hours and locations of elections to discourage voters and make voting inconvenient. These actions should be precluded by the federal government which should create guidelines for polling places and election hours. Congress should also create Voting Day as a national holiday for federal elections and place it mid-week.
Absent congressional action under existing constitutional language, an amendment could codify federal authority to oversee and protect free and fair elections nationwide by. Under this amendment, Congress would be mandated to provide guidelines to states on the time, manner and place of federal elections.
More uniform election methods across the country that are voter-friendly would encourage more voter participation and even out regional disparities in participation and convenience.
In the next installment… continuing to look at amendments pertaining to elections and voting from a rights perspective, particularly campaign finance and free speech, and an affirmative right to vote.
