Elections in 2020 -- post by Paul Smith

One key topic as we look forward to a revised constitutional system in 16 years is whether and how to reform the basic mechanics of our democracy. Although Americans often claim to live in the world's greatest democracy, the reality is arguably quite different. In this immediate aftermath of the election, it is natural to start with the Electoral College. As everyone knows, that institution carries with it the ever-present risk that we will again elect a President who received fewer votes than an opponent. Moreover, at least in our current world, it is difficult to conjure up a justification for preferring the candidate who won a majority of electoral votes in state-by-state winner-take-all contests, when that candidate received fewer popular votes overall. But the problems with the Electoral College go beyond this "trainwreck" issue. The Electoral College can be viewed as anti-democratic in every election because it focuses all of the communications with voters and all of the get-out-the-vote efforts on a few states.

And, at the most practical level, given the rickety nature of our systems of registering, casting and counting votes, the College is highly undesirable because it vastly increases the chances that imperfections in these systems will affect the outcome as they did in 2000, leading to litigation festivals. Enormous time and effort was devoted this year by both campaigns to preparing for the post-election legal fight. It is highly unlikely that anything like these efforts would have occurred without the Electoral College and its effect of increasing the chances of an election too close to be viewed as fair by all. But the preparations made sense, because the entire 2000 scenario came very close to repeating itself in Ohio. Finally,
we now face the prospect of state-by-state modification of the winner-take-all systems for selecting electors, as almost occurred in Colorado. This process would introduce new opportunities for partisan manipulation of the outcome, taking us further from a defensibly democratic system.

Then there is the system for selecting members of the House of Representatives and state legislatures. The use of winner-take-all single-member districts drawn by politicians has led to a quarter century of litigation over how to maintain fairness to racial minorities without going too far -- a discussion that will continue in the coming years as Congress considers renewing section 5 of the Voting Rights Act. The courts have been much less helpful in regulating the use of district lines to guarantee majority control to a particular political party, even if that party receives a minority of votes statewide. It thus seems quite likely that we will see mounting efforts to promote non-partisan methods for drawing district lines that hopefully can reduce gerrymandering, as well as increasing interest in alternative voting systems for legislatures.

Finally, there are the possibly intractable problems of trying to find the right balance between freedom of speech and regulation of the campaign finance system designed to prevent distortion of the marketplace of ideas in favor of those with money and access to the media. After 2004, with the advent of the Internet as a potent political force, the nature of that calculation may have shifted substantially. Who knows how it will look in 2020?

-- Paul Smith