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Looking Ahead to the End of this New Year

Looking Ahead to the End of this New Year

Will the rules, particularly recent changes in the rules, governing elections make a difference in the outcomes next November? Possibilities include the effect of changes in campaign finance laws or the laws governing voter identification and other aspects of the vote-casting process. But something entirely unexpected may upend the best efforts to predict what will happen in this potentially momentous presidential election year.

At this season’s holiday parties friends would say, referring to the upcoming presidential election, “2012 is going to be a big year.” I would agree politely, as undoubtedly 2012 will be an interesting and important year politically. It cannot help but be, given the pressing economic issues facing the nation, and stalemate in Washington, with each side hoping that the electoral verdict in November will somehow break the deadlock in its favor.

But will 2012 be a big year legally, meaning will election law feature prominently in assessments of the significance of political developments at the end of 2012? In other words, next New Year’s Eve will we look back and say that this or that aspect of the legal regime for conducting our elections affected which candidate or party won an important electoral victory?

In some sense, we must hope that election law never determines which side of the electoral contest will win. Ideally, the rules that run the electoral process should favor no candidate or party, but rather simply let the citizenry make whatever authentically democratic choice it wishes. But experts in election law know that this ideal, although undoubtedly compelling in terms of democratic values, is frustratingly elusive in terms of operational reality. Any set of election laws, including the current ones, is likely to give a real or perceived advantage to one side or the other. For example, the constitutional requirement that each state elect the same number of U.S. Senators regardless of population is sometimes thought to give the Republican Party an advantage in its competition with the Democratic Party to win majority control of the Senate, since some of the less populous states in the West (for example, Wyoming and Alaska) are viewed as leaning Republican. (Whether the perception of this structural “bias” toward Republicans is in fact accurate is another matter. One might look at the less populous states in the Northeast, like Vermont, and think that the structural advantage either runs the other way or is at least neutralized.)

For this reason, it makes sense to focus on how any change in election laws might favor one party or another. Whatever the status quo in election law may be, if it is stable the parties can tailor their campaign practices to compete according to those rules. To use a sports analogy, some baseball teams excel more at hitting than pitching, while for other teams it is just the opposite. The particular rules of baseball, like the height of the pitcher’s mound, can affect the balance of competitive power between hitters and pitchers. If the height of the pitcher’s mound remains fixed year after year, teams can decide the degree to which they wish to emphasize hitting or pitching in their effort to win. But if the height of the pitcher’s mound unexpectedly changes—for example, is raised to make it harder for hitters—then teams that have relatively deemphasized pitching compared to hitting are at a sudden disadvantage for the current season (and maybe several more).

Campaign finance

Over the holidays, several acquaintances asked me whether Citizens United would make a difference this year. 2012 is the first presidential election since the Supreme Court’s invalidation of the congressional ban on independent electioneering messages funded from the general treasuries of corporations or labor unions. The Court’s ruling alone might not sway the 2012 presidential election, but Citizens United has taken on a significance much larger than its specific ruling. It is widely seen as a signal that many other restrictions on campaign spending are unconstitutional, and consequently so-called “super PACs” have emerged as a potent force for aggregating limitless amounts of campaign cash from wealthy individuals as well as corporate donors. Still, it seems unlikely that money will determine the outcome of the general presidential election in November. Both Obama and his Republican opponent, whoever that turns out to be, will have enough money to make their cases to the American people, and of course the general presidential election receives enough media attention through the conventions, the organized debates, and otherwise, that the marginal dollar spent by a “super PAC” cannot be expected to cause the defeat of Obama or his opponent. Instead, some slip-up at a debate—like the first President Bush looking at his watch—or simply the direction of the economy in November is much more likely to be a determinative factor.

That said, there are signs that the rise of the “super PACs” may already have been a factor in the Republican primary campaign. Gingrich’s precipitous drop in the polls (after his equally precipitous rise) may have been caused solely by the public’s second thoughts after learning more about his proverbial “baggage,” but some analysts see Gingrich’s decline as caused at least in part by the pummeling he has received from negative ads paid for by pro-Romney “super PAC” money. Whenever the dust finally settles on the Republican presidential nominating process, it will be interesting to see the extent to which the new post-CU campaign finance regime might reasonably be viewed as affecting the choice of the party’s nominee. My guess is that it will turn out to have been a relatively minor factor, at least in comparison to the dates on which particular states hold their primaries—with Florida possibly proving decisive on January 31. Alternatively, the Republican Party’s rule that states holding their primaries before April must not award delegates on a winner-take-all basis might prove to be the predominant factor in determining which candidate eventually wins the nomination.

I will be even more curious to see if we will be able to tell whether this new post-CU campaign finance regime affects the November general elections for U.S. Senate and House seats. Of course, the 2010 elections were held in the aftermath of the Citizens United ruling, which occurred in January of that year, but that November was too soon for the much broader “rise of the super PAC” phenomenon to take hold. Suppose that at the end of 2012 pundits pronounce that Republicans simultaneously took control of the Senate and retained control of the House because of their advantage in “super PAC” money. While that pronouncement might be impossible to verify (or refute), if it became a widely held belief it would not bode well for the health of American democracy.

Voter ID and other vote-casting rules

There has been much talk about the recent efforts of Republican-controlled state legislatures to change the rules governing the casting of ballots in ways that are thought likely to suppress the turnout of Democratic voters. The leading example has been the enactment of more stringent voter identification rules, but another prominent example is the cutback in the number of days available for early voting. In particular, Florida’s new requirement that there be no early voting on the Sunday immediately before Election Day has been decried as a particularly egregious effort to curtail the ability of African-American churches to get their parishioners to the polls after Sunday services. 

It is appropriate to deplore the cynical manipulation of voting rules as a tactic seeking partisan advantage. But we still should be cautious before we attribute a causal connection between such rule changes and the outcome of elections in November. Even if Florida ends up being the decisive swing state in this year’s presidential election, as it was in 2000, and even if statistics show a reduction in African-American turnout this year compared to 2008—and even if that reduced turnout is more than the margin by which Obama loses the state to his Republican challenger—would we be justified in concluding that the changes in the state’s voting rules, including the elimination of early voting on the Sunday before Election Day, caused Obama’s defeat? To be sure, given these assumptions, one would be warranted in saying that the new rules undoubtedly were a significant obstacle or impediment for the Obama campaign to overcome. But there are other ways to get one’s supporters to the polls, and both political parties and local community groups must take on the responsibility for getting their supporters to cast ballots, whatever the voting rules may be, as long as those rules do not categorically disenfranchise adult citizens.

Moreover, Florida’s new law may not survive preclearance under section 5 of the federal Voting Rights Act. There is currently a case before a three-judge federal district court on this issue, and this case in turn may become wrapped up in all the swirling litigation heading to the U.S. Supreme Court on whether the Voting Rights Act’s preclearance requirement remains constitutional almost a half-century after its initial adoption. Indeed, the foremost election law story of 2012 may turn out to be the Supreme Court’s invalidation of the preclearance requirement and the impact of this invalidation on the fall’s elections. But even if the preclearance requirement does fall, one must be careful in assessing the significance of that development. The Voting Rights Act still will contain its section 2 requirements, which bar voting rules with racially discriminatory effects. One inevitably wonders whether Florida’s new voting rules, if they could not survive section 5 preclearance, would be able to survive a section 2 challenge. How the Supreme Court handles such section 2 challenges to new ballot-casting rules may ultimately prove more consequential than any decision on the constitutionality of section 5.

Another major vote-counting controversy?

In 2004 and again in 2008, the question arose whether the presidential election would go into overtime, as it did in 2000. It came close to doing so in 2004, with Ohio just out of reach of a post-election challenge by the Kerry campaign, but not in 2008. 2012 could end up more like 2004 than 2008, and perhaps even more like 2000 than 2004—meaning a margin of about 1000, rather than 100,000, votes in a single swing state on the morning after Election Day.

If this scenario occurs, the laws in place to handle the situation really could make a difference in the outcome of the election. After all, if one believes the media consortium’s analysis of Florida’s ballots in the 2000 election, had Florida used the same recount rules that Minnesota used for the disputed Coleman-Franken U.S. Senate election in 2008—and if Florida had been able to complete this counterfactual recount before the deadline in federal law (a big “if”)—then Gore, not Bush, would have been declared the winner in 2000. Recall that Minnesota’s rules require a manual recount of all ballots in a statewide election, including overvotes as well as undervotes, and that is the only type of recount that would have resulted in a Gore victory according to the media consortium’s analysis. (Of course, Gore never asked for such a recount, and the Florida Supreme Court excluded overvotes from the recount it ordered.)

One hopes that the outcome of the 2012 presidential election does not end up in litigation. But if it does, one hopes that the rules and procedures used to resolve the litigation do not seem as chaotic and arbitrary as they did, at least to some, in 2000. Instead, it would be far preferable if the result were seen as the straightforward application of clear-cut rules and procedures, set forth in state law in advance of Election Day, so that the application of the rules in this instance could not reasonably be viewed as partisan manipulation of the process.

The worst nightmare scenario that one can imagine is that the 2012 presidential election remains disputed all the way into January of 2013, with Congress needing to resolve the dispute, but Congress incapable of doing so because of disputes over the outcome of congressional elections. It has happened in the past that the House of Representatives has been unable to organize itself and elect a Speaker because too many House seats remain unsettled when the House meets for the new session of Congress. For that situation to occur at the same time as a presidential election remains in dispute would be a truly worst-case scenario, one that our existing institutions are not equipped to handle. Fortunately, the likelihood of that nightmare actually occurring is so slight that it is not worth losing sleep over (although it still might be a good idea for Congress to devote some waking hours to adopting new measures designed to handle the contingency if it ever should arise).

A significant third-party presidential candidate?

Finally, it is worth paying attention to the possibility that a third-party candidate could affect the outcome of the presidential election. This situation would not involve a change in the current rules governing presidential elections, but instead would expose a significant flaw in the existing rules. Because of the way the Electoral College works, in a three-way race it is possible for a candidate to win an Electoral College majority (and thus the White House) who was emphatically the least preferred choice of the voters who supported the other two candidates.

Imagine Obama winning less than 40% of the vote, not just nationally, but in each of the states that gives him an Electoral College majority—with his Republican challenger (most likely Romney) and an even more conservative third-party candidate splitting more than 60% of the vote. Had there been some kind of run-off, the Republican clearly would have picked up the third-party candidate’s support to defeat Obama. Or, alternatively, flip this scenario, so that the Republican candidate wins less than 40% in each of the states that gives him an Electoral College majority, with Obama and a moderate third-party candidate splitting over 60% of the vote. Suppose the third-party candidate’s supporters would far prefer Obama to the Republican, and likewise Obama’s supporters would far prefer the third-party candidate. Yet no run-off mechanism exists for these voters to express this clear preference.

In either version of this scenario, it is undesirable—indeed undemocratic—to have a candidate win the White House with less than 40% of the vote in each state that gives the candidate an Electoral College majority. This outcome would be a frustration of popular sovereignty even in a system of government mediated by principles of federalism and the separation of powers. Let us hope that nothing like it occurs this year, even though the possibility of a significant third-party candidacy looms on the horizon. The organization Americans Elect is posed to put a third-party candidate on the ballot in every state in November, and there may be other such efforts depending on how the Republican primary process unfolds.

In principle, a system for electing a president should be designed to permit the input of popular sentiment that such third-party candidacies represent. At the same time, however, the system should be able to channel that sentiment into a democratically majoritarian choice once it becomes evident that a three-way race needs to be narrowed to a choice between the top two finishers. Unfortunately, our existing system for electing the President is not so well-designed. It will be a great shame if at the end of this year we look back regretting that this Achilles’ heel in our existing system proved outcome-determinative and gave us a President that over 60% of voters, both nationally and even in the states he won, emphatically did not want.

The inevitable surprise?

Perhaps none of the above will be the big election law issue of 2012. Perhaps instead there will be a major election law development that occurs unexpectedly. The field of election law is fluid enough that such an occurrence is not a remote possibility. Paradoxically, in this field we should not be surprised by surprise. Still, we should do our best to anticipate and prepare for all significant risks that might prevent the election from being perceived as legitimate and fair. It is in that spirit that I have offered the above prognostications.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile

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