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Elevating the Level of Participation in American Presidential Elections

-- By JonathanWaisnor - 17 Feb 2010

The Current Structure of Voting Causes Problems for American Republicanism

The oft repeated goal of the American voting system is to provide each citizen an equal opportunity to elect his representatives. In almost every election, no matter the winner or loser, both candidates make a point to tout the success of the electoral system and how it stands for everything quintessentially American, freedom, choice, democracy. But a quick look at our voting system when compared to the other liberal democracies of Western Europe tells a different tale. Voter turnout and registration in the United States remains comparatively lower than that of other Western democracies. Even in the most hotly contested presidential elections, turnout among the voting eligible population hovers around 60% (55% if you count the almost 10 million voting ineligible), and in legislative elections with no presidential vote, turnout is around 40%. Given the amount of media coverage around a Presidential election, this seems a strange phenomenon. Western Europe, by contrast, has voter turnout between 75-80%.

Sometimes, candidates who win the popular vote do not win the Presidency, as we saw in 2000. Results like these only encourage political parties to pursue a strategy of total war in 10 or 12 states, while ignoring states they consider lost causes or easy wins. Identity politics, where candidates compete to lock down specific voting blocs, is commonplace. Additionally, the system disenfranchises voters in states considered solidly in one camp or another.

Historical Underpinnings of American Electoral Institutions

The current system has its roots in pre-colonial norms and practices. The Electoral College was created at a time when people did not cast direct votes for president. The Founders did not trust the mass of people to vote for the Executive. The vote was extended to poor white males, blacks, women, and voters between the ages of 21. Despite the names on the ballot being for presidential candidates, voters today still vote for slates of electors, who are technically free to cast their ballots for any presidential candidate they choose, although some laws exist to punish so-called "faithless electors." By federal statute, Election Day is set for the Tuesday after the first Monday in November. In pre-industrial American society, multiples days were required for travel to and from the polls, so voters were expected to attend church on the Sabbath, travel on Monday, and vote on Tuesday.

The Modern System Must Adapt

Our modern system suffers from neither of these problems. Tuesday is now part of the traditional 40-hour, 9-5 day work week. If polls open at 8 and close at 8, that insures people will be shunted into two time slots, before work and after work. Many Americans do not work where they are registered to vote. We no longer publicly hold a view that it is unwise for the people to elect their executive.

Possible Solutions to Increase Voter Turnout and Create a More Equitable Voting System

Move Election Day

Low voter turnout cannot only be explained by an Electoral College system that encourages concentrating attention and resources on a few "battleground" states. Even in states like Pennsylvania, New Hampshire, Florida, and Ohio, turnout rarely reaches over 70%. Additionally, turnout is lowest among members of the poor and working class, and highest among the rich. The problem of how to increase voter turnout on days when people are expected to go to work and take their children to school is a not a new one, and the solution is simple, either move Election Day to the first Saturday in November, make it a national holiday, or do both.

Introduce Same-Day or Automatic Registration

Same day registration, where voters can register at the polls, has long been opposed on the ground that it will encourage voter fraud and increase lines and waits at polling places. A system of automatic national voter registration, similar to the Selective Service System, would be the easiest solution. This has already been used in Europe with very successful results. Perhaps something in the American psyche, such as the struggle many groups have had to gain the franchise, caused a idea that anyone wishing to vote needs to do more than simply "show up." Voter registration is the province of state governments, and so any solution here will need to be instituted state-by-state, or by Constitutional amendment.

Abolish or Neuter the Electoral College

The proposal that would engender the most criticism would involve eliminating the Electoral College entirely through a constitutional amendment, or convincing enough states to sign a compact awarding all of their votes to the popular vote winner. A few states have already passed laws requiring the electors to cast their ballots for the winner of the presidential popular vote, and once enough states pass these laws The Electoral College is a long-standing institution in American politics, and one that has served its purpose. Meant to protect the interest of smaller states, today it disenfranchises individual voters of both major parties and third parties. Candidates for president love Massachusetts and Texas donors, but would trade two Massachusetts or Texas votes for every Pennsylvania or Florida vote. Money flows from wealthier states into battleground states, and campaign volunteers are in high demand, leading to a reliance on the party's base, not as voters, but as a pool of labor for volunteering.

Elimination of the electoral college entirely would push candidates to squeeze every last vote out of states.

The Interests Opposed to a Creation of the New System

These solutions seem simple enough, and only the elimination of the Electoral College entirely would require a Constitutional amendment. Given the recent problems with the voting system, change should be self-evident, but much of the focus is on campaign finance reform.

How the War Will be Fought

The weapons in the battle for voting reform will be words and op-ed pieces. The rhetoric used by the interests in power will appeal to voters' sense of patriotism, history, tradition, and individualism. There will be appeals to the Founding Fathers "if the Electoral College was good enough for them, why isn't it good enough for you?" and to the mythical "good voter,": "if someone can't take an hour to go register to vote, or spend their lunch break at the booth, why should we change what the good voters have been successful at for so long? If they don't want a say in the government, forget them." This rhetoric, however, is no different than the rhetoric used to stifle change at every opportunity. What will allow for real voting reform is to understand and defeat the interests who have no reason to change the current system.

The National Parties

The national parties have been fighting the same election battles in the same states for 25 years. These battles are familiar and easy for them- they need to tailor their messages to independent voters in a few key states. In a true popular vote, however, the side that wins will not only need to convince independents, but also increase turnout among voters in high-population states or states where they have a strong base that does not vote. This will require many different messages, tailored to different

The Media

The Battleground States

Social Control Through the Imposition of Choices Between Rights

America Can Be Divided Into Three Major Classes, But All Americans Desire Security

American society consists of three broadly defined socioeconomic groups, although there are recognized divisions within those groups, such as the "upper-middle class". The first group is the upper-class. These are Americans who have achieved such a level of wealth that they can guarantee themselves and their families security, not only for the duration of their lives, but for some generations afterward. The middle class is a group that, if they maintain their current standard of living, will have security for the rest of that individuals life, and may be able to leave some for their children. The lower-class has no security.

Security is a nebulous term that includes more than simply wealth, although wealth is a sizeable component. Security also includes opportunity (the ability for one and one's children to increase the amount of security they have through education, a career with advancement potential), physical safety, membership in a stable community, participation in the dominant cultural institutions, and the option to adopt the values and morals of the dominant culture because your group has contributed in some way to that culture. With some exceptions, most Americans desire security over anything else.

Historically, the upper-class have had a near monopoly on security. The lower-class, who greatly outnumber the upper-class, have had little to none. Examples of the lower class include Native Americans, convicts, impoverished people (both urban and rural), recent unskilled immigrants, and poor blacks in the era of Reconstruction. The middle-class, who outnumber even the poor, have had partial, but never full, security. The middle class cuts across racial and gender lines.

Security is Guaranteed Through Rights, and Laws Recognize Those Rights

The three classes of rights that improve one's access to security are, in no order of preference, economic/physical protection, civil/political participation, and cultural/social input. Economic/physical protection means, among other things, safety from government-imposed violence or violence perpetrated because of a lack of effective government, providing one's family with a comfortable standard of living that includes non-essential items and access to a decent education. Civil/political participation is the ability to donate to candidates, speak freely, assemble, vote, and become a member of civic organizations that increase one's political influence. Culture/social input means having the values of your group influence the dominant values and morals of the wider culture.

Traditionally, the wealthy have controlled all three of these classes of rights. The rich continue to get richer, and even during the high-taxation years preceding Ronald Reagan were able to afford residency in sheltered communities, safe from the physical violence of the streets and the hopelessness of urban schools. Unless a member of the upper-class falls into an otherwise socially despised group, such as Communists, participation in the political process is also guaranteed. Finally, the upper-class are largely responsible for creating two of the dominant mythical culture figures in modern American society, the American businessman (an extension of the frontiersman of old) and the nuclear family (with the individual role of husband/provider, mother/caretaker, and children so specifically defined). These mythologies ultimately benefit the wealthy in terms of encouraging social stability, increased consumption, and a bias against government being used to engineer more security.

The poor have none of these rights. For example, poor blacks during segregation could be beaten and killed at the whim of the majority, lived in abject poverty, had no input into the political system, and were vilified and negatively stereotyped by the dominant culture. Control is established by the upper-class, unconsciously, by offering the middle class a choice between classes of rights. That is to say, the middle-class will always face a choice between having some of the pie or none of it, without any consideration to whether they or the poor might be able to have it all. The one idea that must exist for this system to survive is that enjoyment of all these rights by all people is impossible, and that using government to establish rights for the lower class would involve permanently reducing the rights of the middle and upper classes.

The Realization That Such a Choice is a False One Spurs Social Change

To continue with the Civil Rights movement analogy, middle-class blacks had some measure of economic protection, in that they had jobs, houses, sometimes even businesses. Within their communities, they had civic organizations and a culture and value system all their own. However, these existed outside of the dominant culture, and the expectation was that blacks would accept the cultural role created for them by whites. Like many groups, they were allowed to maintain their own separate spheres, as long as those spheres did not impact the dominant ones. If the middle-class blacks chose to strive for full rights, they would be risking what little they had (their economic and physical security). The leaders of the movement needed the middle-class blacks, who had community ties and organizations, time and money, and a veneer of respectability. Rosa Parks, a middle-class, married, upstanding woman, was chosen as the figurehead, and Claudette Colvin, a poor, undereducated, pregnant teenager, was not, partly because of the need to have someone that middle-class blacks could rally around. The movement succeeded when these middle-class blacks risked losing their physical/economic protection, after they were convinced that the "choice" being presented to them was inherently unjust.

Other marginalized groups, such as women, laborers, draftees, all have faced similar choices. Today, this choice is presented to people defaulting on their mortgages. These people are sacrificing their economic protection in order to continue to fit into the cultural definition, established by the wealthy, of the provider who owns his own home, successfully manages his "castle", and always pays his debts. The interesting role of the law in these situations is not what the law protects, but where it does not extend. The question that it is not in the interests of the upper class to ask is this: is it possible to use the law to fashion a society where all three groups have guarantees of these rights.

Idea 2

We are exposed to the law during our first year of law school as a series of legal battles fought in appellate courts. We are given these battles in casebooks, which are collections of cases arranged in an order the author feels best highlights the evolution of law he wants first-year students to learn. Although some cases warrant greater exposition by the casebook author, we are mostly given unedited opinions, with the facts filtered through the pen of the judge. At the end, one side wins, the judgment is affirmed or reversed, the law expands or contracts, and the outlines grow. This system gives us no context or understanding of the concerns involved. We may get a brief procedural history, but we won't learn what happened before someone walked into a law office, who the counsel were for the parties, how events in a court of law changed the lives of everyone involved.

This method of teaching has many effects on a first-year student, but this paper concentrates on the emphasis on legal reasoning- the process the judge followed to reach his conclusions, as described in the text of the opinion. We dissect the opinions, sometimes line by line, and, although we may not agree with the conclusion, generally believe that the or holding follows logically from the line of reasoning. On the exam, we are evaluated not only on our knowledge of the rules, but on our legal analysis. So-called policy considerations are considered optional, something to include at the end of the essay as long as you have spotted and fully analyzed all the issues.

This way of thinking about the law is necessary because this is how these particular legal battles are fought and need to be fought in order to maintain the myth that the law exists independently of human concerns. Like Moglen's young Constitutional Law professor said, we must learn the wrong way before the right way, and that is so we do not make the mistake of not taking this myth seriously enough and being bad lawyers. Law students must learn legal reasoning as the basis for law because that is all law students are prepared to do once they become lawyers.

However, this method of teaching creates a certain picture of the law that influences the development of students as lawyers- that is, they do not learn to fight wars. They do not learn, for example, how the losing side in a case could have avoided the negative decision by not ending up in court or found a way to fight another battle- this time on more favorable legal group. This might be acceptable, if law students were expected to go out into the profession and learn to fight battles as steps to learning how to fight wars. However, law students are not able to do this, because they are very quickly offered positions with mercenary companies in which they will fight a never-ending series of battles for masters they do not choose. These companies are called law firms.

Wars are fought by lawyers (and people) on crusades. They involve much more than effective legal reasoning. Some lawyers must meticulously plan their wars, because they know that the opposing side is better entrenched or has more money or friends in higher places. Lawyers can be both generals and soldiers in these wars, or can be one or the other. A war, however, might involve other actors than lawyers. It might involve politicians, consultants, public relations, the media. It might involve setbacks or sacrifice on the road to overall victory. It might be fine to lose a battle in order to avoid losing an even bigger one down the road.

Law firms have no interest in associates who can fight wars. Fighting wars is for lawyers with causes- and the law firm's cause is the self-perpetuation. Law firms enter the picture when war is on the horizon or already afoot, when one side needs a top litigator to argue in appellate court or Skadden Arps to flood some poor small-town practitioner with discovery motions. Law firms are paid a lot of money to do this, and they train their young warriors accordingly.

But what happens when those clients- usually the great corporations of American capitalism- decide that they would rather have lawyers who fight for their cause, or at least that hiring mercenaries who only know how to fight battles isn't enough. The great cities of medieval Italy learned the hard way that mercenaries almost never came as advertised, exorted money, ran from fights they couldn't win, and sometimes stormed the very cities that hired them. When it became viable to train and equip professional armies, the mercenaries lost work or were relegated to work too menial for the professional armies of citizen-soldiers.

This is the crisis that law schools will face, and the one that might precipitate the greatest change in how America teaches its lawyers. Activism by the students or change initiated by the faculty may be both impractical or ineffective in the face of external pressure. What will drive change in law school is the death of the mercenary system in favor of lawyers who are professional soldiers for their cause. To succeed in this era, law students will then need to learn not only how to fight the battles, but how to fight the wars.

Most law students came to law school to fight wars, although, except for perhaps a few, they had very little experience in how to do this. They thought that law school would equip them with the tools and strategies to fight wars, which would include winning battles, and might even involve being a mercenary for a few years. They quickly learn that unless they have a crusade picked out in their first-year of law school, they will be branded as mercenaries and won't be thought of in the same way as the members of the "Public Interest Holy Order". So they go to the mercenaries, who offer them easily obtained employment at an excellent rate.

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