U.S. defies basic standards of democratic elections

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Image: Erik (HASH) Hersman/Flickr

The current U.S. election, which reaches its apogee on Tuesday, November 3, transfixes Canadians like no other before it.

We have our own huge challenges here, not the least of which is the surging pandemic, which continues to wreak its most grievous harm on those least able to defend themselves, and the many unresolved issues with Indigenous rights.

But the spectacle south of the border is so frightful most of us have trouble turning our eyes away.

One aspect of the chaotic U.S. electoral process that is entirely foreign to Canadians is the sight of long lines at voting places. We have seen news accounts and television images of people waiting up to 10 hours to vote in the advance polls.

This Canadian reporter has been voting since 1966, in scores of federal, provincial and municipal elections, in two provinces and one territory, and cannot remember ever waiting even as long as half an hour. Perhaps there are readers who have had different experiences.

Long lines and hours of waiting seem to be a perennial fact of life for many Americans. But they are only one symptom of a system so deeply flawed, in so many respects, that it is hard to even describe the U.S. as a democracy.

Canada has its own dodgy history

Now, to be fair, here in Canada we are hardly a perfect model of electoral democracy.

When some, but not all, Canadian women were first granted the right to vote, during the First World War, it was only a sub-group: nurses serving in the military and relatives of soldiers. It took decades before all women got the right to vote, federally and in all provinces. In the case of Quebec, that only happened in 1940.

Most Indigenous people were denied the right to vote until the early 1960s, and it was not until the early 2000s that incarcerated Canadians got the right to vote under the Charter of Rights and Freedoms, and only after long court battles. 

Even the universal right to vote prior to election day, or the right to get oneself onto the voters' list on election day only came in recent times, in the years following the adoption of the Canadian Charter of Rights and Freedoms in 1982.

And progress in defending and enhancing the right to vote has not been consistent in Canada. At least one recent government openly sought to make it difficult to vote. That was the government of Conservative Stephen Harper, with its notorious and oxymoronically named Fair Elections Act.

Harper's minister of democratic reform, Pierre Poilievre, who now portrays himself as a champion of integrity and ethics in government, shepherded that piece of legislation through Parliament. In the process, he openly attacked the integrity of the non-partisan chief electoral officer, while putting barriers in the way of the young, the poor, the disabled and Indigenous people.

The Justin Trudeau Liberals have rolled back most of Poilievre's law's most odious provisions.

And so, we continue to have a widely respected, properly financed, entirely non-political institution to manage the entire electoral process, federally: Elections Canada. The provinces have similar electoral bodies, completely separate from partisan politics.

The story in the U.S. is completely different.

In the U.S. each state government runs all elections within its own borders, largely as it sees fit, and that includes elections to federal offices. There is no neutral, non-partisan "Elections U.S.A," on the model of our Elections Canada, or the similar bodies that exist in many other countries, such as Germany and the U.K.

Effectively, there are 51 elections going on now in the U.S., one for each state and the capital district, Washington, D.C.

In Canada, as in many other federal democracies, we hold separate elections for federal, provincial and local elections. In the U.S., when they go to the polls, voters have to fill out long ballots that can include state legislators and other state and local offices, in addition to members of the federal house of representatives, senators and the president.

Different rules for different states

The web site fivethirtyeight.com, which analyzes and aggregates polls and provides other election-related information, published an article on how to vote in each of the 50 states and the District of Columbia. Have a look. You will see that no two states have the same rules.

Some have generous early voting provisions; some have none at all. Some states mail absentee ballots to all voters; some do so to only some of the voters; and some mail out none at all. And the rules for voting by mail vary widely, with some states allowing anyone to do so and some only giving mail-in ballots to voters with valid reasons (and the pandemic is not one of them).

 The states even get to control who gets to vote. Take the case of incarcerated people.

A small number of states (two plus the District of Columbia) follow the Canadian model and allow people serving jail time to vote even while they are incarcerated. Sixteen others only deprive prisoners of the right to vote while they are behind bars, but restore it once they have served their time.

In 21 others, released prisoners can be deprived of their right for a certain amount of time following their release, while in 11 states people who serve time for certain crimes are deprived of the right to vote for life.

A referendum in Florida restored the voting rights of so-called felons following their release from prison. Then the Republican state government turned around and imposed new conditions on those citizens, effectively blocking most from voting: it deemed that before they could vote people who had spent time in prison had to pay all outstanding fees and fines.

To make matters worse, the state admits that it does not know, in a great many cases, exactly what that figure is.

Florida is one of the key battleground states in the current election.

Voters must get themselves registered; foxes run the electoral henhouse

On a more mundane level, almost all well-established electoral democracies assure that people eligible to vote get onto the voters' list.

We Canadians do not have to truck down to a local government office and register to vote. Elections Canada takes care of that for us. Parallel provincial agencies take care of the lists for the provinces and municipalities.

And if, on the day of a federal election, we are, for some reason, not on the list, Elections Canada bends over backward to make sure we can vote, making it easy to get on the list, even on the day of the election.

The de facto principle in the U.S. seems to be that it is a privilege rather than a right to vote.

U.S. citizens must take personal initiative to register with local or state offices, sometimes in person. It can be a time-consuming experience, and acts as a barrier to voting for the poor, the young and minority populations. And many states impose stringent time constraints on the registration process. In some, if you are not registered as much as a month before the election you're out of luck.

The U.S. is also an outlier in the way it puts the foxes in charge of the electoral henhouse. The entire election process is not run by non-partisan, disinterested, neutral officials. It is run by partisan political office holders and officials, who have a keen interest in the outcome.

Elected state officials even have the exclusive power to draw the boundaries of all electoral districts, state and federal, and, in many states, they have flagrantly abused their power. Gerrymandering, the creative drawing of district boundaries to favour one party has become a way of life in the U.S.

Until not too long ago, local officials in the former slave states would use their power to effectively deprive Black citizens of the right to vote. They imposed taxes or fees on African-Americans who sought to vote, or subjected them to so-called "literacy tests," which many would inevitably fail.

The Voting Rights Act of 1965 was designed to get rid of these abuses, and it succeeded in doing so, over time. In 2013 the Supreme Court gutted that act. The right-wing majority, led by the late Justice Antonin Scalia, claimed the act unfairly targeted Southern states. At the time, Scalia's colleague Ruth Bader Ginsburg said, famously, the changes were "like throwing away your umbrella in a rainstorm because you are not getting wet."

These days, U.S. politicians (mostly Republicans) resort to a wide variety of voter suppression tactics, some of which started to creep north to Canada during Harper's rule. Penney Kome has reported on all this, and the resistance to it, in the pages of rabble.

Popular democracy is not the aim

Fundamentally, those who wrote the U.S. Constitution more than two centuries ago did not conceive of the process for choosing president as an exercise in popular democracy.

They designed the system so that the state governments, rather than the citizens, decided who should be the chief executive of the federal government.

That's why they created an electoral college, with representatives from each state, which, legally, determines who shall be president. Each state gets a number of electors equal to its total number of representatives in the two bodies of congress, the House of Representatives and the Senate.

House membership is roughly proportional to population. California, the most populous state with about 40 million people, gets 52 house members. Small states, such as Wyoming, with fewer that 600,000 people, get only one. But every state, regardless of population, has two senators, which means every state gets a minimum of three electors.

As an aside, it is worth noting that back in the 18th century, when the founders designed the system, the slave states wanted credit, in calculating their allotment of house representatives, for their slave population, which was as high as 40 per cent in some states.

The constitution thus determined that a Black slave counts as three fifths of a human being, when determining state populations. Slaves did not get three fifths of a vote each, however.

When the results are tallied in the current U.S. election all of the states, save two, will assign all of their electors to the candidate who wins that largest number of votes. The two exceptions are Maine and Nebraska, which assign some of their electors on the basis of the vote in each house district.

It does not help Joe Biden to win huge margins of victory, which he is sure to do, in California or New York state or Illinois. He also will have to win other states, where the election will be much closer. And, as in our first-past-the-post system, winning the popular vote does not guarantee winning the election in the U.S.

Prior to the era of universal suffrage, it was not entirely unusual for candidates to win the presidency without winning the popular vote. That was the case, in the 19th century, for John Quincy Adams or Rutherford Hayes, for instance.

In the 20th century, however, the winner of the popular vote always won the election. Then, starting in 2000, that changed.

George W. Bush defeated Al Gore despite losing the popular vote, albeit by a small margin. Four years ago, however, Hillary Clinton won the popular vote by almost two per cent, or nearly three million votes. Donald Trump still won the election, mostly by winning narrow victories in a number of states. Notable among those were three states that border the great lakes: Pennsylvania, Michigan and Wisconsin.

In fact, the Republican candidate has only won the popular vote in one presidential election, since 1992, the election of 2004. For Republicans, the goal has become to win by gaming the system rather than appealing a broad segment of the population.

As we watch the election results, we should be mindful of a potential repeat of 2000 or 2016, where the Republicans thread the needle and win the electoral votes in just enough states to carry the electoral college, while losing the overall vote count.

Despite the opinion polls, it remains a scary possibility.

Editor's note, October 30, 2020: A previous version of this story misnamed John Quincy Adams and Rutherford Hayes. They are John Quincy Adams and Rutherford Hayes, not "John Quincy" and "Adams Rutherford Hayes." The story has been corrected.

Karl Nerenberg has been a journalist and filmmaker for more than 25 years. He is rabble's politics reporter.

Image: Erik (HASH) Hersman/Flickr

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