Elections, the Holocaust, and the Senate Debate: Glimpses of Three Law School Events

Glimpses of three important events in recent days at Marquette Law School:

The Wisconsin Elections Commission is less than four months old and so far it has made only two major decisions, each supported by all six members. Will the new body, created to take over the election oversight role previously played by the state’s Government Accountability Board, be a steady and responsible force for conducting elections well and avoid partisan divisions?

During  an “On the Issues with Mike Gousha” program Wednesday (Oct. 26, 2016), two of the leaders of the commission conveyed a message of professionalism and commitment to doing the jobs well . They also expressed general confidence in the quality of election practices in Wisconsin.

But Mark Thomsen, chairman of the commission and a Milwaukee lawyers, and Don Millis, a commissioner who is a lawyer from the Madison area, outlined some of the difficult and controversial issues that they face this fall and beyond, such as handling of voter identification requirements  and early voting, and showed some differences between them that reflect their own partisanship.

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How Did We Get Here?

Part Six of a Six Part series on Election Law, providing context to our system of government, our election process and a little history to evaluate and consider in the candidate-debate.

In an age where the presidential vote is relatively close, a two-party system dominates politics, and the average voter recognizes that voting for an independent/splinter candidate has no real shot at electoral success, is this really what the framers intended in 1787 when drafting the Constitution of the United States?

Doubtful.

Not only was the Electoral College system problematic almost from the moment it left the starting block, but the election process has grown more complicated, more winner-takes-all, and more divisive than perhaps the delegates could ever have imagined.

For instance, in 1797, Ththomas_jefferson_by_rembrandt_peale_1800omas Jefferson, the then-sitting Vice President, wrote a letter to his colleague, Edward Rutledge, in which Jefferson reported that the mood of the nation’s capital had become politically divisive:

“The passions are too high at present, to be cooled in our day. You & I have formerly seen warm debates and high political passions. But gentlemen of different politics would then speak to each other, & separate the business of the Senate from that of society. It is not so now. Men who have been intimate all their lives, cross the streets to avoid meeting, & turn their heads another way, lest they should be obliged to touch their hats. This may do for young men with whom passion is enjoyment. But it is afflicting to peaceable minds. Tranquility is the old man’s milk.” (Jefferson to Rutledge, June 24, 1797, in Jefferson, Papers, 29:456-57.)

Does Jefferson’s report of a political divide — in 1797! — sound familiar when looking at today’s election debate?

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The Teachings of Elections Past

john_quincy_adams_-_copy_of_1843_philip_haas_daguerreotypePart Five of a Six Part series on Election Law, providing context to our system of government, our election process and a little history to evaluate and consider in the candidate-debate.

In the run-up to Election Day, maps of the United States will be colored in as red or blue. This so-called “electoral map” is the focus of all the debate, particularly for the presidency, with pundits asking what color the “swing states” will shade. Of course, the maps don’t show green, purple, or even different tints of red or blue. There are only two colors, red or blue. So why is that?

Without getting too far in the weeds, as it were, and from a political science view, the shading is based on the “winner-takes-all” principle. One party wins and everyone else loses. When a party loses, that party is without representation. Weaker parties are pressured to join a more dominant party in hopes of gaining a voice. This leads to party-dominance. Voters learn that, because of party dominance, voting for a third party candidate is ineffectual to the result, and hence alignment into a two-party race between winners and losers.

And, in terms of the presidency, by devising a system of “electors” as opposed to popular vote, history teaches us that an indirect electoral-election scheme can lead to odd results.

The elections of 1876, 1888, and 2000 produced an Electoral College winner who did not receive at least a plurality of the nationwide popular vote. What did this mean? It meant that in 2000, Al Gore received 543,895 more popular votes than George Bush, yet lost the election. The same was true for Samuel J. Tilden (New York) losing to Rutherford B. Hayes in 1876 and Grover Cleveland (New York), the incumbent President, losing to Benjamin Harrison (Indiana) in 1888.

There is also tie-breaker history. Per the Twelfth Amendment, a candidate must receive an absolute majority of electoral votes (currently 270) to win the presidency. If no candidate receives a majority of electoral votes in the election, the election is determined by the House of Representatives. The House chooses the President from one of the top three presidential electoral vote-winners. (A run-off vote for Vice President belongs to the Senate.)

As to a run-off presidential vote, this has happened only once since 1804.

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