In the national American elections of 2004, the Republican Party led by George W. Bush won a resounding mandate from the public. The fears of many observers, that America would once again face a constitutional crisis, as it had in the presidential elections of 2000, were not realized, as the elections were widely recognized as relatively clear in their outcome. In this way, it was a return to normal politics for the United States. Yet beneath the surface appearance of stability, growing structural tensions in the American electoral system simmered. These systematic problems were present in 2004, and in many cases, showed signs of worsening.

This essay will use the elections of 2004 to expose continuing problems in voting, presidential elections, Congressional districting, and examine possible reforms to the American electoral process.

Voting In America: Rare and Difficult

America has one of the lowest voter turnout rates of any industrialized democracy. The average turnout in American presidential elections hovers around 50%, with the 1992 presidential election at 55% one of the highest in recent memory.[1] Turnout in midterm elections (the even years that are non-presidential) averages around 35%, and turnout in odd years, in which many state and local offices are chosen, is often significantly lower. Turnout in primaries, in which presidential nominees are selected by voters supporting either party, can be as low as 5% of eligible voters.

In 2004, turnout shot upwards, exceeding 60% of eligible voters.[2] This was higher than any American election since 1968, in which 61% of voters participated. Analysts pointed to the heavy emphasis on “get out the vote” by both campaigns and allied groups. Also, the attacks of 9-11, the war in Iraq, the closeness of the contest, and the legacy of the tight 2004 election were all seen as contributing to the spike in turnout.

Yet even the 2004 turnout was lower than turnout in most modern democracies. Why are Americans such poor voters? There are several answers in the political science literature. Perhaps Americans don’t vote because they are not given adequate choices, with only two often inconsistent or indistinguishable parties, as opposed to the more coherent and ideological parties found in many European democracies. Perhaps America has low turnout because Americans are relatively content with the nature of their government and society. These attitudinal explanations are only part of the story; other research points to structural factors to explain America’s low turnout.

First, election day is not a holiday in America. This produces particular strain on voting by hourly wage earners, who often cannot afford to take time off work to vote. Also, registration in America is far from automatic. Registration is handled by each state separately, and most delegate the responsibility to the local government, so each time an American moves, even within the same county or city, they must reregister. While a few states allow same day registration, many do not, so that a voter must decide to participate weeks before an election. States also set different standards for voting, under the broad guidelines of the federal constitution. A few states take away lifetime voting privileges from anyone who has ever been convicted of a felony, so that voting rights differ radically from state to state. There is also a penalty attached to registering in many states: eligibility for jury service. Jurors are typically drawn from the list of registered voters, creating a disincentive to register among the many who view jury duty as an onerous chore.

Yet one additional reason that voters may stay away from the polls is a rather unusual feature of American federalism; our national elections are conducted by local authorities under local rules and procedures. Unlike most other federal systems, the national government delegates to the states the conduct of national elections. In most states, the delegation continues down to the local governments. Each city and county must choose and pay for its own voting equipment. Elections are, in effect, unfunded mandates from the central government to localities. The federal government demands that they be held and sets some broad guidelines for their conduct but does not provide much funding. Thus, particularly in cash strapped localities, American elections are conducted using out-dated and error-prone equipment. The whole world watched in 2000 as Florida engaged in a month long recount process, made far more difficult by the lack of modern voting systems or even common recount standards within one state.

The painful effect of federalism upon American elections was again evident in 2004, with some voters in the decisive state of Ohio standing in line for more than seven hours in order to cast a ballot. Voters in areas that supported Kerry were more likely to wait longer, because those poorer areas had fewer voting machines and staff.[3] Low income areas were simply unprepared for the high turnout. It will remain unknown how many thousands drove past voting sites with lines extending into the rainy outdoors. Low income areas also tend to use voting systems with higher error rates. As many as 90,000 votes in Ohio alone were invalidated, or spoiled. The error rate nationwide may have exceeded the 2000 record of almost two million ballots invalidated, nearly 2% of those cast. Voters in black areas were sometimes ten times as likely to have their votes uncounted.[4]

Several states have tried to make their elections work better through innovative changes, such as mail ballots, advanced voting, and changes in registration laws. But these changes, while encouraging, do not begin to solve the national problem of voting. In some cases, as with California’s confusing ballot changes in 2000, they may discourage voting, by making it more complex.

One further problem with state control of elections is that the majority of states allow partisans to oversee the elections. In 2000 and 2004, the elections in the crucial states (Florida and Ohio) were overseen by Bush supporters. When America advises the Palestinian Authority or the Iraqi Provisional Government on how to run respectable elections, these embryonic democracies are told that it is necessary to separate the administration of the election from partisan politics. But in most American states, that simply doesn’t happen. When recounts and challenges emerge, they are almost always subject to at least the perception, and often the reality, of partisan bias. If elections are increasingly perceived as unfair, fewer Americans will vote.

Another reason for low voter turnout may have to do with the way Americans select the president: the Electoral College.

The Electoral College: Undemocratic Legacy of the Founding

The Electoral College was chosen over a system of direct vote by our founding fathers for two primary reasons: they feared that the large states would dominate a direct vote, and some believed that the masses would lack the judgment to make the choice. Thus, they elected to filter the people’s wishes through a two stage selection process, in which the states would choose presidential electors equal to their states representation in Congress. Whoever wins a majority of the votes in the electoral college becomes president. Although state governments could, if they wished, simply appoint electors to the college as they did in the first presidential election, today all 50 states opt to hold elections, which allocate the electoral vote in each state on a winner take all basis.[5] Because representation in the Senate chamber is not by population, small states have disproportionate power in the College.

Why does this system produce lower voter turnout? First, it encourages candidates to target evenly divided states, since the only thing that counts is winning majorities or pluralities in whole states. Turnout in battleground states increased by more than 6% in 2004, more than double the increase in non-battleground states.[6] While targeting states is as old as the Electoral College, today’s presidential campaigns are much better at it, thanks to extensive public and private polling. In 2004, the two campaigns concentrated on fewer states than ever before, leaving voters in America’s three largest states, California, Texas, and New York, almost entirely out of the election campaign. Residents in non-battleground states were not encouraged to turnout, and many did not.[7]

A final drawback of the Electoral College is that on occasion, the disproportionate power given to the small states produces a winner who lost the popular vote. This happened, of course, in 2000, but also in 1960, 1888, 1876, and 1824. For many Americans, these rare possibilities confirm the fact that their vote doesn’t count. Academic criticism of the Electoral College as well as popular reform proposals continue.[8]

Districting: The Incumbency Protection System

Bush’s strong mandate was also a product of the success of his Republican Party in holding onto both houses of Congress for another term. By 2006, the Republicans will have controlled Congress uninterrupted for twelve years, a modern record for the party. Some have suggested this may reflect a major partisan shift, or realignment, which would mean Republicans have captured a reliable advantage over the Democrats for the foreseeable future. In part, however, the Republican victory, at least in the House, was produced by a growing structural pathology in the American electoral system: districting by computer.

Since the Founding, states have been allowed to determine how their representatives will be selected. Initially, a few states held at-large elections, and the top vote getters received the Congressional seats, without districting. However, very quickly, all states adopted single member districts. Since the Supreme Court mandated population equality among districts in 1964, redistricting has become a battle every ten years in most states when the Census Bureau reports population data. With the aid of computers and advanced map making software, state governments often draw districts crafted to elect or defeat a specific person. The shapes of the districts can be bizarre and need not even be contiguous. Consequently, America has a House of Representatives with almost no competitive seats.

Of the 435 Congressional districts across the country, there were perhaps fifteen races in which an incumbent was seriously threatened by a challenger. Only two Republicans and five Democrats were defeated. Most incumbents in Congress run in districts that have been drawn especially for them, and need fear no challenge so long as they remain scandal free. Incumbent victory becomes almost certain when campaign finance is considered. A modern American congressional race can cost much more than $1 million, and in the decentralized American party system, each challenger is responsible for raising that sum. This is a daunting task under the best circumstances, but given that most of donors know the chance of beating an incumbent is less than 1 in 10, they tend to keep their wallets shut.

The number of incumbents defeated by challengers in 2004 is actually artificially high, because 4 of the Democrats were defeated by redistricting, not by the voters. In Texas, the state Republican Party violated a longstanding norm in American politics and redistricted in the middle of the decade. They redistricted in such a way that four white Texas Democrats were almost destined to lose their seats, ensuring a continuing Republican majority in the House. Thus, the true percentage of incumbents defeated by challengers in 2004 is 3 of 399, or less than 1%, which is a higher reelection race than the reappointment rate of the Soviet Politburo under communism. While there were 36 open seats, in which no incumbent ran for reelection, many of those were also uncompetitive, because they had been drawn to strongly favor a particular party.

In classic democratic theory, the residents of a district would choose their representative. In modern America, representatives increasingly choose their districts, and are almost invincible once in office. This type of calcification of democracy has obvious baleful effects on public policy as well as on voter turnout. In many districts, the incumbent advantage is so great that the opposition party fails to run a challenger at all, leaving the voters entirely without choices. American academics in the 1970s began to worry about the “vanishing marginals” or the declining number of House seats in which a marginal shift in the district vote would have changed the outcome.[9] If the vast majority of seats are safe ones, representatives have very little incentive to respond to public concerns. After the great turn out of incumbents in 1974 and 1994, the worry about marginals declined, but the combination of computers, detailed census data, and highly polarized party politics has produced a highly undemocratic outcome, in which most members of the House of Representatives will be reelected until death or resignation.

Possibilities for Reform

Clearly, America’s electoral woes are substantial: a turnout rate among the lowest in the Western world, disenfranchisement of millions of voters through seven hour voting lines and embarrassingly high vote spoilage rates, recounts that take place under shifting and inconsistent standards, and finally, a reelection rate for the House of Representatives higher than a Communist dictatorship. Can anything be done?

It is important to remember how far American democracy has progressed to get to this point. At the time of the Founding, only the House of Representatives was democratically elected, and even those elections were limited to white males, often only those with property. Through civil war, court rulings, civil unrest, and Congressional actions, the franchise has become almost universal, and the national government much more democratic.

Still, several problems cannot be solved except through constitutional amendment, which is extremely difficulty by design. Thus, the Electoral College is unlikely to be fundamentally altered, as the small states would defeat any lessening of their influence. There is, however, the possibility of a state by state reform in the way each state allocates its votes. The winner-take-all allocation in each state is not mandated by the constitution; two states currently allocate their votes on a district system, in which some possibility of proportional representation exists. In a 2004 state referendum, Colorado also came very close to adopting a proportional representation system for its presidential votes. State by state changes to the allocation of the electoral votes is the only feasible alteration of the Electoral College, but it is unlikely to happen soon because of partisan concerns.

However, broader reform of the voting system could happen through congressional legislation. After the debacle of the 2000 election, Congress passed the Help America Vote Act (HAVA), a faint attempt to address some of the problems shown to the world in Florida. Unfortunately, most of the mandates were voluntary or subject to wide state discretion. Further reforms are still desperately needed.

Can Congress legally go further than HAVA? Opponents point to the constitution, arguing that that states have always run their own elections, subject only to broad guidelines such as non-discrimination. But state control of elections has more to do with tradition than law. While the Constitution gives states the power to set the “time place and manner” of federal elections, it adds that “Congress may at any time by law make or alter such regulations.” What could a bold Congress do with such power?

National registration

State control of registration makes voting much harder than it is in most other countries. If Americans registered once, with the national government, many of the problems with registration would vanish. Additionally, the current system of each state having its own list of registered voters allows for massive fraud. One recent study found that more than 45,000 people were registered in both Florida and New York City, and at least several hundred had voted twice in the same election. National registration would also end the haphazard standards for voting which differ from state to state.

National voting standards and technology

The quality and accuracy of voting technology varies greatly from state to state, and even from county to county. Each time a voter moves to a different address, he might have to learn an entirely new way of voting. Some methods have spoiled ballot rates of over 5%.

By contrast, every Canadian uses the same paper ballot for a federal election. In November, 2000, they hand counted all 13 million ballots in four hours. America should emulate Canada and most other countries and adopt national standards for voting, and national procedures for recounts and challenges. The Congress should also empower the Federal Election Commission to oversee the administration of federal elections, to remove partisan influences.

Districting: The Toughest Nut

Districting for the House of Representatives, like the Electoral College, may be quite difficult to change. While it is not granted explicitly to the states in the Constitution, it is a jealously guarded state power. Two positive events have occurred which may presage positive changes. First, one state, Iowa, has received more and more attention for its non-partisan system of districting. In the 2002 midterm elections, the five Congressional districts of Iowa had four competitive races, which was three more than were present in the fifty three Congressional districts of California. Iowa, unlike the vast majority of states, districts through a non-partisan commission, which designs without regard for protecting incumbents. Other states are beginning to explore such systems, including Arizona. The second reason to hope for districting reform is that California Governor Arnold Schartzenegger has endorsed nonpartisan districting in his state.

The Democratic response in California has been understandably cautious because the partisan stakes are very high. California, despite its Republican governor, leans Democratic as a state. If Democrats district fairly in states they control, while Republicans continue to “gerrymander” (draw lines to help their party) in states they control, Republicans will have an immense advantage in Congressional elections. But at least districting is on the agenda of America’s most populous state.

Can It Happen?

Will any of these changes occur? The potential exists for international embarrassment to play a role. It would be difficult to underestimate the role of international pressure and international embarrassment in the last major change in American elections, when blacks were given the right to vote throughout the country.[10] In 2004, for the first time in history, international observers formally witnessed an American election. While they did not observe fraud or vote stealing, some were stunned by the length of lines and the inefficiencies in the system. There is a possibility as well for a populist wave of disgust against the entrenched incumbents in Congress, similar to the 1994 Republican Revolution which led to the removal of forty years of Democratic control of the House of Representatives.

It would probably be constitutional for Congress to mandate that all states engage in fairer districting. A Republican even proposed a limited version of this legislation in 1989, but such an innovative national intrusion into state legislative power is unlikely in the current Congress. Unfortunately, neither populist rage nor international embarrassment can mass enough political force to cause any of these reforms to be adopted. Thus, for the foreseeable future, the American election system will continue to exhibit these serious flaws. It may take another Florida disaster to encourage necessary reforms.