Summary of Electoral Fixes by Method of Realization

This paper has presented quite a few fixes to the way we choose our federal office-holders. We can achieve some of these fixes through new or amended state or federal statutes, while others require a constitutional amendment. For many of these fixes to really take hold, we need a cultural shift. Here is a summary of the suggested improvements broken down into these four categories: state law, federal law, constitutional amendment, and cultural change. This discussion does not repeat the thrust of the arguments in favor of each reform but rather presents the possibility of achieving the reform through each method of realization.

Fixes Through State Laws

We can implement some fixes through state laws, but such laws would be effective only if all or most of the states passed those laws. Gerrymandering is a good example. In some states a grassroots citizens’ movement has fought to remove politics from Congressional redistricting. But the politicians in each state’s majority party ask,

Why should we unilaterally disarm? If we get rid of gerrymandering in our state, the minority party in our state will gain more members in Congress. But I do not see their party getting rid of gerrymandering in the states their party controls – so the result would be that our party loses. Sure, we favor reforming the system but only if everyone does it together.

This then becomes an argument for the status quo.

One solution to this conundrum could be a compact among states, all agreeing to adopt the same reform when other states agree to do likewise. Of course, this type of solution only works if the argument about “unilateral disarmament” is the real objection to reform and not just an obstructionist tactic. To improve its chances of success, groups of states could adopt it. For example, Maryland State Senator Jamie Raskin introduced legislation to eliminate gerrymandering simultaneously in Maryland and Virginia.[1] The two states are good candidates for this type of deal, because they are mirror images of each other politically. Maryland, with a Republican governor but Democratic legislature, is heavily gerrymandered to favor Democrats, resulting in 7 Democrats and only 1 Republican in Congress. Virginia is the opposite: With a Democratic governor but Republican state legislature, the state is heavily gerrymandered to favor Republicans, who hold an 8-3 majority in Congress. If both states drew district boundaries without partisan considerations, the expected results in each state would more fairly represent their electorates, but the total number of Congresspersons from each party would probably remain about the same. Repubs would likely pickup 2 or 3 seats in Maryland; Dems would do likewise in Virginia.

Reformers might be able to identify similar groupings of states all across the country.

Like all solutions implemented by state statute, what lawmakers enact today they can repeal tomorrow. So one approach, that of amending state constitutions, is a considerable improvement over a simple state statute.

Manner of choosing the president

Local-State-National Interstate Compact (LSNIC): States could pass laws binding themselves to cast all their electoral votes for the winner of the election according to the LSN vote counting scheme. These state laws would become effective as soon as enough states pass it so as to constitute a majority of all electoral votes.

Ranked Choice Voting:

In the 2016 election, Maine became the first state to adopt Ranked Choice Voting for most of its elections. The good folks at FairVote.org believe that this Maine victory may be a harbinger of the future and that more states and other jurisdictions around the country will also begin to adopt RCV.

Although Congress can and should mandate RCV for elections to federal offices, states are responsible for elections for their own Governors, other state-wide offices, and state legislatures. Therefore, every state should adopt Ranked Choice Voting for all the elections it controls. This should include the state’s elections for federal offices if Congress fails to act.

Multi-seat Congressional Districts

This makes sense only when combined with Ranked Choice Voting. Without RCV, multi-seat election districts are often less representative than single-member districts. This is because the majority party in the multi-seat district is positioned to win every seat in that district. For example, if one party has a 55%-45% advantage in a three-seat district, and voters get to vote for three candidates, all three candidates from the majority party are likely to win with 55% of the vote. But if that three-seat district remained three one-seat districts as at present, the majority party might be the majority in two of those districts, probably by a wide margin, but that party might be the minority party in the third district, and so it could lose that one seat. But as the example in the RCV discussion demonstrated, a three-seat district under RCV will usually end up with two seats from the majority party and one seat from the minority party.

Solutions to gerrymandering for state legislatures as well as Congress

A fully automated redistricting plan is best, and ZCTA’s might offer the best option for achieving it. In some states, certain ZCTA’s might be home to too many people for state legislative districts, representing much smaller populations than Congressional Districts. In such cases, a computer program can divide a ZCTA into the Census Bureau’s census tracts, which contain ~4000 people each.

If a state finds the fully-automated solution infeasible for some reason, it could still adopt a non-partisan redistricting commission, assisted by appropriate technology, and charged only with drawing election districts with roughly equal populations and no other considerations.

Automatic voter registration

While the best solution in this matter might be a federal statute or constitutional amendment, individual states can achieve this for their own citizens. States could automatically register voters when they reach their 18th birthday (most of them are in school and therefore a captive audience, making this easy enough to implement). States can also verify a citizen’s voter registration status and then automatically register them if necessary whenever the citizen interacts with state or local government in any way – getting a driver’s license, purchasing and registering a vehicle or a boat, engaging in any real estate transaction, paying taxes, registering for a public college, applying for welfare or unemployment compensation or Medicaid, perhaps even paying for a parking ticket.

Convenient voting procedures

Every state can adopt welcoming rather than restrictive voting rules: absentee ballots available to all citizens without needing to give a reason; absentee ballots accepted if received up through the last election day; early in-person voting to include at least one weekend; adequate polling stations, voting machines, and voting hours.

Fixes Through Federal Laws

For our national fixes to be most effective, we must adopt them nationally – which means either a federal statute or an amendment to the US Constitution. However, federal statutes sometimes run afoul of the Constitution itself. The Constitution contains two provisions which often appear in conflict with each other:

  • Article I Section 8 lists the powers of Congress, and then contains this final power: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
  • Amendment 10 states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

In practice, when Congress proposes a law concerning an issue not expressly within Congress’s authority, proponents argue that Congress’s power to act on this issue is implied by its express powers. Those who oppose the law disagree, contending that the 10th Amendment supersedes, so the issue must be left to the states or the people. In some cases Congress goes ahead and passes the proposed law. Then someone files suit against it, claiming that the law violates the 10th Amendment. Sometimes the Supreme Court agrees with the opponents and determines that the law is unconstitutional.

Thus the question of constitutional limits on Congress’s power is clearly an issue concerning many of the fixes suggested in this volume. For example, concerning the time when elections take place, Article I Section 4 states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations”. Originally, every state selected the date of the general election as it saw fit, but in 1845 a federal statute fixed the date of the general election as the first Tuesday after the first Monday in November. So Congress clearly has the authority to fix the date of the general election for Congress. But what about the general election for the electoral college? And what about primaries? When the Constitution was written, primary elections did not exist. Some might argue that Congress’s authority to set the date of the general election for Congress implies that it has the authority to also set the dates of primaries. Actually, the Constitution does not distinguish between primary and general elections – it just refers to “elections”.

One solution to the question of federal versus state authority has had some success over the years and could be used as a model for wider application. This solution is the use of block grants in which Congress allocates sums of money to individual states, based on the varying needs of each state. Each state then has the authority to spend the block grant funds as it sees fit within the broad parameters of the purposes of the block grant. Congress has used block grants for education assistance programs (clearly a state matter), healthcare (Medicaid, administered by the states), emergency relief from natural disasters, and infrastructure projects. The federal government can sometimes smooth out differences between the states based on the relative wealth of each state, while in other cases state needs differ widely. Landlocked states do not need money for ports, for example, while other states never suffer earthquakes. In all these cases, governmental assistance may be necessary to give each citizen the right to “life, liberty, and the pursuit of happiness”, but the Feds are not always the best source for that assistance.

Ranked Choice Voting

The Constitution explicitly gives Congress the power to fix the “manner of elections” for Senators and Representatives; and implicitly, Congress probably also has the power to fix the “manner of elections” for president and vice president. While state laws can implement RCV on a state-by-state basis, it would be far preferable, quicker, and more effective for Congress to mandate RCV in all federal elections.

Three rounds of presidential primaries

Because Congress can fix the “manner of elections” for Senators and Representatives, Congress can certainly fix both primary and general election dates for members of Congress. We can debate whether or not Congress has the constitutional authority to mandate primary election dates for president. If Congress adopts a national presidential primary system, the Supreme Court might rule it unconstitutional. Were that to happen, then we would need a constitutional amendment to get to a national presidential primary – but we’re not there yet, so it’s certainly worth a try.

Vice presidential primary and general election separate from the election for president

The original Constitution says very little about the election for vice president, and nothing at all about primary elections for any office. (The only mention of primary elections in the Amendments is in Amendment 24, which barred the poll tax.) Therefore, as in the case of three rounds of presidential primaries, the question is whether Congress has authority to legislate on the topic of the vice presidential primary and general election. Again, it’s worth a try – and if Congress were to establish a primary election for vice president, and separate voting in the general election for president and for vice president, and if the courts then ruled that this law is unconstitutional, then we would need to pass a constitutional amendment to make it happen. But again, we could give it a go, and see whether such a law will be upheld.

Multi-seat Congressional Districts

Congress clearly has the authority to mandate multi-seat Congressional Districts, and having Congress do this is much better than depending on all 50 states to do it individually. As in many electoral reforms, a constitutional amendment might be an even better approach. But also like many suggested electoral reforms, we might learn from the experience of having multi-seat CD’s, and then conclude that that solution produces results as unsatisfactory as the system we have now. In that event, having a federal statute that Congress can modify might be preferable to having a constitutional amendment that is far more difficult to modify.

General solutions to gerrymandering for Congress

The comments about multi-seat CD’s also apply here. Congress can mandate this; a constitutional amendment can solve it more permanently; but if the fix does not work well or leads to other challenges, a federal statute is easier to replace than a constitutional amendment. Perhaps the best approach would be to adopt a federal statute first, try it out for a few election cycles, and then initiate a constitutional amendment when we have determined that this is a good permanent solution.

A compressed election season schedule

Congress can fix the dates of primary and general elections for members of Congress, and probably also for president and vice president – after all, in 1845 Congress mandated the date of the general election for all federal offices as the first Tuesday after the first Monday in November. Congress can choose to adjourn whenever it pleases. Hence, Congress could eliminate the lame duck session of Congress and greatly shorten the transition period for the office of president.

Convenient voting procedures

The argument that Congress has the power to effectuate these reforms is based on the same constitutional provision as other congressional election reforms, namely, the first clause of Article I Section 4, giving Congress the power to determine the manner of holding elections for the Congress. If a federal law in this area is determined not to be constitutional, then a constitutional amendment giving Congress the power to establish such regulations might be in order.

Automatic, universal voter registration

Congress already has the authority to implement laws ensuring the voting rights of all citizens (Amendment 14), regardless of race (Amendment 15), religion (Amendment 1), sex (Amendment 19), or age (for anyone at least 18 years old) (Amendment 26). A federal law providing universal, automatic voter registration for all adult citizens would be a fine way to exercise that authority and would likely pass constitutional muster.  Again, if not, then a constitutional amendment is the alternative.

Campaign finance reform

There are several parts to campaign finance reform, each amenable to different solutions:

  • Concerning campaign contributions, Congress could try to pass new campaign finance reform laws, avoiding the elements that the Supreme Court found unconstitutional.
  • The president, with the advice and consent of the Senate, could appoint new Supreme Court justices, who could overturn the Citizens United
  • Congress could legislate public financing of all federal political campaigns.
Candidates and elected officials: Financial disclosures, transparency, and nepotism

Congress could pass federal laws that require candidates and elected officials to disclose their tax returns and their assets and other financial interests. We already have laws preventing nepotism, but the president is exempt from that law; we should fix that, and make the president and vice president subject to the same law as our legislators. However, it’s unclear whether courts would consider such laws constitutional.

Fixes Through Constitutional Amendments

Some fixes require a constitutional amendment, an exceedingly high bar to pass.

Article V of the Constitution provides two methods for proposing amendments to the Constitution:

  • Congress, by a two-thirds vote in both chambers, can propose an amendment. This is the only method that has been used so far.
  • Two-thirds of the state legislatures can also request Congress to call for a constitutional convention for the purpose of proposing constitutional amendments. This method has not yet been used.

To become part of the Constitution, a proposed amendment must be ratified by three-fourths of the state legislatures or three-fourths of state conventions, whichever mode of ratification is specified by Congress.

Amending the Constitution is difficult. In the 230 years since the Constitutional Convention of 1787, we have only managed to adopt 27 amendments.

A constitutional amendment is a most desirable fix, precisely because it is so difficult to undo; but for exactly the same reason, it is also the most difficult to achieve.

Amending the Constitution

We need to replace the amendment process itself. Though this is not an election system fix per se, its adoption will greatly facilitate the other proposed constitutional changes, including an entirely rewritten constitution. The new article will give to the people the power to 1) initiate and repeal laws and propose constitutional amendments, and 2) approve all proposed constitutional amendments whether originated by the people or by Congress.

Manner of choosing the president

A constitutional amendment to adopt the Local-State-National presidential voting scheme is much better than the Local-State-National Interstate Compact precisely because no state can undo it. An amendment would also eliminate the electoral college and the possibility of sending the presidential election to the House of Representatives.

Chamber of Deputies to replace the US Senate

Even one or more constitutional amendments may not bring about this fix, but clearly the constitutional amendment route or a brand new Constitution are the only fixes available.

Apportion House seats based on voting rather than population

This amendment would provide that the decennial reapportionment of House seats to the several states be based on the average number of votes cast in each state in the two most recent presidential elections (rather than the population of each state, as at present). However, for drawing the boundaries between Congressional Districts within a state, population figures must be used.

Candidates and elected officials: Financial disclosures, transparency, and nepotism

This amendment would require all federal elected officials to disclose their tax returns, their assets and liabilities, and their continuing financial interests. It would also prohibit federal elected officials from hiring, nominating, or appointing any immediate family member to any federal position.

Comprehensive constitutional amendment on electoral reform

For all the electoral reforms proposed in Part II, a single constitutional amendment might be best. The proposed amendment would cover both the principles and the procedures of all federal elections. For safety’s sake, it should also give Congress the power to modify procedures that turned out not to work as intended.

Chances for adoption of this single constitutional amendment concerning elections will be greatly enhanced if we are able to first adopt Amendment NNN, an amendment that

  • empowers people to initiate and repeal laws and to propose constitutional amendments and
  • gives voters the sole power to ratify constitutional amendments.

The single amendment on elections (Amendment XXX below) will

  •   change the basis for reapportioning seats in the House;

  • reconstitute the Senate as the Chamber of Deputies;
  • determine the time, place, and manner of voting for all primary and general elections for all federal offices,
  • require Ranked Choice Voting;
  • require multi-seat Congressional Districts;
  • require an automated redistricting program to draw Congressional District boundaries in every state based only on population and geography;
  • establish the election schedule for all federal primary and general elections, including three rounds of presidential primaries and one National Primary Day;
  • require open primaries, with all candidates for a given office competing against each other in a single primary, without regard to political party;
  • establish uniform, convenient voting procedures throughout the country;
  • establish the rules by which candidates qualify for primary and general elections;
  • establish a vice presidential primary and general election, separate from the election for president;
  • establish the LSN voting scheme for determining the winners of the presidential and vice presidential elections, while eliminating the electoral college;
  • establish a National Voter Registration Authority to provide universal, automatic voter registration and a permanent Voter Identifier for every eligible citizen;
  • remove political parties from all election laws and regulations;
  • allow Congress to modify any election procedure which turn out to have been ill advised.

Fixes Through Cultural Change

Many of the fixes proposed in this paper will only become useful improvements to our democracy when people believe in them and act accordingly. That will require a cultural change. Let me recite a few examples:

  • Ranked Choice Voting only really works if voters mark their ballots with more than one choice for each office. Even if RCV is the legal voting procedure, if few voters vote for more than their 1st choice, then the candidate with a plurality after round 1 will always end up the winner as other candidates are progressively eliminated. So we will need a significant public education effort to encourage voters to understand and use their enhanced voting power.
  • We can establish an official season for electioneering that begins on July 4, but because of our First Amendment freedoms, candidates can say anything they want at any time. Therefore the public’s recourse is to discourage media outlets from giving free coverage to political campaigning outside the approved season, and to punish at the polls those candidates who violate the agreed-upon conventions.
  • Many Americans have become apathetic about politics, disengaged from political discourse altogether. Compared to other Western democracies, America’s voter participation is abysmal. A significant percentage of our fellow citizens have become completely disenchanted with Congress (which garners an 11% approval rating from the public), and we have turned away from the two major political parties: for twenty years, new voters are opting more and more to register as independents, if they even register to vote at all. The various fixes proposed in this paper could motivate uninvolved citizens to re-engage in the political process. When we empower people more than parties, when independents can participate in primaries, when every vote counts, when people see that they can have more opportunities to contribute and more leverage to affect the outcome, then and only then can we entertain the hope that the new cultural norm will favor engagement over apathy.

[1] http://www.baltimoresun.com/news/maryland/politics/blog/bal-senator-proposes-twostate-solution-on-redistricting-reform-20160209-story.html. [Accessed July 25, 2017.]

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